Disclosure during Civil Proceedings

Documents which are part of a civil claim

Disclosure aims to ensure that all the parties to a civil claim are aware of all the documents that have a bearing on the claim.

What is meant by a document?

A document is defined by the Civil Procedure Rules as anything in which information of any description is recorded. This means that a document will not be confined to paper and will be include pictures, emails, mobile phone texts, social networking messages, video-clips, and other similar material. Copy in relation to a document means anything onto which information recorded in the document has been copied by whatever means whether directly or indirectly.

What is meant by disclosure?

Disclosure is the formal process whereby parties to a civil claim provide each other with a list of the documents they have which are material to the issues in the claim. They must then arrange inspection by the other party of any relevant material, or claim some right or duty to withhold inspection.
There are two different ways in which disclosure will take place. These are:

  • standard disclosure;
  • specific disclosure or inspection.

Standard disclosure

An individual has a duty to disclosure certain documents under a standard disclosure. These are:

  • the documents on which that person relies;
  • the documents which:
    • adversely affect his own case;
    • adversely affect another party’s case;
    • support another party’s case;
  • the documents he is required to disclose by a relevant practice direction.

All relevant documents in your control must be disclosed including those:

  • that you now have;
  • that you have had;
  • that are held by someone else who would be obligated to give them to you or let you inspect them or have copies of them if asked;
  • that were held by such a person.

The duty to disclose documents is limited to documents that are, or have been, under your control, which includes documents of which you have or had a right to possession.
Disclosable documents that you may have must be actively searched for, though you may limit your search to what is reasonable.

The procedure for a standard disclosure starts with each party making a list of documents in the relevant practice form to be served on the other party. The list must indicate all documents on which the party will be relying in a convenient and concise manner. The list must also indicate:

  • those documents in respect of which the party claims a right or duty to withhold inspection (eg, if it is legally privileged or disclosure would damage the public interest);
  • those documents which are no longer in the party’s control;
  • an explanation of what has happened to those documents.

Disclosure statement

The list must also include a disclosure statement. This is a statement made by the party who is disclosing the documents which:

  • sets out the extent of the search that has been made to locate certain documents which he is required to disclose;
  • certifies that the person understands the duty to disclose documents;
  • certifies that to the best of his knowledge he had carried out that duty.

Right of inspection

When a list of documents has been provided, the other party will have a right to inspect any of the documents except:

  • where the document is no longer in control of the person who disclosed it;
  • the party disclosing the document has a right or a duty to withhold inspection of it;
  • where a party considers it would be disproportionate to the issues in the case to allow inspection of that document.

Specific disclosure or inspection

Specific disclosure or inspection deals with the situation where the court makes an order for specific documents to be inspected. This will often be on the application of one party who feels that the disclosure they have been given is inadequate.

An order for specific disclosure is an order that a party must:

  • disclose documents or classes of documents specified in the order;
  • carry out a search to the extent specified in the order;
  • disclose any documents located as a result of that search.

An order for specific inspection under is an order that a party permit inspection of a document.

The right to inspect a document

Either through a standard disclosure of a specific disclosure or inspection each of the parties has the right to inspect the documents disclosed.

To what does this right extend to?

Where a party to a civil proceeding has a right to inspect a document:

  • that party must give the party who made the disclosure of the document written notice of his duty to inspect it;
  • the party who disclosed the document must permit inspection not more than seven days after the date on which he received the notice;
  • that party may request a copy of the document, if he also undertakes to pay reasonable copying costs. The party must then supply him with a copy not more than seven days after the date on which he received the request .

A party will not be allowed to rely on any document which s/he fails to disclose or in respect of which s/he fails to permit inspection unless the court gives permission.