“Never anything can be amiss, when simpleness and duty tender it”
William Shakespeare (from A Midsummer Night’s Dream)
Disputes : Documents and Disclosure
Preface
The eloquent sentiments of this quotation from England’s finest Bard might properly inform that approach on possibly the most important aspect and burdensome of legal tasks: the duty to disclose material for the purposes of Court proceedings and trial.
That duty cannot be understated. Written information or communications passing between parties (when none had in their contemplation the prospect of Court action) may properly be deployed either to corroborate their case or give the lie to accounts later asserted of what was done or said, as the case may be.
It is no exaggeration to say that a single piece of paper or a particular category of document may be of such import crucially to affect the outcome of an expensive and complex trial.
What follows is a summary of certain essentials which will inform the duty to give full and proper disclosure of documents relevant to a case before the Courts.
- Disclosure and Inspection
This is the process whereby a party to a civil dispute discloses to all other parties the existence of documents which they have (or had) in their control being documents:
(1) on which they rely
(2) which adversely affect their case or another party’s case, or
(3) which support any other party’s case.
This is known as “standard disclosure” and is governed by Part 31 of the English Civil Procedure Rules (CPR).
Standard disclosure normally takes the form of a list of documents. This can be by way of hard copy or electronic disclosure.
Inspection is the provision of copies of the documents disclosed to all other parties on their request.
The term document is construed widely. It means anything in which information of any description is recorded.
2. The extent of disclosure
The process of disclosure is not automatic. The Court will usually regulate it when giving directions. However, the parties are free to agree a framework for disclosure if need be and even, where circumstances properly permit, to dispense with the process entirely.
3. Pre-Action disclosure
It would be remiss not to mention Part 31.6 of the Civil Procedure Rules (CPR) which vest in the Court a discretion to direct a party to a civil dispute (before legal proceedings have started) to produce documents beforehand. The Court may be persuaded to make an Order for what is known as pre-trial disclosure if it is satisfied that this is desirable in order to:
(1) dispose fairly of the anticipated legal proceedings; or
(2) assist resolution (and thus avoid the risk or prospect of a Court action); or
(3) save costs.
If an Order is made under these provisions it must specify the documents or categories to be disclosed and require the party ordered so to do to specify any documents no longer under that party’s control or if a right or duty to withhold from inspection is asserted.
The party applying needs to show that the party (from whom disclosure is sought) is a likely party to the proceedings. If the Court is so satisfied, standard disclosure is ordered.
4. A party’s rights to inspect
A party to whom a document has been discussed has the right to inspect that document. There are exceptions. These are:-
(1) where the document is no longer in the control of the party disclosing it;
(2) where the party disclosing the document has a right or duty to withhold it from inspection;
(3) where disclosure might prove disproportionate to the questions in dispute, or
(4) where disclosure arises from mediation of certain cross-border disputes.
5. Documents no longer in a party’s control
The reported case of Catt v. Church of Scientology Religious College Inc [2001] CPM Rep 41 is an instance where the Court refused to make an Order for inspection on the grounds that various Reports disclosed by the Defendants had been sent to the Mother Church – a separate legal entity in the United States of America – and accordingly the Defendants had no further right to possession of them.
6. Continuing duty
When it comes to listing documents for disclosure, no party is required to speculate in any way as to the likely development of the case or on what documents “could” or “might” affect the case or its outcome. On the other hand, all parties remain under a continuing obligation to provide disclosure of important documents which satisfy those criteria set out at paragraph 2 hereof.
7. Purpose
Documents which relate solely to cross-examination of a party as to their credit (in other words, whether their evidence is likely to be believed) fall outside the ambit of standard disclosure: Favor Easy Management Limited v. Wu [2010] EWCA Civ. 1630. Even so, it is open to the Court – in relation to a particular class of disputed documents – to direct that they be expressly listed and disclosed under CPR31.12.
8. Redactions
Where documents contain material that is either irrelevant or commercially sensitive, the Court is empowered to order their redaction: Ennis Property Finance Limited v. Thompson [2017] EWHC 3263 (Ch).
9. Without prejudice documents
The English law recognises the commercial benefit and flexibility of being able to negotiate or conduct correspondence without prejudice. In the usual way of things, any documents which are agreed to be “without prejudice” (documents in this category are those which all parties agree to be confidential because they comprise records of negotiations or meetings to try and settle one or more questions in a dispute) are usually exempt from the duty of disclosure..
However a without prejudice document is not sacrosanct from : there may be other legal principles which might render them open to the light of day.
10. Confidential papers
In deciding whether or not documents – in relation to which confidentiality is asserted – should be disclosed the Court is obliged to conduct a balancing exercise between competing policy considerations. The governing criteria are normally:
- Likely relevance;
- Necessity (in the interests of justice) and
- Proportionately in addition to:
- Article 6 of the European Convention on Human Rights
11. Duty of search
When giving standard disclosure a party is required to make a reasonable search for documents falling within the stated criteria. What is “reasonable” will be dependent upon the following factors in particular:
(1) the number of documents
(2) the nature and complexity of the dispute
(3) the ease and expense of retrieval, and
(4) the significance of any document likely to be located during the search.
Where a party has not searched for a category or class of document (on the grounds that to do so would be unreasonable) he must state this in his disclosure list and identify the same.
12. Electronic documents
The existence of electronic documents may have an impact upon the question of reasonableness when it comes to the searches to be carried out for them. There is a separate Practice Direction which governs standard disclosure with electronic documents. In the case of electronic documents such disclosure must satisfy the “proportionate and cost-effective”.
13. Duty of disclosure : recent case law
The High Court has recently shed light on the extent to which parties need actively to hunt down documents which they know to exist but which may well be damaging to their case.
In Castle Water Limited v. Thames Water Utilities Limited Mr Justice Stewart-Smith this question fell to considered within a current disclosure pilot scheme (in The Business & Property Court). The court decided that such a matter had not as yet received “authoritative clarification”.
Under the pilot rules, parties are obliged to disclose “known adverse documents” that may damage their case – unless they can be said to be privileged. The Court said that the question then arose as to what, if any, obligation a party had to discover whether it is holding any such documents.
The Court concluded that a party must make “reasonable and proportionate checks” to see if it has known adverse documents and to locate them. To decide otherwise would amount to a “rogue’s charter”.
In arriving at its findings, the Court drew a distinction between “checks” and “searches”: a known adverse document is one of which a party is a aware – without undertaking any further search.
The requirement to disclose such papers would be emasculated if there were no obligation at all to look for them. Put shortly:
“It would be absurd if a party were able to say ‘I know I have an adverse document, but I don’t know whether it is in the left-hand drawer or the right. I have therefore not located it.’”
Regarding the continuing obligation to disclose known adverse documents, the Court gave further clarity: a party did not need to keep renewing checks if nothing had changed. However, if one party to the legal proceedings had shifted its position in an important way – this might bring new papers within the definition of known adverse documents – and if so these should also be disclosed.
[The two-year disclosure pilot commenced on 1st January 2019 and is likely to be extended for a further year.]
14. General
This Article aims to provide a general overview of the main considerations which underpin duties of disclosure of documents in legal disputes. Each case will be fact-specific or contain its own individual elements. Nonetheless and in broad terms the contents of this Article comprise a sound statement of general principles and practice in this area.
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This Article contains views founded upon the interpretation of current legal practice and procedure. However, each case is fact-specific and much may turn upon the individual nature of the case or changes in the law or differing judicial interpretations.
Richard Peter Tymkiw LLB (Hons) 