Pre-Trial Disclosure

“Away, and mock the time with fairest show;

false face must hide what the false heart doth know”

Macbeth

Act 1 Scene 7

William Shakespeare

Words ostensibly directed by Macbeth to Lady Macbeth – but in fact addressed to himself; he has resolved to take the throne of Scotland by plotting King Duncan’s murderous demise.

He knows what others do not and chooses not to impart his clandestine plans.

The sentiments underlying the quotation are apposite to what follows.

Let us suppose that you have the makings of a genuine claim for damages based upon say breach of contract or a tort (a civil wrong).

However, in order to mount your case, you need to obtain sight of certain documents (be they letters, emails, attendance notes and the like) which could  well fortify your claims – or possibly even detract from them.  However such vital material is held by the intended opponent, who rejects all requests for disclosure of the papers.

You are faced with a quandary. 

You may choose to run to the time and expense of legal proceedings – only later to find that the documents you needed to see are subsequently disclosed by your opposition and serve directly to undermine your case.  At that point, you may well have incurred no insubstantial legal fees.  The burden of costs incurred might in turn render it that more difficult to reach a commercial resolution with your opponent.  Moreover, you may then be at risk of having to meet part of your opponent’s costs.

Alternatively, should you abandon the prospect of making a claim, you may have foregone an opportunity to obtain genuine legal redress in a deserving case.

CPR 31.6

All civil disputes in England and Wales are governed by a framework of Rules known as the Civil Procedure Rules (“CPR”).

One source of succour may prove to be the provisions of CPR 31.6.

Under this Rule a Court has the discretion to make an Order directing a potential opponent to a claim (“the Defendant”) to disclose documents prior to the issue of legal proceedings.

The threshold requirement is that the documents sought must be of such a calibre as would ordinarily be disclosed once the legal proceedings are up and running and under a process known as “Standard Disclosure”.

Standard Disclosure

When parties become embroiled in legal proceedings they are under a duty, before trial, and normally under Court Directions, to make Standard Disclosure of documents relevant to the questions in the case.

Documents covered by Standard Disclosure are these: –

• Those on which the party making the claim (“the Claimant”) relies.

• Those which adversely affect the Claimant’s case or that of the Defendant.

• Those which might actively support the Defendant’s case; and

• Documents within a special category: these comprise material which would need to be disclosed under a separate Practice Direction. (for instance, those documents between the parties to a pre-litigation protocol which they would need and expect to see).

In summary, for the Court seriously to consider making an Order for Pre-Trial Disclosure, the category of documents must first of all satisfy the Standard Disclosure Test.

Third Parties and CPR 31.17

A separate question may arise.

What if the documents that the Claimant needs to see happen to be in the possession not of the intended Defendant – but a third party who proves steadfastly unwilling to make disclosure of them?

In such a case resort may be had to the provisions of CPR 31.17.

CPR 31.17 works as follows:-

• It does not entitle the Court to direct a non-party to disclose documents which would not satisfy the Standard Disclosure Test. 

• The Standard Disclosure Test applies to material likely to support the case of the Claimant (the party making the application) or adversely affect their claim – or support the case of the Defendant or adversely affect its Defence.

• When applying this Test allowance must be made for the possibility that out there there may be documents which – at first blush – may be perceived as supporting the case of the Claimant (or adversely affecting that of the Defendant) but, in the event, turn out not to do so.

Such an outcome does not render the Order for Disclosure invalid; it happens to be a by-product of a process which may not always produce documents germane to the issues. 

• In applying the Standard Disclosure Test to individual documents – it is important to read each single document in context.  This might mean that a document – viewed in isolation from the rest – does not appear initially to satisfy the Test, but ultimately does so once viewed as one of a class.

• It follows that a Court may well be willing to entertain an application for an Order for Disclosure for a particular class of documents – if the Court is satisfied, on balance, that the documents within that class meet the threshold condition of Standard Disclosure.

This authoritative guidance was laid down in Three Rivers v Bank of England (No.4) [2002] EWCA Civ1182.

Precision

Although lines may prove somewhat difficult to draw, a party giving serious thought to an application for Pre-Trial Disclosure – whether from an intended opponent or a non-party – may be well advised carefully to refine and define their requests; this so as to ensure that the documents or the categories which they want to see fully meet the Standard Disclosure Test.

On this footing it properly may be said that the narrower the confines of a Disclosure request, the more determinative it may be of a disputed issue between the parties to the application (and the easier it may be for the Court to hold that the request is indeed well founded).

Modus Operandi

The following is respectfully suggested as a cost-effective approach:-

• Seek early on to identify the major questions in the proposed claim and the evidence needed to substantiate it.

• Request the requisite documents from the party believed to be in possession of them supporting that request by reference to the nature of the proposed claims and giving summary reasons.

• Press further if need be (and accordingly always view any Court application as a step of very last resort).

• If requests are resisted, seek to distil the reasons therefor from the opposition.  If possible try and agree common ground on what documents can be disclosed (reserving the client’s position in relation to those documents which the other side are reluctant to produce).

• By these means one may yet arrive at a clear and full exposition of the arguments for and against disclosure, and on that footing attempt an informed decision on whether there be merit in incurring the inevitable time, expense (and indeed risks) of going to Court to argue the matter.

The author of this article is

Richard Peter Tymkiw, Senior Litigation Partner (London)

Kidd Rapinet LLP, 29 Harbour Exchange Square, London E14 9GE