Disclosure is a vast and technical part of the litigation process. It requires careful handling and a rigorous approach in order to properly comply with the Civil Procedure Rules (CPR). To help, we have put together this handy summary to help you understand your obligations in the disclosure process, summarising in clear and concise terms what you need to know, so that you can work with your solicitor to reach the best possible outcome for your business. This article will provide a broad overview of the process of standard disclosure in litigation. It will not cover the specific requirements of the Disclosure Pilot Scheme or of electronic disclosure.
If you’re reading this because you’re involved in litigation and need to get to grips with disclosure, our business dispute solicitors can help. We’ll guide you through your obligations, make sure you stay compliant with the Civil Procedure Rules and help protect your position.
Contents:
- What is disclosure and why do I need to be involved?
- What documents do I need to disclose to the other side?
- How do I decide what’s relevant for disclosure?
- Do I have to disclose documents that could harm my case?
- What are legal and litigation privileges, and how do they protect me?
- Can I redact commercially sensitive information from the documents I disclose?
- Is there any way to restrict who gets to see my commercially sensitive information and how it is used at trial?
- Is it possible for my commercially sensitive information to be heard in private?
- How do I prepare for the disclosure process?
- How long does the disclosure process take, and how will it impact my business?
- What are the costs of disclosure, and how can I manage them?
- How can I limit the scope of disclosure to reduce costs?
- What are the risks if I don’t disclose a document I should have or manage the disclosure process properly?
- What if the other side has lost a document?
- Summary
What is disclosure and why do I need to be involved?
Disclosure is the process of identifying and sharing relevant documents that both help and hinder your case, and you need to be involved because you owe the following disclosure duties to the court:
- to take reasonable steps to preserve documents in your control and which may be relevant to any issue in the case
- to disclose adverse documents
- to comply with any order for disclosure made by the court
- to undertake any search for documents in a responsible and conscientious manner
- to act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party
- to use reasonable efforts to avoid providing documents that have no relevance to the issues raised in the case
There are three main disclosure stages. Initial disclosure when you serve the documents setting out your case, further disclosure after the issues for disclosure have been agreed between the parties or ordered by the court, and a continuing obligation to disclose relevant documents all the way up to and during the trial.
What documents do I need to disclose to the other side?
A document, for the purposes of disclosure, is defined as any record of any description containing information. It can be paper or electronic (including metadata and other embedded data). It can be held on a computer or a portable device such as a memory stick or mobile phone. It includes email and other electronic communications too, such as text messages, WhatsApp messages, social media posts, voicemails, and audio and visual recordings. Photographs (hard copy and those stored on a computer, mobile phone or in the cloud) are also included. The definition extends to electronic documents stored on servers and backup systems and to electronic documents that have been deleted too.
How do I decide what’s relevant for disclosure?
Our business dispute solicitors are well placed to advise what documents are relevant, based on the legal and factual issues involved in your case, but broadly, you must disclose relevant documents you intend to rely on and relevant documents that adversely affect your case, adversely affect the other side’s case or supports the other side’s case.
Do I have to disclose documents that could harm my case?
It does seem counterintuitive that you should be obliged to disclose documents that harm your case, but this is an important part of the disclosure process and the litigation process generally in terms of ensuring a fair outcome for all parties. The other side is obliged to do the same. But you don’t have to disclose documents that harm your case if they are privileged.
What are legal and litigation privileges, and how do they protect me?
You can withhold a document if it is privileged and there are two types:
- Legal advice privilege
Legal advice privilege protects confidential communications between you and your legal team, if the dominant purpose of those communications is to seek and receive legal advice.
- Litigation advice privilege
Litigation advice privilege protects confidential communications between you and a wider group of people (your legal team, a third party and between your legal team and a third party), if the dominant purpose of those communications is to obtain information or advice about existing or contemplated litigation. For more information on this article, read our professional privilege guide.
Can I redact commercially sensitive information from the documents I disclose?
It’s understandable that you may wish to keep commercially sensitive information private. But you can only redact this information if the redacted sections are irrelevant to issues in the proceedings and confidential, or if the redacted sections are privileged.
The reason for each redaction must be disclosed and a blanket statement covering all redactions will not be sufficient.
Is there any way to restrict who gets to see my commercially sensitive information and how it is used at trial?
If you have concerns about confidentiality, whether it benefits you or a third party, you can ask the court to limit disclosure to a small number of people in a confidentiality club. The confidentiality club could be restricted to only lawyers or certain representatives from each party. It might also be possible, with court approval, to restrict the use to which this information can be used at trial too.
Is it possible for my commercially sensitive information to be heard in private?
It might be possible to have commercially sensitive information considered in a private hearing, but such applications are difficult to win, as the general rule is that hearings are to be in public and the courts will only approve such an arrangement in exceptional circumstances, including:
- it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; and
- a private hearing is necessary to secure the proper administration of justice.
How do I prepare for the disclosure process?
As soon as litigation is contemplated, you need to prepare for the disclosure process by doing the following:
- take reasonable steps to preserve documents in your control that may be relevant to any issue in the case. Control includes physical possession but also documents held by third parties that you have a right to inspect or take copies of
- do not access, amend, delete or destroy any electronic documents that might be relevant
- do not create any new documents that might have to be disclosed
- do not mark or annotate any existing documents that might be relevant
- suspend routine document deletion or destruction
- ask relevant employees, former employees and third parties to take reasonable steps to preserve relevant documents that you don’t have
- consider if your in-house IT team has sufficient experience to handle the e-disclosure process or whether an external IT team needs to be appointed, either to help or to manage the process exclusively
How long does the disclosure process take, and how will it impact my business?
It’s difficult to give an exact timescale, as this will depend on the circumstances of your case and the issues at stake, but broadly, it’s the second main disclosure stage that will take the most time, and staff may need to be diverted from their existing duties to help.
What are the costs of disclosure, and how can I manage them?
The costs of disclosure will depend on the issues at stake, the extent of agreed searches and the number of documents involved, and there is no getting away from the fact that the disclosure element of litigation is costly. External IT experts, specialising in e-disclosure, may need to be appointed too.
Both parties are required to share an estimate of costs upfront, and the court will consider whether these costs are reasonable and proportionate.
Engaging the services of external IT experts will add to your disclosure costs, but handling this in-house can prove to be a false economy. In a recent High Court case an in-house IT team missed around 80,000 documents (a figure that later rose to 800,000 documents), and the defendant was ordered to pay the claimant’s costs (including the cost of a hearing being adjourned) totalling over £500,000.
How can I limit the scope of disclosure to reduce costs?
The scope of disclosure, based on the issues at stake, is something that is up for negotiation, and it should be no wider than is reasonable and proportionate to fairly resolve the issues. The best way to reduce costs is to be laser-focused on the documents that are directly relevant to the issues in the case, to limit the actual search accordingly, and to agree this with the other side. Obviously, if this can’t be agreed, the court can intervene (the court does expect the parties to co-operate and assist the court so that disclosure is handled in the most efficient way possible), but negotiating an agreement is the best way to do this. Agreeing that document review technology (including AI) can be used in partnership with legal oversight can help to reduce costs too.
What are the risks if I don’t disclose a document I should have or manage the disclosure process properly?
If you have made a genuine effort to resolve disclosure issues and have acted in good faith, you are unlikely to face any sanctions for any mistakes or oversights. But if you do not comply with your disclosure obligations (including failing to disclose a relevant document or manage the disclosure process properly) you could face sanctions:
- court hearings being adjourned
- an order for further disclosure (which may include the appointment of an independent disclosure review lawyer)
- an adverse costs order
- an order barring you from relying on a document you failed to disclose
- an order barring you from taking your case to trial
In appropriate cases, a failure to disclose a relevant document or manage the disclosure process properly could be dealt with as a contempt of court too.
What if the other side has lost a document?
If the loss of a document appears to be deliberate, a judge may decide to draw an adverse inference. In practice, this means that a judge could infer that a lost document contains information that undermines a party’s case and that any witness being cross-examined about a lost document isn’t telling the truth, both of which could lead to an unfavourable judgment for that party.
Summary
Disclosure is an important stage in the litigation process, and both sides are encouraged to be constructive and reasonable. There are severe penalties for getting this wrong, and the input of a solicitor is critical in navigating this process effectively.
Our business dispute solicitors have extensive disclosure experience in a range of commercial disputes and will work with you, the other side’s lawyers and the court to devise a disclosure strategy that not only meets your disclosure obligations but maximises a successful outcome in your case too.
