Disclosure

By Celine Ng

Introduction

In litigation proceedings, certain parties are required to disclose documents that are relevant to the issues in dispute. In the United Kingdom, the duty of disclosure arises either from a court order or from agreement between the parties to the case. The rules about disclosure are contained in Part 31 of the Civil Procedure Rules, which outlines information such as the meaning of "document" (CPR 31.4), details of the right of inspection and copying (CPR 31.5), and the consequences of false disclosure (CPR 31.23). They are supplemented by case law, which clarifies the scope of these rules.

Notably, the word “document” in relation to disclosure refers to “anything in which information of any description is recorded”. Thus, a party may be required to disclose electronically stored information such as emails, sound files, and even the metadata attached to the document. Metadata contains information relating to the history of a document, such as its original author and creation date.

To whom do disclosure duties apply?

The duty of disclosure typically applies to the parties to litigation, but it can also apply to third parties. Under CPR 31.17, the court can order disclosure by a third party where there is sufficient evidence that the disclosure sought is relevant and necessary.

What are the disclosure duties?

The court can select from a range of orders under Part 31 CPR, bearing in mind the “overriding objective” and the “need to limit disclosure to that which is necessary to deal with the case justly”. These include an order dispensing with disclosure, an order for disclosure on an issue by issue basis, and “any other order in relation to disclosure that the court considers appropriate”.

Broadly speaking, the disclosure process is comprised of four stages:-

1) Preliminary – parties to the litigation discuss the general approach to disclosure, prepare for the first case management conference, and map out the fact-finding process. They also seek legal advice as to the scope of their disclosure obligations and the potentially helpful or harmful documents which may be in the hands of all parties.

2) Search – the relevant party should undertake a reasonable search for relevant documents. The reasonableness of a search is determined by factors such as the number of documents involved, the nature and complexity of the proceedings, and the ease of retrieving any particular documents.

3) List – the relevant party should present a list of the relevant documents to the (other) party or parties to litigation. This list includes documents that were previously in the possession of the relevant party, or which might be in the possession of third parties. The list will also set out any objections to inspection, such as where the disclosing party has a right to withhold certain information.

4) Inspection – the other party or parties to the litigation can then inspect the documents after giving written notice of their wish to do so.

In addition, a party can raise specific requests in correspondence if they believe another party’s disclosure is incomplete. A party can also apply for, and a court can issue, an order for specific disclosure under CPR 31.12.

Withholding disclosure or inspection.

In certain circumstances, relevant documents need not be disclosed at all – this means that other parties to the litigation may not even know that they exist. In other circumstances, relevant documents need not be made available for inspection even though they must be disclosed.

The most common objection to disclosure is that listing would be disproportionate. This issue might arise because there is a large volume of material involved.

The most common objection to inspection is that the disclosed documents are privileged. Types of privilege include legal advice privilege, litigation privilege, common interest privilege, and without prejudice privilege.

· Legal advice privilege applies to confidential communications between a solicitor and their client for the purpose of giving or obtaining legal advice.

· Litigation privilege applies to confidential documents created or exchanged for the purpose of anticipated or actual litigation.

· Common interest privilege applies where a material that is already privileged is shared with a third party who has the requisite common interest in its subject matter. This prevents that material from losing its privilege, and allows the third party to assert common interest privilege in their own right.

· Without prejudice privilege applies to oral or written statements made in a genuine attempt to settle existing disputes.

Of these categories, legal advice privilege and litigation privilege are the most relevant to disclosure.

When does disclosure take place?

The duty of disclosure can arise either before or during proceedings; it typically arises after the parties have outlined their positions in their statements of case. Stage 2 of the disclosure outlined above typically happens at an early stage in the proceedings so that the parties know what documentary evidence is relevant to the proceedings.

Moreover, the duty of disclosure continues throughout legal proceedings. Thus, if documents to which the duty applies come to a party’s notice during proceedings, that party must immediately notify every other party.

What happens in the case that a party fails to comply?

Under CPR 31.21, a party who fails to disclose or permit inspection of documents cannot rely on them unless the court gives permission.

Under CPR 31.23, a party may be liable for contempt of court if they made (or caused to be made) a false disclosure statement without an honest belief in its truth.

Case studies

In November 2020, a US Court ordered Google to disclose the personal emails of Temur Akhmedov, son of a Russian oligarch, as part of a divorce case concerning his parents. Google sought unsuccessfully to block the order on the grounds that it would infringe the son’s right to privacy, and was ordered to produce all emails, documents and other information connected to two email accounts and preserve the accounts for 90 days. Temur became involved in the proceedings for his parents’ divorce settlement when his mother accused him of helping her ex-husband hide assets and thereby avoid paying the court award.

In Ward Hadaway v DB (UK) Bank [2013], the High Court refused to order disclosure of a banking manual which had been referred to in a separate disclosure document. The judge considered evidence from the solicitor of the party resisting disclosure, who stated that there was nothing material in the manual which bore on the central legal issue in the case. This illustrates that the duty of disclosure does not necessarily extend to documents mentioned in disclosure documents, and that (unless there is good reason to do so) the court typically will not “go behind” the evidence of the solicitor of a party resisting disclosure.