What is Specific Disclosure?

If you are involved in litigation, you may have come across the idea of specific disclosure. Specific disclosure generally refers to the obligation of one party in a dispute to search for documents relevant to the dispute. In many cases, the other side will get to inspect the documents you disclose. Nevertheless, specific disclosure is an order the court makes when it wishes to compel a party to search for and disclose particular documents. This article will consider the specific disclosure so you can better understand the litigation process. 

What is the Difference Between Standard and Specific Disclosure? 

Litigation in the UK requires both parties to cooperate throughout the process. A critical element of litigation is disclosure and inspection, which refers to the portion of litigation where one side searches for certain documents so that the other party may inspect them. 

Most litigation cases require the defendant to undertake standard disclosure. This refers to the court making a general order for the defendant to disclose all documents in the defendant’s control relevant to the dispute. The courts cast a wide net when determining if a document is relevant. A party that does not comply with a standard disclosure order can face cost consequences and contempt of court. 

On the other hand, specific disclosure requires an applicant (usually the claimant) to apply to the court seeking an order compelling the counterparty (usually the defendant) to disclose specific documents. In practice, specific disclosure is either used to:

• obtain an order before standard disclosure would otherwise arise in the proceedings; 
• compel the disclosure of documents that ought to have been disclosed as part of standard procedures but were not; or 
• where a standard disclosure order is unlikely to be effective in particular circumstances. 

What is Required in an Application for Specific Disclosure?

An application for specific disclosure is a request you make to the court asking it to compel the other side to disclose certain documents. Accordingly, the application must contain adequate grounds to convince a judge to grant your request. 

Therefore, the application should contain:

• a draft of the order which, if the application is successful, you will serve on the other side; 
• the grounds on which the application is based; and 
• evidence supporting the application’s grounds is usually contained in a witness statement. 

The Witness Statement 

Generally, a witness statement is a statement of factual evidence one party introduces to the proceedings to support their case. The court considers this evidence when making a decision. 

If you are the party seeking specific disclosure, your solicitor will typically draft the witness statement. This statement typically states:

• the nature of the claim; 
• which stage of the proceedings the claim is at; 
• and the facts that support the applicant’s application. 

Specifically, the facts must convince the court that:

• the documents in question exist;
• the other side has the documents; and 
• they are relevant to the proceedings.

Finally, the court will also consider the proportionality of any application for specific disclosure. Say your application meets the three requirements mentioned above. However, the consequence is that the:

• defendant incurs a disproportionate cost; or 
• order will not substantially alter the course of proceedings. 

In this instance, the court may refuse the application. 

Practical Considerations When Applying for Specific Disclosure

As with all interim applications, you may be liable for costs if you apply for specific disclosure and the court rejects the application. This is even if you win the actual claim. This is called “costs in the event”. This often happens when one party advances an unreasonable or undefendable application. 

Furthermore, orders for specific disclosure can alert your counterparty to deficiencies in their case. For instance, an application may reveal to the counterparty that their defence lacks evidence. By producing the documents you request, but which might not otherwise be part of standard disclosure, you may inadvertently allow them to refine their case. 

For these reasons, it is almost always advisable to instruct a solicitor to assist when applying for specific disclosure during litigation proceedings. 

Key Takeaways 

Specific disclosure is an order the court can make that requires one party to search for and disclose specific documents rather than all the documents that fall within the scope of standard disclosure. If the application is successful, the respondent (usually the defendant must comply with the order or risk costs, penalties and contempt of court. 

If you have any questions about the litigation process, LegalVision’s experienced dispute lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.

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