Table of Contents
In Short
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Disclosure is the legal obligation to share relevant documents during litigation, as outlined in Rule 31 of the Civil Procedure Rules.
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Standard disclosure requires parties to list documents they rely on, those that may harm their case, and those supporting the opposing party’s case.
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Failure to comply with disclosure obligations can result in court sanctions, including adverse inferences or cost penalties.
Tips for Businesses
Ensure your business maintains organised and accessible records, as efficient disclosure can expedite legal proceedings. Implement clear document retention policies to facilitate compliance with disclosure requirements. Regularly train staff on the importance of document management and the implications of non-compliance in litigation.
Unfortunately, during business, you may face commercial litigation over a commercial dispute with another company or person. Court proceedings should always be a last resort; instead, you should try to resolve the commercial dispute. For example, you can settle a commercial disagreement using an alternative dispute resolution (ADR) method. However, should you find yourself in legal proceedings, you will have a disclosure obligation of relevant material as part of the litigation process. This article explains the legal disclosure process for obtaining a court order for disclosed documents and the associated legal obligations in legal proceedings.
What is Disclosure in Legal Proceedings?
Disclosure in legal proceedings is a process in which each party involved in commercial litigation makes their evidence available to the other party. This evidence may support an argument, undermine it or damage it.
What Are the Legal Obligations in Disclosure?
Disclosure in legal proceedings is a legal duty, meaning you are required to carry it out. It is a strict duty listed in the Civil Procedures Rules as Rule 31. It is necessary as it allows the court to approach commercial litigation fairly and justly.
Continue reading this article below the formWhat is the Process of Disclosure?
The disclosure process is an order made by the courts to the parties to the legal proceeding. Various orders may be issued, but a standard disclosure order is typically given to the parties. This means that each party to litigation must disclose evidence as a list of documents. These are the documents which:
- they rely on;
- may hurt their or another party’s case; or
- support another party’s argument.
Disclosure Report
If a court case is multi-track, you must serve and file a disclosure report before you disclose all your documents. This is usually no less than 14 days before your commercial litigation’s first case management conference (CMC), but the court could rule that you do so sooner. This will need to contain specific information, such as the type of disclosure order you wish to request and what you broadly consider the costs for this type of disclosure.
This guide outlines how to resolve commercial disputes.
Disclosing Documents
You must understand what the term document means to know what documents you may need to include during disclosure in commercial litigation. Unfortunately, the meaning of words in this context is broad. Also, it is not restricted to written paper documents. Instead, it can include, for example:
- tapes;
- computer records;
- paper documents, and
- electronic materials, such as emails; and
- materials you cannot quickly access, such as documents on servers and those you may have deleted.
However, some confidential documents can be considered privileged material, so they are not required to be disclosed. A lawyer will be able to advise you on this.
As part of the disclosure process in legal proceedings, you and the other parties to the court litigation must meet at least seven days before your first case manager hiring (CMC) to decide how you will carry out the disclosure exercise. You will likely consider how to minimise costs and time.
What is a “Reasonable Search”?
When you disclose documents in legal proceedings, these are those you have in your control. The meaning of control in this context is defined in the Civil Procedural Rules, which are more comprehensive than you may expect. This is because it can include documents that you do not have and have never possessed. It is, therefore, essential to engage a lawyer when you need to disclose documents.
Key Takeaways
If you are party to commercial litigation, you will be ordered by a court to carry out a disclosure beforehand. In a disclosure, you reveal evidence you have to the other party. There are different types of disclosure for legal proceedings, but the usual one ordered is a standard disclosure. The documents you may disclose as part of the disclosure are not limited to written paper documents. However, they must be documents under your control and certain confidential documents are privileged from disclosure.
Disclosure before legal proceedings is a strict legal obligation on parties to commercial litigation. If you are under this obligation, our experienced disputes and litigation 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.
Frequently Asked Questions
Yes. Under the Civil Procedure Rules (CPR), specifically Rule 31, you are legally obligated to disclose not only documents that support your case but also those that could harm your own case or support another party’s case. Disclosure is intended to ensure fairness and transparency during litigation, and failing to comply can result in serious consequences, including court sanctions.
Disclosure covers a wide range of materials beyond just written documents. You must disclose anything within your control that could be relevant to the case, including emails, computer records, tapes, paper files, and even deleted or archived digital data. A “reasonable search” must be conducted to identify these documents, and failure to search adequately could breach your legal obligations.
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