What are Disclosure Rules in England and Wales?

As a business entering into a dispute, it is important to understand your disclosure obligations. The disclosure process refers to the part of litigation where you have to provide important documents to the other party. Litigation is when you take your case to court and is different from arbitration due to its specific disclosure rules. 

The disclosure process intends to make sure both parties disclose all relevant information in the early stages of their case. This article will explain some of the general disclosure rules that you should follow and keep in mind. 

What is Disclosure?

Disclosure is the stage of litigation where you must provide the other party with relevant documents for review. Both parties typically have a right to the disclosed documents. They will carry out an ‘inspection’ of everything that has been provided. 

The disclosure exercise can be a lengthy process, especially in complex cases. Often, your lawyer will only be able to give you a good idea of your likelihood of success after the disclosure process has come to an end. Therefore, a party might choose to come to an early settlement with the opposition following an inspection during disclosure. 

How Does Disclosure Work?

Parties to a dispute are able to choose the disclosure process that is most appropriate to their case. This adheres to new rules introduced to the Civil Procedure Rules. The options available to the parties include:

• standard disclosure;
• disclosure of documents that are relied upon by each party, and specific disclosure of documents that the other party requests;
• disclosure on an issue-by-issue basis; 
• dispensing with disclosure, in other words, no disclosure;
• any other type of disclosure the court deems appropriate.

A judge may decide which type of disclosure to order during a Case Management Conference (CMC). Before a CMC, parties must produce a disclosure report. In this, they should identify the documents that exist and may be of interest to the other party. 

What is Standard Disclosure?

Standard disclosure is the most common method of disclosure. It requires both parties to carry out a reasonable search for all relevant documents that have been or are in each party’s control. 

The term ‘documents’ can include anything in which information is stored or recorded. This can include electronic documents, such as sound recordings or videos.

A document is understood to be in a party’s control if:

• the party has physical possession of the document (regardless of whether the party has the right to possess it or not);
• the party could access the document by enforcing a right to possession that they have, for example, a document that someone else is borrowing; or
• the party could access the documents because it has a right to inspect them, for example, documents held by an insurance broker.

Importantly, when a court orders standard disclosure, the disclosing party has a positive obligation to search for relevant documents within its control. A positive obligation means that the party must engage in the act of searching for documents, as opposed to a negative obligation of abstaining from an act.  

What are the Rules of Privilege?

The disclosure exercise is extensive and disclosure requirements oblige a party to search for relevant documents and make them available. However, not all documents must be provided. Courts will consider some ‘privileged documents‘ exempt from disclosure rules.

In particular, correspondence between the party and their legal advice team will be privileged. This only applies, however, to correspondence that relates to the legal advice that you are receiving between you and your lawyers. Other more general correspondence will not necessarily be protected by legal advice privilege.

In addition, ‘litigation privilege’ could protect some of your documents. Litigation privilege protects litigation-related correspondence between you and others, including your lawyers. 

This could include expert reports and witness statements that your lawyers have prepared for the litigation. However, it is unlikely to include documents such as board minutes that note the discussion of litigation proceedings, or communications with third parties (like the police). Finally, marking a document as ‘privileged’ will not mean that a court will necessarily treat it as such. 

Key Takeaways

As a business entering into a dispute, it is useful to know about disclosure rules and your obligations to the other party. New rules allow for you and the other party to agree as to the disclosure process that you want to adopt as part of your case. The most common type is standard disclosure. 

In standard disclosure, you have a positive obligation to conduct a reasonable search for relevant documents that are in your control. You will then have to make them available to the other party as part of the inspection process. The inspection process follows the initial search for documents. 

Finally, you should note that courts consider some documents privileged, and therefore exempt from disclosure requirements. These typically include documents relating to your litigation, and documents that contain legal advice that your lawyers give you. 

If you have any questions about the disclosure 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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