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If your business is involved in litigation, you may incur obligations to disclose certain information to the other side. This process, which the court calls disclosure, is vital to litigation. Form N265 is the court document that requires the party making disclosures to serve so that the other side can inspect the documents. This article will explain the critical sections of Form N265. However, it is essential to emphasise that you should instruct a solicitor to advise you on your disclosure obligations.
What is Disclosure?
Disclosure is the stage of litigation where one party (usually the defendant) provides the other party (usually the claimant) with all documents relevant to the dispute. The law imposes wide-reaching obligations on parties to make adequate disclosures. If they do not, the court can compel disclosure and order costs for non-compliance.
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 processes. Therefore, a party might come to an early settlement with the opposition following an inspection during disclosure.
How Does Disclosure Work?
Once a dispute has escalated to the courts and the claimant serves the claim form on the defendant, the court will begin to take an active role in managing the litigation process. In most cases, the court will order the defendant to make general disclosure to the other side well before the trial date. This means that the defendant needs to search its records and IT systems for all documents relevant to the dispute.
A document is relevant if it assists one party or is adverse to another. Therefore, if a court has ordered you to make standard disclosure, you must locate all relevant documents to the claim. This includes documents that might implicate your business or otherwise suggest liability.
Once you have searched and located all relevant documents, you must prepare a list of all the documents in a standard format. Form N265 is the standard format for many claims, though certain courts have their own rules, especially for electronic disclosure in high-value claims.
Once you serve Form N265 on the other side, they are entitled to inspect the documents. Nevertheless, you can prevent the other side from inspecting the documents listed in the disclosure form by asserting privilege (see below).
Other Disclosure Processes
As the name suggests, standard disclosure is the default disclosure process. This requires you to disclose all relevant documents. However, in some cases, a claimant may apply to the court for specific disclosure. This commonly happens if the claimant believes the defendant has not disclosed certain documents under standard disclosure.
Alternatively, the claimant can make other disclosure applications to the court, for instance, to compel:
- someone that is not a party to the dispute but who has relevant information to disclose it; and
- a defendant to disclose before the claimant has commenced proceedings.
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What is Form N265?
Form N265 is the standard form that a defendant must serve on the claimant to fulfil its disclosure obligations. Specifically, Form N265 contains the list of documents the defendant must compile, which contains all relevant documents.
We will consider the essential sections of Form N265. However, you should always instruct a solicitor to comply with any disclosure requirements, including when completing Form N265. This is because disclosure is one of litigation’s most complex and essential aspects. Hence, it is worth noting that a solicitor can ensure you avoid making costly mistakes.
Disclosure Statement
The disclosure statement functions as a statement of truth. In other words, the person signing the disclosure statement understands they are bound to make the disclosures required by the court. Otherwise, they may face civil and criminal penalties.
If your business is structured as an LLP or limited company, someone with sufficient authority must sign the form. Since the business itself cannot sign it, a partner, director, or senior manager must sign it in their name.
Documents Not Searched For
The disclosure process is designed to capture all relevant documents, which the law widely defines. To this effect, you must undertake a reasonable search for all documents that fall into the definition of a relevant document.
There may be certain documents that you are aware of that meet this definition but which you did not search for. For instance, you may believe searching for the document would be unreasonable. In any event, you must specify which documents you did not search for but which would fall within the definition of a relevant document.
Electronic Documents
Most businesses keep their records in digital formats, such as databases or servers. Accordingly, this section entitles the court and the other party to determine the methods you used to search for electronic documents. This gives the other side insight into how you searched to ensure it is adequate.
The Lists
On the third page, there are three separate sections which, together, are where you list all the documents under standard disclosure. Each section has a different purpose.
| List | Purpose |
| List 1 | This is where you list documents that you disclose and which you are prepared to permit the other side to inspect. |
| List 2 | This is for documents that you wish to assert privilege over. In essence, you must disclose their existence, but by listing the documents in this section, the other side cannot inspect them. The other side can, of course, challenge your decision to refuse inspection. If they are successful, you may incur additional court costs. |
| List 3 | This is for relevant documents you know of but are no longer in your control for whatever reason. |
Key Takeaways
Form N265 is the standard form that parties making standard disclosure must serve. It effectively lists all relevant documents you believe form part of the standard disclosure obligations. You then list each document under three sub-lists, which indicates which documents you are prepared to allow the other side to inspect. The documents you intend to assert privilege over are listed in another section. There is also a section for documents that are no longer in your control.
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.
Frequently Asked Questions
Disclosure is part of the litigation process, where you review relevant documents in your control and make them available to the other party.
Civil Procedure Rules are a code of procedural rules that govern how court procedure works in England and Wales.
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