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If your business is involved in litigation, you may have to disclose certain information to the other party in the dispute. The obligation to disclose all relevant documents to the dispute is at the heart of most litigation. The court adopts a broad definition of what is a ‘relevant document’ to include any document that is helpful to the other side or adverse to the party making the disclosure. This article will explain what a relevant document is so that you can understand what your obligations might be under a disclosure order.
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. This is a vital stage of the process because this is often the point where the claimant can review what evidence the defendant has. In some cases, this may assist their claim. In other cases, the claimant may withdraw the case once it reviews evidence that weakens its position.
The disclosure can be a lengthy process, especially in complex cases. Often, your lawyer can give you a good idea about the prospects of your claim after the disclosure process ends. Therefore, a party might come to an early settlement with the opposition following an inspection during disclosure.
What Documents Do I Need to Disclose?
Under standard disclosure rules, the party subject to the disclosure order must disclose all documents:
- it intends to rely upon;
- that either adversely affect its position, adversely affect another party’s position, or support another party’s case; and
- the court otherwise requires.
A document is anything in which information of any sort is recorded. This is an incredibly wide-reaching definition. Therefore it includes:
- emails;
- hard and soft copies of reports and memos;
- audio and video recordings;
- handwritten and typed notes; and
- texts and other instant messages.
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What is a Relevant Document?
We know there are three broad categories of relevance when identifying documents for disclosure. We will consider some examples of each:
| Category | Example |
| Documents you intend to rely upon. | Suppose you are defending a claim for non-payment of goods. However, you withheld payment because your goods were delivered in an unusable state. You have pictures and emails proving this, which you intend to raise at trial. You must disclose these documents. |
| Documents that adversely affect your position, the position of another, or support another party’s case. | This is widely defined to ensure that you disclose any documents that might affect the strength of any party’s claim. As in the above example, if you have documents showing that the goods were damaged by the carrier and not the seller, such documents might adversely affect the claimant’s position. Alternatively, it might shift the payment burden onto you, which may mean you are liable for non-payment. |
| All other documents, as the court directs. | The court has wide-ranging powers to compel disclosure and inspect any documents it sees fit. Sometimes, such documents may not fall into the above two categories. |
What is the Difference Between Disclosure and Inspection?
It is worth pointing out that the law distinguishes between disclosure and inspection. Disclosure is where one party searches for all relevant documents and then lists these in a document (Form N265), which serves the other side. On the other hand, inspection is where the other party reviews the documents disclosed.
A typical example of this is any document protected by legal advice privilege. For instance, suppose you obtained legal advice regarding your potential liability under a contract to purchase goods. At the meeting, you took notes. Because these notes relate to advice you received from your legal advisers, you may be able to assert privilege over the documents. While you still have to disclose it by listing the document’s existence in Form N265, the other side may not get to look at its contents.
Key Takeaways
Disclosure in litigation refers to the process where the defendant (typically) provides a list of all relevant documents to the claimant. Of these documents listed, the defendant specifies which documents it will permit the claimant to inspect. It may withhold certain documents from inspection, such as where they are protected by privilege. However, the question of privilege does not change the fact that the court requires a defendant to disclose all relevant documents. This describes all documents that the defendant intends to rely upon which adversely affect the claimant’s case. It also describes documents that the defendant is in control of, which adversely affects its case.
If you have any questions about disclosable documents, 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
If you are subject to a disclosure order during litigation, you have some disclosure obligations. Under standard disclosure rules, these generally include disclosing all documents you intend to rely on, notwithstanding whether they adversely affect you or another party’s position.
Specific disclosure is a kind of disclosure order a court can make. A specific disclosure requires one party to search for and disclose specific documents.
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