In Short
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Specific disclosure is a court order compelling one party to search for and disclose particular documents, rather than everything relevant under standard disclosure, when those documents are believed to exist and be crucial to the case.
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To succeed, your application must show that the documents likely exist, are in the other party’s control, and are relevant. The court also considers whether the request is proportionate.
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If your application is refused, you could face cost consequences, and disclosing the documents might alert your opponent to weaknesses in their case. Legal advice is strongly advised.
Tips for Businesses
Make specific disclosure applications only when necessary and ensure you can show the documents likely exist and your request is proportionate. Be clear and factual in your supporting witness statement and draft order. Always seek legal advice to reduce the risk of costs, delays or strengthening the other side’s case.
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.
When Will the Court Order Specific Disclosure?
The court may order specific disclosure in various circumstances, though the Civil Procedure Rules do not set out specific criteria. Practice Directions provide helpful guidance, and it is crucial to understand that the court will consider all relevant circumstances, particularly the overriding objective of dealing with cases justly and at proportionate cost.
Some of the circumstances when specific disclosure may be ordered include if:
- standard disclosure was inadequate;
- a party failed to comply with a previous disclosure order; and
- additional documents are required to establish facts of the case.
You should be aware that information asymmetry between parties may be considered, but it is not sufficient on its own to justify disclosure. For confidential documents, the court will balance their relevance to the proceedings against the confidentiality of those documents.
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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.
Frequently Asked Questions
A witness statement is a statement of factual evidence one party introduces to the proceedings to support their case.
Civil Procedure Rules are a code of procedural rules that govern how court procedure works in England and Wales.
The grounds for specific disclosure include inadequate standard disclosure, failure to comply with a previous disclosure order, or the need for additional documents to establish key facts. However, there are a number of other circumstances where specific disclosure can be ordered.
Requesting such a broad range of documents is generally not advisable for Specific Disclosure. Instead, try to focus on specific emails or documents that are directly relevant to the issues in your case, and be prepared to explain why these particular items are necessary for a just resolution.
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