Summary
- Specific disclosure is a court order compelling a party to search for and disclose particular documents, and is used where standard disclosure is inadequate, a party has failed to comply with a previous disclosure order, or additional documents are needed to establish key facts.
- An application for specific disclosure must include a draft order, the grounds for the application, and a witness statement establishing that the documents exist, are in the other party’s control, and are relevant to the proceedings.
- Courts will consider proportionality when deciding whether to grant specific disclosure, and may refuse an application where compliance would impose disproportionate costs or the documents would not materially affect the outcome.
- This article explains specific disclosure and its practical implications for parties involved in litigation in England and Wales.
- LegalVision, a commercial law firm specialising in advising clients on litigation and dispute resolution, outlines when specific disclosure is ordered and the key considerations for applicants.
Tips for Businesses
Only apply for specific disclosure where you have clear grounds and the documents are directly relevant to key issues in dispute. Be aware that an unsuccessful application may result in a costs order against you. Instruct a solicitor before making any application, as poorly framed requests can alert the other side to weaknesses in their case.
Specific disclosure is a court order compelling a party to search for and disclose particular documents in litigation, going beyond the general obligations of standard disclosure. Understanding when and how it applies can help you navigate the litigation process more effectively. This article will consider 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 provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced disputes lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 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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