Each party to proceedings has a disclosure duty. Disclosure is, broadly speaking, the requirement to exchange documents relevant to a dispute, whether they support or undermine your position. The rules regarding disclosure are set out in the Civil Procedure Rules (CPR) at rule 31 and Practice Direction 31A and 31B.
The disclosure rules do not apply to small claims track cases (generally those of a value up to £10,000), where parties are only required to disclose documents they intend to rely on.
If your claim is in the Business and Property Courts a different disclosure process applies under Practice Direction 57AD.
There is a positive duty on each party to make sure that all relevant documents are preserved. This duty arises as soon as litigation becomes a possibility – not when proceedings have started.
The duty is continuing, past the point of disclosure being ordered by the court. The duty continues until judgment is granted or a settlement is reached.
If any documents come to light after you have exchanged a list of documents or carried out the disclosure process as ordered by the court, you must immediately notify all parties to the claim.
The process of disclosure is slightly different in the Business and Property Courts, however, all parties remain under a disclosure duty.
Initial disclosure takes places at the outset of the claim so the other party can understand the basis of the claim and any defence. These will be key documents the parties have relied on and the parties can agree not to have initial disclosure.
A party can ask that the court orders extended disclosure and a list of issues with disclosure will be prepared. Extended disclosure is beyond initial disclosure or in place of it, and is likely to be search-based, where a reasonable and proportionate search for documents happens based on the list of issue. There are various models on which disclosure could be based as set out in PD 57AD
Pre-action disclosure
An application for pre-action disclosure can be made before proceedings and disclosure of a document is desirable for the dispute to be deal with fairly and in the hope of avoid costly proceedings.
Specific disclosure
The court may order that specific documents are disclosed. If a party has failed in their disclosure obligations by not including everything in their list of documents, the court may order that additional documents are disclosed. The court can also order that a search for specific documents is carried out and then any documents located as a result of that search would be disclosable.
Non-party disclosure
The court can make an order for a person not party to proceedings to be a part of disclosure. The order will be made when the document is likely to support the case of the party applying for non-party disclosure or adversely affect the case of the other party, and disclosure is necessary to deal with the claim fairly and save on costs. Disclosure by non-parties can only be ordered during proceedings, not before.
If you are unsure on your disclosure obligations or need some assistance in carrying out disclosure, contact the Dispute Resolution team who will be able to advise you further.
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