In order for a dispute to be dealt with justly by the courts, the parties to litigation are required to disclose documents that relate to the dispute and are either prejudicial or advantageous to its claim or defence.
Disclosure itself refers to the act of stating a document exists or has previously existed, this is disclosure.
When disclosure occurs, both parties are required to conduct a search for documents. The nature and circumstances of the search shall depend largely on the nature of the circumstances of the dispute. For example, if the parties in dispute sent all communication via e-mail, a search of the relevant computers / servers for those e-mails will be necessary. There is little point searching the attic for e-mails if hard copies were never printed off.
Once the search has been conducted and the parties have located the documents they are required to disclose, both parties are required to complete a disclosure form N265 with accompanying schedule of all the documents that were located (if there are numerous documents). The N265 sets out what search was conducted, what documents were found, what documents existed but no longer exists and any documents that are in the parties possession that they shall not disclose (legal professional privilege).
One of the most important parts of the N265 is the disclosure statement. The disclosure statement that is signed by the disclosing party states they believe they have carried out a reasonable search in all the circumstances and set out any limitations that arose during the search. If the party signing has made a false statement they may be held in contempt of court.
The N265 and schedule of documents are then sent to the other party. Disclosure has now occurred.
After disclosure, the receiving party shall inspect the list and request to see any documents it hasn’t previously seen or does not have copies of. The receiving party is normally charged a reasonable fee for photocopying services.
Disclosure does not stop once this process has ended; it is an on-going duty. As the dispute progresses through to trial and throughout trial, if documents come to light that are required to be disclosed, they must be disclosed.
In addition to the above, the court may order a party to allow the other party to search for an inspect originals of disclosed documents at the disclosing parties offices or residence. This is one of the ways the court can help ensure the parties are making full and honest disclosures. If the searching party locates documents that ought to have been disclosed the court may draw adverse inferences against that party who failed to find and or disclose that document.
Disclosure is often one of the most expensive parts of the litigation process. It often takes vast amounts of time for the parties to conduct the search, the solicitor will then review the documents that have been located and draft the N265 and schedule. The receiving party then has to review the schedule of documents against its own list and request the documents it doesn’t have. The other side have to copy the documents and send them to the requesting party. Finally, the receiving party then has to review the documents.
The amount of documents that form part of disclosure will vary subject to the individual circumstances. Low value claims do not normally have a great deal of disclosure and on the small claims track any documents to be relied upon normally form part of the witness statements. However, in high value, complex disputes entire rooms can be designated as disclosure rooms, in these circumstances, the receiving party is invited to attend the disclosure room and go through the documents taking any relevant documents.
In addition to the above, parties can seek disclosure from third parties (i.e. parties who are neither the defendant nor the claimant) and parties can make applications for specific disclosure if they believe a document exists but the other side has not disclosed it.
The above is a brief outline of disclosure and inspection, for more information, please contact our litigation department.
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