Disclosure Explained

Only after the disclosure can a solicitor give reliable advice on the likely outcome of a case. The prospect of disclosure may result in a settlement, and many settlements occur following disclosure.

 

“Standard disclosure” requires the production of any documents which are or have been in a party’s possession, and which can support or adversely affect his case or that of another party. It requires a party to undertake a reasonable search for documents, and they cannot choose which documents to disclose.

 

In the context of disclosure, the term “documents” is very broad, pertaining to recorded information of any description. These can include:

• Emails

• Photographs

• Plans

• Photographs

• Voicemails

 

Documents stored on servers and back-up drives are also covered, as well as any other electronic documents (accessed via Blackberries, PDAs etc.) and meta-data, which gives information about the creator of a specific document.

 

A solicitor must disclose any information that is or has been in his “control”. This covers physical possession of documents, those that could be obtained by a right to possession, or if he has the right to inspect said documents. The obligation also covers documents no longer in the party’s control, such as those which may have been lost or destroyed. These documents must be described in the List of Documents, along with a reason given for their loss/destruction.

 

The List of Documents is where all of a party’s disclosed information is laid out, and will contain a disclosure statement (setting out the extent of the search, explaining the understanding of the duty to disclose, and asserting that the best efforts have been made to disclose all related information). The Lists will usually be exchanged between the two parties following each party’s statement of case.

 

In a List, each document will be given a reference number, a date and a description (eg. “01. Letter – Reeves to Delgado – 22/08/12”). Multiple copy documents do not need to be disclosed, unless there are modifications that may prove crucial to the case. In the instance that there are a large volume of similar documents (eg. invoices), the rules do permit them to be bundled without individual description.

 

Because of the duty to disclose information, it is vital to preserve all relevant documentation from the time that litigation is considered, not from the point when the case commences. Routine processes of destruction should be ceased until a solicitor deems information not necessary for disclosure, and all electronic information  (including metadata, which can be crucial in fraud cases) must be preserved. Deliberate destruction of relevant data is considered contempt of court, and can lead to the offence of perverting the course of justice.

 

The importance of document preservation is enshrined in section 450 of The Companies Act 1985 (as amended by section 1124 and Schedule 3, paragraph 4 of the Companies Act 2006), which states that an officer of a company can be subject to criminal charges for destroying, falsifying or disposing of information (or being privy to such acts) unless they can prove that they had no intention of concealing the company’s affairs from the state or beating the law.

 

Despite this, some documents can be withheld on the grounds of “privilege”. Privileged documents are referred to in the second part of the List. Such documents are a very contentious point between parties, so it is often necessary for solicitors to give careful consideration to any documents that they may regard as privileged. 

 

Broadly speaking, there are two types of legal professional privilege: legal advice and litigation.

 

The main types of documents covered by legal advice privilege are correspondences between a solicitor and their client(s), whether or not it pertains to the litigation, so long as its express purpose is the giving or receiving of legal advice, which can include consulting an in-house legal department for assistance. A solicitor’s drafts, notes, instructions, and briefs to counsel, as well as counsel’s opinions and notes, will be subject to privilege providing they were generated for the purpose of litigation or legal advice.

 

However, any documentation containing factual information that was created when litigation was not considered is not subject to privilege, even if it was created by the client(s) for the purpose of obtaining advice.

 

Litigation privilege is similar, as it protects the communications between a party’s solicitor and a non-client third party, so long as the main purpose is to obtain legal advice relating to an existing or likely litigation case. In the case of the latter, there has to be a strong likelihood that a litigation case would go ahead when the correspondence was made, otherwise it is not considered privileged.

 

Documents that would be subject to such privilege would be notes of meetings or telephone conversations between a client/his solicitor and the client’s employees for the purpose of gaining information pertaining to the case; experts’ reports and witness statements connected to the case are also covered, unless disclosed to the other party.

 

Solicitors have a continuing obligation to disclose information as it comes up, even after the List of Documents has been exchanged. If new documentation does arise, then the party’s solicitor is obliged to disclose it to the opposing party in a letter or supplementary List.

 

Documents and the information contained within them obtained from disclosure are intended for those specific proceedings only. They must not be revealed to anyone unconnected with the case, or to forward the business of anyone in possession of this information. Such misuse, even unintentionally, can amount to contempt of court. This rule only ceases to apply once the document in question has been read or referred to in open court (unless the court orders otherwise).