Disclosure in civil litigation concerns parties to a claim telling each other what documents they hold that may have a bearing on the issues in dispute. The Civil Procedure Rules (CPR) Part 31 provides guidance on disclosure and inspection of documents. This blog is going to answer some typical questions about disclosure:
1. Can a case be struck out if a party fails to comply with its disclosure obligations?
A party’s disclosure obligations are set out in CPR Part 31, including preserving documents, making a reasonable search for the documents, cooperating in the disclosure process, etc. A party does not need to go to the ends of the earth to find all of the relevant documents, but the search must be genuine and that extends to electronic documents.
If a party fails to comply with their disclosure obligations, the other side may make an application to the Court to strike out the claim and the Court indeed has power to do so. However, the Court tends to be reluctant to strike out a case for failure to comply with disclosure obligations and is more likely to make an unless order, which is a Court order that gives a party a deadline to comply with a Court order or else the claim/defence will be automatically struck out.
Also, the Court may draw adverse inferences where there has been failure to comply with disclosure obligations. This may affect the credibility of the oral evidence of a person whom the Court considers responsible for the failure of disclosure.
2. What happens if a party is late with disclosure?
Disclosure is an ongoing duty until the proceedings have ended (CPR Part 31.11). However, if a party is late with its disclosure and this has affected the other side’s ability to prepare his/her/its case, the other side may be given permission by the Court to amend its statement of the case. The Court does not tend to debar the party from relying on documents that had been discovered after the expiry of the disclosure deadline.
3. Can the Court adjourn a trial because of incomplete disclosure?
As mentioned above, disclosure is a continuing duty and there is a possibility that the disclosure process is never truly complete. The Court certainly has the power to adjourn a hearing but when dealing with an application as such, the Court will take the overriding objective, i.e. the case should be dealt with justly and at proportionate cost, into consideration instead of automatically ordering the trial to be adjourned.
The reason is that extra costs would be incurred if an adjournment occurs and the Court would have to weigh that up with the possible outcome of the omission of relevant documents.
4. What happens after disclosure?
After a document is disclosed, the other side has the right to inspect that document except where, according to CPR Part 31.3:
- The document is no longer in the control of the disclosing party;
- It would be disproportionate to the matters in issue to allow inspection; or
- The disclosing party is entitled to withhold the document.
The party is not entitled to withhold documents that either adversely affect his/her/its case or support the other side’s.
‘Disproportionate’ requires a balancing act between the value of the documents, the value of the claim, and the costs of allowing inspection.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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