Disclosure of documents
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23 January 2012
CPR 31.2 states that: "A party discloses a
document by stating that the document exists or has existed."
The underlying principle of disclosure is litigation in England and
Wales is conducted with cards face up resulting in many disputes being
settled either shortly before or shortly after disclosure.
Disclosing a document does not mean actually giving that document to
the other side.
The duty of disclosure is strict, and the courts take it very
seriously.
A 'document' includes all media in which information of any description
is recorded for example tapes, computer records and emails, as well as
paper documents.
Each party is under an obligation to reasonably search for documents
which have been under their control.
'Control' includes documents which you have, or previously had, in your
possession and documents which you have, or had, the legal right to
possess, inspect or copy.
The underlying principle of a reasonable search is proportionality and
usually depends on (1) the number of documents; (2) the nature and
complexity of the proceedings; (3) ease and expense of retrieval of
documents; and (4) the significance of the documents.
Your opposition may not see certain types of your documents called
privileged documents which include communications passing between you
and your legal advisors and without prejudice privilege documents.
Disclosed documents then need to be described in one of the three
sections:
(1) Relevant documents which you currently have, and which the
Defendant may inspect.
(2) Relevant documents which you currently have, but which the
Defendant may not inspect, for example, privileged documents.
(3) Relevant documents which you have had but no longer have.
By Owen Ross - Owen is a trainee solicitor with
Lawdit Solicitors and can be contacted through email at:
owen.ross@Lawdit.co.uk.
About the Author
Lawdit
Solicitors offer services and advice for litigation,
commercial contracts, Intellectual Property and IT legal agreements. We
are experts in commercial law with a heavy emphasis on Intellectual
Property, Internet and e-commerce law. Lawdit is a member of the
International Trademark Association, the Solicitors' Association of
Higher Court Advocates and we are the appointed Solicitors to the
largest webdesign association in the world, the United Kingdom Website
Designers Association.
