Disclosure Notes

DISCLOSURE Duty to Disclose Primary obligation on the party - must: * make a reasonable search for material documents, * make and serve on every other party a list of documents, and * endorse the list with "disclosure statement" - nature of duty understood and complied with. Reasonable & Proportionate Search Duty to make "reasonable and proportionate search" for disclosable documents Factors re "reasonableness" * number of documents, * nature and complexity of case, * ease and expense of retrieval, * significance of document * "primary evidence" - higher duty than for "secondary evidence" Does not demand no stone left unturned - may be reasonable to limit to documents at certain place/after certain date Continuing Duty Disclosable documents that come into party's possession at any stage in proceedings must be disclosed - immediately notify each party. Standard Disclosure Small Claims Track: Obligation to disclose documents relied upon 14 days before the hearing Fast Track & Multi-Track: Standard disclosure - documents in his control which: 1. he relies on, 2. adversely affect his own case, 3. adversely affect another party's case, 4. support another party's case, and 5. are required to be disclosed by a Practice Direction "Document" - anything on which information of any description is recorded "Control" - any documents which are/have been in party's control and where had right to possession/ inspection/take copies Determine whether documents need to be disclosed by judging against statements of case. * Party's statement on relevance of document is usually decisive. Employer must disclose earnings of comparative employees Claimants in Personal Injury claims must disclose medical records (even back to birth) Stages of Disclosure 2 stages: 1. Disclosure - give other party list of documents - 3 sections 1. Documents party is prepared for other side to inspect, 2. Documents protected by privilege, 3. Documents no longer in party's control/possession 2. Inspection - by: 1. personal attendance 2. requesting photocopies (undertake to pay reasonable copying costs) 3. electronic format (documents should be disclosed in "native format") * may require making available additional inspection facilities to enable them to have necessary access * parties are required to discuss use of technology for disclosure of electronic documents * parties are encouraged to seek directions on electronic disclosure at case-management hearing. Altering Disclosure * Court may limit disclosure, direct "informal" disclosure (no lists) or direct disclosure in stages * Parties may agree in writing to disclose in informal/staged manner or without lists or without disclosure statements. Timing * Fast Track & Multi-Track - obligation arises due to directions at track-allocation stage/first case-management conference * If full disclosure took place pre-action - inform Court in Allocation Questionnaire * Party is entitled to inspect documents referred to in statements of case pre main disclosure. * Direction states format of disclosure (lists, disclosure statement) and date for compliance. Stage 1: List of Documents Disclose in concise list - identifying privileged documents and documents no longer in parties possession/control (includes lost/destroyed documents) * verified with "disclosure statement" unless parties agreed/Court dispensed with 

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