Woolf - a year on: Disclosure of documents

Introduction

Disclosure of documents in proceedings is now governed by CPR 31, which differs significantly from the former RSC Ord 24.

Anyone who completed their articles or a training contract under the old rules will no doubt still have nightmares about the discovery exercises they were made to carry out. It was traditional to disclose everything connected with a case, regardless of its relevance to the issues extant at the time. CPR 31 has changed the way in which disclosure of documents is carried out.

The disclosure requirements

Standard disclosure requires a party to disclose only:

(a) the documents on which he relies; and

(b) the documents which

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

Further, a party is no longer required to search every box and file for documents, but only to make a “reasonable search” for documents. What counts as “reasonable” may differ between a £100 million claim and a £20,000 claim (because one of the requirements of the CPR is that cases are dealt with in a way which is proportionate to their value, importance and complexity) and will depend on the facts of each case. A party who thinks that its opposition’s search has not been “reasonable” may still object to it.

The new rules raise the possibility that, for the first time, a party might legitimately complain not only of too few documents being disclosed, but also of too many.

The disclosure statement

Lists of documents exchanged under the CPR are required to contain “disclosure statements” setting out the extent of the search that has been made to locate documents, certifying that the signatory understands the duty to disclose documents and certifying that, to the best of his knowledge, he has carried out that duty. Where disclosure is made by a company or other organisation, the disclosure statement must identify the person making the statement and must explain why he or she is considered an appropriate person to make the statement.

From 2 May 2000 a new rule 31.23 to the CPR will make it a contempt of court for a disclosure statement to be signed without an honest belief in the truth of its contents.

One concern which has been raised by some company officers is that they are required to sign the certificate on the disclosure form stating the extent of the search carried out and the completeness of the resulting list, when in fact they have not been personally involved in the search for the documents. Indeed, it is common in a large case for the search to be undertaken by a number of personnel, possibly at different sites. In these situations, we recommend making it clear on the disclosure form the officer’s role (for example, supervisory, with general responsibility for the conduct of the litigation) and providing details of other personnel involved in the search. This ensures that the opposing party is fully aware of the search which has been undertaken and can make an informed judgment as to whether there are any further records which they believe ought to be included.

Non-party disclosure

Another significant change brought about by the CPR is found in CPR 31.17, which permits disclosure from a person or organisation which is not a party to the proceedings. Such applications were formerly permitted only in personal injury claims. Now, however, CPR 31.17 permits an application for disclosure against a non-party to be made in any case, provided that “the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings” and “such disclosure is necessary in order to dispose fairly of the claim or to save costs.” An application must be supported by evidence explaining why the documents are necessary and the documents must be specified with as much particularity as possible.

Conclusion

There have been no reported cases on the new disclosure rules, possibly because disclosure is exactly the sort of interlocutory matter which the CPR encourage the parties to agree between themselves without excessive recourse to the Courts. No longer is it possible to complain about missing documents if those documents cannot be argued to be necessary to the case, but, on the other hand, it is necessary for the party disclosing (or not disclosing) documents to be much more precise about the parameters of the search which has been undertaken.

For further information contact Tim Hardy, Head of Commercial Litigation and Dispute Resolution on +44 (0)20 7367 3000 or e-mail
[email protected].