Nath Solicitors clarifies the duty of disclosure, inspection and the scenarios in which they are not required.
The Duty of Disclosure
The duty of disclosure is governed by Part 31 of the Civil Procedure Rules (“CPR”) with the meaning of disclosure set out under Part 31.2 CPR.
“A party discloses a document by stating that the document exists or has existed.”
This duty arises as soon as litigation is considered and continues throughout the duration of the proceedings and plays an important role in promoting transparency and fairness. It also ensures that all parties have access to the relevant information needed to properly assess and present their case to the court.
Each party reveals information by serving a list of documents within their control that are relevant to the issues in the case. In accordance with Part 31.10(4)(a) CPR, the list must also identify any documents “in respect of which the party claims a right or duty to withhold inspection”.
What Documents need to be Disclosed
For the purposes of CPR 31.4, a document is defined as anything in which information of any description is recorded. This broad definition includes not only physical documents but also electronic files, emails, text messages, audio recordings, photographs, and other digital formats.
In multi-track cases, the court will typically order standard disclosure under CPR 31.6, which requires each party to disclose only the following categories of documents:
- Documents on which the party relies; and
- Documents that:
- Adversely affect the party’s own case
- Adversely affect another party’s case; or
- Support another party’s case
Additionally, a court may order specific disclosure under CPR 31.12 which requires a party to:
- Disclose documents or classes of documents specified in the order
- Carry out a search to a directed within the order; or
- Disclose any documents located as a result of that search
Exceptions to the Duty of Disclosure
A party may be permitted to withhold disclosure of a document if disclosing it would damage the public interest. In such cases, under 31.19 CPR, the party must make a without notice application to the court, seeking permission to withhold the document from disclosure:
A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.
Inspection
Once disclosure has been made, the other party has a right to inspect the disclosed documents.
Exceptions to the Duty of Disclosure
Even if a document is disclosed, the other party’s right to inspect it may be limited. A document may be withheld from inspection if:
- It is no longer in the disclosing party’s control
- The document is the product of legal advice (e.g. communication between a solicitor and a client); or
- The document is the product of litigation privilege (communication made for the purposes or contemplation of litigation)
Disclosure and Inspection at Nath Solicitors
Understanding the duty of disclosure and inspection and when exceptions apply is vital to managing litigation effectively. At Nath Solicitors we can assist clients through every stage of the disclosure process. If you need advice or assistance, please contact us on 0203 983 8278 or get in touch with the firm online.