How to navigate the disclosure stage of litigation

Disclosure is a crucial stage of the litigation process that can have a significant impact on whether you are successful as a Claimant, or as a Defendant. This is why you need an experienced lawyer in your corner who knows the disclosure and litigation process inside out. Let’s find out more.

If you ever have to go through the litigation process, whether bringing a claim or defending yourself against one, you need to know how the process of disclosure works.  Generally speaking, disclosure requires both parties to produce all the documents that may be relevant to the case, so the opposite party can scrutinise them and build their case (or defence). You could say it’s like both players putting their cards on the table.

Disclosure can be a challenge because it’s difficult to know which documents may be relevant and which may not. You may also be wary of disclosing information that may put you at a disadvantage further down the line. What’s more, the rules around disclosure have recently changed. 

In this article, we’ll talk about disclosure and how it works. Then, we’ll show you why having a good litigation lawyer on your side makes the process much less stressful. Let’s get started.

How does disclosure work?

A new disclosure regime was introduced through the Disclosure Pilot Scheme in January 2019 which aimed to change how disclosure was approached and dealt with in litigation. The regime became a permanent fixture of the Civil Procedure Rules (CPR) under Practice Direction 57AD.

The new regime introduced three elements to the disclosure process:

• Initial disclosure – Both parties should disclose key documents at the same time as they file and serve statements of case;

• Extended disclosure – Both parties can then ask for more documents to be disclosed on any issues related to the case – there are five different models of extended disclosure ranging from limited disclosure (Model A) to extensive search-based disclosure (Model E); and

• Disclosure Review Document – Both parties must be involved in negotiating the disclosure review document which agrees the issues for extended disclosure, and as a result, the appropriate disclosure model to be used for extended disclosure.

The court can also order third parties (parties not involved in the case) to disclose documents if it believes it will aid the case. 

It’s important to understand that documents can be on paper or in electronic form. 

The introduction of extended disclosure has seen a growth in the use of electronic searches and documents in the disclosure exercise. If searches need to be undertaken under a particular model of extended disclosure, parties to the dispute must negotiate the scope of the searches on pre-agreed issues. Searches will often involve a detailed review of electronic documents, such as emails and historic files. It is important you have an experienced litigation lawyer advising you through this process, so as to comply with your search obligations, whilst also trying to make your burden as manageable and cost effective as possible.

Some documents may be covered by ‘privilege’, meaning that while you must disclose their existence you do not need to show them to the other side.

Your responsibilities

If you’re involved in legal proceedings, you have specific responsibilities when it comes to disclosure. These include:

• Disclosure – If you’re ordered to produce a document, you have to do so;

• Preservation – As soon as you know that you may be involved in litigation, you must ensure that no documents are destroyed, altered or lost;

• Searching – If ordered to disclose a document that you don’t have on file, you must make every effort to find it; and

• Padding – You’re not allowed to confuse or slow down the case by producing a large number of documents that nobody requested.

The biggest challenge is that you may be asked to disclose what’s known as ‘adverse documents’. These are documents which could undermine your case or boost the other party’s argument. Unfortunately, if asked, you must disclose them. 

The consequences of not fulfilling your responsibilities around disclosure can be severe. For example, if the court thinks you’re hiding something or haven’t made enough effort to locate documents for disclosure, the court can impose punitive sanctions on you.

Get an expert in your corner

To navigate this delicate stage of the litigation process, it’s essential that you have an experienced lawyer on your side. They will know exactly what you need to disclose (and what you don’t) and can handle the act of disclosure. They’ll also know what to ask for from the other side and iron out any issues that arise.

With an expert litigation lawyer in your corner, you can ensure you conduct the disclosure process as effectively and efficiently as possible.

Find out more from Couchman Hanson

At Couchman Hanson, our solicitors genuinely care about getting the best outcome for you. We’re highly professional, with ‘city’ level talent and experience, but also friendly and welcoming. Everything we do fits with our values of integrity, honesty and authenticity.

Call 01428 774756 or visit couchmanhanson.co.uk