Overview
Parties to litigation must generally disclose all relevant documents which they hold or control, to the other party. Disclosure is particularly important in commercial disputes because written documentation will usually play a greater role.
The standard disclosure orders require each party to disclose the documents in their control. This includes not only documents in the party’s physical control, but within their power to procure. The document need not be owned by the person concerned. The obligation extends to all documents including documents the opponent does not know about and which assist the opponent.
Documents include all tapes and materials to store information in computers and other media. Documents which formerly existed and which have been destroyed and were formerly under his control must be disclosed and it must be explained what happened to them.
Often the disclosure process will be complicated. The more complicated the issues the more time and detail that may be involved. It may take time to identify all the documents and they must be carefully listed and prepared. There will be an element of proportionality in the length to which the disclosing parties must go.
The Civil Procedure Rules are designed to prevent a stronger party exploiting discovery rules by requesting vast quantities of documents or swamping the other side with vast quantities of documents. The Court is entitled to take steps to ensure that the process is not abused.
Disclosure is a continuing obligation. Even after lists are exchanged the solicitor must tell the other party if further relevant documents come into being or come into his client’s possession.
The second stage of discovery is inspection. Each party looks at the documents on its opponent’s list which are not privileged. Each solicitor will visit the opponent’s solicitors office and read the documents or ask him to send photocopies. Alternatively it may be more convenient simply to send photocopies.
Privilege Against Disclosure
Although all documents must be disclosed it may be possible to claim “privilege” or exemption from inspection by the other party on a number of possible grounds. These grounds include, legal professional privilege, incrimination and on the ground of public interest. “Without prejudice” documents in the course of prospective negotiations are also privilege. Information disclosed remains confidential even though it can be used for the purpose of the legal actions.
“Legal professional privilege” covers legal advice and so called litigation privilege. Legal advice/privilege covers communications between a solicitor and a client or other related communications. Internal correspondence, including say reports on accidents may not necessarily be privileged even though they are highly confidential and potentially damaging. The scope of what is privileged is limited to advice on legal obligations. The documents must have been specifically prepared for the purpose of obtaining advice in order to qualify for privilege.
Communications between a solicitor and third party and between a party personally and a third party and for the purpose of litigation are privileged. This may include, for example, briefings of experts. Damage reports or internal investigation may or may not exempt. It depends on what is the dominant purpose of creating them. Litigation must have been contemplated at the time and this must have been the dominant purpose of the document.
There are other more unusual privileges such as privilege based on public interest which would normally be covered by claim of the State and privilege against “self incrimination” which would arise where there is a real and reasonable risk of the response leaving the defendant liable to criminal prosecution.
If one party claims the other party is wrongfully claiming privilege he can apply to Court and the Court will decide the matter.
Experts and Privilege
Although experts reports are privileged the rules requiring exchange of expert evidence mean that expert evidence which is to be used at trial, must be revealed to the other party in advance. If the report is only partly favourable and the expert will be giving evidence at the trial, the whole report will be revealed (and not just the favourable part).
A party instructing an expert must decide on receiving the expert’s report, whether or not to call him as a witness so that the full details of his report must be disclosed.
The requirement to exchange witness statements also applies to parties who propose to give evidence at the hearing. If a witness statement is taken by a solicitor which does not support the case, it can remain privileged and need not be disclosed unless the witness is being called. Once the witness is to be called the full statement must be disclosed.
There is a special procedure for seeking bank records and applications made to Court setting out the necessity.
