Disclosure of documents
The purpose of “disclosure” is to make sure that both or all parties know of all documents that have a bearing on the case..
Here, “document” means any form of recorded information, not just writing on paper. It includes, for example, pictures, emails, mobile phone texts, social networking messages or video-clips.
You must disclose all relevant documents
- that you now have or
- that you have had or
- that are held by someone else who would be obliged to give them to you or let you inspect them or have copies of them if asked or
- that were held by such a person
You must disclose documents that are harmful to your case just as much as those that are helpful to it.
You must actively search for disclosable documents that you may have, though you may limit your search to what is reasonable.
Except in Small Claims and other claims of low value, disclosure is ordered in the form of sending the other party or parties a list of the documents. Use the form of list (N 265), also obtainable from the court office, as it will help you to sort your list into various categories and it explains what is required. You will see that there is a separate space for you to list documents that you would object to produce.
Production of documents
When you receive a list of documents from another party, you can ask for copies of any of the documents in the list or for the opportunity to inspect them. (You must pay for any copies supplied, if asked.) Equally, another party can ask for copies of documents in your list or to inspect them.
If you object to produce a requested document, you can say so, explaining why. If you and the other party cannot agree, either of you can apply to the court to rule whether or not the document must be produced. A document need not be produced if it is private (“privileged”) – for example legal advice you have received about the case or letters to and from your solicitor. A document mentioned in the list may have been lost or destroyed. Other valid objections might be that the document contains commercially sensitive information or that producing it would infringe a third person’s right to privacy. Sometimes the answer may be to produce the document with parts of it covered up.
It is not a valid objection that you are afraid the document will help your opponent in the case.
If you are unsure whether a document has to be produced or not, take advice. A full explanation cannot be given in this short note.