Published 31st July 2019 | Medical Negligence

Disclosure of documents: an overview

DisclosureA key stage during the litigation process, disclosure of documents can often change perceptions on prospects and impact heavily on the outcome of proceedings.

But what is it? And why is the exercise so significant?

What is disclosure?


Disclosure refers to the stage in the litigation process when each side is required to disclose all of the documents that are relevant to them to support their case.

It is defined by Part 31 of Civil Procedure Rules as “stating that a document exists or has existed”. A “document”, includes anything in which information of any description is recorded. This can come in many forms, such as a picture, a written document, an email, a USB stick, a video or information on a hard drive – it all counts. These documents are vital when gathering evidence to potentially rely on when your case is presented in court. The documents may support or undermine your case and so provide key evidence which could lead to you either having justice, or losing a case.

The main aim of disclosure is to hold a level playing field for you and the defendants and any evidence will have to be disclosed to you and to the other party.

Why is it important?


Disclosure allows the court hearing and the case to be dealt with quickly and fairly.

Your duty to disclose?


No document has to automatically be disclosed to a firm or party, however when the duty to disclose arises, the specified documents should be disclosed.

Standard disclosure


The courts order standard disclosure and this requires each party to disclose documents on which the party relies on. This includes;

  • Documents which adversely affect their own case or another party’s case – whether it is in favour or against
  • Documents of which disclosure is required by a relevant practise direction

Searching for documents


When asked for a document you are obliged to make a ‘reasonable’ effort to search for these documents. This means that the search must be genuine and of some substance.  Factors here would include the nature and importance of the documents, the complexity of the proceedings taking place, the number of documents and the costs involved. How long you search for the documents should be individual to each case.

Inspection


Following the disclosure of the documents, each party and it’s advisers has a right to inspect the documents, with some exceptions. These are;

  • where documents are no longer in the control of the disclosing party;
  • where it would be disproportionate to the matters in issue to allow inspection; or
  • where the disclosing party is entitled to withhold the document

The length in which it is perceived for a document to be “disproportionate”, broadly speaking, is a balance upon the value of the evidence and documents presented, the value of the claim being made and the costs of allowing inspection; the key element being how much the disclosed evidence would affect the proceedings of the case at hand.

Conclusion


Disclosing information is vital for gathering evidence and helping your solicitor to present the strongest case possible. The amount you disclose will be individual to each case.

For any further information on disclosure and inspection of documents, you can check out Part 31 of the Civil Procedure Rules 1998.

It is important to have the right legal help when going through the disclosure process. At Osborne Morris & Morgan, our Medical Negligence team are specialists in the field and can help to advise you on disclosure. Call our nationally recognised team on 01525 378177 or via online.

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