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Civil Litigation Disclosure Before Proceedings Start

Friday, 5 October 2012

A fundamental element of civil litigation is the disclosure and inspection of documents. This is managed under Part 31 of the Civil Procedure Rules (CPR). The rules set out what constitutes a document for the purposes of the rules, the types of documents that must be disclosed and the parameters of the disclosure process.

In some cases an application for disclosure may be made before proceedings have actually begun. This is known as pre-action disclosure and particular rules apply which are set out in CPR 31.16.

General Disclosure

A document means anything in which information of any description is recorded. Under standard disclosure the following must be disclosed:

  • Documents upon which a party relies; and
  • Documents which:
    • adversely affect a party's case; or
    • adversely affect another party's case; or
    • support another party's case; and
  • Documents which he is expected to disclose by a relevant practice direction

Under standard disclosure a party is required to make a reasonable search for any documents that fulfil these criteria that have been in his control.

Pre-action Disclosure

Under CRP 31.16, additional provisions apply where an application for disclosure is made to the court under any Act, before proceedings have been started.

The following conditions must be met before an order will be granted:

  • The application must be supported by evidence
  • The order may only be made if:
    • The respondent is likely to be party to the proceedings
    • The applicant is likely to be party to the proceedings
  • If proceedings had started the documents or classes of documents for which the applicant seeks disclosure would be subject to the normal standard disclosure requirements
  • Pre-action disclosure is desirable because:
    • It will help dispose fairly of the anticipated proceedings
    • It will enable the dispute to be resolved without resorting to proceedings
    • It will save costs
  • An order under rule 31.16 must:
    • Specify the documents or classes of documents which the respondent must disclose
    • Require the respondent to specify any of those documents when making disclosure that:
      • Are no longer in his control
      • He claims a right or duty to withhold inspection
  • An order under rule 31.16 may:
    • Require the respondent to indicate what has happened to documents that are no longer in his control
    • Specify the time and place for disclosure and inspection

If you would like further information about any aspect of litigation procedure or wish to discuss a potential or current claim, we have experienced lawyers on hand who can advise you. Please contact us on 020 7611 4848.