In broad terms, disclosure is the process by which parties in litigation share documents with each other. The documents evidence the case, but they may also expose inconsistencies or inaccuracies in either side’s story.
There are different disclosure regimes in different UK courts, and the disclosure process will vary depending on the size, complexity, and nature of the case.
In this article, we look at what you can expect from the disclosure exercise, if your case is listed in the Business and Property Courts.
Business and Property Courts
The Business and Property Courts decide business cases in England and Wales. These courts cover disputes that are dealt with by the Commercial Court, the Business List, and the Companies List (among others), and covers a large proportion of the cases we handle at Rahman Ravelli.
Since October 2022, the Business and Property Courts have operated their own system of disclosure, which deviates slightly from other areas of litigation.
Disclosure in the Business and Property Courts
The process of disclosure in the Business and Property Courts is governed by Civil Procedure Rules (CPR), Practice Direction 57AD.
The main difference between the regime in the Business and Property Courts, and other courts, is that a significant amount of the disclosure process is front-loaded.
The parties give ‘initial disclosure’ of key documents right at the start of the process, when they serve the statements of case. Later, the parties can request further disclosure on certain issues in the case, and the court may order ‘extended disclosure’, which is in some respects similar to the process of ‘standard disclosure’ used in other courts.
Initial Disclosure
The parties provide initial disclosure at the same time as they serve their statement of case. Initial disclosure includes:
- Key documents on which a party relies.
- Key documents that are necessary to enable the other parties to understand the claim or defence they have to meet.
It is possible for the parties to agree to dispense with initial disclosure. If the key documents have already been exchanged at pre-action stage, then they may agree that initial disclosure adds nothing new.
Extended Disclosure
Before the first case management hearing, the legal teams will file a disclosure report or disclosure review document (DRD). In this document, either side may request extended disclosure of documents.
When asking for extended disclosure, the lawyers put forward a list of issues and propose models of disclosure for each issue. The various models available are:
- Model A: Disclosure confined to known adverse documents.
- Model B: Limited disclosure including key documents on which a party relies, key documents that are necessary to enable the other parties to understand the claim or defence they have to meet and known adverse documents.
- Model C: Disclosure of particular documents or narrow classes of documents.
- Model D: Narrow search-based disclosure whereby each party carries out a reasonable and proportionate search.
- Model E: Wide search-based disclosure which is only ordered in exceptional circumstances.
Models C, D , and E require the parties to conduct additional searches. Whichever party requests the extended disclosure must be able to make a case for why the disclosure model that they have chosen is appropriate, reasonable and proportionate for the particular issue.
If the parties do not agree, the court will decide what kind of extended disclosure should be given.
Disclosure Obligations: What do you need to do as the client?
Preserve Documents
As soon as litigation becomes a possibility, your company must preserve your documents. That means that you have to suspend any document deletion or destruction processes for the duration of the proceedings (including those held by agents or third parties).
You also have to send a written notification to relevant employees and former employees of the company, where there are reasonable grounds for believing that those people may be in possession of disclosable documents which are not also in the party’s possession.
Brief Your IT Team
For search-based models of disclosure you have to search for documents in a responsible and conscientious manner to fulfil the stated purpose of the search. That means that you need to know how your data is stored, and where.
Your IT team will be critical in identifying electronically stored information. They will be heavily involved in analysing how much data there is and how to access it.
For large disclosure exercises, it’s normal to engage the services of a specialist e-disclosure provider. Your IT team will work closely with the external provider to identify and collect the relevant information.
Provide Context to Lawyers
During the disclosure exercise, you will be kept up to date with how the review is going. Clients often need to provide context on the documents, such as technical input that is relevant to the issues, or explain whether information is confidential, or sensitive.
Sign the Disclosure Statement
Once the disclosure exercise is complete, somebody at the company (usually a director) will have to sign the disclosure statement. This is a statement which:
- Sets out the extent of the search that has been made to locate documents which you are required to disclose.
- Certifies that you understand the duty to disclose documents.
- Certifies that to the best of his knowledge you have carried out that duty.
Throughout the disclosure exercise, have in mind that you will need to sign this statement. Often disclosure exercises include vast searches, and voluminous documentation, so usually lawyers keep a note of the decisions made along the way.
The disclosure statement contains a statement of truth, so it’s important that you feel confident that you have sufficient knowledge of the disclosure exercise to sign it. Signing a false disclosure certificate without honest belief in its truth could leave you in contempt of court and facing serious consequences like a fine.
For that reason, it’s worth keeping your own version of a disclosure ‘log book’ to remind you of where you have searched for documents, and why you chose to search, or not search in certain places.
Disclosure Exercise: What does your team of solicitors do?
Agree the Parameters of Disclosure
The solicitors representing the parties will agree which model of disclosure is appropriate for which of the key issues.
If search-based models are deemed appropriate, the legal teams will agree on the parameters of the search and review. That includes agreeing on keywords, date ranges, and the technology they will use for the review.
Liaise with the e-disclosure Provider
Large e-disclosure exercises will require the services of a specialist provider. They have the technology and AI to make the disclosure exercise as efficient, accurate, and cost effective as possible.
The e-disclosure provider collects the documents from the client and uploads them onto the review platform. They filter the documents for keywords, date ranges, concepts, and custodians, and will remove duplicates. This means that lawyers can review the most relevant documents, and time is not wasted in reviewing documents that aren’t relevant to the dispute.
Review and Tag Documents
The team of lawyers reviews the documents on the e-disclosure platform and the ‘tag’ them to identify which key issue the document is relevant for. Lawyers also identify any privileged documents which will be withheld from inspection by the other side.
Prepare the Disclosure List
Once the review is complete, extended disclosure is given by providing the other side with a list of the documents and producing them in electronic format.
Inspect the Other Side’s Disclosure
The other side prepares their disclosure at the same time, and documents are exchanged on the same day. Your team of lawyers then reviews the other side’s disclosure to find documents that support your case, or undermine the other side’s case.
Confidentiality
If a document contains confidential information, it is still disclosable to the other side. However, it is understandable that a party will have concerns over confidentiality, particular in circumstances where the information may benefit the other side in some way.
Where documents are confidential, they may be disclosed to a limited class of people in a ‘confidentiality ring’, which will usually include the lawyers, but not the client.
Privilege
Documents which are privileged will be withheld from inspection by the other side. They will be listed in the disclosure list, but the documents will either be redacted or withheld completely.
Disclosure: Round-up
The disclosure phase of a case often marks a pivotal moment in proceedings. The hope is that you find a ‘smoking gun’ somewhere in disclosure that is so damaging to the either side’s case that they settle on favourable terms.
In reality, smoking guns are rare, but the process of reviewing all the documents in the case usually illuminates the issues and sharpens the arguments. It provides the evidence needed to push forward with the claim to trial, or put pressure on the other side to settle.
