commercial and personal solicitors-Nottingham

Soon after the Court issues a claim, it will make an order for directions. One of the most important of these directions is for "disclosure of documents". The purpose of this note is to explain what this process is, and what duties this imposes upon both you and your solicitors.

the start of the claim

A Form called an "Acknowledgement of Service" is sent with the Claim Form to the Defendant. Within 14 days of receiving the Claim Form, The Defendant must send to the Court The Acknowledgment of Service asks the Defendant to indicate whether a defence will be submitted, and a copy of the Form is sent to the Claimant.

If the Defendant does indicate that a defence will be submitted, then this must be sent to the Claimant and the Court within 28 days of receiving the Claim Form (or longer if the Claimant agrees). If the Acknowledgement of Service is not sent in, the Claimant can enter judgment in default of defence 14 days after service of the claim form.

the allocation questionnaire

Once a defence is filed, the Court will send an allocation questionnaire to both parties asking for details of the case, which has to be returned within 14 days. It also asks for any dates that the parties or their witnesses will not be able to attend a trial. The Claimant also has to pay a Court fee of £80.

The District Judge considers the issues raised by the claim form, the defence, and what is said in the allocation questionnaires, and then either makes a directions order or sets a hearing date for the parties to attend, when the order will be made.

the directions order

The District Judge may make a directions order either without a hearing, or after he has heard from both parties at a hearing at the Court or by telephone. The order is then sent to both parties (or their solicitors if they are represented). The order will set a timetable that both parties must adhere to. One of the first matters that the Court will require the parties to deal with is disclosure.

procedure for standard disclosure

Your solicitors will prepare a list of documents in a standard form from the documents you supply to us. The list will identify all of these documents, and also indicate any documents over which you claim a right to withhold inspection ("privileged documents"), and documents that are no longer your control (and what has happened to them). The list will include a disclosure statement, signed by you. A disclosure statement is a statement setting out the extent of the search that has been made to locate documents, certifying that you understand the duty to disclose documents and that you have carried out that duty. This list is then sent to the other party in exchange for their list, and each party then has a right to have copies of any document in the other’s list.

what documents are to be disclosed

Standard disclosure requires you to disclose the documents on which you rely and any documents that adversely affect your own case or support the other party’s case. The Court may also make an order for specific disclosure in some cases, in other words for documents of a particular sort or category. Your solicitors as individuals are officers of the Court, and must not mislead it. This means that if they are aware of documents that should be disclosed they owe a duty to the Court to do so. This duty is in addition to the duty they owe to you as your solicitors, and over-rides it.

meaning of "document"

"Document" means anything in which information of any description is recorded. This therefore includes photographs, video recordings, and computer information on hard drive or removable media such as floppy disks. It also includes emails.

the duty of disclosure

Your duty to disclose documents is limited to documents that are or have been in your control. This means having physical possession of it, or a right to possession of it, or a right to inspect or take copies of it. A copy of a document that contains a modification, obliteration or other marking or feature on which you intend to rely or which adversely affects your case or another party’s case is treated as a separate document. Your duty of disclosure continues until the proceedings are concluded. If documents come to your notice at any time during the proceedings, you must immediately notify the other party of it. It you fail to comply with your duty, any order or judgment that is made in the claim could be appealed or set aside.

privileged documents

You are not obliged to disclose documents that are generated by or in expectation of the claim itself. This means that letters between you and your solicitors do not need to be disclosed, provided they relate to the claim that is being brought.

If, however, they are relevant to the dispute but were not generated by it then they must be disclosed. For instance, if you bring a claim about your purchase of some land, then the other party’s solicitor’s file relating to the purchase is discloseable, but letters relating to the claim that is then brought by you are not.

duty of search

You are required to make a "reasonable" search for documents. What is meant by "Reasonable" depends on a number of factors, including the number of documents that would be involved, the nature and complexity of the proceedings, and the significance of any document that is likely to be located during the search.

Where you have not searched for a category or class of document on the grounds that to do so would be unreasonable, the disclosure statement must state this and identify the category or class of document.

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