Evidence and disclosure - Standard disclosure

Learning Outcomes

After reading this article, you will be able to explain the rules and process of standard disclosure in civil litigation under the Civil Procedure Rules. You will understand what documents must be disclosed, how to conduct a reasonable and proportionate search, the meaning of control and privilege, and how electronic documents are handled. You will be able to apply these principles to practical scenarios and avoid common errors, as required for SQE1.

SQE1 Syllabus

For SQE1, you are required to understand the principles and application of standard disclosure in civil litigation. Focus your revision on:

• The definition and scope of standard disclosure under CPR 31.6.
• The duty to conduct a reasonable and proportionate search for documents.
• The meaning of control in relation to documents.
• The process for preparing and serving a disclosure list and statement.
• The operation of privilege (legal advice, litigation, and without prejudice privilege).
• The handling of electronic documents and electronic disclosure.
• The ongoing nature of the disclosure obligation and consequences of breach.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What documents must be disclosed under standard disclosure in civil litigation?
2. What factors determine whether a search for documents is "reasonable"?
3. How does privilege affect a party’s disclosure obligations?
4. What is required when handling electronic documents in disclosure?

Introduction

Standard disclosure is a key stage in civil litigation. It ensures that all parties have access to documents relevant to the issues in dispute, supporting fairness and transparency. The Civil Procedure Rules (CPR) set out strict requirements for what must be disclosed, how searches are conducted, and how privilege and electronic documents are managed. Understanding these rules is essential for effective litigation and for SQE1 success.

What is Standard Disclosure?

Standard disclosure requires each party to disclose documents relevant to the matters in dispute. The rules are set out in CPR 31.6.

Key Term: standard disclosure
The process by which a party must disclose documents on which they rely, documents that adversely affect their own or another party’s case, documents that support another party’s case, and documents required by a relevant practice direction.

A "document" is defined broadly.

Key Term: document
Anything in which information of any description is recorded, including paper, emails, digital files, photographs, and audio or video recordings.

A party must disclose documents that:

• They rely on.
• Adversely affect their own case.
• Adversely affect another party’s case.
• Support another party’s case.
• Are required to be disclosed by a practice direction.

The Duty to Search and Disclose

The duty to disclose is not limited to documents a party wishes to use. It extends to any document that meets the standard disclosure test, even if it is unhelpful or damaging to the party’s case.

Key Term: duty to search
The obligation to make a reasonable and proportionate search for documents required under the applicable disclosure order.

A party must conduct a reasonable search for documents. What is "reasonable" depends on:

• The number of documents involved.
• The nature and complexity of the proceedings.
• The significance of any document likely to be located.
• The ease and expense of retrieval.

If a party decides not to search for a category of documents because it would be unreasonable, they must state this in the disclosure statement and explain why.

Worked Example 1.1

A company is involved in a contract dispute. It has 10,000 archived emails and hundreds of paper files. What should the company do to comply with its duty to search?

Answer: The company must make a reasonable and proportionate search. It should focus on emails and files likely to contain relevant information, using targeted searches (e.g., by date, sender, or keywords). It is not required to review every document if this would be disproportionate, but it must explain any limitations in its disclosure statement.

Control of Documents

A party is only required to disclose documents that are or have been in its "control".

Key Term: control
A party has control of a document if it is or was in their physical possession, if they have or had a right to possession, or if they have or had a right to inspect or take copies of it.

If a party no longer has a document in its control, it must state what happened to it.

Worked Example 1.2

A party once held a contract relevant to the dispute but lost it in a flood. What should they do?

Answer: The party must disclose that the contract existed, explain that it is no longer in their control, and state what happened to it (e.g., destroyed in a flood). This information is included in the disclosure list.

Preparing and Serving the Disclosure List

After completing the search, each party prepares a disclosure list (using Form N265 in practice). The list is divided into:

1. Documents the party does not object to the other side inspecting.
2. Documents the party objects to inspection (usually because of privilege).
3. Documents the party no longer has in their control.

The list must be accompanied by a disclosure statement, signed by the party, confirming the extent of the search and that they understand their duty.

Key Term: disclosure statement
A signed statement confirming the extent of the search for documents and certifying that the party understands and has complied with their duty of disclosure.

The list is served on the other parties by the deadline set in the directions order.

Privilege and Withholding Inspection

Some documents, though disclosable, may be withheld from inspection if they are privileged.

Key Term: privilege
The right to withhold inspection of a document, even though its existence must be disclosed, because it is protected by legal advice privilege, litigation privilege, or without prejudice privilege.

Key Term: legal advice privilege
Protects confidential communications between a lawyer and client made for the purpose of giving or receiving legal advice, regardless of whether litigation is contemplated.

Key Term: litigation privilege
Protects confidential communications between a lawyer or client and a third party, made for the dominant purpose of obtaining information or advice in connection with existing or reasonably contemplated litigation.

Key Term: without prejudice privilege
Protects genuine settlement communications from being used as evidence in court, even if not marked "without prejudice".

If a party claims privilege, the document must still be described in the disclosure list, and the reason for withholding inspection must be stated.

Worked Example 1.3

A party’s solicitor emails a client with legal advice about the dispute. Is this document privileged?

Answer: Yes. The email is a confidential communication for the purpose of giving legal advice, so it is protected by legal advice privilege. It must be listed in the disclosure list, but inspection can be withheld.

Electronic Disclosure

Most documents are now created and stored electronically. The CPR require parties to discuss and agree how electronic documents will be searched and disclosed, especially in complex or high-value cases.

Key Term: electronic disclosure
The process of identifying, searching, and disclosing relevant electronic documents, including emails, databases, and metadata, in accordance with the rules and directions of the court.

Parties may use keyword searches, date ranges, or other filters to make the search proportionate. The parties may be required to complete an Electronic Documents Questionnaire and agree on the format for inspection.

Exam Warning

Inadequate electronic searches or failure to agree a reasonable approach can result in court sanctions or an order for further disclosure. Always document and explain your search methods.

Ongoing Duty and Consequences of Breach

The duty to disclose is ongoing. If new documents come to light after the initial disclosure, they must be disclosed promptly by serving a supplemental list.

Failure to comply with disclosure obligations can lead to serious consequences, including:

• The party being unable to rely on undisclosed documents.
• Adverse costs orders.
• Sanctions for contempt of court if a false disclosure statement is made.

Revision Tip

Always advise clients to preserve all potentially relevant documents from the outset of a dispute. Destruction or loss of documents can have serious legal and cost consequences.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Standard disclosure requires parties to disclose documents on which they rely, that adversely affect their own or another party’s case, or support another party’s case.
• The duty to search for documents must be reasonable and proportionate, considering the case’s complexity and volume of documents.
• Only documents within a party’s control must be disclosed, including those previously held.
• Privileged documents must be listed but can be withheld from inspection, with reasons stated.
• Electronic disclosure requires parties to agree on proportionate search methods and formats.
• The duty to disclose is ongoing; new documents must be disclosed promptly.
• Failure to comply with disclosure obligations can result in sanctions, costs penalties, or being unable to rely on documents.

Key Terms and Concepts

• standard disclosure
• document
• duty to search
• control
• disclosure statement
• privilege
• legal advice privilege
• litigation privilege
• without prejudice privilege
• electronic disclosure