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Thursday, January 09, 2014

Litigation - Disclosure of Documents

I decided to look into the law/rules of disclosure of documents and found it fascinating. Law fascinates me, it also makes me laugh, at times, because it can be so perverse.


Disclosure Of Documents

If you are a party to a litigation you are required to share information with your opponent. This includes documentation that supports your case and documentation that can potentially be detrimental to your case.

This process, known as disclosure, requires parties to make all documentation relevant to the matter in dispute available.  The objective aim being to enable the Court to ensure that justice is done.

Pre-action disclosure

Before commencing proceedings parties are required by the pre-action protocols to share information.

Standard disclosure

Standard disclosure requires the parties to carry out a reasonable search for documents which record information that they intend to rely on, or which adversely affect or support another party’s position.

The parties are required to search for all documents that relate to the issues in dispute.

"Parties should remember that the disclosure obligation continues until the proceedings are concluded.  The duty does not simply come to an end once the initial disclosure process has been complied with.  If a relevant document comes to light after initial disclosure, or even if it is created after initial disclosure, it must be disclosed." - David Rosen, Head of Litigation, Darlingtons Solicitors LLP

I'm unsure what would happen if a party was found to have not adhered to the above. Is it a criminal offence? Could a Judge call for a mistrial if he/she were to find out that one of the parties [let's say defence] had withheld information on purpose because it was of benefit to the prosecution and detrimental to the defence?

Fascinating stuff. It doesn't go on today though... or does it?

It would make quite a story if it did, don't you think?

Fraudulent concealment (1) , I'm sure, would be frowned upon by many Judges, particularly those in the Supreme Courts.

Bob Fiddaman

(1) Fraudulent concealment - Deliberate hiding, non-disclosure, or suppression of a material fact or circumstance (which one is legally or morally bound to reveal) with intent to deceive or defraud in a contractual arrangement. 

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