Court proceedings; 5 steps to take to Protect Evidence
The documents you produce in a court case could win or lose it for you. However, you cannot pick and choose what evidence you want the court to see. The duty of disclosure means disclosing documents that help or hinder your claim.
At present, the courts generally require the parties to undertake ‘standard’ disclosure. Standard disclosure requires a party to disclose documents:
- On which it relies.
- Which adversely affect its or another party’s case, or support another party’s case.
- That it is required to disclose by a relevant practice direction.
This means carrying out a search at your premises, on computers, laptops, mobile phones and anywhere else potential documents may be stored. It can include documents that third parties hold on your behalf too and documents that were in your possession but aren’t any more. However, the overriding objective does mean such search must be reasonable and proportionate to the claim being pursued. The higher the value of the claim the greater the duty to carry out searches.
As a result of technological advances, higher value claims also must state to the court how they intend to deal with electronic disclosure.
What Documents Should I Disclosure
Documents mean any form of recorded information, not just writing on paper. For example, pictures, emails, mobile phone texts, social networking messages or video-clips are all classed as documents.
Depending on the nature of the case, this might include:
- Pre-contractual discussions;
- Contracts or terms and conditions;
- Photos of damage;
- Invoices or receipts of payments;
- Text messages;
- Email correspondence.
What Steps should you take to Protect Documents
Anyone in the company who might be involved in a claim is informed of the following:
- Do not destroy documents. Take steps to ensure that the company suspends any routine document destruction policies that it has in place. Make sure any policy has a caveat in the event of court proceedings.
- Do not create documents (or annotate or amend existing documents). It is very important that you do not create any new documents that might have to disclosed later down the line. Do not annotate documents or make notes as this will become a new document that might have to be disclosed.
- Do not ask any third party to send you documents. There are certain documents that you may not have in your possession, and may not have the legal right to possess, inspect or copy. Those third-party documents will not be disclosable, unless they come into yours/the Company’s possession.
- Get copies of all documents ready early on. If you do decide you want to pursue a claim or you need to defend a claim, if you instruct a solicitor they will want to see all the evidence from the outset. Providing your solicitor with all the documentation, good or bad, can help them properly assess the merits and advice you on the best steps to take from a tactical perspective.
- Ask the other side for relevant documents. If relevant documents are in the other side’s possession, request copies early on. Also remind the other side to take proper and appropriate steps to ensure no relevant documents are altered, lost, destroyed or disposed of pursuant to paragraph 7 of CPR Practice Direction 31B.
If you have received a complaint, even if litigation is not mentioned, it is worth taking these steps in case a claim is later issued against you. If you have destroyed relevant documents this could be held against you and/or affect your credibility.
Changes to Disclosure Process
A proposal to change the disclosure rules is due to be trialed from January 2019 at the Business and Property Courts. The idea is to address the excessive costs incurred by parties in litigation and to control the time and effort involved in complying with the duty to disclose.
The Disclosure Working Group (established in 2016 and chaired by Lady Justice Gloster) considers the current disclosure rules not suitable for sending and receiving the amount of data that is stored electronically. In this modern day and age, technology has made it much easier to produce vast amounts of data. The Working Group identified key defects in the current rules for disclosure including:
- Failure to utilise the broad menu of options set out by the Jackson reform, which range from no disclosure at all, to disclosure by issue. Legal professionals and the judiciary have not adequately utilised the wide range of alternative orders added as CPR 31.5(7). Standard disclosure has been the usual form of disclosure used in most cases;
- The existing rule was ideal for paper disclosure but is not fit for purpose in dealing with electronic data;
- Disclosure orders are not sufficiently focused on the issues;
- A general lack of engagement between parties before the first CMC in relation to disclosure; and
- Searches often being far wider than necessary.
The new updated disclosure rules will allow courts to have more control in ordering parties to perform their duties to further the overriding objective.
There will be predominantly five different disclosure models that parties will have to select from unless neither of the models is appropriate for the matter at hand. In such case a tailored method of disclosure may be applied. However, a tailored model will only apply in exceptional circumstances. Standard disclosure under the current regime will no longer be your typical order.
Once a model has been decided on that requires disclosure, parties can expect further directions from the court such as timelines of when searches must be carried out.
For practitioners, the duty to actively coordinate with the representation on the other side will begin earlier than under the current rules. Parties will be expected to complete a disclosure review document and keep this updated as the matter progresses. If a party fails to co-operate and constructively engage in this process the court may make appropriate orders at the case management conference, including the dismissal of any application for Extended Disclosure and/or the adjournment of the case management conference with an adverse order for costs.
It will be interesting to see how practitioners and courts alike implement the new changes and how much of a difference these changes will bring in terms of costs. Perhaps an intelligent online portal will be considered in the near future that will make the exchange of documents safer and easier yet.
If you would like to discuss the content of this article or if you are considering taking legal action against someone, please contact Fazl Buchari on 0207 388 1658 or at firstname.lastname@example.org.
Fazl Buchari, Solicitor