Disclosure - Completing form N265







When a court to which the Civil Procedure Rules (CPR) apply orders you to give standard disclosure then, unless otherwise stated in the order, your disclosure list must include (e.g. must be attached to) a disclosure statement in which you, the person who has searched for documents and produced the disclosure list, certifies that they have carried out their disclosure obligations as required by the court's order. 

An order for standard disclosure only requires you to carry out a reasonable and proportionate search. Put simply this means that you can limit the search and do not, for example, have to search for documents in places which are very difficult to search if it is very unlikely any discloseable documents will be found there. But you must state in your disclosure statement in what way your search has been limited. This then gives the other party an opportunity to ask you to voluntarily carry out further searches in particular areas. If you decline to search further then ultimately the other party can ask the court to decide what further searches, if any, should be ordered.      

Form N265 should be used - it can be downloaded from www.justice.gov.uk/courts/procedure-rules/civil/forms  

In the box at the top of the form, you fill in details such as the name of the court, number of the case, the names of the parties, and the date that you are filling in the form.

The disclosure statement itself occupies the first two pages of the form but it refers to the lists on the third page of the form, so you should fill in the third page first.

If the court has not ordered disclosure by list - i.e. has (as occasionally happens) only ordered you to supply copies of documents, not to also supply a list of them, it is still good practice to supply lists anyway as it helps to avoid disputes, later on, about exactly what documents were disclosed, but if you decide not to supply lists, but only copies of documents you have, you would remove the third page from the form.

 

Completing the third page of form N265

The third page consists of three sections:

1. A list of documents which you do not object to the other party seeing - this is the main disclosure list.

2. A general description of categories of documents which you claim to be "privileged" so that you do not have to show them to the other party or the court (for example advice from a lawyer).

3. A list of any documents which you used to have but no longer have.  


First Section - the main disclosure list

The first section commences with:

I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.


The section is too small to actually list the documents so you would type in here

The documents on the attached Disclosure List 

because you will be attaching the disclosure list which you have produced which lists the documents. 

    


Second Section - privileged documents

The second section commences:


I have control of the documents numbered and listed here, but I object to you inspecting them.


and is for privileged documents. A written Opinion or other written advice from a barrister is a privileged document which means that you can keep its contents confidential and do not have to provide a copy of it to anyone. Some other documents connected with obtaining legal advice or conducting litigation are also privileged. Privileged documents are not listed in the disclosure list (see above - First Section) but are declared in this Second Section. They are not listed individually (because that would reveal too much about them) but by category, like this:

I have control of the documents numbered and listed here, but I object to you inspecting them:


1. Communications or other documents prepared during the litigation or when litigation was contemplated for the purpose of the litigation.

2. Communications or other documents prepared for the use of me or my legal advisers to enable my legal advisers to advise me whether in relation to the litigation or otherwise.

3. Documents containing legal advice.

I object to you inspecting these documents because they are subject to litigation privilege and/or legal advice privilege.


Third Section - documents you used to have

This section commences:

I have had the documents numbered and listed below, but they are no longer in my control.

It may be that there are no such documents - i.e. every document which you have ever received or produced, which is probative, you still have. In that case you would write here:

None.

On the other hand if there are any probative documents which you used to have but have no longer - for example if you have a letter addressed to you which commences "thank you for your letter of 5th May" but you don't have a copy of your letter dated 5th May which it is replying to because you did not keep a copy when you sent out your letter - you can list such documents here with a brief explanation of what has happened to them.


 

The Disclosure Statement itself

1. The first two pages of form N265 are for the disclosure statement itself. The disclosure statement commences e.g.:

I, the above named Claimant, state that I have carried out a reasonable and proportionate search to locate all the documents which I am required to disclose under the order made by the court on 22nd October 2017.   

Or, if a company or other organisation is the party which has been ordered to disclose documents, the disclosure statement would start with e.g.:

I, John Smith, the operations manager of the Defendant company, state that I have carried out a reasonable and proportionate search to locate all the documents which the Defendant company is required to disclose under the order made by the court on 22nd October 2017. 

2. The disclosure statement then continues with a series of boxes relating to the extent of the search carried out. The purpose of these boxes is often misunderstood. In most cases, it is not difficult to work out where all probative documents will be (there are only so many places they can be) to thoroughly search those locations and find and list all probative documents, and, if you have done this, you do not need to fill in any of these boxes and you can skip to step 3 below. However if you are a large organisation and some of the issues in dispute in the litigation cut across the categories used in your filing systems, whilst there may be some obvious places to look for documents, it may be that the only way to ensure that you have found all probative documents would be to search through tens of thousands of documents. In this situation you can choose to rely on the fact that you only have to carry out a reasonable and proportionate search but, if so, you have to give details of how you have decided to limit the the extent of the search and your rationale (CPR PD 31A 4.2). When giving this explanation you can either explain where you have searched, or explain where you have not searched (or a combination of the two). This is what the boxes are designed for but you do not have to use the boxes if it is easier, or more accurate, to explain in your own words how you have limited the task of searching for documents. If you are a organisation then a reasonable and proportionate search would include the formal paper and electronic filing systems (and backups) which the organisation uses, but when searching for documents held by individual employees, in paper notebooks or on laptop computers, for example, if there are a large number of employees, it would normally be reasonable to limit the search to those employees who attended meetings relevant to, or were otherwise involved in, the issues raised in the litigation. In this case you could tick and use the boxes to say as follows: I did not search for documents - located elsewhere than - the organisation's only office which is in Salisbury together with the mobile devices and personal paper notes of employees involved in the matter giving rise to the litigation. I carried out a search for electronic documents contained on the organisation's formal computer systems, and backups, together with the laptop computers of those employees involved in the matter giving rise to the litigation.   

3. The disclosure statement ends with:

I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. I further certify that the list of documents set out in or attached to this form, is a complete list of all documents which are or have been in my control and which I am obliged under the order to disclose.


And you then sign and date. Signing is the equivalent of making a statement on oath in court so before signing you should seek advice from a qualified lawyer if you are in any doubt about what the statement means. 

If the court has not ordered disclosure by list - i.e. has (as occasionally happens) only ordered you to supply copies of documents, and that is all you are doing, you would change the above wording accordingly, e.g.:

I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. The copies accompanying this form, are a complete set of all documents which are in my control and which I am obliged under the order to provide copies of.

Note: If, after you have sent the signed disclosure statement to the other party, you become aware of further probative documents, you must tell the other party immediately (CPR 31.11 and CPR PD 31A 3.3).
 

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This page was lasted updated in November 2017. Disclaimer