Disclosure Proposal Reports

A court/tribunal will normally order the parties, at an early stage of the litigation, to disclose - i.e. tell each other - which documents they will or might be using at the trial. In addition the court/tribunal will typically order each party to search for and disclose additional documents - so that the other side can rely on any of those additional documents at trial if it wishes to do so. 

When ordering parties to disclose documents the court/tribunal might:

(a)    directly identify the documents to be disclosed by describing them in a way someone with no knowledge of the case can immediately                     recognise - e.g.: "Mr Smith must disclose all invoices sent to Mr Jones between between 1 January 1998 and 31 December 2004                         (inclusive)"


(b)    identify documents to be disclosed indirectly by reference to a general issue - e.g.: "Mr Smith must disclose all documents which are or                 have been in his control which support or adversely affect any party's claim or defence in relation to the issue of what (if anything) was                 agreed by the parties, before building work commenced, about a completion date for the building work."  


(c)    identify the documents by whether they support or adversely affect an issue specifically pleaded by a party and disputed by another party by         specific pleaded denial or non-admission - e.g. "Mr Smith must disclose all documents which are or have been in his control which support            or undermine his contention that a completion date of 1st November 2019 was agreed for completion of the building work."

         
(d)    identify the documents by whether they support or adversely affect all issues pleaded by a party and disputed by another party by pleaded             denial or non-admission - e.g. "Mr Smith must disclose all documents which are or have been in his control which support or undermine the         case of any party."



Before deciding what orders to make the court/tribunal will normally give each party an opportunity to make proposals as to what should be ordered - i.e. what the other side should be ordered to search for and disclose, and what they themselves should be ordered to search for and disclose, and whether (and if so what) data culling measures at the document collection phase of a search, such as date ranges and keyword searches, should be authorised to limit the number of documents which the disclosing party then has to review. The court/tribunal will generally order the parties to provide in advance a report providing some background information about how many and what type of documents exist, together with its proposals for the order to be made, and the possible time/expense for each party of complying with the order proposed which applies to them. The exact requirements for the report will depend on which court or tribunal it is.   

Historically the disclosure of documents stage has been an increasingly expensive element in litigation, partly because of the amount of thought which has to go into reviewing each document during a search, and the modern approach of courts/tribunals is increasingly to make disclosure orders of  type (a) which do not require the reviewer to have any knowledge of the case, and/or type (b) which requires knowledge of the case but involves a largely clinical exercise, rather than type (d) which requires considerable time and thought when reviewing each document.

In practice if the court/tribunal does make an order of type (d) that will usually be because the total number of documents in existence which could possibly be relevant to the case is likely to be relatively limited and the risk that a party seeking to comply with an order of type (d) may well disclose some documents which are not actually relevant (because they are "playing safe" to ensure that they comply with the order) - and thereby increase the work of the other side to some degree - does not justify the court's/tribunal's and the parties' time in devising more precise orders of type (a), (b), or (c).  


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This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

This page was lasted updated in February 2020. Disclaimer