Disclosure Statement


At the Disclosure of Documents stage, as well as providing a list of documents in your control, you have to disclose any documents (which come within the scope of the court's/tribunal's order for disclosure) which used to be in your control, but are no longer in your control. The disclosure statement giving this information may, depending on the court/tribunal, need to contain other information as well.

Some court/tribunals prescribe a particular form for a disclosure statement but an example to give you the general idea is shown below.


DISCLOSURE STATEMENT


In the

Claim No.

 

Claimant
(including ref)

 

Defendant
(including ref)

 

Date

 

Party Returning form

 

 

 

 


 

 

 

 

 

 

 

 






I confirm that:-

1. Attached to this Disclosure Statement is a List of Documents. I do not object to you inspecting the documents listed/producing copies.

 

2. All the documents which I may wish to rely on at trial are included in the attached List of Documents.

 

3. I have carried out a search for documents in my control and I have included in the attached List of Documents -

 

·     every document found which adversely affects my own case

·     every document found which adversely affects another party’s case, and

·     every document found which supports another party’s case    

 

except for those documents described in (7) below. 

 

4. I understand that “documents in my control” means any document I have in my possession, or have a right to possession of, or have a right to inspect or have a right to take copies of.

5. When carrying out the search for documents which are in my control, I did not limit the extent of the search in any way.

 

6. I have, in the past, had the documents listed below (which adversely affect my own case, or which adversely affect another party’s case, or which support another party’s case) but they are no longer in my control

     List and number here, the documents you once had in your control, but which you no longer have. For each document listed, say what has happened to it.


7. I wish to withhold production of the classes of documents listed below (which would otherwise fall within my obligations):

 

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

·       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.

·       Documents containing legal advice.

 

·       Any Without Prejudice communications between the parties. 

The grounds on which production of these classes of documents is being withheld is that they are subject to litigation privilege and/or legal advice privilege and/or "without prejudice" privilege.

 

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.

I understand that I must inform the other parties immediately if any further document which adversely affects my own case, or which adversely affects another party’s case, or which supports another party’s case, comes into my control at any time before the conclusion of the case.

 

Signed.................................................       Date.......................................

 

Name..................................................

 



FAQs

How can I disclose documents which have been in my control but are no longer in my control?   

Obviously if you no longer have access to, or copies of, a document, you cannot provide copies, but disclosure means describing briefly what documents they were and what has become of them. You may know about such documents either because you remember having them or because they are referred to in documents you still have. For example if you have a letter written to you dated 30th September 2013 which commences "Thank you for your letter of 25th September 2013" but you do not now have a copy of a letter by you dated 25th September then, unless you have some reason to suppose that that is a mistake, you know that you must have sent out a letter dated 25th September 2013 and that that is a document which you used to have in your control but no longer do. And if the 30th September 2013 letter is a document which comes within the scope of the court's/tribunal's order for disclosure, it is likely that the letter it is replying to - your letter of 25th September 2013 - will also be a document which should be disclosed. 

    

Limited Disclosure Orders and Complex Disclosure Statements

During most of the 20th Century, the disclosure orders made by courts and tribunals (either by specific order or by means of rules) have tended to require all potentially relevant documents to be searched for and disclosed, even documents which are not themselves probative of issues in dispute but which are documents which might help a party make further enquiries of third parties which might turn up some document which might be probative, but in the last 40 years there has been growing concern that the use of computers, and more recently the advent of email, and the resulting increase in the number of documents which might need to be searched through in large commercial court cases, has resulted in a great increase in the (already large) solicitors' fees associated with the Disclosure of Documents process.

These concerns have had two effects in terms of court/tribunal rules and the general practice of courts and tribunals in the specific orders they make. First, it is generally only probative documents which are ordered to be searched for (and not also "train of enquiry documents"). Secondly instead of routinely ordering a search for all probative documents, there is a tendency for courts to consider making more limited orders with a view to trying to save costs. Litigants in multi-million pound commercial cases generally welcome these measures designed to reduce their solicitors' bills, but for litigants who are private individuals involved in more more ordinary litigation, these measures to save costs - which can involve litigants in person being asked to initially make estimates of how many documents, by category, there are to be searched, and being asked to suggest particular limited disclosure orders which the court could consider making (or sometimes a litigant is given initial licence to limit the search to what the litigant considers reasonable and proportionate, state on the disclosure statement how they have limited the search, and the rationale for the limitation, and leave the other side to ask, if they wish, for a further order for a more comprehensive search) - can pose problems. If there are 5,000 documents it is not difficult to think of 5 or 6 categories into which they could be placed, but if you only have 30 relevant documents in total trying to think of sensible categories to group them in is difficult - in fact it is easier to just bite the bullet and produce and disclose a list of them them all without more ado. If you do the work to disclose thousands of documents before the court has ordered that (and most of them are not documents you yourself intend to rely on at trial - which, of course, always have to be disclosed) you might be criticised because it could be said that that increases the other side's costs unnecessarily (if the disclosure order the court would have made would have been much more limited) but if you are in the situation where there are only a limited number of places around your home where documents could be, and you know there are no relevant documents outside your home, and it is easy to find all the relevant documents and there are not that many anyway, scanning them in and producing a complete list even before you have to may well be easier than puzzling over how to summarise and categorise them and filling in a complex disclosure statement, rather than being able to use a simpler oneAnd most individuals, in an ordinary case, would think it preferable to search for all the documents anyway - it is not a matter of doing the minimum which a court order might require but of positively wanting to search everywhere a relevant document might be in case the search turns up a useful document.  


Disclaimer

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 and the particular disclosure orders/rules which apply to that particular case. This information page should not be used by, or relied on, by anyone else. 

This page was lasted updated in October 2018. Disclaimer