Disclosure in Commercial Litigation

If you watch a lot of American or American-influenced TV legal dramas, you will have heard the term 'discovery'. In England and Wales, we call it disclosure.

Disclosure is one of those litigation concepts that sounds like a procedural hoop to jump through, but it really isn't. Most people involved in commercial litigation understand, in a general sense, that documents have to be shared. What they understand less clearly is the precise mechanics of that obligation — and what happens when someone tries to work around it.

The distinction that matters

Disclosure and inspection are not the same thing, and the difference is practically important.

Disclosure is the process of confirming that a document exists or has existed. A party gives disclosure by producing a list of documents, accompanied by a disclosure statement, identifying the documents within their control that are relevant to the proceedings. The obligation is to acknowledge the document's existence, not necessarily to hand it over. It extends to documents which exist but are no longer in a party's control, or documents which did exist but no longer exist.

Inspection is the separate right to examine the documents that have been disclosed. A party is generally entitled to inspect documents that have been disclosed to them, but that right can be withheld in certain circumstances — most significantly where the document is privileged.

Understanding the distinction matters because a document can be disclosed — its existence acknowledged — while simultaneously being withheld from inspection on grounds of privilege. Those are two separate decisions, governed by separate rules.

There are different disclosure rules which apply depending on whether the case is progressing in the County Court or the High Court, but generally the overall concept as to disclosure and inspection are the same. 

A 'document', incidentally, is not merely a piece of paper. Documents, for the purposes of legal disputes, are any means of recording data in a durable format. They include hard-copy documents, documents stored electronically, emails, email attachments, cloud accounts, voice notes, voice recordings, text and WhatsApp messages, diary entries and meeting invites — it can even stretch to cover all those chats you have been having with your favourite AI bot. It also includes metadata — the data behind the data.

Privilege

Legal professional privilege protects certain documents from inspection even where their existence has been disclosed. The two main categories are legal advice privilege — which covers confidential communications between a lawyer and client for the purpose of giving or receiving legal advice — and litigation privilege, which covers documents created for the dominant purpose of litigation that is reasonably anticipated or already underway.

Privilege is a fundamental right, and courts take its protection seriously. It is not a blanket immunity, though, and claims to privilege are sometimes challenged — particularly where there is reason to believe that documents are being withheld on spurious grounds rather than genuine legal entitlement.

See my article here for a more in depth analysis of the concept of privilege, and when it might be lost. 

Specific disclosure

Where a party believes that relevant documents exist but haven't been disclosed, they can apply for specific disclosure under CPR 31.12. The court can order a party to disclose specific documents or categories of documents, to carry out a further search, or to provide a further disclosure statement.

The evidential basis for a specific disclosure application is usually an inference from the nature of the case. If a party's pleaded case depends on the existence of certain communications, records or decisions, it is reasonable to infer that documents evidencing those matters exist. An assertion that they don't is not always credible, and courts are not always inclined to accept it without scrutiny.

The inference from absence

This is where disclosure strategy becomes genuinely interesting. Where a party has been asked to produce documents that, on any reasonable analysis of the case, ought to exist, and they maintain that no such documents exist, the court is entitled to draw inferences from that absence.

If the documents don't exist when they should, the question is why. If they did exist and have been destroyed, the question is when and by whom. Either answer creates difficulties for the party asserting that there's nothing to produce.

In litigation, a carefully identified gap in the other side's disclosure can be as valuable as the documents themselves. Sometimes more so.

I recently represented a client at trial in a case where we identified a series of documents that, given the nature of the other side's pleaded case, must logically have existed. They said there were none. We noted that position, and we were content to take it to trial with that gap in their evidence. We opted not to make targeted disclosure requests and instead invited the judge to treat with caution the assertion that documents which we said must have existed apparently did not.

Why conduct during disclosure matters

The court's approach to disclosure is governed by the overriding objective — dealing with cases justly and at proportionate cost. A party that is perceived to be obstructing the disclosure process, whether by asserting privilege without proper basis, conducting inadequate searches or making implausible claims about what documents exist, risks more than a specific disclosure order. It risks the court's assessment of its credibility across the case.

Disclosure conduct is visible. Judges read disclosure statements. They notice when the documents produced don't match the story being told in the pleadings, and they draw conclusions. Judges are people just like you. If something smells off to them, it does influence their views as to the merits.

Disclosure is a process which needs to be treated with caution, and it must be taken seriously. A good solicitor will challenge you on the completeness of your own documents because they know full well somebody else will.