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Disclosure Dangers

Posted on 21 March 2016

Disclosure Dangers

Disclosure is a key part of litigation where parties have to provide to the Court (and to each other) documents in their possession which are relevant to the case. Documentary evidence available can often transform the way proceedings are unfolding. 

It's not often appreciated, however, how time-consuming and onerous the disclosure process can be, and in a world where emails are sent "24/7", the process risks bringing litigation to an expensive standstill.  It is not unusual for there to be millions of documents to review. 

We've listed some key points to keep in mind to avoid disclosure dangers:

  1. Understand where you need to search for documents

If a reasonable search for documents has not been carried out, a party will have broken their disclosure obligations.  This happened in the case of Re Atrium Training Services Ltd, Re Connor Williams Ltd (in which Mishcon de Reya acted for the successful party), where Liquidators, who had brought claims against former officers of an insolvent company, left out certain documents from their disclosure list.  Their claim was eventually struck out because of this.

  1. Make sure you disclose fully

If there has been a failure to disclose certain documents, this can be a "procedural irregularity" if it is shown that the Judge's ruling on the case might have been different had the documents in question been disclosed. This principle was raised in Redpath v Levy, although on the particular facts of that case (in which Mishcon de Reya had also acted for the successful party), there wasn't any such failure.

  1. Make use of technology to ease the burden

Where there are thousands, if not millions, of documents to review, this can be a long and laborious process.  Technology can help out. For example, there are "e-disclosure platforms" where electronic documents can be housed, sorted, reviewed and then provided to the other side electronically.  The case of Investments Limited and another v MWB Property Limited and others showed that technology is making amazing progress in how disclosure is carried out.  In that case, the Court, for the first time, approved the use of "predictive coding".  This is where a sample batch of documents can be reviewed to see if they are relevant to the case.  Software then applies the decisions made during that initial review across the entire collection of a party's documents.

  1. Be aware of the impact that disclosed documents can have on a case and on your reputation and business more generally

It is possible that documents which are commercially sensitive, or damaging to your reputation, may have to be disclosed if they are relevant to a dispute.  They can then become public if the case goes to trial and they are referred to in the Court room. You can get an Order to keep particular documents private, as was the case in Smith & Nephew Plc v Convatec Technologies Inc.  However, this will not always be possible.  It is worth thinking seriously about how you record information and the possibility that this information may enter the public arena and/or be used against you in proceedings later on down the line.

The nature of the disclosure process will vary in each case, depending on the type of dispute; the documents involved; the number of people who hold information; and how many sources of documents exist.  Having the above points in mind, however, can definitely help in avoiding long, tedious and costly battles over disclosure and having an appreciation of how documents you disclose can ultimately be used.

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