DR – WS1 Pre Action Steps TIFF LIAO
Chapter 11 Disclosure and Inspection of Docs Page 193
11.9 THE DISCLOSURE STATEMENT
- A party is under an obligation to disclose documents that might:
adversely affect their own case OR
support another party’s case.
- A party is therefore under an obligation to disclose documents that could be very detrimental to that party’s
chances of success, but which the other party does not know exist until disclosure.
AN INDIVIDUAL
MUST SIGN - Therefore essential that parties comply fully and honestly with the requirements of disclosure.
Partly for that reason, the list of documents contains a disclosure statement (see r 31.10(5)). This is a
statement made by the party disclosing the documents:
(a) setting out the extent of the search that has been made to locate documents of which disclosure is
required;
(b) certifying that they understand the duty to disclose documents;
(c) certifying that, to the best of their knowledge, they have carried out that duty.
- By r 31.10(9), a disclosure statement may be made by a person who is not a party ONLY WHERE this is
permitted by a relevant Practice Direction
- may be brought against a person if they make, or cause to be made, a false disclosure statement WITHOUT
CONTEMPT OF an honest belief in its truth.
COURT
- The proceedings require the permission of the court UNLESS they are brought by the Attorney-General
- Practice Direction 31A, at para 4.4, also states that if the disclosing party has a legal representative acting for
them
- the legal representative must endeavour to ensure that the person making the disclosure statement
SOLICITORS understands the duty of disclosure
DUTIES
- A solicitor:
therefore is under a clear duty to advise their client as to the requirements of disclosure.
must ensure as far as possible that all documents which have to be disclosed are preserved and made
available for inspection.
It is best practice to confirm that advice in writing.
11.10 CONTINUING OBLIGATIONS
RULE 31.11
- Disclosure is an obligation that continues until the proceedings are concluded.
- If documents to which the duty of disclosure extends come to a party’s notice at any time during the proceedings, even though
the party has already supplied a list of documents, they must immediately notify every other party.
- If a document is found AFTER a party’s list of documents has been served and it satisfies the test in r 31.6 notice should be given
by way of letter or a supplemental list.
- If the party wishes to rely on the document at trial, either the opponent will have to agree or a successful application made to
the court for permission to do so
Even if permission is given, the opponent may still argue at trial that little weight should be attached to the evidence
Late disclosure of an important document can be highly damaging to a case.
1
TIFF LIAO
Chapter 11 Disclosure and Inspection of Docs Page 193
11.9 THE DISCLOSURE STATEMENT
- A party is under an obligation to disclose documents that might:
adversely affect their own case OR
support another party’s case.
- A party is therefore under an obligation to disclose documents that could be very detrimental to that party’s
chances of success, but which the other party does not know exist until disclosure.
AN INDIVIDUAL
MUST SIGN - Therefore essential that parties comply fully and honestly with the requirements of disclosure.
Partly for that reason, the list of documents contains a disclosure statement (see r 31.10(5)). This is a
statement made by the party disclosing the documents:
(a) setting out the extent of the search that has been made to locate documents of which disclosure is
required;
(b) certifying that they understand the duty to disclose documents;
(c) certifying that, to the best of their knowledge, they have carried out that duty.
- By r 31.10(9), a disclosure statement may be made by a person who is not a party ONLY WHERE this is
permitted by a relevant Practice Direction
- may be brought against a person if they make, or cause to be made, a false disclosure statement WITHOUT
CONTEMPT OF an honest belief in its truth.
COURT
- The proceedings require the permission of the court UNLESS they are brought by the Attorney-General
- Practice Direction 31A, at para 4.4, also states that if the disclosing party has a legal representative acting for
them
- the legal representative must endeavour to ensure that the person making the disclosure statement
SOLICITORS understands the duty of disclosure
DUTIES
- A solicitor:
therefore is under a clear duty to advise their client as to the requirements of disclosure.
must ensure as far as possible that all documents which have to be disclosed are preserved and made
available for inspection.
It is best practice to confirm that advice in writing.
11.10 CONTINUING OBLIGATIONS
RULE 31.11
- Disclosure is an obligation that continues until the proceedings are concluded.
- If documents to which the duty of disclosure extends come to a party’s notice at any time during the proceedings, even though
the party has already supplied a list of documents, they must immediately notify every other party.
- If a document is found AFTER a party’s list of documents has been served and it satisfies the test in r 31.6 notice should be given
by way of letter or a supplemental list.
- If the party wishes to rely on the document at trial, either the opponent will have to agree or a successful application made to
the court for permission to do so
Even if permission is given, the opponent may still argue at trial that little weight should be attached to the evidence
Late disclosure of an important document can be highly damaging to a case.
1
TIFF LIAO
