Disclosure and Inspection

As in criminal proceedings, parties in civil proceedings are under an obligation to share material which may assist each other’s case. The process of exchanging and inspecting documents between the parties is known as disclosure and is governed by Part 31 of the Civil Procedure Rules.

Part 31 defines disclosure in the following terms:

 31.2 A party discloses a document by stating that the document exists or has existed.

The test for what needs to be disclosed is defined in Rule 31.6 and is known as ‘standard disclosure’. This rule requires a party to disclose

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

This duty is limited to documents within the party’s control. This is provided by Rule 31.8 which states:

(1) A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2) For this purpose a party has or has had a document in his control if –

(a) it is or was in his physical possession;

(b) he has or has had a right to possession of it; or

(c) he has or has had a right to inspect or take copies of it.

The parties are also under a ‘duty to search’ for documents which may fall to be disclosed. Rule 31.7 provides that:

1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

(2) The factors relevant in deciding the reasonableness of a search include the following –

(a) the number of documents involved;

(b) the nature and complexity of the proceedings;

(c) the ease and expense of retrieval of any particular document; and

(d) the significance of any document which is likely to be located during the search.

(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.

The duty to search is not exhaustive and a party can limit the extent of their search by not searching for a document which came into existence before a particular date; or by specifying a particular place or places that they search or by limiting the category of documents. The party would need to justify the limitation to the Court.

Once a party has gathered their documents, they are disclosed through the service of a list. This is achieved through completing a Form N265. A copy of the N265 form can be found here.