Transparency is fundamental to ensuring a fair and just process in civil litigation. One of the key principles supporting this is the ‘ongoing duty of disclosure.’ This duty applies to all parties involved in civil proceedings and demands careful attention throughout the life of a case.
What Is the duty of disclosure?
The duty of disclosure requires each party in a dispute to reveal any documents that are relevant to the case. These documents may support their claims, undermine them, or assist the opposing party. The aim is to ensure that all parties have access to the evidence they need to present their case effectively.
Importantly, this duty is not a one-time obligation. It continues throughout the litigation process, meaning that any new documents that come to light after initial disclosure must be immediately shared with the other parties.
Without-notice applications and full disclosure
The duty of disclosure is especially stringent when applying for a ‘without-notice’ order. Such applications are made in the absence of the other party, and the court relies entirely on the applicant’s submissions to make a decision. In these situations, the applicant must provide full and candid disclosure of all material facts, including those that may undermine their case.
Failure to comply with this duty can lead to the court setting aside the order, imposing costs sanctions, or, in extreme cases, dismissing the claim entirely. The case of McParland & Partners Ltd v Whitehead highlights the importance of this principle.
When does the duty arise?
The duty of disclosure arises as soon as a party knows, or reasonably ought to know, that they may become involved in litigation. This means that even before formal proceedings have begun, parties must take steps to identify and preserve relevant documents.
The duty applies to both individuals and organisations, including public authorities like the National Crime Agency. Courts expect all parties to approach disclosure with honesty and integrity to ensure fairness for all involved.
Key responsibilities under the duty of disclosure
- Preservation of documents: From the moment litigation is anticipated, parties must preserve all documents relevant to the case. Destroying or withholding documents can result in serious sanctions.
- Disclosure of adverse documents: The duty extends to disclosing documents that may harm your case, unless they are protected by privilege. This ensures that all evidence, both favourable and unfavourable, is available to the court.
- Compliance with court orders: Parties must comply promptly with any court orders regarding disclosure. This may involve submitting specific documents or providing detailed lists of available evidence.
- Ongoing updates: If new documents come to light during proceedings, they must be disclosed immediately to the other parties.
Consequences of non-compliance
Failing to comply with the ongoing duty of disclosure can have serious consequences, including:
- Financial penalties or adverse costs orders.
- Striking out of a claim or defence.
- Damage to credibility and reputation in court.
To avoid these outcomes, it is crucial to approach disclosure with care and diligence, ensuring that all relevant evidence is preserved, reviewed, and disclosed as required.
The ongoing duty of disclosure is a cornerstone of civil litigation, promoting fairness and transparency in legal proceedings. Whether you are pursuing or defending a claim, understanding and fulfilling this obligation is vital.
If you need guidance on your responsibilities or support with document preservation and disclosure, Hutchinson Thomas Solicitors is here to help. Contact our Civil Litigation team today or contact reception@hutchinsonthomas.com / 01639 645061 with a view to arranging an appointment with one of the team.