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The Litigation Series – Week 11: Disclosure Of Documents

In week 10 of the Litigation Series we looked at the first in person (or increasingly these days, remote) contact with the Court, where the Court sets down a timetable of the steps to be taken to Trial.

Usually one of the first steps to be taken is ‘disclosure’. The Court will order the parties to give to each other a list of relevant documents, so that both parties are aware of what the other side possesses and can request to inspect these documents/identify any which they consider to be missing.

The duty of disclosure is an ongoing duty, so if new documents come into the possession of either party these should be disclosed to the other side as soon as possible.

Pre-action disclosure

In reality it is usually the case that the defendant will have already disclosed crucial documents, such as the medical records, internal investigations and relevant protocols during the “pre-action” phase of a clinical negligence investigation (in other words before court proceedings are issued and the Court becomes involved). We looked at the pre-action stages of a clinical negligence claim in week 8. Whilst it is unusual, it may sometimes be necessary to make a pre-action application for disclosure if there are difficulties in obtaining medical records or other documents from the Defendant. The Court has the power to order disclosure even before proceedings are formally issued, and to oblige the reluctant party to bear the costs of any unnecessary application.

The formal List of Documents (post issue of proceedings)

When it comes to disclosure post issue of proceedings the process becomes more involved.

The general principle is that both parties must disclose any ‘document’ that is relevant to the case, which includes all documents the party intends to rely on as evidence. These are documents which will either help or hinder their case. The principal is one of openness and placing ‘all cards on the table’, so that both parties know what evidence is available. It is not open to either party to simply fail to disclose documents which may be relevant, even if they do not help their case.

The rules are clear that ‘documents’ can include anything which might help or hinder the case, including text messages, emails, computer records, and records which the party may consider to be of a sensitive nature. It is not open to either party to select which records they choose to disclose. Frequently things such as counselling records can be very private, but they still need to be disclosed. It is important to bear in mind that the parties have a duty of confidentiality with regards to any disclosed material, and to use it solely for the purpose of the litigation.

If the trial is a trial of the preliminary issue, dealing with liability only, it is usually the aforementioned medical records, any internal investigation reports and protocols et cetera which are likely to be the subject of disclosure requirements. All relevant documents which are either in the possession of a party, or were formerly in the possession of a party, or which are exempted from disclosure (for example documents which are legally privileged, meaning they were prepared for the purposes of litigation and therefore they do not have to be disclosed – a confidential advice from a barrister would be an example of this, or any correspondence between client and solicitor) must be listed on a Court form. This form must be checked carefully and signed by the relevant party before it is disclosed.

If the trial is listed for a full trial then all documents relating to losses must be disclosed as well. This can be much more complex, and include items such as wage slips and employment records (to evidence loss of earnings), pension information (if a pension loss is claimed), medical or carer expenses incurred, evidence of any travel expenses, et cetera. The Schedule of Loss (usually an outline copy of which will have been served with proceedings, this document will be discussed in week 14 of this series) is a good start when considering what evidence will be relied upon.

Social media/surveillance – ‘adverse’ disclosure

It is worth mentioning that defendants frequently check things such as social media accounts: this is a legitimate practice, but it can come as a shock if the defendant exposes some evidence from a social media account which conflicts with the evidence given in a witness statement or expert report.

Claimant solicitors are used to such tactics, and frequently matters can be easily explained. An example known to the writer is the Defendant producing social media evidence of a claimant using the injured arm with apparent ease (the footage was a mirror image, and this was the unaffected arm). I have also received surveillance evidence (another defendant tactic) where the defendant had the claimant followed by a private investigator, but the investigator followed the wrong person (who happened to live in the same block of flats and bore a passing resemblance to the claimant).

However there have been many cases where the defendant has exposed a claimant who is either exaggerating their symptoms or has been downright dishonest, which can have serious implications as this is potentially contempt of Court, with criminal sanctions if proven.

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