Disclosure in the Business and Property Courts has undergone significant changes over the past few years. This was to ensure proportionality and reasonableness were central to the disclosure process and acknowledged that disclosure can be one of the most expensive parts of litigation. The Disclosure Pilot Scheme was introduced on 1 January 2019 in the form of Practice Direction (“PD”) 51U. Subsequently, it was made permanent (with some minor amendments) on 1 October 2022 as PD57AD.

Disclosure is important in achieving a fair resolution of civil proceedings. It involves identifying and making available documents that are relevant to the issues in the proceedings.

So, what exactly are parties to litigation required to disclose?

What must you disclose?

What makes a document disclosable is dependent on the terms the parties have agreed. Typically, and unless otherwise agreed, all parties must complete Initial Disclosure – being the provision of all documents to the other parties in the case which:

1. Have been relied upon in support of the party’s claim or defence (whether expressly stated or otherwise); and
2. Are necessary to enable the parties to understand the claim or defence.

Adverse documents—those contradicting or materially damaging your case or supporting the other side—do not need to be disclosed under Initial Disclosure but may be required under Extended Disclosure models.

Working Example

If a dispute relates to a breach of contract then the party will be expected to disclose a copy of the contract and evidence that the defendant has breached it.

Disclosure vs. Inspection

As expected, any documents which are not considered relevant to the claim will not be disclosable. However, it is a common misconception that parties do not have to disclose documents which are protected by privilege. When litigating a dispute, the other parties are not entitled to be provided with copies of your communications with your lawyers, but the documents may still be disclosable. The key distinction is between disclosure (listing relevant documents) and inspection (providing copies).

Extended Disclosure

If the parties consider there are limitations to Initial Disclosure they may request Extended Disclosure in addition or as an alternative.

Any party seeking Extended Disclosure must notify all other parties involved in the litigation of their intent and obtain court approval. To succeed, they must show that such an order is reasonable and proportionate to the case’s needs. To facilitate this, the parties must agree on a Disclosure Review Document (DRD), which details what will be searched (e.g., laptops, notebooks, email accounts), how it will be searched, and, importantly, the issues in the case requiring disclosure.

The method for reviewing document sources must be agreed by the parties, or determined by the court, using one or more of the following Extended Disclosure models:

Model A – Disclosure of only known adverse documents.

Model B – Disclosure of all documents relied on by the parties (so far as they have not been under Initial Disclosure) PLUS all known adverse documents.

Model C – Disclosure of documents within a particular class.

Model D – Search-based disclosure with reference to the agreed issues for disclosure PLUS all known adverse documents.

Model E – Seach-based disclosure with reference to the agreed issues for disclosure PLUS relevant documents discovered from the search-based disclosure PLUS all known adverse documents.

Working Example

Returning to our example of disclosure in a claim for a breach of contract.

If neither party has a copy of the final contract, and the version provided as part of initial disclosure is disputed; the parties may agree to Model C disclosure to locate any and all copies of the contract as well as copies of all email communications with the proposed amendments to the contract. This may assist the parties in discovering which version is final and more importantly, if there is a final executed copy.

When the respective parties have requested which documents they wish to have produced, they will be provided the documents by the deadline imposed (or within seven days of the request).

Finally, upon receipt, the parties are free to review the tens, hundreds, thousands or possibly more documents to ascertain which may assist or undermine their case.

Griffin Law has recently been involved in a high-value Commercial Court Case which utilised Extended Disclosure shortly after it was made permanent. The disclosure exercise required the filtration and review of over 2.2 million documents spanning over a 10-year period.

Disclosure can be an expensive process, but it will likely have a significant impact on the case; therefore, it is important the exercise is completed properly.