In this article...

• What is disclosure?
• What do I have to disclose?
• What constitutes a document?
• What are your obligations?
• Where should you search?
• What if new documents come to light after we have disclosed?
• Conclusion

What is disclosure?

Disclosure (previously known as “discovery”) is the stage of litigation where each party identifies the relevant documentation within their control which is relevant to the disputed issues. This should not be confused with inspection (providing copies of the documentation or an opportunity to inspect the originals) as the disclosure obligations can extend beyond documents still in your possession (see below).

Disclosure is made by serving a list of the relevant documents (the “List”) on the claimant. Each party is expected to undertake a reasonable and proportionate search to ensure that all relevant documents are recovered and disclosed to the other side. This is rarely complied with fully in practice, particularly by claimant lawyers, and can lead to costs or other consequences. Jackie Linehan, Senior Associate, and Jane Wallenstein, Trainee, at Bevan Brittan outline your obligations when undertaking this search.

What do I have to disclose?

The Court usually makes an order for standard disclosure which requires a party to disclose:

The documents they rely upon; and

The documents which:

		adversely affect their own case;
		adversely affect another party’s case; or
		support another party’s case; and

The documents which they are required to disclose by a practice direction.

A typical list of documents requested under a standard disclosure order may look like this:

		Copy pleadings and other Court documents, various dates.
		Copy inter-parties’ correspondence, various dates.
		Protocol for management of…
		Defendant Hospital NHS Trust records dated 1/1/1976 to 3/5/2007.

What constitutes a document?

Documents are more than just paper records like correspondence, faxes, reports, company documents and photos. Part 31.4 of the Civil Procedure Rules (“CPR”) states that a ‘document’ can mean anything on which the information is stored. So the definition includes a whole range of electronic and other media including CD Roms, e-mails, meta-data, electronic personal organisers, hard drives, laptops, servers and databases. Typical examples of documents in a clinical negligence claim would be medical records, test results and x-rays.

What are your obligations?

Under the CPR, you have to disclose documents which fall within your control. Having ‘control’ over a document means that you have physical possession of a document, a right to possession of it, or a right to inspect or take copies of it. Claimant lawyers often forget this, hence the need to seek specific disclosure of other medical, educational or social services records that they have a right to access under the Data Protection Act. Also included are documents which are the possession of an employee or agent over whom you have control. For example, the Trust has control over doctors as employees and the medical records they hold.

You do not have to disclose privileged documents, but you do have to disclose confidential documents which are not covered by privilege. Privilege is a complex area meriting an article by itself, but documents which are covered by privilege include correspondence with your legal advisor or investigations made into a claim after a claim has been contemplated provided that was the dominant purpose of creating the document. Disclosable confidential documents that fall into this category include complaints files or adverse incident reports which may contain damning information given in confidence for other purposes, but which cannot claim legal privilege even, in some instances, if they appear to state that they are “in contemplation of litigation”.

Where should you search?

To comply with the CPR, you need to carry out a reasonable search for all documents which you intend to rely upon, as well as those which may adversely affect or support your case.

You may start your search by looking for any copy complaints, accident or adverse incident forms, internal SUI or other inquiries, inquest files, risk management papers, protocols or guidelines, witness statements, computer records and schedules of imaging which may exist and may be disclosable. You should immediately stop any routine destruction of documents, both paper and electronic, which could be relevant to the claim.

Various factors have to be considered when deciding whether a search is reasonable and proportionate. The complexity of the issues and the number of documents involved is key, as is the significance of the document which is likely to be located during the search.

It is not possible to give a definitive set of guidelines as to what is reasonable as it will vary from case to case, but if you are in any doubt, or believe that searching for a particular document would be unreasonable or disproportionate, speak to your NHSLA contact or the Trust’s solicitor for advice as this must be stated in the disclosure statement. Costs consequences may arise as a result of late disclosure and the List itself needs to be verified by a “statement of truth”. (For statements of truth see issue 21).

What if new documents come to light after we have disclosed?

The obligation to disclose documents continues until proceedings have come to an end. It is important for you to disclose immediately to the other side relevant documents which come to light even after the List has been disclosed.

Conclusion

Taking time to ensure best practice is followed in relation to filing records and good housekeeping can ensure that disclosure is a straight forward exercise. It will greatly assist your reasonable and proportionate search. If you have any questions relating to disclosure or any of the issues raised in this article, please contact Bevan Brittan LLP, your panel solicitors or NHSLA contact.