Disclosure is an important part of litigation – but not one that most people know about before they have to. It's where each party presents relevant documentation to the other. "Relevant" here could mean documents that support or damage their opponent's case.

There are a couple of reasons for this. One is that the court needs to know as much as possible about the warring parties in order to reach a fair verdict.

The other is that it forces both parties to be realistic about their chances of success or failure. It's like a game of cards where you get a good look at the other player's hand. You're then in a much better position to fold if that's the best option available to you.

As well as helping ensure fair cases, then, it can also end them early.

The length of the process depends entirely on the nature of the case. In some commercial disputes, where "relevant documentation" could fill Wembley Stadium, the amount of documents to be disclosed can either be agreed upon by the parties or imposed by the court.

The court order in such cases could range from "standard disclosure" to skipping the process altogether.

If you're a business about to enter a legal dispute, it's important to understand your disclosure obligations – not least because failing to disclose can land you in hot water. It's part of the process that a good solicitor can help you with.

Do you have to disclose all relevant documents?

Yes. The process is strict and the court takes it seriously.

As soon as you know you're part of proceedings, you need to start the disclosure process. This involves taking reasonable steps to search for and preserve relevant documents in your control – including those that support the other party's case.

If you fail to disclose a document, you can't rely on it in the trial – and if you make a false disclosure, you could be found liable for contempt of court (meaning two years in prison, a fine, or both).

Your solicitor will also have obligations to fulfil. One of the main duties is to liaise with your opponent's legal representatives throughout the disclosure process.

What is standard disclosure?

This is the most common type of disclosure ordered by the court. You have to disclose to your opponent all the documents that your case is resting on. This has to include documents that both support and undermine their case. In return, they must do the same for you.

The process is laid out in the CPR (Civil Procedure Rules). Your solicitor will guide you through them.

What is a disclosure report?

This is a document that lists the existing documents that are (or could be) relevant to the case at hand along with their location. It lays out how and where electronic documents have been stored and estimates how much an electronic document search would cost.

What is a document?

This isn't a philosophical question. Under CPR, the word "document" covers lots more than just paperwork.

The word refers to any media that records information, including:

• Audio such as voicemail
• Computer documents
• Emails
• Electronic documents stored on servers or backup systems
• SMS and WhatsApp messages
• Social media content
• The metadata of electronic documents

What does it mean for a document to be "in your control"?

In the world of disclosure, you're extremely likely to hear this phrase. But what does it mean for a document to be in your control?

It applies to more than just documents that you possess or used to possess. It also covers documents that you have the legal right to possess – for instance, those held by your solicitor, accountant or other third-party agent.

Is DIY disclosure a possibility?

As with many legal processes, it is possible to carry out disclosure yourself – although you'll still be following your solicitor's instructions. However, the searches are long and detailed. In many cases, it can be advisable to work with a specialist lawyer instead.

What is a keyword search?

Most businesses store huge amounts of electronic documents. In most cases, it's impractical to go through them all one by one to find out what's relevant and what isn't.

For this reason, searches for electronic documents can be carried out using keywords that are agreed upon before the first CMC (case management conference). This is to make the process of locating relevant documentation more manageable.

How are documents categorised?

Usually, the two parties will exchange a list of documents drawn up by their respective solicitors. These documents will be split into three sections:

1. Relevant documents that are currently in your control and which your opponent can "inspect"
2. Relevant documents that are currently in your control but which are "privileged" (meaning your opponent can't inspect them)
3. Relevant documents that you used to have

What are privileged documents?

These are confidential communications between you and your legal advisers. Their existence has to be disclosed but they don't have to be inspected by your opponent.

When does disclosure end?

The disclosure process continues throughout the proceedings. It only comes to an end when a verdict has been delivered.

That means that if a relevant document is identified – or created – during the case, it has to be disclosed immediately.

Conclusion

Disclosure is a complex process but one that follows strict rules. If you're about to enter a dispute, it's something that your solicitor will help you to understand and complete.

A failure to follow the procedure can result in a charge of contempt of court – so it's highly advisable to get a good solicitor on board to ensure the outcome you deserve.

Are you looking for legal representation in court? At Milners, we have a crack team of experienced solicitors in Yorkshire. Whatever the nature of the proceedings, we can help. Get in touch today for a free, no-obligation consultation.