The disclosure exercise in a personal injury or clinical negligence claim is a key stage. Although some disclosure usually takes place before the issuing of proceedings from both Claimant and Defendant, disclosure as ordered by a court in the timetable/directions is a significant step, the preparation for which should have taken place as soon as the solicitors were instructed. At the outset, solicitors should advise their clients to keep all information regarding the claim. If your solicitors have not explained to you that you need to preserve all key documents relevant to your claim, then you may wish to consider changing solicitors, because it is the Claimant (not the solicitor) who is bound by their obligations of disclosure.
Disclosure is mostly governed by Part 31 of the Civil Procedure Rules. The purpose of disclosure (or discovery) is to ensure that both sides have all the relevant pieces of information about each other’s positions. Therefore both sides must give to the other side documents which help and, crucially, what hinders their claim. Therefore a party may wound their own claim by handing to their opponent a key document. A party may therefore want to settle a claim before they have to disclose a damaging document.
Generally documents which have been created by the parties since the claim began specifically for the claim do not have to be handed to the other side in disclosure. In addition, most communication with the respective solicitors doesn’t usually have to be disclosed to the other side, because it is usually privileged.
Usually a party prepares a list of all the documents that they have and used to have as well as outlining which documents that they have that they do not consider has to be disclosed to the other side. Once a list is produced and sent to the other side, the other side’s solicitors request the documents that they want to see. This second stage is known as inspection. A disclosure statement should be signed by the parties themselves, rather than being signed by their solicitors.
Once disclosure has taken place the next direction is usually the exchange and preparation of witness statements. The witness statements usually refer to the disclosure.
From a Claimant’s perspective, in a personal injury or clinical negligence claim, the Claimant is likely to have information regarding the happening of the accident, the medical records from their treatment and details regarding their financial losses. A Defendant is likely to hold much more information regarding the background as to why the incident occurred and much less information regarding the Claimant’s losses, unless the Defendant was also the Claimant’s employer. The strengths and weaknesses of a Claim usually become more apparent on the completion of disclosure.
The first duty of a solicitor is to uphold the administration of justice, rather than to look after their client’s best interests. Therefore it is a frequent occurrence that a client doesn’t want to disclose to their opponent a document which may hinder their position but their solicitor is obligated not to mislead the court. If a party will not provide their own solicitors will full disclosure, or will not allow their solicitors to disclose potentially damaging documents, then usually the solicitor should stop acting for their client and remove themselves from the claim.
Particularly for Defendants to a personal injury or medical negligence claim, there may be thousands of emails to go over in order to ensure that the disclosure list is accurate. Disclosure is often a costly exercise for a Defendant. What ought to be disclosed under Part 31 of the Civil Procedure Rules 1998 is different from what ought to be provided in relation to a Subject Access Request under the Data Protection Act 1998.
Often a Claimant does not want their private medical records to be disclosed to the other side. There is a body of case law which has developed which helps to specify what must be disclosed. A Claimant often feels somewhat violated that such personal information has been provided to the other side, however, a Claimant is making a claim for compensation and it is therefore only proper that the Claimant proves the extent of their losses and injuries.
If a party is of the view that their opponent has not complied with disclosure properly then their solicitor should write to the other solicitor to explain why they suspect that they haven’t properly undertaken the disclosure exercise. If the offending party has still not properly complied with disclosure then the other side may make an application to the court for Specific Disclosure. A solicitor who makes a successful application for Specific Disclosure on behalf of their client will usually be awarded their legal costs by the Court.
Disclosure is a continuing process. If a party locates documents which should have been previously disclosed then they should immediately disclose it, even if it damages their position.
Both sides should remember that the definition of “documents” in the context of disclosure has a wide and non-exhaustive meaning. For example, photographs, emails, meta data and physical objects would all be regarded as documents.