Disclosure is the procedure by which all parties are made aware of documents deemed to have some bearing on a dispute, regardless of whether or not they are harmful to the disclosing party’s case. In some cases, it can produce disproportionate volumes of documents, only serving to increase costs and result to some extent in an unnecessary amount of documentation being put before a judge which in reality, may never be referred to.
Given the progressive nature of technology and electronic communications, the Courts have become increasingly concerned with the way in which disclosure is being facilitated. In an attempt to tackle these issues, a new disclosure pilot was rolled out across the Business and Property Courts on 1 January 2019, which applies to new proceedings and in some circumstances, existing proceedings.
The pilot seeks to re-focus the minds of the parties and bring contemplation of disclosure forward to a much earlier stage in the claim. An integral factor which must be considered by all clients is their duty to preserve documents, which should be considered from the outset of litigation since it can often include documents which may otherwise be destroyed in line with a destruction policy.
Legal representatives have an obligation to notify clients within a reasonable time of instruction of their duty of preservation, which includes the client taking necessary steps to preserve material which may be relevant to the claim. The shift in focus of disclosure to a much earlier stage means that all documents should be preserved from the commencement of a claim in order to comply with this requirement.
To be certain that clients take the necessary steps to preserve documents of relevance in light of this obligation, legal representatives must obtain written confirmation from clients stating that such steps have been complied with.
Only time will tell if the pilot is successful in making disclosure less onerous but in the meantime, we urge all clients to carefully consider this duty and going forward, preserve any documents that may be of relevance to a claim.
If you wish to discuss this with one of our litigation specialists, please contact: