Help with 'Specific Disclosure' Application

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Future,

An application for specific disclosure may be made where an opponent fails to include a material document in his standard disclosure. The application is made under CPR 31.12. In your case the application would appear to concern the Claimant’s failure to disclose a ‘true’ copy of the executed agreement. I do not know whether that means they have disclosed something they purport to be a true copy of the executed agreement but which isn’t, or whether they have failed to disclose anything which might constitute the agreement. I suspect the former and what follows is based upon that assumption.

First thing to bear in mind is rather obvious. That is, you don’t want them to produce a true copy of the agreement, if the document to be produced is water tight. Far better from your point of view that they endeavour to push through a claim based on a document which lacks one or more statutory essentials. The lack of such essentials affords you defence possibilities. Further, it will be necessary to be able to show at the hearing of your application that the document they produce is self-evidently not a true copy of the executed agreement.

Next, is that an application for specific disclosure should not precede an order of the court for standard disclosure. If an order for standard disclosure has yet to be made sit tight. In due course an application for standard disclosure will be made and of course the Claimant will be expected to comply with that order. An order for standard disclosure will require the Claimant to disclose not only the relevant and material documents in its possession but also those relevant documents which were once but which are no longer in its possession and a statement explaining what became of them.

Third, prior to making an application for specific disclosure ensure that you have written to the Claimant highlighting what you claim are the inadequacies in the Claimant’s standard disclosure. The Claimant ought to respond in some shape or form. If for example the Claimant responds saying ‘I no longer retain possession of a true copy of the executed agreement’ that will be enough and will be a complete answer to questions concerning the existence of the document though of course other questions then arise. Only where you have evidence showing that the Claimant’s answer was dishonest might pursuing the matter further be worthwhile.

The further questions which arise are, ‘if the document is no longer in your possession, what became of it, when did it cease to be in your possession, who authorised disposal, who carried out the disposal, why was it disposed of and what are the circumstances surrounding its disposal.’ The answer might be ‘destroyed, 3 years ago, on the authority of Mr X, destruction carried out by shredder Y, save space in filing cabinets, in accordance with Claimant documents policy.’ In those circumstances I would be tempted to seek disclosure of documents evidencing the answer.

Any documents evidencing the answer are clearly somewhat off topic in terms of the main issue but it is important to guard against the risk of the document surfacing later, nearer the trial date. There is a risk the document may surface because CPR 31.11 imposes a continuing duty of disclosure. That means that after standard disclosure and at any time up to the end of the trial, (note end of trial) any relevant document which comes to light must be disclosed. If you have prepared your defence on the basis such and such a document is missing, that defence will be injured if under CPR 31.11 that very document materialises. Thus having documentary evidence that the document has indeed been destroyed is an insurance policy against the risk of the document subsequently materialising. An alternative would be an affidavit sworn by the Claimant to the same effect. Likewise an undertaking from the Claimant to not subsequently seek to rely on it. Whatever the method, you will see the importance of guarding against the risk of the document subsequently materialising.

Where the Claimant has said a particular document is not in its possession and after which you have gone through the hoops of ascertaining the truth of that statement and guarding against the risk of it subsequently being produced, any application for specific disclosure of that document is likely to fail. In my opinion the court will not compel a party to search for and disclose something it unequivocally declares is not in its possession owing to destruction or whatever. In my opinion the court would refuse the application on the basis that to do so would be disproportionate in the face of the Claimant’s unequivocal declaration.

An application for specific disclosure must be on notice in form N244. The evidence in support of the application must show that the claimant’s disclosure is inadequate and why it is both reasonable and proportionate for the claimant to search for the missing document and disclose it when found.

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