Debt Claim Series Part 5: Evidence disclosure and inspection

This briefing note series is designed to assist you explaining the process of a simple small track debt claim in brief and also the options you might have.

What is disclosure?

One of the directions given by the court will be for disclosure. Since 1 April 2013, standard disclosure has been the usual order for fast track claims. Disclosure is where the parties to a case disclose documents that are relevant to the matter being heard in the court.

How will I know if a document is disclosable?

Disclosable documents fall into three categories:

1. Documents on which a party relies.

This would be the evidence which supports your case and that you wish to rely on when it comes to the hearing. You want to show this to the other side at the earliest available opportunity so that they can see the strength of your case against them. If you can head them off at this point in time, the other side may stop fighting the claim.

2. Documents that adversely affect its or another party’s case or support another party’s case.

If a document is relevant to the proceedings, it must be disclosed. All parties have a duty not to mislead the court and my not revealing a document which adversely affects your case, you will be limiting the court’s ability to make an accurate judgment.

If you have a document which adversely affects your case, it is much better to disclose it, and then your solicitor will be able to explain to the other side, and the court, why that document exists and how it affects your case. By properly explaining it, your solicitor may be able to negate the negative effects that its existence may have on your matter.

3. Documents which the party is required to disclose by a relevant practice direction.

Sometimes there will be a practice direction which explicitly requires a party to act in a certain way. Your solicitor will be able to advise you on this.

I have other documents that don’t fall into the above categories that I want to use, can I?

No. If you’re not planning on relying on it and it doesn’t adversely affect your, or the other side’s, position and it doesn’t support the other side’s position then it’s not deemed relevant to the matter and should not be disclosed. The court will take a dim view on a disclosure list which is full of irrelevant documents as this will muddy the waters and make it more difficult to find the truth of the matter – in addition to this, it might look as though that party is hiding something!

So, I just send these documents to the other side?

Not quite. This is called inspection. At the disclosure stage, the parties simply list the relevant documents and exchange their list for the other side. We would expect to see some duplication between the lists – emails between the parties and contracts, for example – and there would be little point in sending all of these to the other side when they already have them.



Instead, your solicitor will review the list that has been provided by the other side and compare it to their own. They can then see which documents are missing from their list but appear on the other side’s list. These documents are then requested, and the other side will send them over.

What happens after we receive the other side’s documents?

They will be reviewed – your solicitor will go through them with you and discuss the ones that you had not had sight of before. Because of the three categories above these documents may actually support your case – so don’t worry unduly when there are a multitude of documents that you have not seen before.

After these new documents have been reviewed, it would be expected for the parties to make a renewed effort to settle the matter as they now both have sight of all of the available documents and information.

Will I get any extra time to work out a way to settle the matter?

If it looks like the disclosure and inspection processes have helped the parties come a little bit closer together, then your solicitor may try and agree a stay with the other side. This means that the proceedings are ‘paused’ while the parties try and work things out between them and avoid having to go to a hearing.

There may not be a ‘slam dunk’ argument that shuts down the other side’s argument at this point, but the disclosure process often reveals enough information to allow the parties to come closer to a meeting of the minds.

The stay hasn’t worked, and we haven’t reached an agreement… What happens next?

If the stay doesn’t have the intended effect of bringing the parties closer to concluding the matter then the stay will be lifted. This means that the process will continue forwards towards the hearing. The number one rule at the hearing is to attend! The rest of our advice regarding hearings will be contained within Article 6 – Next week.