Knowledge

Discovery (or disclosure) is a fundamental stage in the litigation life cycle.  It involves the disclosure of evidence relevant to the litigation between all parties to the proceedings.

These documents may help the case of the party making the disclosure, hinder it, or perhaps hinder or support their adversaries' case. Even in those circumstances, the disclosure must still be made – disclosure enables the parties to come to the litigation with transparency, which is crucial in ensuring parties are on an equal footing and cases are dealt with fairly. 

Often, cases settle after the disclosure stage as the parties 'cards are on the table': its importance cannot be underestimated.

There are strict procedural requirements that must be adhered to and sanctions can operate in instances of non-compliance.  Disclosure in Guernsey litigation is governed by the Royal Court Civil Rules, 2007, as amended.

The main provisions in relation to disclosure are:

• The meaning of document – the definition includes anything on which information is recorded.  This includes electronic documents such as email, databases, data stored on electronic (including portable) devices and documents stored on servers.  This also extends to deleted documents and recent jurisprudence has held established that even search results on devices for deleted SMS messages have the potential to be disclosable;
• The scope of the search – a party's search should be a reasonable and proportionate one based on the number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval of the document concerned, and the significance of any document which is likely to be located during the search;
• The disclosure list – the parties must produce and exchange a disclosure list that is typically split into three sections:  a list of the documents available for inspection, a list of documents that the party claims a right or duty to withhold inspection (for example, privileged documents), and a list of the documents which are no longer in the control of that party, including an explanation of what has happened to them which means they aren’t able to be inspected.  'Documents in control' means that the document is or was in the parties' physical possession, or they have/have had a right to possession of it, or they have/have had a right to take copies of it.  Parties should be cautious when seeking legal advice and even seeking assistance with administrative tasks from open-source generative AI tools or search engines.  The courts have, in England & Wales and overseas, determined that in many cases, even when the input is done by a legal professional, legal advice privilege (and client confidentiality) has been waived when uploading client data to generative AI platforms;
• The disclosure statement – the disclosure list must include a disclosure statement that confirms the extent of the party's search, include confirmation of the party's understanding of their duty to disclose, and certify to the best of their knowledge that they have carried out that duty.  It is possible for the parties to agree between them to disclose documents without making a disclosure statement and/or disclosure list;
• Inspection – the rules provide for inspection of a document on 7 days' notice.  In practice however, disclosure and inspection are generally done simultaneously.  The rules also provide a right to inspect documents mentioned in pleadings, witness statements, affidavits and expert reports;
• Ongoing duty – disclosure is an ongoing duty throughout proceedings and is not just relevant during the particular stage in the litigation timeline that 'formal' disclosure takes place.  This means if new documents come into a party's possession, or existing documents that have come to light since formal disclosure has taken place, they must be disclosed to the other parties in the litigation;
• Staged disclosure possible – the rules permit disclosure in stages;
• Pre-action disclosure?  Pre-action disclosure, i.e. disclosure before proceedings have been formally commenced, is common in England & Wales in line with civil procedure practice direction.  Pre-action disclosure is possible in Guernsey but only in relation to personal injury claims to fairly dispose of the proceedings, to assist resolution without proceedings or to save costs;
• Specific disclosure – the rules permit the specific disclosure or inspection of documents.  The court may make an order for compelling the specific disclosure or inspection of certain documents or classes of documents, a search to the extent stated in the order and the disclosure of any documents located as a result of that search;
• Use of disclosed documents – a party may use the document only in the proceedings in which it is disclosed, except with leave of the court, consent of the party who disclosed it, or if the document has been read to or by the court in a public hearing; and
• Consequence of failure to disclose or permit inspection? If a party fails to disclose or permit inspection of a document they may not rely on it.

In practice, disclosure is now done electronically, rather than by the production of physical, hard copy documents.  This means that the process, which historically was time intensive and laborious, can be done much quicker with the use of keyword searches, software tools, identification and elimination of duplicate documents, use of data sampling, and redaction. 

Discovery ensures that disputes are conducted openly and litigated on the basis of a complete evidential picture. By requiring parties to disclose all relevant documents - whether favourable or adverse - the litigation process promotes fairness, prevents surprise, and places litigants on an equal footing.

Parties must balance their disclosure obligations on one hand and protect non-disclosable materials on the other – this process can be overwhelming.

Legal advice should be sought early to ensure the process runs smoothly and in line with court procedure. Bedell Cristin's Guernsey litigation team has considerable experience in disclosure exercises at all levels, including large volume disclosure featuring complex processes and protocols.

If you require advice in relation to the matters set out in this briefing, please get in touch with the Bedell Cristin contacts listed here.