Disclosure and inspection

The main purpose of disclosure is to enable the parties to assess their respective positions prior to the trial. Each party has to provide the other side with a list of documents they are relying on. The parties can then inspect (view) the other side’s documents. This is intended to encourage settlement.
Disclosure and documents

FilesWhen a claim is issued, the claimant is expected to have documentary evidence of the debt. If you were to issue a claim, you would be expected to provide proof that there was a contract between you and the person you are suing in the first place, that you provided them with goods or services or lent them the money under that contract, and that the amount is still outstanding. You’d be expected to have invoices, emails, letters, etc. even in the absence of a written contract. You’d also be expected to show that you attempted to recover the money before issuing a claim, for example, by sending reminders followed by a letter before action.

InfoWhere the agreement is regulated by the Consumer Credit Act, there are some additional requirements to comply with. Regulated agreements should be in writing and contain a number of prescribed terms and a default notice should be issued before the account can be terminated and the full amount can be demanded. See Consumer Credit Act.

In view of the above, it would be reasonable to expect a creditor to supply the documents they are relying on when making a claim, however, as stated on Paragraph 5.2A of the PD 7E – Moneyclaim Online, when a claim is issued electronically using an online form, there is no requirement to attach documents to the claim.

5.2A  The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction.

Creditors take full advantage of this provision and, more often than not, do not even avail themselves of the documents before issuing a claim; they often expect an uncontested claim, either default judgment when a defendant fails to respond or an admission.

Your options

If you send a request for documents and the claimant fails to comply you can either:
  • File a defence based on non-compliance and lack of documents – there is no cost but the claimant could provide the documents later on (see defences); or

  • Apply to the court for an unless order to enforce your request – you will have to pay an application fee but the claim could be struck out (see applications).

The meaning of disclosure, inspection and document

Part 31 of the CPR deals with disclosure. 31.2 defines the meaning of disclosure.

Disclosing” does not mean actually producing a copy of the document, it merely means alluding to it.

Meaning of disclosure

31.2  A party discloses a document by stating that the document exists or has existed.

If a party (either the claimant or yourself, the defendant) mentions a document in a statement of case (such as the particulars of the claim or your defence), he/she is “disclosing” the document in question.

CPR 31.4 defines what constitutes a document.

Meaning of document

31.4  In this Part –

‘document’ means anything in which information of any description is recorded; and

‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

Your right to inspect documents

CPR 31.3 refers to the right to inspect (view) a disclosed document.

Right of inspection of a disclosed document

31.3

(1) A party to whom a document has been disclosed has a right to inspect that document except where –

(a) the document is no longer in the control of the party who disclosed it;

(b) the party disclosing the document has a right or a duty to withhold inspection of it;

So if the claimant has disclosed (mentioned) a document such as “a credit agreement regulated by the Consumer Credit Act” or a “telecommunications contract”, you have the right to inspect (view) that document.

CPR 31.14 gives you the right to inspect any documents referred to in the particulars of claim which are the claimant’s statement of case.

Documents referred to in statements of case etc.

31.14

(1) A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

(c) a witness summary; or

You can send the claimant or their legal representatives a request for documents mentioned in the particulars of claim using CPR31.14, see requesting documents.

Although Part 31 of the CPR does not apply to the small claims track, a claim does not get allocated to a track until after a defence has been submitted, so technically you can still request documents under CPR 31.14 even if the claim is under £10,000.

CPR 31.15 makes it clear that they must allow you to inspect the documents no later than 7 days after receiving your request. In most cases, “inspection” will be by obtaining a copy of the document as per 31.15(c)

Inspection and copying of documents

31.15  Where a party has a right to inspect a document–

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;

(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and

(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

TIPIt may be worth reminding them of CPR 31.21 which states that a party can’t rely on a document he fails to disclose or permit inspection of.

Consequence of failure to disclose documents or permit inspection

31.21  A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

If you can’t get the claimant to supply you with a copy of the documents for inspection, you have the option to either apply to the court for an order to force disclosure (see applications) or submit a defence based around lack of documents supplied (see defences).
Case law

The Expandable v Rubin case discussed the subject of disclosure and inspection at length:

The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?

The small claims track
WarningOnce a claim is allocated to the small claims track, the provisions of Part 31 of the CPR no longer apply, so if the claim is below the small claims threshold (currently £10,000), you can only apply for an order from the court before you submit your defence.

The duty of the claimant to supply documents does not end with allocation to small claims, CPR 27.4(3)(a)(1) states that, after allocation, the court will give standard directions for each party to provide the other party with copies of all documents relied on.

(3) In this rule –

(a) ‘standard directions’ means –

(i) a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing;

Disclosure as a defendant

legal documents

Similar duties apply to defendants; you have a duty to disclose and allow inspection of any documents you mention in your defence.

Possible documents for disclosure

  • CCA request letter
  • CCA request reminder (if applicable)
  • Response to CCA request
  • Default notice for the account (if available)
  • Response to letter of claim (if applicable)
  • Correspondence between you and the claimant
  • Relevant legislation such as OFT/FCA guidance (but no case law)
Standard disclosure doesn’t apply in the small claims track; if you are defending a small claim, you’ll normally only be required to send the documents to the other party at least 14 days prior to the hearing, which you can do with your witness statement. See witness statements.

If you are defending in the fast track, you should disclose your documents in a prescribed manner, as set out under PD 31A Disclosure and Inspection.

The list

3.1  The list should be in Form N265.

3.2  In order to comply with rule 31.10(3) it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (e.g. letter, claimant to defendant). Where there is a large number of documents all falling into a particular category the disclosing party may list those documents as a category rather than individually e.g. 50 bank statements relating to account number _ at _ Bank, _20_ to _20_; or, 35 letters passing between _ and _ between _20_ and _20_.

3.3  The obligations imposed by an order for disclosure will continue until the proceedings come to an end. If, after a list of documents has been prepared and served, the existence of further documents to which the order applies comes to the attention of the disclosing party, the party must prepare and serve a supplemental list.

Paragraph 2A.1 refers to disclosure of electronic documents. You’ll probably have a number of those, including letters you drafted and sent yourself as well as emails.

Electronic disclosure

2A.1  Rule 31.4 contains a broad definition of a document. This extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata.

You will need to accompany your list of documents with a disclosure statement, a template is included in the Annex to PD31.A.
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