How Do I Give Inspection of Documents in a Dispute?

Court proceedings involve lots of different processes at different times. The process of disclosing and providing inspection of documents is one of the most important steps for both parties. Put simply this is the exchange of documents, records, photographs, correspondence- anything physical in nature, that either helps or hinders your case and is relevant to the dispute.

For obvious reasons the requirements of disclosure and inspection are onerous and you must navigate disclosure and inspection obligations incredibly carefully to keep things transparent and to avoid legal sanctions and/or penalties.

You owe a duty to the court and are legally bound are legally required to disclose all documents relevant to the issues in dispute in the case. This includes those that support your position and those that do not. Relevant documents can be emails, contracts, invoices, photos, and all other other materials relevant to the issues in dispute between the parties to the dispute.

Here’s a simple, step-by-step guide to help you through the process. For more information, contact specialist litigation solicitors and a member of the team at Helix Law. 

Step 1: Contact Helix Law

Consulting specialist litigation solicitors who are well-versed in the disclosure and inspection process, such as Helix Law, is the most sensible best way to begin this process. We can ensure you meet all requirements and deadlines, represent you in communications with your opponent or their Solicitors, and assist in resolving any disputes that arise during the disclosure process.

Giving Disclosure is only one part of the relevant process. The second aspect is known as ‘inspection’, where copies of the actual documents themselves, are given. This comes later. Within a disclosure statement it is important to consider whether documents that are disclosed should not be provided within the inspection phase. There can be numerous reasons for this including where items are protected by legal professional privilege and/or are confidential. A good example of this is our correspondence with clients. Within a dispute we give advice and we receive instructions via email, text, letter or calls. Within a disclosure statement we disclose these items (broadly), but we do not permit inspection of them- because our correspondence with a client is confidential and is protected by legal professional privilege. This must also be considered and confirmed within the disclosure statement.

Step 2: Compile the Relevant Documents

Conduct a reasonable search and confirm how, and where, you have done so within your disclosure statement. Gather all physical and electronic documents related to the dispute and organise them clearly in a bundle. Make sure to include all the relevant documents, as failing to disclose disclose documents which you have a duty to disclose can lead to damaging penalties. It also means you might not be able to rely on that document if it helps your case.

Step 3: Create a Disclosure Statement and List

A Disclosure Statement is a formal document that has significant substantive content including your confirmation of the extent of the search you have completed. At the same time you need to create a list of all the documents you are disclosing, and must prepare a bundle with a brief description of each document, such as:

• 01/01/2009 – contract between Party A and Party B.
• 10/01/2021 – Invoice No. 123.
• 05/01/2023 – email from Party A to Party B regarding payment terms.

In more complex disputes we use sections for different classes or categories of disclosure such as for correspondence, documents, records, invoices etc.

Step 4: Serve the Disclosure List & Statement

The court will usually order disclosure and inspection by specific dates, typically we do this as your solicitor, keeping a record of when and how the list was sent. It formally notifies the other party of the documents you have available for inspection.

You must certify within your disclosure statement that you have carried out a proper search and disclosed for inspection everything in your control that you are required to. If you make a false disclosure statement without an honest belief that your statement is true, you will be in contempt of court. If you are found to be in contempt of court, you risk being sent to prison, fined, and/or having your assets seized.

It is difficult to overstate how important it is to get this right. Doing so positions you on the front foot before the judge at any hearing, or trial. Getting it wrong might suggest you don’t understand the seriousness of your position, or the technical details of the process or dispute you’re involved in. Worst case this might be perceived as you being discourteous to the court.

Step 5: Arrange for Inspection

After receiving your disclosure list and statement, the opposing party can request to inspect any or all of the documents. Inspection can be either:

• A physical inspection, where the opposing party can view physical documents at an agreed time and location; or
• An electronic inspection, where electronic documents are sent via email, secure file transfer, or a document-sharing platform.

By far the most common approach now is for disclosure to take place electronically.

Step 6: Keep a Record

Maintain a detailed record of all disclosed documents and communications regarding the inspection. This includes the disclosure list, emails, letters, and any agreements about the inspection process. This will assist you later if your opponent disputes the accuracy of yourdisclosure statement or argues that you shouldn’t be able to rely on documents that help yourcase because they were not disclosed. If your records are to hand, you will be able to clearly show the judge they are wrong.

It will also go without saying that you must also consider the disclosure statement received from the other side, and whether inspection is accurate, and/or adequate.

If you were expecting something but it hasnt been disclosed, you might need to apply to the court for an order. This can be extremely important.

Disclosure and inspection are incredibly important steps within the litigation process. Often this is the point in the dispute where parties, even in a dispute they should win, might fail to act in accordance with court rules, and might lose ground or even position themselves on the back foot towards losing what should be a winning or winnable case overall. If you have any questions regarding disclosure don’t hesitate to reach out to us and a member of our specialist litigation team will be happy to assist you.