“I want CCTV footage, employee records, technical drawings, your mother’s maiden name, and every address you’ve had for the last five years.”
Wherever you look, the demand for information seems incessant. Particularly with litigants in person, who can be either ignorant or selective in their understanding of how disclosure requirements work. And while I’ve yet to see anyone ask for a client’s previous addresses or maternal ancestry, the first three are common sights.
Over the last eight months, requests for what could be termed “absolute disclosure” or “ultra transparency” are being made by customers in relation to works performed on vehicles. Sometimes these come as subject access requests (SARs), which only pertain to the personal data you hold about the requester, or, in a few instances, as requests for disclosure. Such attempts can be given a polite brush-off, but even so, their growing frequency means it is useful to have a primer on what disclosure requests involve.
Pre-action disclosure:
Pre-action disclosure requests can look like fishing expeditions, in which the other party is hoping you will hand over something they can hang you with. The easiest way to deal with them is to point out that such disclosure requires the approval of the court (pursuant to Part 31.16 of the Civil Procedure Rules) and invite them to make the application. That said, there are times where disclosure can be useful as a way to foster discussion around a dispute and forestall proceedings being issued.
It helps to consider what information is actually being requested. If it is something like an invoice or an MOT report, which is the kind of document you would hand over to a customer in the course of business anyway, then there is no harm in doing so (the same applies to any documents you would enclose with pleadings or a witness statement in litigated matters). If it is something you would never disclose, such as CCTV footage, records of who worked on what, or conversations you have had with your legal adviser, this is where you can say that nothing short of a court order will make you disclose it.
Disclosure as part of proceedings:
Once proceedings have been issued, any claim with a value of £10,000 or more is likely to have some element of disclosure as a mandatory requirement. Typically, this will be for any information you hold that is pertinent to the matter at hand, even if it adversely affects your case. This is done by listing the documents you hold, which the other party may inspect upon request.
However, Part 31 of the Civil Procedure Rules contains provisions that allow a party not to disclose anything considered privileged. Privilege covers, for example, communications with your legal adviser and documents created for the dominant purpose of litigation. Other sensitive material, such as CCTV or internal operational records, is not privileged by default, but may still be withheld if it is irrelevant, disproportionate to produce, or subject to confidentiality or data protection concerns. These categories are recorded on Form N265, the list of documents.
Summary:
Disclosure, then, is not a lever that litigants can use to pry open the door and make you reveal everything about your business. Used properly, it is a useful process that helps resolve disputes. When used to try to gain an advantage, there are sufficient safeguards in place to protect yourself and your business. As always, it helps to have experienced litigators, such as the team at Lawgistics, on hand to provide advice and support. If you are facing SARs or wide-ranging disclosure demands, our legal helpline and GDPR module can help you respond lawfully and proportionately.
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