Solicitor’s advice on disclosure

The Court discussed the principles of disclosure in the recent case of Square Global Ltd v Leonard [2020] EWHC 1008 which case highlights the importance of involving solicitors in the disclosure exercise. If you are currently involved in litigation and approaching disclosure, we can advise and assist you in the exercise.

This employment law dispute in the field of financial services concerned Square Global Ltd (“the Company”) who brought a claim against its employee alleging breach of restrictive covenants relating to his employment. At the time of Mr Leonard’s dismissal, he had been in discussions for over 7 months with a financial services competitor called Market Securities, about leaving the Company to join them. The Company’s contract with Mr Leonard prohibited him from undertaking competitive employment or any other form of work with a third party while he remains an employee of the Company and six months following termination.

Defendant’s non-compliance with duties of disclosure

At trial, the Company alleged that Mr Leonard had been remiss in complying diligently with his disclosure duties, under the Civil Procedure Rules. Mr Leonard had only disclosed three emails which passed between himself and Market Securities which included cover emails without the relevant attachments. This prevented the Company and its advisers from being able to see whether there were offers made by Market Securities which were capable of acceptance.

When this was challenged by the Company, Mr Leonard initially responded that there were no other written communications exchanged, beyond what had been disclosed. A month later, Mr Leonard disclosed the attachments to the emails together with further communications and explained that the omitted documents had been inadvertently overlooked by his advisers.

From the parties’ witness evidence, it was established Mr. Leonard himself conducted a review of his documents (rather than the solicitors), and importantly he had also selected which documents he considered relevant.

The parties were required by the Judge to put in written submissions on the issue of disclosure. The Company clarified that they were not suggesting any breach by Mr Leonard’s solicitors but alleged a lack of candour on Mr Leonard’s part. The Company stated that “the solicitors “are under an obligation only to advise their clients properly on their disclosure obligations.

The Judge held that he was not prepared to find, on the basis of evidence he had seen, that there had been a breach of professional duties on either side. The Judge commented:

I am well aware of the immense strains placed on both advisers and litigants by expedited proceedings of this nature, and I have been highly impressed with the skill, efficiency and industry of all the legal advisers in this case.

He however emphasised the extent of a solicitor’s relevant disclosure duties in civil litigation stating:

It is fundamental that the client must not make the selection of which documents are relevant”

The best way for the solicitor to fulfil his own duty and to ensure that his client’s duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance—or even potential relevance—for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable.”

What is the duty of disclosure?

In litigation, the purpose of disclosure is to make available evidence which either supports or undermines the respective parties’ cases. The exercise of disclosure is governed by CPR 31.

Please see our detailed page on disclosure for further information.

Do parties have to disclose all documents in litigation?

Parties are required to disclose to each other any documents that damage their case, as well as any helpful documents.

The duty of disclosure is strict, and the court takes it very seriously. The underlying principle is that the court can only deal with a case fairly and justly if all of the relevant material is preserved and disclosed.

Can I conduct disclosure myself?

It may be appropriate that you conduct the search for disclosure yourself, in which case specialist litigation solicitors should provide you with instructions as to how this should be done. Clients frequently underestimate the extent of the search required and it is important that you strictly follow any instructions from a solicitor.

Solicitor assistance with disclosure

This case highlights the importance of having solicitors involved in the disclosure exercise. Solicitors are under a duty to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made.

Specialist litigation solicitors must carefully consider what might be the most appropriate approach to disclosure in your case, to ensure that what is proposed is proportionate. This is something we should discuss in detail once we have done some preliminary scoping in relation to the likely volume of documentation and how many electronic documents will have to be disclosed.

Not less than seven days before the first CMC, the parties must discuss (and seek to agree) a proposal for the disclosure exercise. In many cases, it will be necessary to begin these discussions at a much earlier stage. This is because much modern litigation (including most cases dealt with by this firm) involves a very large volume of documentation (including electronic documents) and it is important that the parties co-operate to agree a way of conducting the disclosure exercise which ensures that relevant material is disclosed while minimising the time and costs to be expended.

Instructing our Litigation Lawyers

​We​ ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense. Liability for costs is always an issue in litigation and based on our extensive litigation experience we provide our clients with as much strategic, practical as well as carefully considered legal advice in order to ensure minimum risk in respect of costs. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our lawyer’s negotiation skills are first class. If early settlement at advantageous terms is not possible, we are extremely experienced and capable at navigating our clients through the litigation process.

Get in touch with our litigation solicitors now on 02071830529 or [email protected].