Pre-Action Disclosure in Commercial Litigation

On the application of a person who is likely to be a party to legal proceedings, a court may order another person who is likely to be a party and who has or has had in their control documents relevant to an issue arising out the claim, to disclose documents and produce them to the applicant’s legal advisers or the applicant personally.

The definition of a document includes any matter that may record information, electronic computer records and meta-data. In light of the increase of computer-based claims and disputes, meta-data proves to be increasingly available form of information that is liable to be produced.

Meta-Data

Software developers and systems administrators have been aware for many years of the availability of meta-data (data about other data). As a simple example, Microsoft Word records file creation and editing dates, along with custom fields for those with proprietary version management systems catering for management of Word documents. Meta-data arises in may fields of technology transactions. An FTP log will show the time, date, filename and file size of a transfer sets of files between two locations. Backup copies of simple text files will be time-stamped with both the date it was created and the date it was last saved. With the knowledge of the existence of such data, this evidence in legal proceedings - relevant facts proved by such data - may have a devastating effect in an opponent’s defence. Such information is recorded automatically and is difficult to forge such meta-data on anything but the smallest scale. With the standard industry practice of conducting daily backups of data, it is also difficult to deny the existence of such data.

Pre-action Disclosure Applications

Pre-action disclosure applications are made by a formal application notice to the Court and supported by evidence. The disclosure must be desirable in order to dispose fairly of anticipated proceedings or to assist the dispute being resolved without proceedings or again to save costs.

The court order will specify the document or classes of documents to be disclosed and require the respondent to say which of the specified documents are no longer in his control and in respect of which he claims a right of duty to withhold inspection. It may require them to say what has happened to any no longer in their control and may specify time and place for disclosure and inspection.

Application in Disputes

Such applications are becoming more common in the UK justice system, and are used as a means to avoid litigation of the substantial dispute entirely or as an indirect means to disclose the identity of an unknown defendant. Pre-action disclosure applications may significantly reduce the prospects of the expansion of a dispute, as facts required to properly assess prospects are required to be made available by court order prior to the commencement of the substantive legal proceedings. Ordinarily, such evidence is made available some months after the commencement of proceedings.