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Justice Without Full Evidence Disclosure Is No Justice At All

Disclosure is probably the most important stage of litigation as this is the evidence that supports the claim or the defence and will be referred to in Court.

If Disclosure is not properly performed, the court has the ultimate sanction of striking out the offending party’s claim or defence. Usually, the Court will make an Unless Order stating that Unless a party complies with an Order within 7 days, then their Claim or Defence is struck out.

This is nuclear. If the Order is not complied with, the offending party loses and will have costs awarded against them (as well as the amount of the claim if they are the defendant).

It is all too common for one party to not disclose documentation harmful to their case and the Courts will step in and make an Order if necessary.

Justice ultimately depends on full disclosure of evidence by all sides, no matter how costly, inconvenient or even embarrassing that may be. That point was succinctly made in one case in which a company accused its former financial controller of abusing his position to misappropriate £2.3 million.

After the company launched proceedings against him, the man accepted that he had taken £81,000 without authority. However, he said that he had repaid that sum and that all other payments received by him had been made in accordance with normal practice and had been authorised at board level.

He argued that the sums concerned were remuneration, although they did not appear in the company’s accounting records. In those circumstances, he obtained orders requiring the company to disclose large amounts of information from its servers which might support his defence.

After a preliminary hearing, the High Court found that those orders had not been fully complied with and gave directions which were designed to ensure that all relevant information was put before the trial judge. Amongst other things, the Court directed that the servers should be searched by an expert contractor, using agreed search terms. Neither the parties, nor their solicitors, were to be present during the search so that there could be no interference with the independent expert’s work.

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MLA 2017 18 Shortlisted 2