If you are ever in the unfortunate position of being involved in a legal dispute which requires legal proceedings to be issued or defended in Court, there is an obligation to disclose all documents which are relevant to the issues in dispute.

The Supreme Court Rules requires you to disclose to the other parties all relevant documentation which is or was in your possession.  Rule 136 of the Supreme Court Rules (which is mirrored in the District Court Rules and for which there are equivalent rules in most Courts) says that:

136—Obligation to disclose documents

1. Each party must disclose the documents that are, or have been, in the party’s possession and –

(a) are directly relevant to any issue raised in the pleadings or affidavits filed in lieu of pleadings; or

(b) are to be disclosed by order of the Court.

Accordingly, we strongly recommend that you keep copies of all important documents and correspondence, especially if you are involved in commercial agreements with other entities.

In particular, you should ensure that any agreements with other parties are put into writing before they are formally agreed to and that the agreement contains all the terms which have been negotiated. Likewise, if any agreements you have entered into are varied, those variations should also put into writing to confirm that the original agreement must be read subject to the variation.

We recognise that it is not always possible or practical to ensure all legally binding agreements are put into writing. However, there are some things you can do which may help you prove your position at a later date if a dispute arises as to the terms or operation of an agreement which was not formally put into writing.

If you are unable to have an agreement put in writing, you should be in the habit of making notes of telephone calls and verbal discussions as to what was agreed and make sure those notes include the current date. You should follow up verbal agreements with an email or letter to confirm the terms which were agreed and ask the other party to acknowledge and agree with what you have recorded in writing.

You should ensure that any such notes or correspondence is kept in a chronological file which can be referred to later if a dispute arises.

We also remind you in the future you may be required to disclose the contents of any computer hard drives which may contain information relevant to the litigation. You should be aware that computer experts can often procure copies of computer files such as Word documents, emails, photographs and other information as well as determine the date on which those files and document were created even if you have deleted those files and documents from your computer.

Due to the obligations of disclosure, but also for the purposes of evidencing the terms of any agreements which are not formally put in writing, it is important that you are aware of where your documents are and how they can be obtained if you are involved in litigation.

Litigation is a time consuming and usually expensive process. Disclosure can be one of the most time consuming and costly parts of litigation, particularly so where you have not kept proper or ordered copies of documents and your lawyer must peruse, identify and order your documents in order to disclose them to the other party and to the Court.

Properly recording and preserving your documents will ensure that:

1. You have the best chance of proving your position to a Court;
2. You have the best chance of convincing an opposing party that your position will be favoured by a Court in order to avoid costly litigation;
3. Your lawyer and the Court properly understands your position and the proper legal relationship as between you and others;
4. If you must commence or defend legal proceedings, you can present your lawyer with complete copies of relevant documents in chronological order, which will make the process faster and cheaper.