The duty of disclosure is an important area of distinction in litigation in Scotland and England.
While in Scotland there is no general duty to disclose, proceedings in England & Wales involve a more ‘catch-all’ and front-loaded approach, with significant documentation being shared upfront in any litigation process.
We have set out the main differences between each approach to help you make an informed decision on suitable jurisdiction when it comes to litigation.
Scotland
The approach to recovery of documents as evidence in the Scottish courts is targeted - as there is no obligation on parties to disclose evidence unless the courts order them to do so. While there is no automatic disclosure, parties are required to disclose the documents referred to in their court pleadings, as well as lodge in court any documents that they intend to rely on to argue their case. These are usually limited to principal documents, for example contracts.
A drawback is that it can be sometimes challenging to obtain documents that will support one party’s case that are in the possession of the opposing side.
The normal procedure to obtain such documents is to make an application (called a ‘motion’) for ‘commission and diligence’ which seeks the production of documents from another party to the action, or from a third party, that fall into categories identified within a ‘specification of documents’.
There must be a basis in the party’s court pleadings for this request, as the court will not allow ‘fishing expeditions’ (where one party inserts a wide call to see what documents can be recovered). For the court to authorise the specification of documents, the specification must be relevant and support the pleaded case only.
Drafting the specification of documents entails a balancing act, between the restrictions on what can be recovered and the desire to obtain as much useful information as possible. There are also more formal procedures to enforce the production of documents, but the practical reality is that parties often comply voluntarily, after negotiation over the precise terms of the specification of documents.
If the documents are not produced voluntarily, a commissioner will be appointed and a hearing fixed so that the person holding the documents (the haver) can be questioned under oath why the documents have not been produced and what searches they have undertaken.
A haver can claim confidentiality over the documents, and where that is the case, the documents should still be produced to the court, but are protected in a sealed (electronic) packet, marked as confidential.
The court can then be asked to open the confidential envelope by the party who obtained the commission and diligence. Whether documents are confidential is for the court to decide. A judge must examine the documents and determine if the documents should remain confidential by way of any recognised ground of legal privilege.
England and Wales
In comparison to Scotland, the approach in England & Wales is that all relevant key documents relied upon are disclosed alongside pleadings at the start of any litigation.
This ‘warts and all’ disclosure means that parties are required to disclose any documents in their possession which are relevant to the case in any way – regardless of whether they may positively or negatively impact their position. The rationale is to ensure that all relevant evidence is before the court and that parties are compelled to ‘put their cards on the table’.
While in theory, this should enable disputes to be settled at an early stage, the practical reality is that it can result in unworkable quantities of barely relevant documents being disclosed, resulting in costly time incurred reviewing the documents. However, this wider disclosure may also include background documents or correspondence that is useful to a party’s case, and which may not have been caught by a specification in Scottish proceedings.
Key takeaways
Disclosure in England & Wales can result in vast quantities of unnecessary documents being produced, increasing time spent and legal costs, but conversely, early disclosure under the English system produces evidence much earlier in the process which may be of benefit to a claimant to fully understand their evidential position.
The Scottish position avoids this upfront cost, but there are drawbacks where the process requires a court order to enable recovery of documentation usually under a narrower scope. If your dispute has the potential to be raised in either England or Scotland, jurisdiction shopping may be an option available to you, in which case the different approaches to disclosure should be considered.
If you have any questions or would like to discuss how our Alternative Dispute Resolution team can help you consider the best option available, please get in contact with a member of the team.
This article was co-authored by Trainee, Nikki Forde.