Hodge M Malek QC weighs up the pros & cons of disclosure
One of the great contrasts between civilian law jurisdictions as found in Continental Europe and those founded upon the common law is the extent of disclosure in civil proceedings. An English lawyer may argue how can a trial be fair unless both parties disclose to each other those documents which assist or undermine their respective cases? However the pursuit of disclosure can be a barrier to there being a trial at all.
The system of disclosure by list of a party’s relevant documents goes back to the nineteenth century. At that time the number of disclosable documents were generally few in number. The photocopier and computer have completely transformed things. Disclosure now may require a party to sift through and potentially disclose a large amount of material. The explosion in data has made disclosure a major burden, in terms of time, cost and case management.
Rationale for disclosure
The benefits of disclosure can be easily stated. It allows informed and accurate decision making by the court as it compels
