The LiST Group has published a draft revised Disclosure Statement on its Publications page. The draft was submitted to the DCA (as was) in 2006 with a view to kick-starting a discussion about this under-regarded element in the disclosure process. As with their other contributions, LiST got a polite acknowledgement and no more. As electronic disclosure comes back onto the agenda, it is a good time to raise the subject again.
The Disclosure Statement – Form N265 – is a formal component of the list of documents. It is mentioned almost in passing in Part 31.10 CPR and expanded upon in Paragraph 4.1 of the Practice Direction to Part 31. It is generally treated as a mere formal certification as to which document sources have been searched and which have not, and as the place where a party indicates which documents are and are not available for inspection.
There is some vagueness as to who should sign it – the source rule says “the party”, which is taken by many to mean someone from the client. I do not think that this is what is meant, but the lack of clarity on this point is but one of the issues which arises in this context.
I see it as the point when someone takes real responsibility for the scope of disclosure, and as the time for a party to grab the chance to set out why disclosure (as in the expensive graft of extraction and production) should be limited. That in turn ties in with the message now coming from the courts that there must be early focus on the issues which matter, on the facts which underlie those issues, and on the documents which prove or undermine the parties’ assertions as to those facts.
It is a document, in short, which deserves more attention than it gets from both practitioners and courts. I will expand on this in a later post, but you may meanwhile like to have a look at LiST’s annotated draft.