Dilapidations claim: issues of disclosure

26 January 2016

Vivien King considers the issues of disclosure when related to a client’s dilapidation claim

Disclosure is a litigation solicitor’s nightmare, but is an angle of litigation and the Civil Procedure Rules that is rarely considered in depth, if at all, by their client, witnesses or even counsel. It could, however, bring proceedings to a grinding halt.

Consider, for instance, a building surveyor’s file (whether stored as paper or electronically) relating to a client’s dilapidation claim. It may contain scribbled notes questioning whether items fall within the meaning of the lease, or emails (albeit marked ‘confidential’) from the client confirming plans to demolish the demised premises or to the client giving an estimate of recoverable sums woefully below the claim. The tenant’s building surveyor’s file may be equally revealing.

Would those building surveyors want their files placed before the other side and the court? No. Could they be? Yes.

List of documents

A party to litigation or more usually their solicitor, an officer of the court, has a duty to prepare a list of documents (however stored) within their control that support or adversely affect its case or that of another party. Would building surveyors’ files fall into that category? Yes.

Once listed, other parties to the litigation and the court are entitled to inspect those documents unless ‘privilege’ is claimed. Nor does the duty to disclose end with the creation of the first list – it continues throughout the litigation process.

First, let us deal with some of the obvious questions:

• Is an instructed building surveyor’s file within the client’s control? Documents that come into existence on the instructions and for the benefit of a paying client will generally be owned by the client. So, yes the file will be within the client’s control.
• What happens if a disclosable document is destroyed? Its former existence must still be disclosed with an explanation, sometimes embarrassing, as to what happened to it. So, shredding a document assists no one.
• Is a document that is marked ‘confidential’ disclosable? While this tag may prevent anyone to whom the document is given showing it to anyone else, it is no protection against the court’s disclosure rules in litigation.

Privilege

When can privilege be claimed to protect a document from disclosure? There are two occasions – when legal professional privilege applies and when it would be adverse to public policy to disclose the document.

Legal privilege protects documents seeking and/or obtaining legal advice from the client’s lawyers and second, documents coming into existence as the client’s lawyers contemplate, pursue or defend litigation and are for the dominant purpose of that litigation.

So, if the client’s lawyers are investigating details of a claim or defence or questioning or investigating potential witnesses, the consequential documents will not be disclosable. Remember, however: the privilege is legal professional privilege and will not protect advice from or investigations conducted by other professionals unless in answer to the lawyers’ requests.

Policy protection

Public policy protects certain other documents from disclosure, for example, those relating to defence of the nation or much more commonly come into existence in an attempt to settle a dispute and are marked ‘without prejudice’. Use of these words enables the parties to conduct their negotiations without fear of proposals prejudicing their position. However, use of the words in other contexts (e.g. in advice given to a client by its surveyor) will not protect the document from disclosure.

So, disclosure is not only an important step in the litigation process, it can prove embarrassing or even fatal to one or both parties. And if it is suspected that documents exist which have not been disclosed, a party can make an application to the court for specific disclosure. This is an expensive step and cannot be taken without evidence – it is not an opportunity for a party to go on a fishing expedition.

Finally, take the process seriously too if you expect to be appointed an expert witness when previously instructed in the role of an adviser. What do you have on your files that may need at best an explanation and at worse, a stand down from your now expressed opinion?

Vivien King is a consultant to Malcolm Hollis

Further information

• Related competencies include Legal/regulatory compliance
• This feature is taken from the RICS Building surveying journal (December 2015/January 2016)