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Brief Counsel

A timely reminder on litigation disclosure requirements

04 July 2016

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A decision last week by the United Kingdom Supreme Court on when a final judgment may be set aside because a party failed to disclose relevant information provides a timely reminder of the importance in litigation of properly locating and disclosing all relevant documents.

The case

The case1 is the latest in the long-running litigation concerning the rights of Chagos Islanders to return to the homeland from which they were evicted in 1973. 
At issue was whether a 2008 judgment2 of the House of Lords, which upheld the validity of a 2004 rule prohibiting the Islanders from returning, should be set aside due to a “culpable” but not deliberate failure to disclose a draft of the expert report on which the UK government relied in making the 2004 rule. 
The draft had been requested but could not be found prior to the House of Lords’ determination.  It was subsequently discovered in an off-site archive. 
The Supreme Court found that the Secretary of State had breached his duty of candour in failing to disclose the document but declined 3:2 to re-open the House of Lords' decision. 
Although the breach was “clearly capable” of subjecting the other party to an unfair procedure that could warrant setting a final judgment aside3, the majority was not convinced that full disclosure would have led to a different outcome.

New Zealand examples

In Banks v R4, the Court of Appeal recalled its decision to order a retrial of John Banks and entered an acquittal after the late disclosure of material that contradicted aspects of the Crown’s case.  The Court found that, in light of the stance the Crown took in resisting the appeal, the failure to disclose was a “serious error of process” which had the effect of misleading the Court.5 
Similarly, in Elvidge v ASB Bank Ltd6, the Court rescinded an order for security for costs after finding that the applicant had misled the Court by not fully disclosing all relevant information in circumstances where it had invited the Court to accept its evidence as complete and accurate.7
Both decisions are notable for the rejection of arguments that non-disclosure was permissible because the information was not relevant or material. 

Implications

A comprehensive search of records has always been an essential component of litigation preparation.  Most searching and disclosure is now electronic in form, which introduces practical and technical challenges. 
The consequences of failing to comply, even inadvertently, with disclosure obligations are serious.  They may include adverse costs orders, judicial censure and even the reversal of a favourable judgment.  Courts will scrutinise carefully claims that the undisclosed documents were unimportant and will ordinarily insist on full disclosure.  If failure to disclose has misled the Court, or could have impacted the Court’s decision, a final decision can be recalled. 
Our thanks to Anthony Wicks for writing this Brief Counsel.  For further information in preparing for or conducting a discovery exercise, please contact the lawyers featured.
Footnotes
1.  R (on the application of Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35.
2.  R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, [2009] AC 453.
3.  At [5] per Lord Mance.
4.  Banks v R [2015] NZCA 182.
5.  At [25] and [28].
6.  Elvidge v ASB Bank Ltd [2015] NZHC 44.
7.  At [164].
 
 

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