In any civil proceedings, the duty of litigants to provide adequate disclosure of documents is at the heart of the court process.
As soon as they are instructed, solicitors representing litigants are obliged to provide advice that their client of the client’s duty to preserve relevant documents and to “endeavour to ensure that [the client] understands the duty of disclosure”.
But the relevant declaration that the duty of disclosure has been fully complied with (the ‘disclosure statement’) with must be signed by the litigant (and not, for example, by his/her solicitor).
And so it may be thought that, although a solicitor is obliged to advise on what records are required to be disclosed under the court rules, the obligation to search through the records held by a litigant falls upon the litigant alone rather than on his/her solicitor.
However, in fact the courts have ruled that “it is fundamental that the client must not make the selection of which documents are relevant” and the correct approach is as set out in Matthews and Malek’s book, Disclosure (5th edn. 2017):
"A solicitor's duty is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. This duty owed to the court, is:
"one on which the administration of justice very greatly [depends], and there [is] no question on which solicitors, in the exercise of their duty to assist the court, ought to search their consciences more."
"The solicitor has an overall responsibility of careful investigation and supervision in the disclosure process and he cannot simply leave this task to his client. The best way for the solicitor to fulfil his own duty and to ensure that his client's duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance—or even potential relevance—for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable."
The full extent of this obligation may well come as a surprise to many solicitors. In practice, examples of non-compliance with these rules are commonplace.
