On 7 August, DAC Beachcroft published an article about disclosure of items of which a party is actually aware (without further search) and are, or were previously, within its control, over which privilege cannot be claimed, and which damage the its case, or else support that of the opposition. This is a similar requirement to the disclosure requirements on the prosecution in criminal proceedings. The article is concerned with a recent case, and the question of the extent to which the disclosure obligations meant that a party had to attempt to harm its own case by actively tracking down the existence of such adverse documents. It refers to reasonableness and proportionality. It is said that the requirement need not mean that a party has to doggedly hunt down anything which could be harmful to its position, the checks which are made have to be reasonable, going to the right questions and directed to the relevant people.  Importantly, the article warns that it would also be prudent for those investigations to be fully documented in the event of question or challenge.

Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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