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A reminder of litigation disclosure obligations

  • United Kingdom
  • Employment law

15-05-2020

Background

Whether in the employment tribunal or in the civil courts, the parties will be required to disclose documents in relation to the claim. ‘Documents’ for this purpose is a very broad term and includes anything on which information is recorded. This includes, for example, correspondence, minutes and manuscript notes and documents held electronically such as recordings, e-mails, text messages and computer files (including those stored on back-up systems). Parties are required to disclose to each other any relevant documents, including those that are both helpful and damaging to their case.

The courts and tribunals seek to ensure that cases are dealt with fairly and justly. The duty of disclosure is strict and the court takes it very seriously. The underlying principle is that the court or tribunal can only deal with a case fairly and justly if all of the relevant material is preserved and disclosed. Legal representatives are officers of the court, which includes a duty to ensure that all disclosable documents are made available.

The Civil Procedure Rules and associated practice directions, which are applied by the civil courts and the principles of which are taken into account by employment tribunals, make clear that legal advisers must properly advise their clients regarding their disclosure obligations as soon as litigation is contemplated. This includes the duty to preserve potentially relevant documents, including electronic documents that may otherwise be automatically deleted in accordance with any document retention process.

A recent High Court case serves as a useful reminder of disclosure obligations in an employment litigation context.

Square Global Limited v Leonard

The defendant, Mr Leonard, had been employed by Square Global Limited for four years before resigning with immediate effect to go to work for a competitor company. A claim was brought by Square Global Limited, claiming that the defendant had breached various terms of his contract of employment, including the requirement to give six months’ notice of termination. The defendant served a counterclaim, claiming that he was constructively dismissed by Square Global Limited in circumstances where his employer had allegedly breached the implied duty of trust and confidence arising from a course of conduct over several years. On that basis, the defendant claimed he was entitled to resign without giving notice and should be released from the various restrictive covenants in his contract.

The High Court determined that Mr Leonard had not been constructively dismissed, that the restrictions in his contract were valid and enforceable and that he had acted in breach of the terms in his contract by resigning without notice. The Court declared that Mr Leonard remained employed by Square Global Limited and upheld the restraints on working for a competitor and the other post termination restrictions. Square Global Limited had also claimed the sum of £396,000 in loss of net profits arising out of Mr Leonard’s breach in not performing his duties. That aspect of the claim was remitted to a separate damages hearing.

No novel points of law were determined in relation to the restrictive covenant and constructive dismissal issues, although the case is an example of the successful enforcement of restrictive covenants and the court’s considerations in this respect. However, the more interesting aspect of this case is found in the postscript to the case, which addresses an issue concerning compliance with disclosure obligations. Mr Leonard had originally disclosed just three emails between him and the competitor company at the disclosure stage, with no attachments. This was despite the clear relevance of the attachments given the communications Mr Leonard was involved in with the competitor company prior to his resignation and the covering emails clearly referring to other documents. When this was challenged, the attachments and a number of other relevant documents were subsequently disclosed. It was suggested that this conduct demonstrated a lack of candor on Mr Leonard’s part.

Indicative of the serious regard taken by the courts of disclosure obligations, the parties were ordered to prepare and submit written submissions on the issue of disclosure. It was highlighted that Mr Leonard had himself conducted the review of documents and selected those documents to pass to his legal representatives as he considered relevant. Whilst no breach of professional obligation was found on either side, the High Court made clear that a legally represented party should not be left to decide the relevance of documents for the purpose of disclosure and that legal representatives have a duty to the court to complete that task and carefully ensure that proper and full disclosure is made.

Comment

As was demonstrated in this case, the issue of disclosure can often give parties an easy avenue to criticise the conduct of a party and cast dispersions on their credibility. Further, where full disclosure is not properly completed, this can result in additional unnecessary time and costs for both sides. It can also potentially lead to an award of costs being made.

Workplace disputes and the associated disclosure process in the event of any litigation have the potential to be time consuming and expensive and a drain on management time and resources. To avoid this, a clear practical strategy is required to ensure the most appropriate fact-finding and document identification processes, taking account of the specifics of the particular case. In some cases, the issues and the associated documents will be limited. However, in the majority of cases, disclosure is likely to require more detailed consideration at the outset of a case.

Documents often overlooked at the preliminary stage of disclosure include handwritten notes (including in personal notebooks), calendar entries, text messages and draft versions of documents. Particularly where the issues go back a number of years and where personnel has since changed, genuine but avoidable omissions can often be made if early steps are not taken to identify all documents and eliminate any uncertainty in the disclosure process. It will not be sufficient for legal representatives to simply inform clients of disclosure obligations and assume that relinquishes their obligation to the court. Proactive steps must be taken to ensure all potentially relevant documents are provided and to assess those documents for relevance.

Our experienced employment law litigation team are well placed to help employers with any workplace disputes, wherever they are based and whatever the issue. Our team has substantial experience in supporting employers to steer through any disputes process, including any associated disclosure process, and in resolving cases in the most cost effective and efficient manner.

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