Disclosure: The Belt Tightens

The disclosure obligation in the course of litigation to disclose information relevant to matters at issue is not open-ended, the courts have confirmed in an important ruling. The award-winning commercial litigation lawyers at ParrisWhittaker are experienced in securing disclosure orders and successfully defending unwarranted applications for disclosure in commercial disputes.

The Bahamas Supreme Court has made clear¹ in a helpful decision that possessing the belief that the other side has further undisclosed information or documents, without supporting evidence, is not enough for the court to order further disclosure.

What is meant by ‘disclosure’?

Disclosure is a key obligation throughout legal proceedings and requires the parties to disclose documents or information within (or which have been within) their control and are relevant to an issue in proceedings (subject to exceptions).

If one party suspects the other is withholding documents or information, they can ask the court for specific disclosure. If satisfied, the judge can make an order that the non-disclosing party discloses specific documents/information or classes of documents (Ord 24, rule 7 of the Rules of the Supreme Court).

What was the issue in this case?

In the course of substantive proceedings which concerned allegations of fraudulent misrepresentation, the applicant applied for specific disclosure. He was not satisfied with the extent to which the defendant had so far discharged its disclosure obligation.

The applicant said disclosure was incomplete; that “numerous documents” were missing from the defendant’s list. He therefore sought disclosure of whether or not he has or had possession, custody or power of certain types of document. However, he had failed to identify any specific document he believed to be ‘missing’ – merely classes which he suspected had been omitted.

The court stated that an order requiring specific disclosure under the rules requires an applicant to only disclose documents which are “directly relevant” to one or more matters in issue in proceedings. Here, the judge described the gist of the application: “… that there ought to be other material which may be available and disclosable.”

The application was speculative and, in the absence of evidence that specific disclosure was warranted – no order was necessary.  The ruling is in line with the modern judicial approach to disclosure which is to discourage the unnecessary costs associated with “uncontrolled discovery”.

How can we help?

Businesses involved in litigation will be subject to disclosure requirements, but there are clear limits to which this obligation extends. A party who embarks on a speculative application in the hope of further disclosure, but without supporting evidence, risks paying their own and the other side’s legal costs if their application fails.

For robust advice on your disclosure obligations, get in touch with the experienced commercial litigation lawyers at ParrisWhittaker on info@parriswhittaker.com or +1.242.352.6112

¹Federico Riege v Izmirlian & ors 202l/CLE/gen/00l260