September 12 2020

The risks of non-disclosure in breach of a court order

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Disclosure orders are a frequent feature of the litigation process. However, if the party who is subject to such an order fails to comply, they risk potentially serious sanctions from the court. The experienced commercial litigation lawyers at ParrisWhittaker are experienced in advising on the terms of disclosure orders and can give urgent advice.

What is a disclosure order?

A disclosure order is vital for an individual or business who needs access to documents or other information that may be necessary in the pursuit of legal proceedings. An order for disclosure must be complied with, as must any order of the court. Failure to comply with a court order is a serious matter and can attract severe penalties.

For example, disclosure may be ordered against someone who has been accused of misconduct, cybercrime or fraud, or other illegal actions or failings. The person or corporate entity may resist such an order and refuse to comply.

An order can also be made against a third party who has not been accused of doing anything wrong – this is called a Norwich Pharmacal order. That third party may not be a party to the proceedings themselves but, under order of the court, must still comply with its requirements.

Must I comply?

If the court orders you to do something or not to do something, you must comply or face further action from the courts. However, there are circumstances where you may believe the court was wrong or unfair. In that case, you should not simply refuse to act but take legal advice on what you can do.

Even if you believe you have no choice but to comply, it is always wise to take legal advice to ensure your best interests are protected. We can help you comply with the terms of the order while, at the same time, protect your commercial interests.

This means if you are the subject of an order for disclosure, consult our specialist lawyers before taking any steps towards compliance: it may even be possible to appeal all or part of the terms.

Consequences of non-disclosure

A party who fails to comply with the terms of the court order for disclosure faces sanctions from the court, such as being disbarred from proceeding with its claim; defending the claim against it; or a costs order or further order being imposed. However, the courts will act proportionately and fairly even though failure to comply is a serious matter.

In a recent case¹, the parties agreed direction in relation to disclosure (and other issues) but the defendant failed to comply and the claimant applied to court for the defence to be struck out for this reason. The court refused to strike it out on the basis that to do so would be disproportionate. It said strike out is a remedy of last resort and an extreme measure.

Instead, the court made an ‘unless’ order under which the defendant had 28 days in which to comply with the disclosure order made earlier – otherwise judgment would be entered against it. However, the court reiterated that its failure to comply – no good reason having been given – was a serious breach putting the trial date in jeopardy.

As an aside, it is also important to note that if a party fails to disclose a document, it is not permitted to rely on it in proceedings without the court’s permission.

What should we do?

For expert, urgent legal advice on disclosure orders contact us now, and we can begin working on your behalf.

¹OreximTrading Ltd v Mahavir Port And Terminal Private Ltd [2019] EWHC 2299