Specific Disclosure Question

RobRobRob! said:

Hello

We are currently in legal business dispute and are at the stage of disclosure which i am representing myself with no legal advice. We have provided all our disclosure documents but the opposite side have stressed that they believe we haven't enclosed all the documents and have stated they are going to make a request to the court for specific disclosure of documents.

My question is what if their request is granted by the court and we don't have the documents in question? Can I be fined, can we hire an expert to prove that the documents don't exist, is that something that the court can demand and the cost is charged to the other side or can the case be thrown out and found in their favor?

Any help would be appreciated

Click to expand...

I'm somewhat baffled by the idea of hiring an expert to prove something does not exist.
It would sound like something being hidden.

Well it sounds like you don't have access to the documents they have requested, I hope you are not in a particular field where documents should be kept as mentioned above otherwise obviously will not go down too well. I would suggest for anyone reading this whether in business or not its good practice to archive all your emails, if you have employees ensure you have a server backing all data up

Of course ......... I just knew someone would mention that lol and slightly off topic if you have employees make sure you have a good IT policy and they have signed it

The legal route of settling a dispute unfortunately works by one side making outlandish claims and the other side having to defend them.

Firstly.. You are not going to 'get fined' if you cannot prove the documents don't exist... but if the documents don't exist and you cant provide a decent explanation why you are simply in a weaker position with respect to the case, and open to attack from the other side if they examine the issue further.

Taking your words:

RobRobRob! said:

They are saying that they believe some of these emails will exist.

Click to expand...

With this, the other side are also introducing an element of doubt into the question so it's not a black and white question, and you have to explain why the documents don't exist.
As others have said, a Court will not be impressed with just the answer that they were destroyed, and less impressed if you plead that you were a small business that ' doesn't really have a data policy' - and less impressed again if you add ' the no-one told us' line

Another common tactic is that ( and the other side will know the size of your business relative to theirs if they are any good) although they know that the case is against them, the opposition will continue to bluff their way to the courtroom door to test your resolve and resources to spend the money at trial.
Conversely, It may be that their lack of resources may force them to concede the case despite taking it to the brink .... Tactics!!!!

@Mr D has unfortunately changed the footer message on his posts - but the old one was very right.

Some of your statements indicate you are in need of advanced advice - not necessarily legal. I endorse the views expressed that you should get some help with this.

There's an old saying that a man who acts for himself has a fool for a client.

You said: "The whole case just seems a little far fetched as they are suing for a figure that hasn't even been confirmed yet, in excess of 150k but the CMC figures were should the cost to take the case to court will be 220K on either side. "

To be quite frank, it's insane for you to even contemplate dealing with such a large claim by yourself. You really must get competent professional advice. If you don't want to use a solicitor you may be able to deal directly with a barrister under the Bar DIrect Access Scheme (Google it).

In particular, you should realise that disclosure does not mean that you have to disclose documents just because the other side have asked you to. For example, you may be under no obligation to disclose the customer lists they've asked for. It may be that your opponent is taking advantage of your lack of legal knowledge to obtain valuable information to which they are not entitled.

Also, you can't disclose what you don't have, and provided you can show that you've done your best to comply with a disclosure request you won't be criticised. But again you need good legal advice, as disclosure is a difficult technical area even for litigation specialists.

WRT the legal costs being higher than the amount claimed that is sadly not at all unusual. The role of a good litigation lawyer is to assess the strengths and weaknesses of your case and to negotiate the best settlement they can obtain for you, with a view to avoiding the massive costs involved in going to trial. All too many cases where people are acting for themselves end up at trial simply because the person doesn't know how to negotiate a settlement. Whilst hiring a good lawyer may seem expensive it's often a lot cheaper in the long run.

It's essential that you get legal advice now. If you don't, you're likely to get screwed.

WaveJumper said:

I would suggest for anyone reading this whether in business or not its good practice to archive all your emails, if you have employees ensure you have a server backing all data up

Click to expand...

It's quite common to not keep e-mails for this very reason. If they don't exist they can't be produced in court. I worked for a company that used Enterprise Vault to delete e-mails after 3 yrs. We were taken over by a very large very well known multi-national and had grandfathered rights to the same policy. Any new starters since the take over have e-mails deleted after a year.

RobRobRob! said:

The whole case just seems a little far fetched as they are suing for a figure that hasn't even been confirmed yet, in excess of 150k but the CMC figures were should the cost to take the case to court will be 220K on either side.

Click to expand...

They are clearly suing for general damages, which means that the loss is to be assessed by the court. This is an extremely basic principle of litigation. No disrespect intended to you, but as the posters above have said, YOU should not be dealing with this yourself. The fact that you are dealing with this, when this most basic piece of information is unclear to you, is astonishing. It is also a gift to your opponents.

I don't really understand what you mean by "the CMC figures were should the cost to take the case to court will be 220K on either side" but whatever that means, if they are suing for damages circa £150,000, their legal costs are going to £75,000-£100,000+ if they win.

My last position, before I started this business, was partner in a firm of solicitors. We had approx 30 full time litigators, and probably no more than 3 of them would be entrusted with a case of that size, and even then, they were rigorously supervised.

There are dozens of reasons why you should not only NOT be running this yourself, and probably as many questions as to why you are in this position, but the most pressing question is do you not have professional indemnity insurance, or some form of liability insurance, which covers this, and if so, why are your insurers' solicitors not dealing with this for you?

As far as the disclosure question is concerned, no-one here can reliably answer the question for you because no-one here has any sufficient knowledge of your case, and applications such as this are won and lost on specifics. I have made and defended numerous applications like this, and the applications are often heralded by an exchange of statements and evidence bundles totaling 100-200 pages. You need to stop wasting your time here and find a way to retain a firm of solicitors. If you haven't already looked into it, whatever insurance you may have is your first port of call.

Once again, this sounds harsh, and I mean no disrespect, but people do not just lose their livelihoods over cases like this, they lose their houses. I have seen it happen, but I have NEVER seen it happen to someone who was dealing with the case themselves. In fact when I first started reading this thread, I thought it was a joke!

I am sure it's not, but you appear to be in a state of denial or ignorance about the possible consequences of this litigation and you need to act now if you are to avoid this utterly ruining your life.

Good luck,

Dean