A timely reminder for clients not to “self-select” disclosable documents

This time of enforced home working presents various difficulties to those working on contentious matters. How do you conduct remote hearings effectively? How do you interview witnesses effectively?

But a timely case reminds all litigation practitioners to take control of the disclosure process and, in particular, not to allow their clients to select the documents to be disclosed.

Square Global

In the case of Square Global Ltd v Leonard, an employment dispute, Square Global complained that Mr Leonard had been “remiss” in his disclosure duties. In particular, it argued that he only disclosed three cover emails between him and a rival firm, Market Securities, while failing to disclose “important attachments”. Mr Leonard’s correspondence with Market Securities was at the heart of Square Global’s claims against him. In his witness statement for the trial, one of the founders of Square alleged that (in the judge’s words):

“… it had been established in the inter-solicitor correspondence that Mr Leonard himself conducted a review of his documents (rather than the solicitors), and – importantly – he had also selected which documents he considered relevant”.

Counsel for Square Global said that they were not suggesting any breach of professional obligations by Mr Leonard’s solicitors, stating that solicitors were “under an obligation only to advise their clients properly on their disclosure obligations”. They referred to PD 31A, which emphasises the need for solicitors to make sure that the clients understand the duty of disclosure.

Mr Leonard, for his part, said that there was “nothing untoward” in him searching for relevant documents when he was an individual with limited documents, well aware of where they were located.

The court’s ruling

The judge was not prepared to find any breach of professional duty on the part of the solicitors, noting “the immense strains placed on both advisers and litigants by expedited proceedings of this nature”, and he recorded that he had been “highly impressed with the skill, efficiency and industry of all the legal advisers in this case”.

However, the judge stressed that PD 31A does not set out the extent of a solicitor’s relevant disclosure duties, and that it is “fundamental” that the client must not select the relevant documents.

The judge said that the position was well summarised in Matthews and Malek on Disclosure (5th edition, 2017), quoting the following:

“The best way for the solicitor to fulfil his own duty and to ensure that his client’s duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance – or even potential relevance – for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable.”

Lessons to be learned

Although the judge in this case did not cast aspersions on the professionalism of the solicitors for Mr Leonard, it is clear that parties can expect very limited tolerance from the court of anything like what happened in this case. It should also be borne in mind that the Disclosure Pilot Scheme will apply to many significant cases now. The pilot includes more prescriptive detail regarding disclosure duties (of both parties and their legal advisers), expressly recording legal representatives’ duties including that they must take “reasonable steps to advise and assist the party to comply with its Disclosure Duties” (PD 51U.3.2(2)).

While it seems obvious that a client should not self-select documents for disclosure (given the temptation of some clients perhaps (even subliminally) not to flag as relevant documents harmful to their case and, particularly in complex cases, concerns surrounding the ability of clients to digest all the nuances of relevance), this case serves as a welcome and timely reminder of the duties on solicitors to do all they can to conduct the review themselves.

The judgment is particularly timely in the current circumstances of the COVID-19 pandemic. It might be seen as difficult for some clients, in particular those individuals who are self-isolating, to provide all document sources that may contain relevant documents, to their solicitors. The age of hand delivering hard copy files or even USB sticks with downloaded data is not yet back upon us. However, the world has not completely stood still and although personal travel for these purposes is no doubt potentially difficult (and many people would balk at it), no such difficulties present themselves to obtaining digital data held in a way which is recoverable remotely. Electronic disclosure providers and forensic IT professionals are well-versed in “imaging” electronic devices and email accounts “down the pipes” through internet connections.

If, however, there are specific difficulties faced by a party in ensuring the timely delivery of documents (whether physical or electronic) to their lawyers, and if those difficulties present the need for an extension of time to meet a deadline, then an early approach to the opponents and, possibly, the court is surely the prudent course.

This piece first appeared on the Practical Law Dispute Resolution Blog on 15 June 2020.