You cannot give what you do not have

Anis Waiz, head of commercial litigation at CLS, takes a look at the issue of disclosure and inspection in civil proceedings.

My learned friends, I bring good news. The courts no longer require me to utter odd Latin phrases. In fact I am positively discouraged that simple plain English is now the order of the day; all those years learning has to be undone.

No longer can we plead ‘nemo dat quod non habet’, or in simple terms ‘you cannot give what you do not have’; lawyers are now modern. Believe it or not, some even make use of electronic mail and social media at a push.

The world has moved on, in some ways good and others not so much. Contrary to the well staged court room scenes in films we cannot suddenly produce documents that no one has ever seen and smile at the judge, knowing we have just delivered a fatal blow to the other side.

In civil proceedings we have what is known as disclosure and inspection. It sounds very exciting but put simply it is the key process by which each party, at a certain stage in the proceedings, sends the other party the documents in their case.

Now the fun bit; some parties think they can hide documents which may be adverse to their case and surprise the other side. Fortunately not! Usually the court orders the parties to disclose (a) documents on which they rely; (b) documents which – (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case. In other words, there may be no hiding place!

The court rules on disclosure and inspection are complex and require proper advice, but one issue is clear: sometimes a party may be ordered to give what they do not have. ‘Nemo dat quod non habet’. It’s often a pivotal point in proceedings and makes for interesting times when dealing with fraudsters.

The public are often very surprised when court documents are written in straightforward terms for all to understand. They instead love to imagine clerks with quills in hand, spending hours writing in ink on pieces of parchment – the good old days! But here at Curtis Law we certainly can give you what you do not have - clear, practical commercial advice and lawyers you can trust.