Disclosure of Electronic Documents


Posted on: October 27th, 2023

Disclosure of Electronic Documents

A review of Re P. H-L (Children) (Mobile Phone Extraction) [2023] EWCA Civ 206

The Family Procedure Rule Committee has agreed to consider making the necessary amendments to the Family Procedure Rules to govern the disclosure of electronic records.

What is disclosure?

Disclosure is the process of providing relevant information and documents to the other parties in a case. The purpose of disclosure is to make sure that all parties know of all documents that are of relevance.

What are the Family Procedure Rules?

The Family Procedure Rules (FPR) are a single set of rules governing the practice and procedure in family proceedings in the High Court, County Courts, and Magistrates Courts.

When a family case is heard in the Court of Appeal the ‘Civil Procedure Rules’ (CPR) apply.

The Family Procedure Rules on Disclosure v Civil Procedure Rules on Electronic Disclosure

Currently, FPR rule 21.2 on disclosure covers ‘orders for disclosure against a person who is not a party’. FPR rule 21.1 states that for the purposes of disclosure and inspection a ‘‘document’ means anything in which information of any description is recorded.’

While amendments are made to the FPR, Judges and Practitioners are asked to draw their attention to the provisions of the CPR which govern electronic disclosure. Namely CPR rule 31.17 which echoes FPR 21.1 and CPR Practice Direction 31B.

In the recent case of Re P. H-L (Children) (Mobile Phone Extraction) [2023] EWCA Civ 206, Lord Justice King stated that:

‘The FPR does not specifically deal with the disclosure of electronic materials referring only to ‘documents’. By contrast, the CPR 1998 have a Practice Direction dealing with the issue as CPR PD 31B: ‘Disclosure of Electronic Documents’.’

It is established that there is a gap in the FPR 2010. He goes on to say:

‘The Court may look to CPR rule 31.17 and CPR PD31B for assistance where necessary. FPR rule 21.1 (3) defines ‘document’ as ‘anything in which information of any description is recorded’. This definition is developed in relation to electronic material in CPR PD31B paragraph 1 which extends the broad definition of ‘documents’ to cover electronic documents.’

CPR PD31 paragraph 5.3 further defines electronic document as ‘Any document held in electronic form’. If such definition is drafted into the FPR this could essentially shorten the gap in the FPR, giving clarity and allowing the FPR to govern electronic disclosure.

Professional Duty

As echoed in the case of Kent County Council v a Mother,  F,  X, Y and Z (Minors) and IR [2011] EWHC 402 (Fam) the initial onus as to disclosure lies on the Local Authority which starts care proceedings in which it seeks to establish facts on which decisions about the children’s welfare will be taken. This requires the Local Authority to consider what relevant documents it possesses.

Going back to what Lord Justice King stated in Re P. H-L (Children) (Mobile Phone Extraction) [2023] EWCA Civ 206:

‘CPR PD 31B Paragraph 2 is stated to be ‘to encourage and assist the parties to reach agreement in relation to the disclosure of electronic documents in a proportionate and cost-effective manner’.

This outlines the important duty of the Local Authority to not only actively consider the relevance of documents, including electronic documents but how to select them in a manner that is beneficial to all parties.

The Future

Although these changes will take some time to come into effect, Marie Barker, Senior Solicitor at Cygnet Law says ‘this is a welcome change to the guidance acknowledging how the world is evolving in terms of technology and how this has to be reflected in the work that we do. We are seeing more and more the forensic analysis of data within not only criminal court but family proceedings as well. We welcome this change.’

 

Marie Barker

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