Disclosure — overviewGeneral duty of disclosure

Financial provision operates on the basis that each party will make full and appropriate disclosure of their assets to the other so that the court can then carry out the discretionary exercise contained within the Matrimonial Causes Act 1973. The provision for such disclosure is regulated by the Family Proceedings Rules 1991 (FPR 1991) once proceedings have been instituted.

Pursuant to the Pre-Application Protocol there is an expectation that the parties will provide voluntary disclosure prior to the issue of proceedings. It is intended that it should clarify claims and narrow issues that may lead to a negotiated settlement. The Protocol recommends that Form E/E1 should be used as a guide to the format of voluntary disclosure in financial claims.

Objections to disclosure

Disclosure can be objected to and the court, usually at the first appointment, will hear argument and then make a ruling about the disputed issue(s). Reasons for non-disclosure can include:

• confidentiality

• irrelevance

• proportionality of expense in providing the same

• legal professional privilege

• privilege against self-incrimination

After the first appointment a party is not entitled to production of any further documents except in accordance with directions given or with the permission of the court.

Implications of non disclosure

The duty to provide disclosure is ongoing. Clients must be strongly advised of the consequences for financial non- disclosure, which can be considered litigation misconduct. Consequences include an adverse order for costs and even, in certain circumstances, in the final ancillary relief order being set aside. The court may draw it's own inferences about a parties financial circumstances in the absence of disclosure.

Solicitors, equally, must not mislead the court, although they are bound by their duty of confidentiality. Termination of their instructions may be the only recourse if the client refuses to make the disclosure required. Sometimes clients obtain documents to which they are not entitled. Where this occurs, there is a procedure to be followed, which will differ according to whether or not the documents contain privileged material.

Orders for disclosure from third parties

Categories to consider include:

• a subpoena duces tecum or witness summons: which provides for a witness to be summoned to the court to provide documentation that is said to be relevant to the enquiry to be undertaken by the court

• disclosure pursuant to the Civil Procedure Rules 1998 (CPR 1998), which provides for disclosure to be ordered against a non-party where the documents are likely to support the applicant's case and it is necessary to so order so the case can be dealt with fairly or to save costs: such orders, if sought, should be obtained at the earliest possible date to avoid delay and reduce costs

• inspection appointment by way of FPR 1991

• banks can be summoned to attend an inspection appointment to produce documentation relating to a customer, and, where disclosure is ordered, the court can not only order inspection, but also the taking of copies of the documents ordered to be disclosed

• the court now has the power to supervise and intervene in the administration of trusts: this recent development means the court has greater power than previously, where it would only order disclosure where there was some claim of right on the part of a beneficiary with a proprietary interest (an obvious example is where one party to a marriage has an interest in an offshore trust)

Where a claim is made against third parties, the court has now developed a particular practice arising from case law, with a view to dealing with such matters as expeditiously as possible. This can also mean that the dispute can be heard separately from the main hearing as a discrete issue.