Friday, 26 October 2007

Show and tell, not hide and seek -disclosure part 1

Somerset Maugham said as long ago as 1926 in "The Constant Wife": "There is only one freedom that is really important and that is economic freedom, for he who pays the piper calls the tune."

Whilst not the only freedom that is really important, it is imperative to have economic freedom.

One of the key features about negotiating a deal about your property, to ensure that a party has economic freedom, whether or not the parties go to court, is to ensure that there has been full disclosure of their financial circumstances.

The Family Law Rules set out a shopping list of things to be disclosed before going to court, but more important is the phrase: "full and frank disclosure in a timely manner".

This means, subject to privilege, that there has to be openness about disclosure for documents (including computer files) that might even be harmful to that party's cause but are relevant to the dispute.

To paraphrase Federal Magistrate Lucev recently - counsel put it succintly as it's a case of "show and tell" not "hide and seek".

I sometimes decribe it to clients as "I hate surprises." Almost invariably they are going to be bad ones, at a trial, when my client will be in least control of what can happen to their future. It is rare to have good surprises at court.

Of course often clients complain that their ex has not made full disclosure. The obvious question that gets asked is: "before we [go to court/ write a nasty letter/ issues subpoenas etc] have YOU made full disclosure?" Usually the immediate answer is no, but on further checking often it is yes.

I will have further posts about what to do if the other side does not make full disclosure.

No comments: