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The duty of disclosure


It doesn’t take too much imagination to think of situations in which a party to financial proceedings might be tempted to explain just the parts of his or her case that are helpful, to miss bits out or even to be a little fuzzy around the edges or conveniently forgetful  if it seems convenient to do so.

What does the law say about this?

There has long been an obligation to give up to date information about relevant issues in order to help the court to establish the facts in a case so that the judge may apply the law to those facts and come to a fair conclusion. It is well established that non-disclosure can be a ground to set an order aside and that possibility is a powerful weapon in getting to the facts.

This is often referred to as the obligation to give full and frank disclosure and that is fine as far as it goes but it misses off one crucial word used by the court in NG v SG 2011 EWHC 3270, one of the leading decisions on the topic. So what was the word?

The missing ingredient is that the disclosure must not just be full frank – it must also be clear. It is not enough simply to state facts and to allow the court to draw its own conclusion. There needs to be clarity which will require an explanation. Clear as mud is not good enough.

Ian Stirzaker

Ian is the Senior Partner and Head of Family Law at SME Solicitors. Please contact him or Joanna Gardner for specialist help and advice in all aspects of family law at ian.stirzaker@smesolicitors.co.uk  or joanna.gardner@smesolicitors.co.uk

Added: 09 Jun 2020 15:01


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