Litigation

The decision as to what is a reasonable search rests in the first instance with the solicitor in charge of the disclosure exercise. However, some parts of the process ought to be discussed with the opposing solicitor with a view to achieving agreement (so as to eliminate, or at least reduce, the risk of later dispute).

Where that decision is challenged, the task of deciding what is required by a reasonable search falls to the court. The first question for the court is what should have been done in the first place by way of a reasonable search. If the court reaches the conclusion that more should have been done in the first place, the court will conclude that the party has failed to carry out a reasonable search.

However, that does not necessarily mean that the court will then order the defaulting party to carry out the search which it initially should have carried out. The court will usually make an order for specific disclosure (r 31.12) to ensure that the obligation to give disclosure is properly complied with, but it is possible for a court to decide in a particular case that the search which should have been carried out in the first instance would, if carried out at a second stage, be disproportionate as regards cost and the likelihood of revealing anything worthwhile.