When something happens, it may seem reasonable to ensure that the facts are collated and evidence retained. In international trade, understanding the differing rules is important. Without seeking to provide legal advice, what follows is an overview of the approaches in a number of jurisdictions.

The English jurisdiction operates a 'cards on the table' approach to dispute resolution and parties are obliged to disclose and permit inspection of all documents relating to the dispute that assist their own case or another party's case or that damage their own case or another party's case.

The parties to a dispute have a legal obligation to preserve relevant evidence, including documents in all forms of media, in their possession or otherwise under their control. This obligation is triggered as soon as there is a possibility that a formal claim will be made. Importantly this trigger occurs before formal litigation is commenced.

"The parties to a dispute have a legal obligation to preserve relevant evidence in their possession or otherwise under their control"

As soon as an incident occurs that will possibly lead to a claim, take the following steps:

1. notify all relevant staff about the obligation not to destroy or dispose of relevant documentation;
2. avoid creating any other documentation, such as internal investigation report or 'confidential' email exchanges that could potentially be harmful; and
3. do not ask any third party to send through documentation. 

There are certain exceptions to the duty to give disclosure and inspection; legal privilege may be claimed, but there are strict rules surrounding this. Just because a party considers a document to be 'confidential' will not necessarily protect it from disclosure and inspection.

Where evidence is not preserved or disclosed or made available for inspection, a court may not allow later reliance upon it or, where seriously prejudicial, may strike out the claim or defence. It is important to note that these duties exist throughout the entire lifecycle of any dispute and the court will take a dim view of any party not complying with its duties.

Conversely, in South Africa, the only way to preserve documents is to apply for a court order; there is no common law obligation on a party to preserve documents, regardless whether litigation may be anticipated.

UAE position

In the UAE, notwithstanding any standard record-keeping requirements (such as trading or employee records), there is no formal duty to preserve evidence in the context of legal proceedings. Unlike English law, there is no obligation on a party to disclose documents or other evidence that may be damaging to its case, only to present the evidence on which it relies in support of its position.

"In the UAE there is no formal duty to preserve evidence in the context of legal proceedings"

That said, in rare cases, upon a party's request, the court may order another party to submit any relevant document in its possession:

• if such document is common to the parties;
• if such document was relied on at any stage of the proceedings; or
• in any other case where the law specifically requires it.  

A court in the UAE may occasionally appoint an expert to investigate certain points in issue between the parties; the expert may request relevant evidence relating to its investigation, but cannot compel a party to disclose them.

As an aside, it is worth noting that the concept of 'without prejudice' correspondence is not recognised in the UAE. Therefore, communications/documents marked 'without prejudice' for the purpose of furthering genuine settlement negotiations can be disclosed by any party to local legal proceedings.

Germany

There are general provisions in German law for the preservation of documents, but no specific regulation. Similarly, disclosure is not required in proceedings. Instead, German civil court proceedings are governed by a number of principles, key amongst which are:

• 'Party disposition' (Dispositionsmaxime), under which the parties exercise sole control over the court proceedings. The claimant decides the scope of its application for the court to decide and is free to withdraw the writ at any time.
• 'Production of evidence' (Beibringungsgrundsatz), meaning that it is in the discretion of the parties what facts and documents are presented, together with the selection of experts or witnesses. In general, the court considers only what is introduced by the parties. 

The role of the civil court is limited; it is not entitled to make any investigations on its own or enforce the disclosure of any evidence. The court has to discuss the information presented and the application of the law. The court has to ensure that the parties make complete statements about the relevant facts in a timely manner; failure by the parties to comply with any directions given by the court is, however, not sanctioned. A court may, of course, critically examine any failure to respond to its orders in accordance with the principle of free appraisal of evidence.

Inevitably, necessary documentary or other evidence should be preserved at the earliest possible stage by the parties whenever litigation may be anticipated at some time in future in order to ensure the case can be presented or defended successfully.

"Necessary documentary or other evidence should be preserved at the earliest possible stage to ensure the case can be presented or defended successfully"

Belgium & Netherlands

The obligation to disclose evidence is set in legislation and extended in case law. Where it can be assumed or proven that a party possesses relevant evidence, the court may demand disclosure. If the summoned party fails to comply or pleads that the evidence has been destroyed prior to the procedure, the court may draw an adverse inference - silence or inactivity may be concluded as a factual presumption.

Spain

There is a general right of the parties to obtain disclosure of documents from the other parties in the proceedings, as well as from third parties, under Spanish law. However, there is no obligation to disclose documents prior to issuing proceedings.

When statute provides for the obligation to keep certain documents available during a specific limited period of time, once this time has passed, the party may destroy the documents with impunity.

Where a party fails to disclose evidence, there may be criminal sanction, but the court may deem the issue proven or even make an order for entry and search.

As well as the above, there is a crime in the Spanish Criminal Code consisting of destruction of documents, and another criminal offence consisting of the obstruction of justice, both of which refer to making evidence disappear when proceedings are foreseen or initiated.

The above comments - from around TT Club's network - provide a cameo of the position; where relevant, readers should take appropriate legal advice.We gratefully acknowledge the assistance in the preparation of this article of TT Club Network Partners in Belgium, Germany, South Africa, Spain & UAE.

We hope that you have found the above interesting. If you would like further information, or have any comments, please email us, or take this opportunity to forward to any colleagues who you may feel would be interested.

We look forward to hearing from you.

Peregrine Storrs-Fox

Risk Management Director, TT Club