Navigating disputes: Are your records good enough to protect your business?

May 12, 2025

Navigating disputes: Are your records good enough to protect your business?

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By Fiona Hughes

It’s an unfortunate reality of business that things don’t always turn out as expected, whether this is for reasons within your control or due to something that another party has done or failed to do.

These issues can cause a huge drain on management time, resource, legal costs, cashflow and business interruption.

There are several important steps you can take to reduce the risk of a dispute arising, and to help you to comply with future legal requirements if a dispute escalates.  Ensuring all clear and unambiguous records are retained will strengthen your position at the outset. This often causes a disputing party to re-think pursuing any claim.

If the dispute still escalates despite early exchange of documents, and regardless of whether you are bringing or defending a claim, parties have an important duty to disclose documents during litigation. Failing to comply can have series consequences for the business’s position.

When a dispute arises – your disclosure obligations

Court rules say that when giving standard disclosure, each party is obliged to provide to their opponent with a list of all documents which both:

• Help or hinder the case of any party.
• Are, or have been, in the party’s control.

This includes both physical and electronic documents – essentially, any item that contains recorded information. Examples of documents that may need to be disclosed are emails and messages (whether on local servers, devices or web-based apps), cctv recordings, letters/reports/spreadsheets, accounting/HR software, and bank statements. The duty continues until the proceedings are concluded. Therefore, ongoing document preservation and review is essential.

Key steps to take

To comply with court rules and preserve potentially relevant documents, your business should consider the below tips at the earliest stage:

• Don’t destroy or delete any documents, and do suspend any relevant document deletion or destruction and override the retention policy if necessary. Confidential documents may also be relevant and should be preserved.
• Notify relevant employees and former employees in writing if there are reasonable grounds for believing that they may hold disclosable documents not already in the company’s possession. Identify the documents to be preserved and instruct them not to delete or destroy these materials.
• Take reasonable steps to ensure agents or third parties who may hold relevant documents also preserve them.
• Retain electronic documents in their original format. For example, keep the original Word file even if it was later converted to PDF, and don’t delete an email even if you have printed it out.
• Don’t create new documents “after the event” or ask third parties to send you documents without taking legal advice.
• Think about your business’s data protection obligations.

Fulfilling your disclosure obligations is critical when it comes to facing a dispute. It can help you avoid court action by showing the strength of your evidence at an early stage. By taking proactive steps to preserve, identify and disclose relevant documents, your business not only ensures compliance with court rules but also strengthens its position in the proceedings.

If you require advice or assistance on navigating a legal dispute, contact our commercial disputes expert Fiona Hughes on fhughes@darwingray.com or 029 2082 9100 for a free initial chat to see how we can help you.