Clients often consider the process of disclosure as a laborious and fruitless process. However, for lawyers this process can be the make-or-break point in a matter. All too often, clients consider that they have a limited capacity to identify and disclose documents that are relevant to the issues in dispute. This is where accountants become a priceless asset to clients and lawyers alike.
Identification of Relevant Documents
Accountants will often have access to detailed financial documents such as:
- Tax returns;
- Real Estate transaction documents;
- ASIC searches of shareholdings and corporate office holders;
- Bank Statements or receipts for relevant transactions;
- BAS Statements; and
- Balance sheets, including profit and loss portfolios.
All these documents represent an essential piece of the puzzle for commercial litigants. Even in circumstances where the financial documents are not relevant to the proceedings on foot, they may offer a lawyer insight into a parties’ attitude to spending or financial reporting behaviour, which may be an appropriate negotiation point down the track.
Ultimately, it is important that accountants provide all relevant material rather than attempting to narrow disclosure to only those documents expressly requested. It may be the case that the lawyer with carriage has not been made aware of all the documents that exist. As a rule, if it appears even to be remotely relevant, it is always best to provide a copy for the lawyer’s consideration.
In some situations where financial issues are at the forefront of a dispute, an expert should be engaged. Forensic accounting services are an invaluable addition to any client’s strategic planning in litigious matters. Often forensic accountants will represent an independent expert who can entice parties to disclose financial material and determine which, if any, is relevant to the current dispute.
While not all accountants will provide forensic accounting services, they are still essential to narrowing the client and the lawyer’s mind with regard to disclosure. Even where an accountant has already provided all relevant material, they may still be able to impart wisdom as to where a transaction may have originated or, if there is a movement of assets, how this might be traced.
Potential Consequences of Inadequate Disclosure
In a recent Queensland Court of Appeal case, the respondent’s disclosure of improper invoices in a bid to substantiate loss to a jury not only reduced their overall creditability but also resulted in a successful appeal.
Even where the jury had made positive findings on the respondent’s loss, the appeal court determined these findings could not be substantiated on the documents disclosed. It was not enough for the respondent to substantiate past and future losses based on an employee’s simple profit and loss projection. The court required evidence of a substantive, detailed and expert nature to have succeeded on such an argument.
One cannot help but consider that had the respondent led expert evidence of the projected loss for, say, the following six months, substantiated with detailed accounting statements, there would have been a real likelihood of an unsuccessful appeal.
But, as always, hindsight is 20/20.
It is not uncommon to have lawyers and accountants speak in terms of being completely autonomous of each other. With the increasing need for clients to disclose huge volumes of documents having a diligent accountant assisting can be the difference between a clear, detailed, and compelling claim and something altogether vague and unimpressive.
So next time a client or lawyer reaches out for assistance in the process of disclosure, remember your guidance and expertise makes all the difference.