Disclosure inspection and privilege PDF

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Disclosure and inspection of documents, CPR Part 31 [and PD31A, paras 1-2, 2A, 3-8]

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NB, PD28, 3.12: typical fast-track timetable from date of notice of allocation. Disclosure normally 4 weeks after notice of allocation. ‘cards on the table’ approach in civil litigation. All evidence is out there before trial. NOTE THE DISTINOCTION BETWEEN DISCLOSURE AND INSPECTION o Disclosure itself is simply stating that the document exists (or has existed). o CF Inspection = the right to see the document. Disclosure o 31.1, doesn’t apply to small claims. o Standard disclosure applies to all fast track claims, and PI Multi track claims

For fast-track and PI multi-track claims  Disclosure (cf inspection)  A party has a continuing duty (r31.11) to give:  Standard disclosure o Unless the court or parties decide otherwise (31.5)  Of All documents = (31.4) anything in which information of any description is recorded (including electronic docs)  Which are or have been in the control of a party (31.8), i..e (a) physical possession or (b) right to possession or (c) right to inspect or take copies.  And must make a ‘reasonable search’ (31.7) for such docs. Right of inspection (31.3)  Except where: o (a) doc no longer in the control o (b) right or duty to withhold inspection o (c)considers disproportionate Privilege (i.e. exception to inspection (b), ‘right’ to withhold inspection)  Legal professional privilege o (1) Legal advice privilege (31.3.6)   

(1) A document between solicitor & client. (2) Must be confidential (i.e. not in public domain) (3) for purpose of giving legal advice (need not give for actual or contemplated litigation)

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o (2) Litigation privilege  (1) a document between a legal adviser/client and third party  (2) must be confidential  (3) for purpose of actual or contemplated litigation   what was the ‘dominant purpose’ of the doc at the time of writing. Dominant purpose must be the furtherance of actual or contemplated litigation.  EG, covers: expert reports; witness statements. o Waiver—can only be waived by the client, not the legal adviser Without prejudice documentation o Doc between the parties o A communication, oral or written, between the parties, the substance of which is a genuine attempt to settle the case. o Joint privilege  can only be jointly waived. Public Interest immunity, duty to withhold, r31.19

Multi-track (non PI) claims  menu option disclosure SPECIFIC APPLICATIONS FOR DISCLOSURE YOU NEED TO KNOW:  (1) specific disclosure inspection (31.12)  (2) pre-action disclosure (31.16)  (3) Disclosure against non-party (31.17)  (4) Norwich Pharmacal (31.18)

FULL NOTES When disclosure takes place  Main obligation to disclose in fast track and multi track cases arise as a result of directions made at the allocation stage, or at the first CMC. Generally such directions will state whether lists of docs should be provided, whether a disclosure statement is required; and will give a calendar date for compliance. 31.1, Scope of this part  Rules re disclosure and inspection of docs.  This Part applies to all claims EXCEPT in SMALL CLAIMS track. 31.2, Meaning of disclosure  A party ‘discloses’ a doc by stating that the document exists or has existed.

31.3, Right of Inspection of a disclosed document [[except where (1) no longer in control; (2) claims right/duty to withhold inspection (privilege or public immunity); (3) disclosing party considers it disproportionate]]  (1) a party to whom a doc has been disclosed has a right to inspect that doc, EXCEPT WHERE (I.E. where you don’t need to allow inspection of a doc, although this doesn’t mean that you don’t have to disclose it):  (a) the doc is no longer in the control of the party who disclosed it o ( 31.8 re when a doc is ‘in control’ of a party)  (b) the party disclosing the doc has a right or a duty to withhold inspection of it o ( 31.19, procedure for claiming a right or duty to withhold inspection) o ‘right to withhold’  legal professional privilege or without prejudice

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privilege, see below. o ‘duty to withhold’  public interest immunity (see 31.19) (c) where (2) applies, i.e. where a party considers it would be disproportionate to the issues in the case to permit inspection of docs within a category or class of docs disclosed under r31.6(b) [standard disclosure]: o (a) he is not required to permit inspection of docs within that category or class; BUT o (b) he must state in his disclosure statement that inspection of those would will not be permitted on the grounds that it would be disproportionate. o [[NB, re a doc claimed to be disproportionate, this could be challenged by an application for specific inspection (31.12)]] (d) r78.26 applies [cross-border disputes] (see 31.6 re standard disclosure; 31.10 re provision of a disclosure statement;

31.4, Meaning of document  “Document” = anything in which information of any description is recorded  “Copy” (re a document) = anything onto which information recorded in the doc has been copied, by whatever means, whether directly or indirectly. PD31A, para 2A  Electronic docs/disclosure  r31.4 broad definition of document extends to electronic docs, including: o email and other electronic communications o word processed docs o databases.  As well as docs readily accessible from computer systems and other electronic devices and media, the definition covers docs stored on servers and back-up systems and electronic docs that have been ‘deleted’.  And also extends to metadata (additional info stored and associated with electronic docs).  PD31B re provisions of electronic doc disclosure likely to be allocated to multi-track.

31.5, Disclosure  (1) in all claims to which (2) [multi-track claims not including PI claim] does not apply  the normal disclosure order is for ‘standard disclosure’ o (a) an order to give ‘disclosure’ means to give standard disclosure, unless court directs otherwise; o (b) the court may dispense with or limit standard disclosure; and

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o (c) the parties may agree in writing to dispense with or to limit standard disclosure  any such written agreement should be lodged with the court. (2) unless court directs otherwise, paras (3) to (8) apply to all multi-track claims, except those including a PI claim

So for all fast track claims and multi-track PI claims, 31.5(1) applies  standard disclosure unless dispensed with/limited by court or parties

Menu option disclosure, for non-PI multi track claims For non-PI multi-track claims, the following disclosure procedure applies instead (‘menu option’ disclosure): 

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(3) Stage 1, disclosure report: not less than 14 DAYS before the first CMC -> each party must file and serve a report, verified by statement of truth, which: o (a) describes briefly what docs exist or may exist that are or may be relevant to the matters in issue in the case; o (b) describes where and with whom those docs are or may be located; o (c) in the case of electronic docs, describes how those docs are stored; o (d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored docs; and o (e) states which directions under (7) or (8) are sought [i.e. what they want from the ‘menu’ below]. (4) in cases where the Electronic Documents Questionnaire has been exchanged  it should be filed with the report in (3). (5) Stage 2, Agreeing proposal for disclosure: not less than 7 DAYS before the first CMC, and on any other occasion as court may direct, the parties must (at a meeting or by telephone) discuss and seek to agree a proposal in relation to disclosure, that meets the OO. Any agreed proposal should be filed at court. (6) IF: (a) the parties agree proposals for the scope of disclosure; and o (b) the court considers that the proposals are appropriate in all the circumstances,

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o  the court may approve them without a hearing, and give directions in the terms proposed. (7) Stage 3, CMC menu disclosure at the first or any subsequent CMC, court will decide (regarding the OO and need to limit to disclosure to that which is necessary to deal with case justly), which of the following orders to make re disclosure: o (a) an order dispensing with disclosure; o (b) an order that a party disclose the docs on which it relies; and at same time request any specific disclosure it requires from any other party o (c) any order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis; o (d) an order that each party disclose any docs which it is reasonable to suppose may contain info which enables that party to advance its own case, or to damage that of any other party, or which leads to enquiry which has either of those consequences (i.e. can include ‘train of inquiry’ docs); o (e) an order that a party give standard disclosure; o (f) any other order re disclosure considered appropriate. (8) Disclosure directions: the court may at any point give directions as to how disclosure is to be given, and in particular: o (a) what searches are to be undertaken, of where, for what, what time periods, and by whom, and extent of any search for electronically stored docs; o (b) whether lists of docs are required; o (c) how and when disclosure statement is to be given; o (d) in what format the docs are to be disclosed (and whether any ID is required) o (e) what is required re docs that once existed but no longer exist; and o (f) whether disclosure shall take place in stages. (9) to the extent that the docs to be disclosed are electronic  PD 31B will apply in addition to above.

Standard disclosure (for fast track claims and PI multi-track claims) PD31A, para 1, general (summary of below process).  the normal order for disclosure is one for standard disclosure.  For standard disclosure, disclosing party must: o (1) make a reasonable search for documents falling within 31.6 o  (2) make a list of the docs (including a disclosure statement) of whose existence the party is aware fall within those paragraphs and which are in or have been in the party’s control.

 The obligations imposed by a standard disclosure order, may be dispensed with or limited, either by the court, or by written agreement between the parties o any such written agreement should be lodged with the court. 31.6, Standard disclosure – what docs are to be disclosed  Standard disclosure requires a party to disclose only: o (a) the documents on which he relies; and o (b) the docs which:  (i) adversely affect his own case;  (ii) adversely affect another party’s case; or  (iii) support another party’s case; and o (c) docs required to disclose by a relevant PD.  Commentary, whether a doc falls into (a) or (b) is to be judged against the statements of case (not by reference to matters raised elsewhere, eg witness statements). Could also be relevant if affects, eg a witness’s credibility.

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If docs are specified in a PD, they must be disclosed, whether or not they are relied on, or adversely affect/support a party’s case. NB, And remember (see below) the docs must be, or have been, in the party’s ‘control’

Commentary, categories of documents (31.6.3)  4 categories of documents (standard disclosure only covers 1 and 2): o (1) The parties’ own documents: which a party relies on in support of their contentions in proceedings. o (2) Adverse documents: which to a material extend adversely affect a party’s own case or support another party’s case. o (3) The Relevant documents: docs relevant to the issues in the proceedings, but which do not fall into categories 1 or 2 because they do not obviously support or undermine each side’s case. Part of the ‘story’/background. Though relevant, may not be necessary for fair disposal of the case. o (4) Train of inquiry documents: docs which may lead to a train of inquiry

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enabling a party to advance their own case or damage that of their opponent. Standard disclosure only covers categories (1) and (2): i.e. does NOT cover: (3) relevant docs which do not support/undermine a side’s case OR (4) train of enquiry docs.

Commentary, “adversely affect”/”support” (31.6.2) [reference point = the statements of case]

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In determining the issues in a party’s case, the statements of case are an essential reference point. Does not cover ‘train of inquiry’ material  A doc which does not itself adversely affect a case, but which may provide lines of inquiry leading to other info having a negative effect, is NOT COVERED by this provision. ‘adversely effect’ is normally primarily assessed by reference to the material allegations in the statements of case: o But is not restricted to this, and a doc casting doubt on the credibility of a party whose own evidence was important could be seen as one ‘adversely affecting’ that party’s case. Parties probs do not need to give disclosure of docs relating to non-material allegations in pleading (those which wouldn’t affect the result). The confidentiality of a particular doc, does not of itself justify non-disclosure. Masking irrelevant parts of a doc, by way of redaction, is in principle possible under 31.6, but care must be taken (if relevant parts are deleted, could give rise to a specific disclosure order under f). Old cases before CPR held that: docs relating to other incidents or transactions, other than the one directly the subject of the dispute, may be relevant as supporting or adversely affecting another party’s case. [[BUT, CA, shouldn’t use old authorities to apply to 31.6]]. Docs relating purely to cross-examination as to credit , and to no other issue in the trial, are outside the scope of standard disclosure. Standard disclosure does not cover docs revealing the identity of a party’s employees, where such info at most went to a general testing of a party’s case rather than to a positive case put by the other party such material was train of inquiry material not subject to standard disclosure under CPR.

Disclosure in particular types of cases & circumstances  Docs relevant to quantum  normally disclosable, at least where quantum is in issue. In split trials, where quantum of damages is only determined if liability is established, there is no need to disclosure docs relevant purely to quantum until liability is determined. o Eg, PI claim, quantum in issue  all medical records relevant to loss of future earnings had to be disclosed.  Docs relevant to the insurance position of a party  not normally disclosable, as not normally relevant. o However, possible unusual situations where insurance position of a party is relevant: eg where party relies on UCTA 1977 and an issue arises as to availability of insurance or the terms on which it was available. o Docs re ATE insurance policy

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o Court has power to order disclosure of an ATE (after the event) insurance policy, on basis that disclosure was necessary to enable court to exercise its case management functions proportionality. o Generally, ATE insurance policy would not be relevant so not disclosable, but could be exceptions (eg in group litigations, where Cs had benefit of several liability). o Legal professional privilege unlikely to attach to ATE policies, other than for redaction of passages that conveyed legal advice given. ‘Train of inquiry’ docs  not normally subject of standard disclosure o Generally, are potentially appropriate for disclosure in cases involving allegations of fraud, dishonesty, misrep  but only after standard disclosure has been completed. The obligation to disclose adverse material applies even when a D has been debarred from defending a claim due to non-compliance with an unless order

31.7, Duty of search  (1) when giving standard disclosure  a party is required to make a REASONABLE SEARCH for documents within 31.6(b) or (c) [i.e. other than those on which he relies, i.e. -> those adversely affecting his own/another party’s case or supporting another case or required by PD].  (2) factors relevant in deciding the reasonableness of a search including: o (a) the number of docs involved;

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o (b) the nature and complexity of the proceedings; o (c) the ease and expense of retrieval of any particular doc; and o (d) the significance of any doc which is likely to be located. (3) where a party has not searched for a category/class of docs on grounds that would be unreasonable to do so  he must state this in his disclosure statement and identity the category or class of document. PD31A, para 2, The Search  the extent of the search which must be made will depend on: the circumstances of the case, including factors in (2).  Parties should bear in the mind the overriding principle of ‘proportionality’ (OO).  Eg, may be reasonable to decide not to search for docs coming into existence before some particular date, or to limit the search to docs in some particular place(s), or to docs falling into particular categories.

31.8, Duty of disclosure limited to docs which are, or have been, in a party’s control  (1) duty to disclose limited to docs which are, or have been, in a party’s control.  (2) for this purpose, a party has or has had a document in “his control” IF: o (a) it is or was in his physical possession;

o (b) he has or has had a right to possession of it; or o (c) he has or has had a right to inspect or take copies of it. 31.9, Disclosure of copies  (1) a party need not disclose more than one copy of a doc;  (2) a ‘copy’ (see 31.4 definition) of a doc that contains a modification, obliteration or other marking or feature: o (a) on which a party intends to rely; OR o (b) which adversely affects his own case or another party’s case or support another party’s case o  shall be treated as a SEPARATE DOC o, Procedure for standard disclosure  The List and Disclosure Statement  (1) procedure for standard disclosure is as follows. THE LIST  (2) each party must make, and serve on every other party, a list of documents in the relevant practice form.  (3) the list must identify the docs in a convenient order and manner, as concisely as possible. o PD31A para 3.2, to comply with this, will normally be necessary to: list the

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docs in date order, number them consecutively, and give each a concise description (eg letter, claimant to defendant). o Where there is a large number of docs falling into a particular category , the can list those docs as a category rather than individually (eg ’50 bank statements relating to account number___’). (4) the list must indicate: o (a) those docs re which party claims a right or duty to withhold inspection [i.e. are privileged/public interest immunity]; and o (b) (i) those docs which are no longer in the party’s control AND (ii) what has happened to them. o (r13.19  need a statement in the list, relating to any docs where a person claims has a right or duty to withhold). PD31a, para 3, The List o should be in Form N265. o Supplemental list  Disclosure obligations continue until the proceedings come to an end  if, after a list of docs is prepared and served, the existence of further docs to which the order applies come to the attention of the disclosing party  party must prepare and serve a supplemental list. (5) the list must include a disclosure statement

DISCLOSURE STATEMENT (included in the List)  (6) a disclosure statement is a statement made by the party disclosing the docs: o (a) setting out the extent of the search that has been made to locate docs which he is required to disclose; o (b) certifying that he understands the duty to disclose docs; o (c) certifying that, to best of his knowledge, he has carried out that duty. 

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