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SGS 5 DISCLOSURE Disclosure = An umbrella term used to describe TWO processes: disclosure and inspection. Disclosure is telling other side of existence of documents- CPR 31.2 Standard disclosure:  

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Is it a document? – CPR 31.4- ‘anything in which information of any description is recorded’ Is it or was it in your client’s control? - CPR 31.8- ‘it is or was in physical possession, he has or had right to possess it or he has or had a right to inspect or take copies of it’ Does it satisfy standard disclosure? - CPR 31.6 (provide full reasoning)- ‘document which he relies and which adversely affect own case, adversely affect another party’s case or support another party’s case’

Inspection: Seeing the documents unless there is reason to withhold it from inspection CPR 31.3 

Can the document be withheld from inspection? (Is it privileged?) Why?

-Legal advice privilege: ‘confidential information for the purpose of giving or receiving legal advice’- Parry v Newsgroup (solicitors attendance note and correspondence between parties not privileged- no confidentiality where both sides have seen communication- open communication) Elements of legal advice privilege A document which is 1. confidential communication 2. 2 between a lawyer and a client and 3. 3. was prepared for the purpose of giving or receiving legal advice

-Litigation Privilege: ‘Confidential communication between the lawyer and his client, or between one of them and a third party (Good Luck-if advice is repeated internally this is litigation privilege), for the dominant purpose (Waugh v BRB- the document must not be for a dual purpose/Re: Highgrade traders-when dominant purpose may not be determined, the court may consider intention of the commissioner and not author to determine purpose) of obtaining legal advice, evidence or information for use in the conduct of litigation that is reasonably in prospect’ (USA v Phillip Morris) Elements for litigation privilege A document which is 1. a confidential communication which [confidential communication] 2. passes between the lawyer and his client OR [lawyer and client] 3. between one of them and a third party, where [lawyer/client with others]

4. the dominant purpose in creating the document is to obtain legal advice, evidence or information for [dominant purpose] 5. use in the conduct of litigation which [use for litigation] 6. was at the time reasonably in prospect [real prospect]

-Without prejudice: a genuine attempt to settle the dispute (substance rather than form-Rush and Tomkins v Greater London Council) -Waiver- ONLY client can waiver privilege if loss of confidentiality (exchange or serve document) or mentioning a document in a court document, accidentally or by agreement however cannot waive in part (Great Atlantic Case) Can you waive privilege over part of a document? No! MUST show the whole or none Great Atlantic Insurance Co v Home Insurance Co [1981]

How can a privilege be waived? - Agreement (i.e of without prejudice documents) - Loss of confidentiality against the other side in litigation (i.e the document is available to the public or the other side has seen the document) - CRP 31.4 Mentioning the doc in a statement of case, affidavit or witness statement - service of the document on the other side

-Redaction- if a document is not privileged, but contains severable parts that are privileged or irrelevant those can be redacted, commercially sensitive information can be inspected unless privileged or irrelevant and outside of SD (part of list= redacted version on part 1, unredacted version= part 2) Can commercially sensitive information be redacted? Inspection of commercially sensitive info should be allowed unless: - it is privileged; or irrelevant to the issue in dispute and outside the scope of Standard Disclosure -Once privileged, always privileged- Aegis Blaze 

Which part of the List of documents? -Part 1=Disclose and inspect -Part 2=Disclose but privileged

What to do upon receiving a privileged doc from your opponent in error? SRA Code of Conduct O (4.2) duty to disclose all information material to the retainer IB (4.4) Where it is obvious that privileged docs have mistakenly been disclosed, do not tell the client the material information. If the doc has obviously been sent in error (objective test) stop reading it and send back. If doc was sent by email, stop reading it and delete it from inbox. What if the client insists on refusing to allow the other side to inspect for this document?

Duty of solicitor is to ensure the client understands the duty of disclosure 31PD 4.4 - If the client does not allow disclosure and inspection of the document: The client will be in breach of his disclosure statement and liable to proceedings for contempt of court CPR 31.23 - the solicitor will be in breach of duty not to knowingly deceive or mislead the court to be complicit in another person doing so O5.1 &5.2 - If the refusal continues, you must cease to act for the client IB 5.5

Professional Conduct: -Solicitor must ensure client understands its duty- 31A PD 4.4- duty to disclose all disclosable documents- CPR 31.10 (6) -Client signing a false disclosure statement is contempt of court- CPR 31.23 -If client does not want document on list then must not do O (5.1) nor O (5.2) and refuse to act- IB (5.5) 1. Confidential Communication- a client should be able to get legal advice in confidence - if the document is not confidential, privilege will not apply 2.Communication between lawyer and client - A solicitor's note of a conversation with his client concerning legal advice - A litigation solicitor's advice would under both legal/litigation privilege 3. Communication between lawyer and third party/Communication between client and third party- solicitor and witness [i.e witness statements; and/or - solicitor and expert: but i.e experts' report subject to CPR 35.10 it is more important in this situation to look at the dominant purpose of the communication. The dominant purpose needs to be obtain evidence/advice for litigation in reasonable contemplation 4. Dominant purpose - If there are two or more purposes behind the preparation of a document, the court will look at the dominant purpose

Procedure 1. Disclosure by list [form N265] 2. Who signs disclosure statement CPR 31.10 (7) 3. Notice to inspect - what happens? CPR 31.15 4. Send notice of desire to inspect within 7 days of service of List 5. Other side to provide copies (for reasonable copying fee) and/or originals for inspection with 7 days of notice 6. 3 parts to the list part1 disclose & inspect Part 2 Disclose but privileged Part 4 Had but no longer have

Q. What if a document that contains information that is adverse to the client's case, and is not privileged so should be made available for inspection, however, your client does not want the defendants to see it, what should you do? If the lists of documents not yet served, therefore not too late to change it, if the list had been served, we must still disclose it because CPR 31.11 disclosure is a continuing

Structure for disclosure & Inspection 5 stage test: Exam technique – APPLY, APPLY, APPLY. SHOW YOUR APPLICATION TO THE FACTS. 1. Is it a document? CPR 31.4 Anything which contains information. 2. Is it, or was it in your client’s control? CPR 31.8 Say how you know this. 3. Does it satisfy standard disclosure? CPR 31.6 Provide full reasons. Why does it meet the test? 4. If disclosable, can it be withheld from inspection? Consider privilege. Please show detailed application, how do the facts meet each element of any relevant test? Include any relevant case law. 5. Which part of the list? Part 1; disclosable and inspectable Part 2; disclosable, but not inspectable (covered by privilege). Part 3; disclosable but don’t have it anymore (not in client’s control).

LEGAL ADVICE PRIVILEGE A document which is a confidential communication between a lawyer and client and was prepared for the purpose of giving or receiving legal advice. Parry v Newsgroup – Open correspondence between solicitors/parties is NOT privileged – it is not confidential. Three Rivers (Court of Appeal) – Narrow definition of “client”.

Balabel v Air India - Wider communications between solicitor and client that fall within the “continuum of communication” ancillary to the purpose of giving/receiving legal advice will be privileged. Three Rivers (House of Lords) – Legal Advice privilege extends to presentation advice, through legal spectacles advising on what should prudently and sensibly be done in the context of the case. Bank of Nova Scotia/“The Good Luck” – Internally repeated legal advice within a client company retains the benefit of legal advice privilege. LITIGATION PRIVILEGE A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect. Waugh v BRB – Where a document has two purposes litigation has to be the DOMINANT purpose. If the purposes are equal the document will not be privileged. Re Highgrade Traders – When establishing the purpose of the document the commissioner of the document should be consulted not the author (where these are different people). USA v Philip Morris – Litigation must be “a real likelihood rather than a mere possibility”. WITHOUT PREJUDICE PRIVILEGE A bona fide attempt to settle a dispute. Rush and Tompkins v GLC - The court will look to the substance rather than the form of the document.

Which docs can be redacted? If a doc as a whole is not privileged but contains survivable parts that are privileged or irrelevant, those parts can be redacted Which part of the List of Doc should a redacted doc go? Part 1 underrated version Part 2...