Disclosure rules PDF

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Notes on the rules conferred by the CPR and courts on disclosure between parties....

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Disclosure Purpose of disclosure is to ensure all the parties have the correct information before the trial takes place, to enable them to conduct their claims. NCA v Atkinson(2014)- the parties shall normally be expected to disclose all information relevant to the case. Note that many documents should have been disclosed at this point to comply with the pre-action protocols. NCA basically said to disclose the information it could take over 300 hours to prepare, this was too excessive. Therefore the court may restrain or limit the duty of disclosure to comply with the overriding objective. They may ask for mere samples not entire case. Disclosure should be happening all the way through the case. Two-step procedure First step is simply the process of letting the other party know what you have, or had. CPR 31 ‘stating that the document exists or existed’. Ward Hadaway(2013) explained that ‘referring to a document in a witness statement/ particulars of claim is a form of disclosure. This is sufficient’. Essentially the first stage refers to the disclosure. Only the process of letting party know what you have, it is not concerned with accessibility or provided a copy for the other party. The second step is inspection, basically allowing the other party to view the disclosed documents. NOTE these strict rules of disclosure and evidence do not relate to small claims. First stage- Disclosure With consideration for the overriding objective and the track of the case- the court will set out the process for disclosure, outlining any limitations. CPR 31.5- typically in most cases the court will require ‘standard disclosure’. Practice Direction 51U- pilot court is running to provide new form of disclosure to use- gives court more powers to provide flexible and limited procedure of disclosure. ‘Standard disclosure’ refers to the ‘scope’ of what needs to be disclosed (CPR 31.6) and the ‘process’ for disclosing these documents (CPR 31.10). ‘Scope’- CPR 31.6 31.6 Standard disclosure requires a party to disclose only– (a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case;

(ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. In some pre-action protocols, some forms etc may need to be disclosed. The duty of disclosure covers those which damage your own argument- the purpose of the woolf reforms is that we are trying to circumvent situations where a party may go into a case not properly informed of the expectations. Cannot produce evidence which they want to use at the last minute. Where standard disclosure may be limited is that a lot of the evidence which requires disclosure will not be intrinsically linked to the case and only have a loose connection, which will inevitably lead to a clogged up bundle and forces the other party to examine a variety of documents which will not be useful. What do we mean by documents CPR 31.4- documents means anything in which information of any description is recorded (electronic databases, servers, usual paperwork etc). anything recorded, not solely concerned with print. Practice Direction 31B- ‘ means any document in electronic form’ including ‘meta data and other embedded data’, not just visible on a computer. (for example, time spent on documents and author of particular works) Process- CPR 31.10 (2) The parties prepare and serve a list of documents under the form N265. Standard disclosure by way of list. (3) the list must identify the documents in a convenient manner and order. (4) the list must indicate which documents the party will withhold from inspection or are no longer in their possession and why. The party can makes an application to court to get third party to hand over document if it is essential to their case. (5) and (6) their must be a disclosure statement (essentially saying you have checked and searched for all relevant documents to the case and that you understand the duties to disclose) Continuing duty- CPR 31.11 So the court will give direction on when disclosure by way of list will be concluded and then inspection will happen by a certain date.

HOWEVER, this duty does not end after the original list has been provided. The parties are under a continuing duty to disclose any documents that come to their attention, or within their control. McTear(2016) came into possession of new additional evidence after formal disclosure process- the party waited a few days before doing anything- but the court in final judgement were critical of this and said as soon of knowledge of new documents they should have immediately notified other party. This ensures transparency. Legal representatives duty The duty of disclosure is onerous because they want to comply with overriding objective. Legal reps are expected to be heavily involved in this process to remind their clients actively. They must cease to represent the client if they ask solicitor to act in anyway contrary to the duty owed to the court. They may be getting paid or instructed by client but this is overridden by duty to the court. Practice direction 31A 4.4- ‘Legal rep must endeavour to ensure that the person making the disclosure statement…understands the duty of disclosure under Part 31’. Make them understand there may be occasions where they will have to disclose documents that appear detrimental to their case. When can one not disclose? Parts of the disclosable document can be blanked out (redacted) if they are either. Irrelevant and commercially insensitive documents do not need to be disclosed and especially not inspected. NOTE commercial sensitivity and confidentially are not ALONE permitted for nondisclosure- they must be largely irrelevant as well. Priviledge Entitles a party to withhold documents or parts from being inspected by the other parties. The document must still be disclosed though. Legal professional priviledge- two types 

Legal advice priviledge

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Litigation priviledge.

Legal advice priviledge

These include lawyer-client communications and any attendance notes or recordings. When you see a lawyer there is an expectation that meetings will be private etc. Three Rivers(no.5) (2004)- sets out guidance on whether information will have legal advice priviledge. a) litigation in progress or in contemplation (look at pre-action conduct). b)the communication must be made for the sole or dominant purpose of conducting litigation. c)the litigation must be adversarial, not investigative (must be against someone else essentially) Litigation privilege. Communications or documents between the client, solicitor and third parties for the purposes of contemplated or pending litigation. The purpose is broad and can cover many aspects of the litigation process. (this is not advice, it concerns documents to assist or prepare against future litigation- for example the risks of pursuing certain issues) The ‘purpose’ test is one of dominance and not exclusivity. Objective test to look at the dominant purpose and whether it was related to litigation. Waiver of priviledge. Priviledge is not absolute, it is possible for priviledge to come to an end. A party can volunteer to produce documents to the other party. If you send documents or attach party into email with priviledged documents – they can argue you waived priviledge. Though, it is generally understood to waiver there must be more than a mere accident. Gresham Pension Trustees (2016)- parties were trying to work out costs and one barrister referred to attendance note that was referred to ‘without predjudice’. The other barrister did not immediately jump up and say we cannot refer. Court took the view that even though the barrister did not reject, this did not amount to an implied agreement to disclose. Both parties to the document must consent. Mere forgetfulness is not sufficient. Specific disclosure-CPR 31.12 The court may order a party who has provided inadequate disclosure to disclose additional documents or carry out a search for additional documents and disclose anything found.

This will arise if a party claims the other party has not disclosed documents that are relevant....