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Disclosure and Inspection (CPR 31.6 - STANDARD DISCLOSURE A party is…
Disclosure and Inspection
CPR 31.3 - Right of Inspection
A party to whom a document has been disclosed has a right to inspect that document except where:
a) Document
no longer in control
of party
b) party has a
right / duty to withhold inspection
of it
c) party considers that it would be
disproportionate
to permit inspection within a category/ class of a document disclosed
if a party considers that it would be disproportionate to permit inspection within a category or class of documents under standard disclosure, he is not required to permit inspection but must state that in his disclosure statement that inspection will not be permitted on grounds that to do so will be disproportionate.
CPR 31.6 - STANDARD DISCLOSURE
A party is required to disclose only:
a) the documents which he relies; and
b) the documents which
affectedly affects his own case;
adversely affects another party's case;
support another party's case; and
c) the documents which he is required to disclose by a relevant PD
Adversely Affect; Support
Statements of case are an essential reference point
Primarily look at material allegations in the statement of case. But, a document that casts doubt on the credibility of a party whose own evidence was important can be seen as adversely affecting that party's case.
X disclosure needed for non-material allegations in pleadings (those which even if substantiated would not affect the results)
Confidentiality of a particular document in itself does not justify disclosure
Documents 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.
Court may refuse to require disclosure of 'similar fact' evidence of other claims for negligence against the same D made by other ppl in respect of other matters.
Even if the materials are relevant, court can limit the disclosure required.
A document which provides lines of inquiry leading to other info having a negative effect NOT covered
Documents relating purely to cross-examination as to credit and no other issue in the trial are outside the scope of standard disclosure.
Standard disclosure would not cover documents revealing the identity of a party's employees, which info at most went to a general testing of a party's case rather than to put a positive case, put by the other party.
Redaction
Masking irrelevant parts of a document is possible but care must be taken, as deletion of parts that are relevant could give rise to a specific disclosure order (r31.12)
Categories of Documents
1)
The parties' own documents
2)
Adverse documents
3) :red_cross:
The relevant documents
- do not obviously support or undermine either side's case. Includes documents which, though relevant, may not be necessary for the fair disposal of the case. "Background" documents.
4) :red_cross:
Train of inquiry documents
- Documents that may lead to a train of inquiry enabling a party to advance their own case or damage that of their opponent.
NOTE: If documents are specified in a PD then they must be disclosed, whether or not they are relied upon, adversely affect or support any party's case.
1) Documents relating to quantum are normally disclosable, at least when quantum is issue.
In split trials, where quantum of damages is only determined if liability is established, there is no need to disclose documents relevant purely to quantum.
2) Documents relating to the insurance position of a party are not normally disclosable - X relevant
may be situations where the insurance position of a party is relevant eg: when party relies on UCTA and an issue arise as to the availability of insurance or the terms which it was available.
After the event insurance policy may be relevant in group litigation where the Cs had the benefit of several liability. But must be for court to deal with the case proportionately and efficiently. LPPs are unlikely to attach too, other than for the redaction of passages where legal advice was conveyed.
3) Train of inquiry documents have traditionally been accepted for disclosure in cases of fraud, dishonesty or misrep.
However, x appropriate to order such enhance disclosure before standard disclosure has been completed.
The obligation to disclose adverse materials applies even where a D has been debarred from defending a claim due to non-compliance with an unless order.
CPR 3.12 - SPECIFIC DISCLOSURE/ INSPECTION
An order that a party must do 1/more of the following things:
a) Disclose documents/ classes of documents;
b) carry our search;
c) disclose any documents located as a result of that search
An order for specific inspection is an order that a party permits inspection of a document
Timing of Application
an application
can be made at any stage of proceedings
and particularly when court is likely to be giving directions in any event. i.e. CMC, with the listing questionnaire, at pre trial review
Fast Track: usually during allocation to track/ on filing of listing questionnaire
Multi Track: Normally dealt with at CMC
QBD - a separate application for specific disclosure should be made under Pt 23
Lateness of application may undermine claim that documents are necessary for proceedings
Disclosure is a continuing process and it is always open to court to revisit an earlier procedural order.
Rationale for specific disclosure: Overriding objective obliges parties to give access to those documents which will assist the other's case
Court has discretion. It
may make an order at any time, regardless of whether standard disclosure has occurred
.
Court may make an order for specific disclosure against a C before the service of the defence where it would assist the D to plead a full defence rather than an initial bare denial.
Court need to be satisfied as to the
relevance
of the documents sought and that they are in the party's
control
, or at least there is a prima facie case that these requirements will be met. Relevance is analysed by reference to the
pleadings
and the
factual issues in dispute
on the pleadings.
In PI cases, although there is jurisdiction to order the C permit inspection of GP and hospital records, such an order should only be made in exceptional circumstances as a patient should retain control over their own medical record.
In PI cases, court can stay proceedings if the C refuses to medically examined/ give consent to hospitals or doctors to disclose otherwise confidential matters
power to order disclosure for the purpose of interlocutory proceedings should be exercised sparingly and only for documents that is necessary for the
just disposal
of the application.
Court need to balance right of fair hearing with right to private life.
Note: Court does have jurisdiction under CPR 31.12 to order disclosure of documents relating only to credibility, but only in exceptional cases.
CPR 31.16 - Pre-Action Disclosure
(Before Proceedings Start)
1) Application must be supported by
evidence
2) Court can only make order where
a)
Respondent
likely to be a
party
of subsequent proceedings
b)
Applicant
likely to be a
party
to those proceedings
c) if proceedings had started, the respondent d
uty of standard disclosure would extend to the documents/ classes of documents
of which the applicant seeks disclosure; and
d) Disclosure before proceedings is
desirable
to:
dispose fairly
of the anticipated proceedings
assist the dispute to be
resolved without proceedings
or
save costs
Qs: Is there a real prospect of such an order being fair to the paties if litigation is commenced/ of assisting parties to avoid litigation/ of saving costs in any event?
An order must specify the documents/ classes which the respondent must disclose and
require him, when making the disclosure to specify any of the documents which are no longer in his control / in respect of which he claims a right or duty to withhold inspection.
Such an order may require the respondent to indicate what has happened to any documents no longer in control and specify the time and place for inspection.
Applies to documents in a party's "
possession, custody or power"
also extends to documents relating to issues of quantum
2 Stage Test:
1) Whether the thresholds in (a) to (d) are satisfied
2) whether, as a matter of
discretion
, an order for disclosure should be made.
a party is x entitled to pre-action disclosure where there is no prospect of him being able to establish a
valid
claim. No need to be arguable.
Pre-action disclosure will not be ordered where the dispute comes within terms of an
arbitration agreement
such that subsequent proceedings will be referred to arbitration rather than litigated in court.
Attempting to obtain pre-action disclosure of documents that would not in due course be subject to standard disclosure by simply calling classes or categories of documents that would not be disclosable is not permitted. Application should be
limited to what is strictly necessary.
Inappropriate to require the respondent to identify which of its documents are within the scope of standard disclosure.
All documents must be within standard disclosure and
cannot encompass categories of documents that might prove to be relevant only as to 'background
'. Applicant must show that it is more probable than not that the documents are within the scope of standard disclosure should an action commence.
The rule applies as against a foreign corporation which has submitted to the jurisdiction and to documents held outside the jurisdiction.
Pre-action disclosure of medical records in PI claims, though satisfying thresholds (a) to (c), may not be desirable and not meeting threshold (d)
Consideration of the relative positions of parties as regards to their possession of documents important to the matter is particularly relevant when deciding what is 'relevant'. If an applicant already has sufficient info to plead a claim, is is unlikely to be 'desirable' to order such disclosure.
Relevance of the merits of the future claim
Courts should not embark on any determination of substantive issues in the case. Normally sufficient for the claim to be properly arguable and to have a real prospect of success
The applicant must show at least a prima facie case of entitlement to substantive relief
Merits of the future claim should be relevant to the assessment to be conducted under (d)
31.2 - A party discloses a document by stating that the document exists or has existed.
31.17 - Order for disclosure against a non-party
Application must be supported by evidence
Court
MAY
make such an order where
a) The
documents sought are likely to support
the applicant's case or
adversely affect
the case of one of the other parties to proceedings and
b) Disclosure is
necessary
in order to dispose fairly of the claim or to save costs
The order must specify
a) the documents or classes of documents which the respondent must disclose and
b) Require the respondent, when making the disclosure to specify any of those documents which are no longer in his control/ in respect of which he claims a right or duty to withhold inspection
Such an order may require the respondent to indicate what has happened to any documents no longer in control and specify the time and place for inspection.
Court has obligation to ensure that this intrusive jurisdiction is not used inappropriately, even by consent.
Court can order that disclosure be made only to legal and/or medical advisors or on the giving of certain undertaking restricting their future disclosure or use.
Such orders may be made against a 3rd party who has been ordered to pay the costs of an unsuccessful claim
Court MAY make an order
Even where the criteria of relevance and necessity are satisfied, court still has a discretion to decide whether to order disclosure
Where the material is sought not for the use in specific proceedings, but for the taking of preliminary steps to enable a party to receive legal advice and subsequently making an application in proceedings, court normally would order disclosure so as not to deny the applicant the opportunity of making an application in present proceedings
CPR 31.17 may be used for the purposed of identifying an unknown party. But must balance whether it is an unnecessary and disproportionate intrusion of personal privacy
Documents which ARE LIKELY TO SUPPORT THE CASE
Where a party seeks disclosure of a class of documents, the relevant test must be met for each of the documents to be disclosed. The court should not leave it to the non-party to determine which documents to disclose. The party seeking thee order must show all the documents fall within the test.
31.4 - Document = anything in which information of any description is recorded
Copy = anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly