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Disclosure & Inspection - Coggle Diagram
Disclosure & Inspection
Sources
no automatic requirement for disclosure, comes from a court order at allocation or a case management conference
Small claims: directions for disclosure given on allocation. Usual order: at least 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing (CPR 27.4(1) and (3))
Fast & Intermediate:
Order for disclosure given on allocation (usual for fast track cases) or list the case for CMC. Personal injury will be an order for standard disclosure, unless court orders otherwise. For other cases, court can limit disclosure as necessary to give effect to the overriding objective (CPR 28.2)
Multi-track cases: all cases other than PI must complete a disclosure report to be filed and served not less than 14 days before the first case management conference (CPR 31.5(3)). Not less than seven days before the first CMC, parties to discuss and seek to agree a draft disclosure order which they will then ask the court to make. The proposal should meet the overriding objective and limit disclosure where possible (CPR 31.5(5))
Disclosure report: N263: where docs exist, with whom, electronic docs, costs that would be involved in standard disclosure. States which of the disclosure directions (several alternatives to standard disclosure are offered) are to be sought (CPR 31.5(7) and (8)). Where electronic docs involved, should EDQ
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Standard Disclosure
Disclose: CPR 31.6 a) the documents on which he relies b) the documents which adversely affect their own case, adversely affect another party's case, or support another party's case and the documents which require disclosure by PD (does not need to satisfy multiple criterea)
Subject to 3 provisions
It must be a document: CPR 31.4. This is anything which can record information. eg. recordings, photos, texts, voicemails, metadata
Is/was it in that party's control: CPR 31.8: defined as document in physical possession of party (past/present), party has a right to possession of the document (past/present), party has a right to inspect/take copies of a document (past/present)
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Disclosure list (N265)
Standard disclosure is performed by each party making a list of the required documents and serving it on the other party (CPR 31.10)
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If the recipient disagrees with the disclosing party's assertion of privilege, it can apply to court challenging the alleged privilege (CPR 31.19(5)).
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Ensuring compliance
solicitor is required to 'endeavour to ensure' that the person making the disclosure statement understands the duty of disclosure (31A PD 4.4)
A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission (CPR 31.21)
Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth (CPR 31.23)
Supplemental lists will need to be created if they come across further docs in future which require disclosure (continuing obligation)
Types
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Alternatives
Order dispensing with disclosure, order a party to disclose any docs relied upon and request any specific documents from the other party, disclosure on an issue-by-issue basis, disclose any documents which it is reasonable to suppose may contain information which enable that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences,
General points: parties do not have to disclose copies unless They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9) or the party does not have the original. Any duty of disclosure continues until case ended 'continuing obligation' CPR 31.11
Use of disclosed documents: may only use for purpose of the proceedings CPR 31.22(1) cannot use in other proceedings.
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- The document has been read to or referred to by the court at a hearing held in public ('read' includes pre-read and referred to in skeleton arguments);
- The court gives permission; or
- The party who disclosed the document and the person to whom the document belongs agree.
The court can be asked to make an order restricting or prohibiting the use of a document read or referred to at a public hearing.
Inspection
A party has a right to inspect a document which has been disclosed, except where:
- The document is no longer in the disclosing party's control (CPR 31.3(1)(a))
- Allowing inspection would be disproportionate (CPR 31.3(2)
It must state in it's disclosure statement (usually contained in the party's list of documents) that inspection is not permitted and that allowing inspection would be disproportionate (CPR 31.3(2))
rare because issues of proportionality are more likely to arise at the earlier stages of deciding what disclosure order to make and the scope of the search for documents
This exception cannot be used where the reason for disclosure is that a party wishes to rely on the document, or that a practice direction requires disclosure.
- The disclosing party has a right or duty to withhold inspection, ie it is privileged (CPR 31.3(1)(b))
If a document falls within the scope of the order for disclosure made by the court and it is privileged, its existence must still be disclosed: it can only be withheld from inspection.
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- Without prejudice communications
Redaction:
where a clear and distinct part of a document which does attract privilege, but the remainder does not
if the information is totally irrelevant to the dispute, it can be redacted. So information which is confidential / commercially sensitive and irrelevant is generally redacted
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listing redacted documents in a disclosure list, the redacted version of the document will be listed in the first part of the list of documents and will be made available for inspection with the appropriate parts covered over. The un-redacted version will be listed generically in the second part of the list of documents – inspection refused
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waiving privilege
It is possible for a party to deliberately allow inspection of a privileged document if it considers that the document helps its case
waiver of privilege in part of a wholly-privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with entirely different subject matter: a party cannot 'cherry pick' (Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529)
waiver of privilege in one document can lead to privilege being lost in other documents, if it would be unfair to allow the party waiving privilege not to put those documents before the court / opponent too (for example, if they all deal with the same subject matter and only permitting inspection of the first document could lead to the facts being misunderstood)
If something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings (The Aegis Blaze [1986] 1 Lloyd's Rep 203). Unless something stops this like a waiver
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a party can inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit and (subject to certain restrictions) an expert's report (CPR 31.14). This may take place even before the disclosure stage (this is still subject to privilege).
party wishing to inspect must send a written notice to the other side and the other side must allow inspection within seven days of receipt of the notice (CPR 31.15(a) and (b)) (time limit subject to court directions)
A party may not rely on any document in respect of which he fails to permit inspection unless the court gives permission (CPR 31.21)
may take copies with an undertaking to pay reasonable photocopying charges (CPR 31.15(c)). Copies must provided within 7 days of receipt of the request.
Types of privilege
legal advice privilege
A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose legal advice
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solicitor's attendance note of a conversation between parties (ie normally between the solicitors for each party), is not privileged since, there is no confidentiality in notes of matters at which both sides are present (Parry v Newsgroup Newspapers [1990] NLJ 1719, CA).
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document provided primarily to provide legal advice, wider communications between solicitor and client, will be privileged because they fall within the "continuum of communication" (Balabel v Air India [1988] Ch 317)
Bank of Nova Scotia v Hellenic Mutual War Risks Association if a client repeats internally legal advice provided by his lawyer, eg. to other personnel within his company, then that repetition also has privilege. If it is their own opinion this does not have 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
If there is more than one purpose behind the preparation of a document, the court will look at the dominant purpose – the test, therefore, is one of dominance and not exclusivity
dual purposes, one including for legal advice. As the litigation was at best a purpose, not a dominant purpose, the report was not privileged (from Waugh v British Railways Board ('BRB') [1980] AC 521.
real likelihood rather than a mere possibility. A general apprehension of future litigation is insufficient.
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