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Disclosure Exceptions Notes

BCL Law Notes > Principles of Civil Procedure Notes

This is an extract of our Disclosure Exceptions document, which we sell as part of our Principles of Civil Procedure Notes collection written by the top tier of Oxford students.

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Disclosure Tutorials - Marly v Rawlings [2014] UKSC 51 - case note - 3000-5000 - by end of December - for CJQ Rationale & History
? Need for Court to apply law to true facts o Imposes costs on parties required to disclose
? Historically - cost of proof rested entirely on plaintiff - procedural &
substantive law fused in forms of action - required to know all material facts when pleading o Hand-in-hand with juror's duty to self-inform
? Tension - rectitude v proportionate cost - maximum access to evidence without imposing disproportionate cost
? In 20th century - focus on justice on merits - broad disclosure rules requiring any person to disclose o Journalists re sources o Police o Banks re details of clients: Shapira o Public agencies: Norwhich Pharmical o Disclosure of commercially sensitive documents: Dyson v Hoover (patent case - one party sought to limit disclosure based on commercial sensitivity ? not a relevant consideration - if relevant to court's conclusion should be disclosed)
? Now o General rule - if relevant disclose
? Rationale o promotes accuracy, public confidence in judiciary, rule of law o Promotes procedural fairness - all parties should have access to the same material
? Recognised by ECtHR - adversarial proceedings (in the sense that every party should have opportunity to see material &
respond): Ruiz-Mateos v Spain (1993) 16 EHRR 505
? Equality of arms issues: Dombo Beheer BV v Netherlands (1994) 18 EHRR 213 (Dutch rule that parties themselves could not testify - one party a company so could call employee - other party an individual so at a disadvantage - equality of arms)
? Reasonable limits on disclosure for legitimate interest - eg in closed material proceedings o Reduces information asymmetry - puts party on equal footing
? Many parties may lack resources to obtain certain documents
? Financial resources should not factor in ability to put case o Efficiency of litigation
? Posner - law & economics perspective - allows both parties to make accurate estimates of outcomes - encourages settlement - said to increase chance of settlement by 15-20%

?Even though disclosure expensive, can reduce overall cost of litigation
? Woolf reforms - preaction disclosure & preaction protocols - plainly directed to this aim Limits to disclosure o Accuracy depends on synthesis & analysis of information, not just availability of information o Costs - Jackson review identified disclosure of major source of cost - undermines access to justice
? Deterred by own cost, possibility of paying other side's costs
? But if (as in US) disclosure costs couldn't be recovered would create other perverse incentives - cheaper to request than to disclose - gives advantage to small players and causes companies to settle even unmeritorious cases

Civil law jurisdictions
? Advantage that not the same kind of costs imposed on the parties
? Based on Roman Law o Obligation to disclose documents on which party intends to rely o No general obligation to produce documents that are adverse to own case o Power to order disclosure of adverse documents where existence can be established
? Ie no need to disclose unhelpful documents of which other party not aware
? Sanctions less severe - eg adverse inferences drawn in case of non-disclosure
? Rationale o Even though inquisitorial - still mostly reliant on parties bringing to attention relevant evidence to dispute o Link between disclosure & burden of proof
? Cf Common law - doesn't link amount of evidence required for burden of proof to sources of evidence o Limits on speculative cases - cf common law systems, which encourage an element of speculation on the basis that no-one should be expected to have all the information before issuing a claim o Freedom from self-incrimination
? Not (at least in the first instance) required to disclose adverse documents
? Has consequence of clinical asymmetry o In certain circs where most information likely to be in possession of D, reverse onus of proof
? Eg medical negligence cases o Objections
? reversal of onus - but fact is that in practical terms, where C discloses evidence, D has to respond or will lose
? Still allows D to cherry-pick, discharge onus by favourable documents only Critiques of common law jurisdictions

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