BCL Law Notes Principles of Civil Procedure Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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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
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
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
Journalists re sources
Police
Banks re details of clients: Shapira
Public agencies: Norwhich Pharmical
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
General rule – if relevant disclose
Rationale
promotes accuracy, public confidence in judiciary, rule of law
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
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
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
Accuracy depends on synthesis & analysis of information, not just availability of information
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
Obligation to disclose documents on which party intends to rely
No general obligation to produce documents that are adverse to own case
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
Even though inquisitorial – still mostly reliant on parties bringing to attention relevant evidence to dispute
Link between disclosure & burden of proof
Cf Common law – doesn’t link amount of evidence required for burden of proof to sources of evidence
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
Freedom from self-incrimination
Not (at least in the first instance) required to disclose adverse documents
Has consequence of clinical asymmetry
In certain circs where most information likely to be in possession of D, reverse onus of proof
Eg medical negligence cases
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
Promotes fishing expedition – undoubtedly so, but can be productive – also claimants have a level of
Difficult to police obligations – especially obligation to disclose adverse documents
Duties on solicitor as officer of the court – no incentive for solicitor not to comply with professional obligations
Has professional consequences to solicitor / substantive consequences to client
Law: CPR 31 & inherent powers of court
Old broad test: Peruvian Guano – documents that may contain information that would directly or indirectly enable the party seeking discovery to advance his case or damage the other’s case, including documents that may lead to train of inquiry leading to either of those two outcomes
CPR 31 – documents that really make a difference –
On which propose to rely
Adversely affect case
Adversely affect or support another party’s case
Required by a practice direction
CPR 31 applies on fast-track and can apply on mult-track cases
Duty to search
Reasonable search for documents in possession or control
‘reasonable’ –
number of docs involved, nature & complexity of proceedings, ease & expense of retrieval, significance of likely documents
‘control’ –
broad, includes de facto power to obtain (eg companies in same corporate group – Shell Petroleum (1980) QB 358...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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