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Disclosure Exceptions Notes

BCL Law Notes > Principles of Civil Procedure Notes

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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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