Disclosure Notes

DISCLOSURE

The process

1. disclosure - parties send each other list of documents

2. inspection - other side can request copies of documents in list (other side usually provide photocopies)

Definitions

• disclosure = stating that the document exists / had existed (r31.2)

• document = anything in which info of any description is recorded, including e-documents (PD 31 para 2A.1); copy = by whatever means, directly or indirectly (r31.4)

  • e-document

    • = email, databases, documents stored on servers and back-up systems (even if deleted), metadata (PD 31 para 2A.1)

    • parties must discuss use of tech to manage e-doc disclosure (PD 31B para 8)

    • parties encouraged to seek directions for e-doc disclosure at first CMC (PD 31B para 9)

    • e-docs Q:

      • parties may exchange to provide info about scope, format etc. of e-doc disclosure

      • must be verified by statement of truth

DUTIES OF DISCLOSURE

Lawyers' duties

• as soon as litigation contemplated, parties' legal reps must inform clients of need to preserve disclosable documents, including e-docs which might otherwise be deleted under client's data retention policy (PD 31 para 7)

• must withdraw if client refuses to accept this advice (Code of Coduct para 608(d))

Clients' duties

• general duty of disclosure

  • continues until proceedings are concluded if documents covered by duty come to party's notice at any time during proceedings must

    • immediately notify every other party (r31.11(1), (2)); and

    • prepare + serve supplemental list of documents (PD 31 para 3.3)

• duty to search (see below)

• sign disclosure statement (see below)

WHEN DOES DISCLOSURE TAKE PLACE?

• court gives directions at first CMC OR allocation stage

DISCLOSURE

SCOPE OF DISCLOSURE

Standard disclosure

• applies to: small claims, fast-track, multi-track PI, other multi track ONLY if court directs (31.5(1))

• order for disclosure = order for standard disclosure (unless court directs otherwise)

The menu option

• applies to multi track claims, other than those including PI (unless court orders otherwise) (r31.5(2))

STANDARD DISCLOSURE

Documents to be disclosed

• party only required disclose documents which (r31.6):

1. he relies on in support of his affirmative case (Shah v HSBC, r31.6(a))

2. adversely affect his / another party's affirmative case OR support another party's affirmative case (r31.6(b)); and

3. he is required to disclose by a PD (r31.6(c))

4. PI claims: medical records back to birth (OCS v Wells)

5. professional negligence claims against solicitors: entirety of solicitor's original file (Martin v Triggs Turner Barton)

   • whether document falls within (a) - (c) judged by reference SoCs ONLY (Paddick v Ass News)

   • NOT a fishing expedition

   • NOT the same as relevance: does NOT cover documents only relevant to credibility

   • must be relevant to issues in case (Atos v Avis)

Documents in party's control (r31.8)

• duty to disclose = limited to documents in party's control

• party has control if (r31.8(2))

1. is / was in his physical possession; or

2. has / has had right to possession of it e.g. in possession of agent, medical records

-----OR------

3. has / has had right to inspect / take copies of it

Duty to make reasonable search (r31.7)

• party must make a reasonable search for documents within meaning of standard disclosure (r31.7)

• factors relevant to reasonableness

1. number of documents

2. nature + complexity of proceedings

3. ease + expense of retrieval

4. significance of documents

5. proportionality e.g. limit by date, place, category (r1.1(2)(c), PD 31 para 2)

   • unreasonable to search for document

     • if do not search on ground unreasonable, must state in disclosure statement + ID category / class of document (r31.7(3))

     • can challenge refusal to search by applying to court (Nichia Co v Argos)

Procedure (31.10)

1. party must make a reasonable search for documents in r31.6 (see above)

2. limiting standard disclosure

   1. parties may agree in writing, lodged with court to OR court may dispense with / limit standard disclosure (r31.5(c), r31.10(8), PD 31 para 1.4)

      1. specifically, parties can agree in writing to disclose documents WITHOUT making a list OR WITHOUT disclosing party making a disclosure statement

      2. includes disclosure / inspection / both in stages (r31.13)

3. list of documents in party's control (31.10)

1. each party must make + serve on every other party (r31.10(2))

2. list must

1. ID documents concisely in convenient order + manner (r31.10(3))

   1. date order

   2. consecutively numbered

   3. concise description

   4. if large number, list category, not individual document (PD 31 para 3.2)

2. indicate:

   1. section 1: (non-mandatory if any) documents disclosing party does NOT object to being inspected

   2. section 2: documents party claims a right / duty to withhold inspection (including privileged documents) (r31.10(4)(a)); and

   3. section 3: documents no longer in party's control + what has happened to them ((r31.10(4)(b))

3. include a disclosure statement (see (4)) by disclosing party (((r31.10(5)) / non-party if permitted by a PD (r31.10(9))

4. disclosure statement

   • = statement made by by disclosing party (((r31.10(5)) / non-party if permitted by a PD (r31.10(9)):

1. setting out extent of search made to locate documents required to disclose (r31.10(6)(a)):

   1. must state believe extent reasonable in all the circumstances (PD 31 para 4.2(1)) +

   2. draw attention to any limitations on extent for proportionality reasons + why adopted (PD 31 para 4.2(2))

+

2. certifying (i.e. signing) understands duty of disclosure + that, to best of his knowledge, he has carried it out (r31.10(6)(b), (c)):

   1. if legally represented, legal rep must endeavour to ensure duty understood (PD 31 para 4.4)

+

3. if disclosing party = company, firm or association (including insurer / MIB) ID statement-maker (name, address, office / position, basis on which makes statement (PD 31 para 4.3)) + explain why appropriate person to make statement (r31.10(7))

4. if insurer / MIB has...

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