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Disclosure Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

Updates Available  

A more recent version of these Disclosure notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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)

o 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:

o parties may exchange to provide info about scope, format etc. of e-doc disclosure o 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 o continues until proceedings are concluded ? if documents covered by duty come to party's notice at any time during proceedings mustimmediately notify every other party (r31.11(1), (2)); andprepare + 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 disclosedparty only required disclose documents which (r31.6):

(a)

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

(b) (c)

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

(d)

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

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

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 expeditionNOT the same as relevance: does NOT cover documents only relevant to credibilitymust 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 controlparty has control if (r31.8(2))

(a) (b)

is / was in his physical possession; or has / has had right to possession of it e.g. in possession of agent, medical records

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

(c)

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

(a)

number of documents

(b)

nature + complexity of proceedings

(c)

ease + expense of retrieval

(d)

significance of documents

(e)

proportionality e.g. limit by date, place, category (r1.1(2)(c), PD 31 para 2)unreasonable to search for documentif 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

i. 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)

a.

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

b.

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

(3)

list of documents in party's control (31.10)

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