Disclosure Inspection And Privilege Notes

Disclosure and inspection of documents, CPR Part 31 [and PD31A, paras 1-2, 2A, 3-8]

Summary overview

• NB, PD28, 3.12: typical fast-track timetable from date of notice of allocation. Disclosure normally 4 weeks after notice of allocation.

• ‘cards on the table’ approach in civil litigation. All evidence is out there before trial.

• NOTE THE DISTINOCTION BETWEEN DISCLOSURE AND INSPECTION

  • Disclosure itself is simply stating that the document exists (or has existed).

  • CF Inspection = the right to see the document.

• Disclosure

  • 31.1, doesn’t apply to small claims.

  • Standard disclosure applies to all fast track claims, and PI Multi track claims

For fast-track and PI multi-track claims Disclosure (cf inspection) A party has a continuing duty (r31.11) to give:

• Standard disclosure

  • Unless the court or parties decide otherwise (31.5)

• Of All documents = (31.4) anything in which information of any description is recorded (including electronic docs)

• Which are or have been in the control of a party (31.8), i..e (a) physical possession or (b) right to possession or (c) right to inspect or take copies.

• And must make a ‘reasonable search’ (31.7) for such docs.

Right of inspection (31.3)

• Except where:

  • (a) doc no longer in the control

  • (b) right or duty to withhold inspection

  • (c) considers disproportionate

Privilege ( i.e. exception to inspection (b), ‘right’ to withhold inspection)

• Legal professional privilege

  • (1) Legal advice privilege (31.3.6)

    • (1) A document between solicitor & client.

    • (2) Must be confidential (i.e. not in public domain)

    • (3) for purpose of giving legal advice (need not give for actual or contemplated litigation)

  • (2) Litigation privilege

    • (1) a document between a legal adviser/client and third party

    • (2) must be confidential

    • (3) for purpose of actual or contemplated litigation

      • what was the ‘dominant purpose’ of the doc at the time of writing. Dominant purpose must be the furtherance of actual or contemplated litigation.

    • EG, covers: expert reports; witness statements.

  • Waiver—can only be waived by the client, not the legal adviser

• Without prejudice documentation

  • Doc between the parties

  • A communication, oral or written, between the parties, the substance of which is a genuine attempt to settle the case.

  • Joint privilege can only be jointly waived.

• Public Interest immunity, duty to withhold, r31.19

Multi-track (non PI) claims menu option disclosure

SPECIFIC APPLICATIONS FOR DISCLOSURE YOU NEED TO KNOW:

• (1) specific disclosure inspection (31.12)

• (2) pre-action disclosure (31.16)

• (3) Disclosure against non-party (31.17)

• (4) Norwich Pharmacal (31.18)

FULL NOTES

When disclosure takes place

• Main obligation to disclose in fast track and multi track cases arise as a result of directions made at the allocation stage, or at the first CMC. Generally such directions will state whether lists of docs should be provided, whether a disclosure statement is required; and will give a calendar date for compliance.

31.1, Scope of this part

• Rules re disclosure and inspection of docs.

• This Part applies to all claims EXCEPT in SMALL CLAIMS track.

31.2, Meaning of disclosure

• A party ‘discloses’ a doc by stating that the document exists or has existed.

31.3, Right of Inspection of a disclosed document [[except where (1) no longer in control; (2) claims right/duty to withhold inspection (privilege or public immunity); (3) disclosing party considers it disproportionate]]

• (1) a party to whom a doc has been disclosed has a right to inspect that doc, EXCEPT WHERE (I.E. where you don’t need to allow inspection of a doc, although this doesn’t mean that you don’t have to disclose it):

• (a) the doc is no longer in the control of the party who disclosed it

  • ( 31.8 re when a doc is ‘in control’ of a party)

• (b) the party disclosing the doc has a right or a duty to withhold inspection of it

  • ( 31.19, procedure for claiming a right or duty to withhold inspection)

  • ‘right to withhold’ legal professional privilege or without prejudice privilege, see below.

  • ‘duty to withhold’ public interest immunity (see 31.19)

• (c) where (2) applies, i.e. where a party considers it would be disproportionate to the issues in the case to permit inspection of docs within a category or class of docs disclosed under r31.6(b) [standard disclosure]:

  • (a) he is not required to permit inspection of docs within that category or class; BUT

  • (b) he must state in his disclosure statement that inspection of those would will not be permitted on the grounds that it would be disproportionate.

  • [[NB, re a doc claimed to be disproportionate, this could be challenged by an application for specific inspection (31.12)]]

• (d) r78.26 applies [cross-border disputes]

• (see 31.6 re standard disclosure; 31.10 re provision of a disclosure statement;

31.4, Meaning of document

• “Document” = anything in which information of any description is recorded

• “Copy” (re a document) = anything onto which information recorded in the doc has been copied, by whatever means, whether directly or indirectly.

PD31A, para 2A Electronic docs/disclosure

• r31.4 broad definition of document extends to electronic docs, including:

  • email and other electronic communications

  • word processed docs

  • databases.

• As well as docs readily accessible from computer systems and other electronic devices and media, the definition covers docs stored on servers and back-up systems and electronic docs that have been ‘deleted’.

• And also extends to metadata (additional info stored and associated with electronic docs).

• PD31B re provisions of electronic doc disclosure likely to be allocated to multi-track.

31.5, Disclosure

• (1) in all claims to which (2) [multi-track claims not including PI claim] does not apply the normal disclosure order is for ‘standard disclosure’

  • (a) an order to give ‘disclosure’ means to give standard disclosure, unless court directs otherwise;

  • (b) the court may dispense with or limit standard disclosure; and

  • (c) the parties may agree in writing...

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