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Advanced Disclosure Notes

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Advanced Commercial Litigation Advanced Disclosure Standard Disclosure & Inspection

1. The [document] must be defined as a document under CPR 31.4;

2. The document must be in the client's control under CPR 31.8;

3. The document must fall under the test for standard disclosure under CPR 31.6: the document is either a reliance document (i.e. the party is relying on the document to prove their case) or if it is an adverse document (i.e. the document helps prove the other side's case or disprove the party's case).

4. If the above requirements are satisfied then the document is DISCLOSABLE

5. The document must not be covered by any privilege if it is to be INSPECTABLE Legal Advice Privilege

A document which is a confidential communication between a lawyer and a client for the purpose of giving and receiving legal advice.

Balabel Air India - wider communications can also be protected. Three Rivers - the term 'client' is defined narrowly. Good Luck - repetition of information is protected. Parry Newspapers - open correspondence is not protected.

Litigation Privilege

A document which is a confidential communication between a lawyer and client (and/or a third party) for the purpose of giving legal advice, information or evidence for litigation reasonably in contemplation.

Waugh v BRB - litigation must be the dominant purpose; two or more purposes means it is not dominant. Re Highgrade Traders - the commissioner of the document will be consulted as to its purpose rather than the author. USA v Phillip Morris - litigation must be more than a mere possibility.

Without Prejudice Privilege

A document whose purpose is a bona fide or genuine attempt to settle the dispute.

Rush v Tomkins - the court will look to substance rather than form.

Common Interest Privilege

Common interest privilege operates to preserve privilege in documents which are disclosed to third parties during the course of the litigation.

Examples of this type of privilege can include coclaimants/defendants communicating with each other, holding/subsidiary companies communicating about the litigation, agent and principle relationships, and communications with insurers.

Communication will be subject to common interest privilege if: A confidential communication was made after litigation was commenced/contemplated; Both parties to the communication have a common interest in the litigation The sole or dominant purpose was to inform or obtain each other of the facts/advice/issues/evidence in litigation.

Warn clients of their duties of disclosure and false disclosure statements and them committing contempt of court (CPR 31.23 and 31A PD 4.4) Exam Structure

1. Define the term 'document' and apply to the facts

2. Define the term 'client's control' and apply to the facts

3. Does the document fall into the test for standard disclosure? Explain why.

4. Conclude as to whether the document is DISCLOSABLE

5./tmp/Advanced_Disclosure.docx State whether any privilege applies, state the law and apply to the facts

6. Conclude whether the document is INSPECTABLE

7. Identify the part of the list the document falls under.

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