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LPC Law Notes Advanced Commercial Litigation Notes

Advanced Disclosure Notes

Updated Advanced Disclosure Notes

Advanced Commercial Litigation Notes

Advanced Commercial Litigation

Approximately 25 pages

A collection of the best LPC Advanced Commercial Litigation notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Advanced Commercial Litigation notes available in the UK this year. This colle...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Advanced Commercial Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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.

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.

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

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)

Specific Disclosure

Application

A party can make an application for specific disclosure if they feel that standard disclosure has not disclosed the documents that are required.

The applicant will serve and file:

  • An Application Notice in form N244;

  • A Draft Order;

  • A Witness Statement in support;

  • A Statement of Costs relating to the costs of the application.

Standard Disclosure

The court will consider an application for specific disclosure after standard disclosure has taken place:

  1. Is it a ‘document’? See CPR 31.4

  2. Is it within the party’s control? See CPR 31.8

  3. Does it fall within standard disclosure? See CPR 31.6

  4. Is it inspectable?

Specific Disclosure

A claim for specific disclosure will be made pursuant to 31A PD 5, the applicant will specify the documents which need to be disclosed in the draft order and explain why each document falls within the test for standard disclosure.

Under 31 A PD 5.4 the court will consider reasonableness, proportionality and the overriding objective when making their decision.

Train of Enquiry

Further, or in the alternative, the party can make a claim under 31A PD 5.5 for documents which lead to a ‘train of enquiry’. This application can only be made in an ‘appropriate case’ which requires:

Allegations of fraud, dishonesty or misrepresentation; and

A high value or complex claim.

Specific Inspection

An application can be made for specific inspection if the party feels as though the other party is claiming privilege over a document which should not be.

There are two grounds in which to claim specific inspection:

  1. CPR 31.12: documents which are listed as being ‘disproportionate’ in relation to allowing inspection, the applicant can claim that it is proportionate to allow inspection

  2. CPR 31.19(5): documents which are labeled as being privileged which is being questioned by the applicant.

Copies and Translations

Copies

The parties only have to disclose one copy of a document (CPR 31.9(1)). However, copies will become disclosable under CPR 31.9(2) the copy becomes a separate document’, this will...

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