#15716 - Advanced Disclosure - Advanced Commercial Litigation

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

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 happen where the copy has a mark, alteration or modification on it (such as a handwritten note).

Where copies are made of a document, and then the originals are lost the copies must be disclosed as they are the only version (CPR 31.9(1)).

Translation

If non-privileged documents are translated then the translations will not be protected by privilege and are inspectable.

Exception

If a lawyer takes copies of third party unprivileged documents and a selection has been made as to what copies to make: this will be subject to privilege under the Sumitomo Case.

Pre-Action Disclosure

A party can claim under CPR 31.16 to obtain documents before proceedings have commenced if they can satisfy the following requirements:

1. The respondent and applicant are likely to be parties to the proceedings

   • State why each party would be involved and what would be their status in the proceedings (i.e. Claimant/Defendant)

   • The proceedings must be ‘anticipated’ and this is not a fishing expedition

2. The documents would be subject to standard disclosure

   • List the documents which may be applied for: contracts, delivery notes, invoices, correspondence, attendance notes

   • Apply the test for standard disclosure

3. Pre-Action disclosure is desirable

   • The court will only grant the application if it will help dispose of the anticipated proceedings (i.e. encourage settlement), assist the dispute or save costs

   • Consider the overriding objective

4. Conclude

Non-Party Disclosure

A party can claim under CPR 31.17 and s.34 Senior Courts Act 1981 against third parties and make them disclose documents if they can satisfy the following requirements:

1. The documents will either support or damage one of the parties cases

   • List the documents which may be applied for: contracts, delivery notes, invoices, correspondence, attendance notes

   • Explain why they would support/damage one of the parties case

5. Disclosure is necessary

   • Explain why it is necessary to disclose the documents: i.e. save costs, disclose of the case

   • Consider the overriding objective

Norwich Pharmacal Order

A party can claim under CPR 31.18 for a Norwich Pharmacal Order against third parties before proceedings have commenced to find either the identity of the defendant or for information which goes to the heart of the case (Carlton Films).

The applicant must satisfy the following requirements...