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LPC Law Notes Civil Litigation Notes

Disclosure & Inspection Notes

Updated Disclosure & Inspection Notes

Civil Litigation Notes

Civil Litigation

Approximately 418 pages

A collection of the best LPC Civil 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 Civil Lit notes available in the UK this year. This collection of notes is fully updated...

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Civil Litigation

ELEVEN: Disclosure and Inspection

EXAM answer on disclosure:

  1. Does the document fall within the ambit of CPR 31.6 standard disclosure? (I.e. will it go into your list of documents? – explain why! [e.g. It supports / adversely effects claimant’s case / Defendant’s case/ both cases]

  2. Is it subject to inspection? (i.e. is it privileged)

  3. Which part of the list of documents should you therefore put the documents – 1, 2 or 3. EXPLAIN WHY!

Disclosure

CPR 31

PD 31

CPR 31.2: A party discloses a document by stating that the document exists or has existed.

2 Stage process:

  1. Disclosure: search and exchange documents that have an impact on the issues in dispute. A prescribed list is used – Form N265

  2. Inspection: CPR 31.3 – the party receiving the N265 list has the right to look at the contents of the documents where no privilege is claimed.

  1. Disclosure:

Meaning of documents – CPR 31.4

  • “Documents” means anything in which information of any description is recorded”

  • This is a very wide definition – includes any electronic storage – texts, emails etc.

Duty to disclose is limited to documents under the party’s control – CPR 31.8

  • Physical possession

  • Right of possession

  • Right to inspect or take copies of (e.g. medical records)

Standard Disclosure – CPR 31.6 – where there is an obligation to disclose

  1. Documents on which he relies

  2. Documents which

    1. Adversely affect his own case

    2. Adversely affect other party’s case; or

    3. Support another party’s case

i.e. therefore disclose documents that may support either side’s case.

Duty to make a reasonable search for documents – CPR 31.7

  • What is reasonable depends on factors CPR 31.7(2)(a) – (d) –

[the number, the nature, the complexity, the ease and expense, the significance of the documents]

  • The purpose for this is ‘Proportionality’ – from a cost point of view

  • PD 31, Para2: parties must bear in mind overriding principal of proportionality. It may be reasonable to decide to limit the search to:

  1. Documents coming into existence after a particular date

  2. Documents in a particular place

  3. Documents falling into a particular category.

Solicitor explaining the disclosure process – CPR PD 31, Para 44:

  • It is a continuing obligation – CPR 31.11

  • Any docs received from his opponent are to be used for litigation only

  • The client should preserve all documents

  • The client should not mark docs or create new ones

The Disclosure Statement

The client signs this! It is a statement made to the disclosing party:

  1. Setting out the extent of the search

  2. Certifying that he understands his duty to disclose

  3. Certifying that, to the best of his knowledge, he has carried out that duty.

INSPECTION

CPR 31

  1. Inspection

CPR 31.3: gives a party the right to inspect the disclosed documents, except where:

  1. Document is no longer in the control of the party who disclosed it

  2. The party disclosing has a right or a duty to withhold inspection – i.e. document is privileged.

  3. A party considers it disproportionate to the issues to permit inspection of documents within a category & states this in his disclosure statement.

[i.e. this is when party can REFUSE inspection]

Privilege

The existence of a privileged document must be disclosed but it does not have to be offered for inspection.

Legal Professional privilege – 2 types

1. Legal Advice Privilege

  • Solicitor and client communication – made for the sole dominant purpose of giving or receiving legal advice
2. Litigation Privilege

3 conditions to...

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