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Disclosure Diagram Notes

LPC Law Notes > Civil Ligitation Notes

This is an extract of our Disclosure Diagram document, which we sell as part of our Civil Ligitation Notes collection written by the top tier of Cambridge And Oxilp And College Of Law students.

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

Disclosure of documents

1) Disclosure A party must disclose, by stating it exists or has existed, every document, under its control which falls within the rule of standard disclosure

1) Is it a document?

CPR 31.4 - Meaning of document Anything in which information of any description is recorded

Practice direction (PD) 31A 2A.1 and PD31B - Electronic documents The definition in CPR 31.4 includes electronic documents, including e-mail and other electronic communications, word processed documents and databases

PD31A 2 - The search for documents The parties will search for relevant items which qualify as documents. The extent of the search which must be made will depend upon the circumstances of the case. This should be decided with the overriding objective in mind

2) It is in the client's control?

Law

a) What qualifies as a document in party's control - CPR 31.8(1) A party's duty to disclose documents is limited to documents which are or have been in his control.

b) Control is defined as: - CPR 31.8(2)

If it is or was in his physical possession - CPR 31.8(2)(a)

If he has or has had a right to possession of it CPR 31.8(2)(b)

He has or has had a right to inspect or take copies of it - CPR

31.8(2)(c) Would include the right to inspect on a contractual basis

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Drawings for construction jobs would be held by the architects and engineers - client will have rights to a copy of them 'Has had' - Would include being lost in a fire.

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Would still have to be disclosed (whilst evidently not inspected)

Examples / use

The original copy of a letter that has been sent out would not satisfy this test and would therefore be listed in Part 3 of the N265.

The file copies would satisfy this test and would fall under Part 1 of the N265 if not privileged and Part 2 of the N265 if privileged

3) Does it satisfy the test for Standard Disclosure?

Law

CPR 31.6 - A document will satisfy the requirements for standard disclosure if:

It is a document on which he relies CPR 31.6(a)

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Includes a without privilege letter which proves our client's good conduct

It is a document which: CPR 31.6(b)

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Only part of a communication may satisfy this. E.g. first paragraph is on board meeting particulars (not relevant and not discloseable) and second paragraph is

(i) Adversely affects his own case;

(ii) Adversely affects another party's case; or

(iii) Supports another party's case

The documents which he is required to disclose by a relevant practice direction CPR 31.6(c)

Examples / use

Part of a document may satisfy the test for standard disclosure and part of a document may not

It may also have implications for redaction (see below)

2) Inspection Even if a party discloses a document by notifying the other party of its existence, the other party is not entitled to inspect the document if it is no longer in his control, privileged, or it would be disproportionate

a) Is the document privileged?

1) Legal advice privilege (legal professional privilege)

Law A document which is: 1) Confidential communication 2) Between a lawyer and a client 3) Prepared for the purpose of giving or receiving legal advice

1) Confidential communication

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Private communication between the parties

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If the document is not confidential, privilege will not apply

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"Communication" is applied very broadly be the case law, would include written notes / formal attendance note between client and solicitor Parry v Newsgroup Newspapers

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A solicitors attendance note of a conversation between the solicitors for each party or a note of what happens at court is not privileged

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Although it is a communication, there is no confidentiality in note of matters at which both sides are present

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Comparatively a solicitors note of a conversation with his client concerning legal advice is a confidential communication and is therefore subject to legal privilege

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Therefore solicitors' memoranda and notes are communications but will only be privileged if prepared in relation to confidential work undertaken for their client for the purposes of legal advice.

2) Between lawyer and client Three Rivers District Council v Governor and Company of the Bank of England

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An internal inquiry unit within a bank was deemed to be the client rather than the bank as a whole

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Therefore documents produced by bank employees outside of the inquiry unit were not privileged as they were not the client

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Therefore solicitors and clients must be clear who is the client and who is the lawyer for the purposes of legal advice privilege

3) Prepared for the purpose of giving or receiving legal advice Balabel v Air India

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Where a solicitor is retained primarily to provide legal advice, wider communications between solicitor and client, even if these are ancillary / supplementary to that purpose (of providing legal advice), will be privileged

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This is because they fall within the "continuum of communication" Three Rivers District Council v Governor and Company of the Bank of England

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Refined the principle from Balabel v Air India

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Legal advice privilege also included advice which was "presentational" i.e. advice on the most appropriate way to present information to the Bingham Inquiry)

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The solicitors were giving such advice through "legal spectacles"

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This is seen as a broad definition of legal advice for the purposes of this type of privilege Bank of Nova Scotia v Hellenic Mutual War Risks Association (Good Luck)

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Where the client receives legal advice and repeats advice internally e.g. to other personnel within the company, then that repetition is also covered by privilege

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The issue is whether this is repetition of the advice internally (covered by privilege) , or whether the client is giving his own opinion (this is not covered by privilege)

Examples / use

Examples / use

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A draft statements of case will qualify for legal advice privilege but privilege will be waived when the PoC is served

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The board minutes / the part of the board minutes where a director is reporting to the board the legal advice given by the company's solicitor will be protected by litigation privilege under the principle in The Good Luck case

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A letter to a solicitor asking for legal advice regarding a potential claim is covered by Legal Advice Privilege

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"Communication" is applied very broadly be the case law, would include written notes / formal attendance note between client and solicitor

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