This website uses cookies to ensure you get the best experience on our website. Learn more

LPC Law Notes Civil Litigation Notes

Disclosure & Privilege Notes

Updated Disclosure & Privilege 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 ...

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

DISCLOSURE

Duty of Standard Disclosure
CPR 31.6

A party must disclose:

  1. the documents on which he relies; and

  2. the documents which

  • adversely affect his own case

  • adversely affect another party’s case: or

  • support another party’s case

  1. the documents which he is required to disclose by a relevant Practice Direction

CPR 31.8

The duty of disclosure is limited to documents which are or have been in a party’s control. This means:

  • the document is or was in his physical possession; or

  • he has or has had the right to possession of it; or

  • he has or has had a right to inspect or take copies of it

PD 31A 3.1

Each party must make and serve upon every other party a list of documents in the relevant practice form N265. In order to make the process efficient the rule provides that the list must:

  1. satisfactorily identify the documents in a convenient order and manner and as concisely as possible; and

  2. indicate which documents are no longer in the party’s control and what has happened to them.

CPR 31.7

PD 31A 2

  • A party must make a reasonable search for documents which fall within the definition of those he should disclose. What is reasonable depends on:

    • the number of documents involved;

    • the nature and complexity of the proceedings;

    • the ease and expense of retrieval of any particular document; and

    • the significance of the document.

  • If a party considers it unreasonable for him to search for certain documents, e.g. because it would be too expensive given the limited significance of the documents, then he must say so in his disclosure statement.

CPR 31.11 Disclosure is a continuing obligation until the proceedings are concluded. Even after lists have been exchanged, the solicitor must tell the other party if any further relevant documents have come into his control.
PD 31A 4 The disclosure statement states the extent of the search that has been made to locate documents and certifies that the party understands the duty of disclosure and that to the best of the party’s knowledge he has carried out that duty.
CPR 31.10 (6)&(7) A party, if an individual, or its proper representative for a company should make the disclosure statement. If a party is legally represented, his solicitor must ensure that the person making the disclosure statement understands the duty of disclosure.
CPR 31.3

Parties have the right to inspection of a disclosed document except where:

  • the document is no longer in the control of the party who disclosed it; or

  • the party disclosing the document has a right or duty to withhold inspection of it (e.g. privilege); or

  • a party considers it would be disproportionate to the issues in the case to permit inspection of documents within a category and states so in his disclosure statement.

  • A party who wants to inspect must serve a written notice and the receiving party must allow inspection within 7 days of receiving the notice. Copies of documents are often obtained instead of inspection taking place.

CPR 31.12
  • If a party is dissatisfied with the disclosure provided by the other party and believes it is inadequate, he can apply for an order for specific disclosure.

  • The applicant must specify which documents he wants to see and why he thinks they fall within the ambit of what should be properly disclosed.

  • A request should be made to the other party before any application is made.

  • A court order can require a party to disclose documents within his possession or make a search for documents.

Dispensing with Disclosure
CPR 31.5(1)(c) Parties may agree to dispense with or limit formal disclosure by list for the fast track (e.g. where it is agreed that all relevant documents have been voluntarily disclosed in the protocol stage)
PD 31A 1.4 But they should inform the court, which will consider, under its case management powers, whether it is appropriate.
CPR 31.5(1)(b) The court may dispense with or limit standard disclosure on the fast track.
CPR 31.5(7)(a) The court may dispense with or limit standard disclosure on the fast track.
Notice to Admit Facts
CPR 32.18 A party who wishes his opponent to admit a fact may serve a notice to admit facts at any time up to 21 days before trial. This notice may be served where it would be time consuming and expensive to prove a certain fact or where it would otherwise be necessary to call a witness to trial to prove a fact.

Notice to Admit or Produce Documents

In a case where it is alleged that the opposing party’s documents are not authentic:

CPR 32.19 Serve a notice to prove the document by the latest date for serving witness statements or within 7 days of disclosure of the document, whichever is later.
Sanction
CPR 31.21 A party who fails to disclose a document or fails to allow inspection of a document may not rely on the document unless the court permits.
Orders for Disclosure Against a Non-Party
CPR 31.17
  • A party can apply for disclosure against a non-party to the proceedings.

  • The court may only order non-party disclosure if:

    • the documents in question are likely to support the applicant’s case or adversely affect the case of another party; and

    • disclosure is necessary to dispose fairly of the case or to save costs.

  • The order must:

    • specify the documents or classes of documents to be disclosed; and

    • require the respondent to specify which documents are no longer in his control and which are privileged.

Subsequent Use of Disclosed Documents
CPR 31.22

Where a document has been disclosed to a party, he may only use that document for the purposes of the case in which it has been disclosed unless:

  1. the document has been read or referred to during a public hearing or the court grants permission; or

  2. the party who disclosed the document and the person to whom the document belongs consent.

PRIVILEGE

  • A document once privileged is always privileged unless and until that privilege is waived. The privilege is that of the client and the solicitor should not...

Buy the full version of these notes or essay plans and more in our Civil Litigation Notes.

More Civil Litigation Samples