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Disclosure & Privilege Notes

LPC Law Notes > Civil Litigation Notes

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Duty of Standard Disclosure
A party must disclose:
(a) the documents on which he relies; and
(b) the documents which
CPR 31.6

adversely affect his own case

adversely affect another party's case: or

support another party's case
(c) the documents which he is required to disclose by a relevant Practice Direction
The duty of disclosure is limited to documents which are or have been in a party's control.
This means:
CPR 31.8
 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
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:
(a) satisfactorily identify the documents in a convenient order and manner and as concisely
PD 31A 3.1 as possible; and
(b) indicate which documents are no longer in the party's control and what has happened to them.
 A party must make a reasonable search for documents which fall within the definition of those he should disclose. What is reasonable depends on:
o the number of documents involved;
o the nature and complexity of the proceedings;
CPR 31.7

the ease and expense of retrieval of any particular document; and
PD 31A 2

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.
Disclosure is a continuing obligation until the proceedings are concluded. Even after lists have
CPR 31.11 been exchanged, the solicitor must tell the other party if any further relevant documents have come into his control.
The disclosure statement states the extent of the search that has been made to locate
PD 31A 4 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.
A party, if an individual, or its proper representative for a company should make the
CPR 31.10 disclosure statement. If a party is legally represented, his solicitor must ensure that the
person making the disclosure statement understands the duty of disclosure.
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
CPR 31.3 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.
 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
CPR 31.12 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.

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