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Evidence CPR 31 and CPR 35 SEE standard pre-trial timetable para 1 (the pre-trial standard timetable is at appendix of CCG) and CCG E Disclosure is the process whereby the existence of documents is disclosed to the opponent. It's a key stage because many commercial disputes hinge on the interpretation of documents. Four stages:
? Is it a document?
? Is it within the control of your client?
? Does it fall within the test for standard disclosure?
? Should it be made available to your opponent for inspection?
1. Is it a document?
CPR 31.4 - anything in which information of any description is recorded (notes/emails) PD31A para 2.1 - applies to electronic documents on servers, even those you thought had been deleted but were recoverable
? Sol has duty to ensure client complies
? Familiarise yourself with client business (are calls taped etc)
2. Does it fall within the test for standard disclosure?
CPR 31.6 - Docs which client relies upon (r31.6a) and which: DO NOT disclose doc
- Adversely affect own case - r31.6(b)(i) if only relevant to an
- Adversely affect another's case - r31.6(b)(ii) admitted
- Support another's case - r31.6(b)(iii) point/irrelevant point d) docs required to be disclosed by relevant PD - r31.6(c) o Only if they relate to a point in issue Only need to disclose copies if contain "modification, obliteration or other marking" which relates to (a,b,c,d) above - r31.9 [the copy is treated as a separate doc]
Use the specific terminology above DO NOT just say doc is relevant to the case
3. Is it within the control of client?
CPR 31.8 docs which are or have been in their physical possession
? is/was in his/A's physical possession/Premises - r 31.8(2)(a)
? he/A had a right to possession - r 31.8(2)(b)
? he/A had right to inspect/take copies - 31.8(2)(c) (e.g. medical records)?Storing docs with an A (bank or sol) if client has a right to demand them then they are in their control Same goes for accountant or surveyor but docs created by the A for his own purpose belong to him and are not within control of client
Complex corporate structure issue = does parent company as a matter of fact control subsidiary rather than merely owning it
- Docs in other company premises? Yes
- Does parent co have immediate right of possession or to take copies of subsidiaries docs? Not always as D's of baby company can refuse the parent co the docs. Always check the AOA.
? Is subsidiary the alter ego of parents?
1. Parent holds substantially all shares Assume client is A:
- If Yes to all the below questions then need to disclose existence of docs
- No obligation on party to obtain docs which are not within parties control but he might be able to get hold of - client should not obtain papers from TP without sol prior approval n case by doing so they become disclosable
4. Apply to the facts: MUST state issues are dispute (check case summary or failing that POC/Defence D's+NA's) STATE why document affects D's case in relation to r 31.6 a) Statements of case - will ALWAYS satisfy test b) Docs mentioned in statement of case - USUALLY satisfy, why else would it be there?
o Party may always inspect these docs, no privilege - r 31.14 c) Costs - USUALLY be in dispute (e.g. Part 36 offers adverse to party who didn't accept) d) Without prejudice correspondence - USUALLY satisfies test despite potentially privileged e) Instructions on expert reports - will ALWAYS satisfy test and not privileged - r 35.10(4) o However, specific docs that relate to instructions are privileged - r 35.10(4)(a) f) Request for further info - SOMETIMES disclosable
5. Should anything be redacted?
Irrelevant info can be removed if contains commercially sensitive info which will give rise to data protection issues - r 31.6 o Should state in description "some parts redacted" o Technically other party has duty of confidentiality - r 31.33 but understandable that other party may not want to rely on it Other side can ask to see redacted party but we can use r 31.3(2) to argue its disproportionate to issues in the case
6. Standard disclosure search + procedure Must make reasonable search- r31.7 bearing in mind overriding principle of proportionality - PD31 para 2 Factors to be taken into account when determining reasonableness: o Number of docs involved - r 31.7(2)(a) o Nature/complexity of proceedings - r 31.7(2)(b) o Ease and expense of retrieval - r 31.7(2)(c) o Significance of doc - r 31.7(2)(d) PD 31B (electronic docs) - encourage and assist parties to reach agreement in relation to disclosure of electronic docs in proportionate and cost effective manner
? para 2A - definition covers docs that are stored on servers and back-up systems and electronic docs that have been deleted and metadata
? Para 7 - Sol must notify client as soon as litigation becomes a possibility of need to preserve electronic records and halt deletion Disclosure of electronic PD 31B para 6: o Docs should be managed efficiently to minimise cost o Technology should be used to ensure doc management efficient
o o o
Disclosure should be given in manner giving effect to OO Should be available in format to allows receiver to access/search same way as sender Disclosure of docs not relevant to proceedings places excessive burden on receiver
Factors to be taken into account when determining reasonableness for electronic docs - PD 31B para 21: o Location, number, accessibility, nature, costs, chances of finding info o Modification of searches/use of keywords o Using commercially available software (may need expert advice) o Para 22 - may not be reasonable to search some/all of parties electronic storage against a key word Often reasonable not to search for docs before certain date PD 31A para 2 Electronic docs questionnaire (optional) - person who signs statement of truth must attend CMC/other hearing where disclosure to be considered
- Summary to be prepares prior to 1st CMC Limits:
- Agree with other side a list of issues and limit extent of disclosure. Failing agreement, app to court under
31.5 to limit or in first
-- Digicel v Cable and Wireless 2008-CPR emphasised the disclosure importance(either of solsgenerally making initial determination of what is a reasonable search, if you don't discuss disclosure with other side there is a risk of an app for specific disclosure. Negotiate prior to disclosure deadline and if necessary refer issue to court determination?
Each party should serve on other a list of docs r31.10(2)/CCG E3.2 R31.10(3) list should identify docs in a convenient order and manner and concisely as possible
- r31.10(4)(a) - should state if want to withhold inspection
- r31.10(4)(b) - should state if docs no longer in control and what happened to themPD 31A para 3.1 - in order to comply with r31.10(3) it is necessary to list docs in date order, numbered consecutively with concise description. Where large num of docs in one category, list them as such "50 bank statement dated X-Yr31.7(3) - draw attention to particular limits on extent of the search adopted for reasons of proportionality /give reasons why these were adopted (do this in disclosure statement r31.10(5) should include r31.10(6):
? set out the extent of the search that has been made to locate docs which he is required to disclose
? certifying that he understands the duty of disclosure
? certifying that to the best of his knowledge he has carried out this duty
? certifying that to the best of his knowledge he has carried out this dutyShould be signed by a person who is in a position responsibly and authoritatively to search for docs PD31A para 4.3/CCG E3.8
? r31.10(7) - if it is a company, firm etc, should identify person making statement/explain why they are considered appropriate. Should begin with CCG E3.5 and end with E3.6
5. Should it be made available for inspection?
Even when a doc may NOT be inspected it will STILL have to disclose!!!
Party can always inspect doc referred to in statements of case (WS, affidavit ect) r 31.14 Process - party wishing to exercise his right of inspection - r 31.15: o Must give party who disclosed written notice o Inspection must be permitted within 7 days of notice being received o May request a copy if undertakes to pay reasonably costs o Copy must be supplied within 7 days of receiving request One disclosed, party can inspect document unless - r 31.3
1. Doc no longer in control of party who disclosed it - r 31.3(1)(a)
- ['control' = CPR 31.8(2) - if in physical possession, has right to possession of it; has right to inspect/take copies]
2. Disproportionate to the issue in the case to disclose - r 31.6(b) docs (i.e. those that adversely affect own case/other side or support other party's case) (CPR 31.3(1)(c) and CPR 31.3(2)). If a party does not permit inspection under this ground, he must state reasons in his disclosure statement (CPR 31.3(2)(c))
3. Document attracts privilege - see below (6.) n/b bottom of p175 Civ lit book lists what to do when receiving opponents list of docs (parts 1,2,3)
- r31.19(3) a person who wishes to claim that he has a right or duty to withhold inspection of a doc or part of a doc must state in writing:
? that he has a right or duty and the grounds on which he claims that right or duty6. Privilege ( see below)
Legal professional privilege:
Legal advice privilege (Three Rivers v Governor and Company of the Bank of England)= 'a continuum of communication and meetings between solicitor and client...where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach' Tactical Considerations with regarding to documents and emails by client
? MUST be written by or to sol in his capacity as a sol can't make non privileged doc privileged by sending it to sol
? Any docs which will discuss action/background to it should be created at request of sol only and market on cover as do for ease of identification
? Advice given by sols on presentational matters and what should be done in relevant legal context is covered
? When legal advice privilege applies to communication, internal docs revealing the communication also covered
? If docs sent to people other than client then they lose privilege
? Covers in house lawyers unless company in question being investigated for breach of TFEU 101/102
? Doesn't cover compliance officer unless has formal qualifications
? Must restrict the creation of documents about the litigation to a small team who liaise directly with legal counsel because "the client" for the purposes of advice privilege includes only the specified team of individuals who liaise directly with the lawyers. It's important that those outside of the team do not create documents relating to the litigation as these won't attract privilege.
? Advise to ban communications about the litigation with other group companies as they main not qualify for advice privilege (esp. emails and social media)
? Avoid emails, memos or reports about the problem. Better to have them orally.
? Have lawyers interview people to attract privilege. Litigation privilege =
? MUST be made with a view to litigation AND either for sole/DOMINANT purpose or obtaining/giving advice in regard to it, or for obtaining evidence to be used in it
? Where doc comes into existence or has duel purpose there is problems. Litigation must be the more important purpose (difficult for docs that pre-date the CF)
? Co-C's and co-D's treated as TP's and can claim privilege
- Expert report is privileged until you hand it in to rely on in court
- Client and TP - dominant reason for obtaining doc was to enable sol to advise on claim or to conduct litigation
- Damage report communication with insurers (Guinness Peat Properties Ltd v Fitzroy Robinson Partnership)
- Where client isn't an individual - communication between individuals in the organisation as long as dominant purpose is litigation (e.g. Board minutes of D's) Common interest:
? Protect parties who have a common interest in a potential case or dispute even though not all parties to litigation. (often used for parties before they become co-D's)
? Dominant purpose must be to inform each other of facts, issue or advice received, or for dominant purpose of receiving legal advice
? Not necessary for them to both be represented by same lawyer
? Common interest privilege - ie with insurer - not subject to privilege unless the information was ALREADY privileged - may be shared with another party who has the same interest without waiving privilege
? any internal correspondence (including correspondence with insurers, reports prepared for insurers, board minutes, inter-company memoranda, reports on accidents at work, etc) will not be privileged even though it is highly confidential and potentially damaging. The client should not create any such documents once litigation is pending without first taking legal advice.
? n/b Art 8 ECHR docs between client and lawyer privileged if reason was to give/receive legal advice (same principle applies to legal professional litigation privilege Public interest immunity:
? Public interest in protecting doc from disclosure is more important than the public interest in admin of justice (litigant having access to all docs necessary for his case)
? Confidentiality is not a ground for privilege but may be a significant factor
? 2 stages to challenging a claim:
1. docs likely to be necessary to case (lend substantial support to a case)
2. court inspects docs and if persuaded docs necessary will order disclosure
? This is a problem as litigants don't know whether docs will help unless they see them "fishing expedition"
? Court may of its own motion raise this - parties should refer matter to court without notice to other party if unsure. Self-incrimination:
? Party can refuse to produce docs if real and reasonable risk of exposing himself or spouse to criminal proceedings in UK
? If party is already at risk he cannot claim the disclosure would not add to that risk Internal communications:
? Client is the specified team who liaise directly with lawyers, important those outside the team do not create docs to do with the litigation Communications between group co's:
? Other co grouped as a TP (depends on relationship as to whether privileged, best to completely ban communication about litigation with other group co's. WS (of fact and experts):
? Service under court order doesn't waive privilege in connected docs (no waiver unless statement deployed in court)
? BUT unwise to serve WS if W isn't going to be called: a) Can be used by opponent to aid disclosure (reveals existence of relevant non privileged docs) b) Can be used by opponent as material for cross-examining other W's c) Opponent may put WS in as hearsay evidence CR 32.5(5) Copy Docs:Various tests for privilege should be applied to each copy of a document as if it were a separate documentQuestion is whether a particular doc attracts privilege not whether the original doc didA pre-existing non privileged doc doesn't become privilege just by handing it to a sol for purposes of litigation - Ventouris v Mountain 1991Can only have a privileged copy of an unprivileged doc if it from docs held by a TP and to reveal a trend of legal advice pg 110 Duration and Waiver:
- Privilege belongs to client
- Sol should nto waive withotu prior consent of cleint
- Once privileged, always privileged until waiver then it is lost forever (even if during an interim hearing or separate proceedings) Practical advice to limit danger: o One person is co in charge of recieveing/communicating legal advice do not delegate o Limit number of people who receive litigation info o Communication should be oral (still be carefull - see below Bank of Nova Scotia) to reduce creation of disclosable docs
- Unless document can be viewed as two quite distinct parts (each of which is complete and has nothing to do with the other) then part disclosure will amount to disclosure of the whole of the
document even if the party didn't intent to
- Waiver of one doc may amount to waiver of all docs relating to same subject matter/transaction and
- Discussion of a privileged doc oral or written may amount to waiver - Bank of Nova Scotia v Hellenix Mutual War Risks Association 1992
- Party can challenge privilege as a false claim with app to court under r31.19(5), court may require respondent to produce doc to court so they can decide
Inadvertent disclosure: If you send it:
- If error spotted before inspection, write to the other side explaining the error and why doc is privileged, can then refuse to allow inspection of doc If you receive it: Usually a sol is under a duty to disclose to a client all info material to that clients matter 04.2, however, exception is set out in IB4.4 where it is obvious that privileged docs have been mistakenly disclosed to you - sol should not read the material and return it without saying anything to his client
- r31.20 - content of privileged docs accidentally sent may not be used without permission of court
- party that accidentally disclosed can ask for an injunction to restrain use of material in preparing the case and return the docs, court will grant this where material would not have been obvious to reasonable sol
- If it isn't obvious that it is a mistake and no obligation to ask if disclosure was intended, can read and make full sue of docs Dangers for sols:
- Failure by sol to immediately disclose a doc which he becomes aware of during course of case should have been disclosed but wasn't could be misleading court O5.1 and IB5.4
- If client refused to allow disclosure then sol should withdraw from the case IB 5.5
- Any info party obtains during disclosure is confidential can only use of it for purposes of current Practical advice about disclosure:
- Warn client at early opportunity (no later than commencement of proceedings) about disclosure obligations
- Tell client it's continuing process and therefore they shouldn't create new docs without prior consultation without sol Is it settlement communication without prejudice?
- Protect communicaitons auimed genuinely at settling the matter
- Letters/communication marked without prejudice (matter of substance not form) BUT probably satisfy - r31.16 if apply for disclosure before proceedings start and privilege waived by sending to other side So only benefit from litigation privilege before sent to other side AND in multi-party litigation because waiver will not apply to parties who havent seen correspondance
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