#14950 - Disclosure Exceptions - Principles of Civil Procedure

Disclosure

Tutorials – Marly v Rawlings [2014] UKSC 51 – case note – 3000-5000 – by end of December – for CJQ

Rationale & History

• Need for Court to apply law to true facts

  • Imposes costs on parties required to disclose

• Historically – cost of proof rested entirely on plaintiff – procedural & substantive law fused in forms of action – required to know all material facts when pleading

  • Hand-in-hand with juror’s duty to self-inform

• Tension – rectitude v proportionate cost – maximum access to evidence without imposing disproportionate cost

• In 20^th century – focus on justice on merits – broad disclosure rules requiring any person to disclose

  • Journalists re sources

  • Police

  • Banks re details of clients: Shapira

  • Public agencies: Norwhich Pharmical

  • Disclosure of commercially sensitive documents: Dyson v Hoover (patent case – one party sought to limit disclosure based on commercial sensitivity not a relevant consideration – if relevant to court’s conclusion should be disclosed)

• Now

  • General rule – if relevant disclose

• Rationale

  • promotes accuracy, public confidence in judiciary, rule of law

  • Promotes procedural fairness – all parties should have access to the same material

    • Recognised by ECtHR – adversarial proceedings (in the sense that every party should have opportunity to see material & respond): Ruiz-Mateos v Spain (1993) 16 EHRR 505

    • Equality of arms issues: Dombo Beheer BV v Netherlands (1994) 18 EHRR 213 (Dutch rule that parties themselves could not testify – one party a company so could call employee – other party an individual so at a disadvantage – equality of arms)

    • Reasonable limits on disclosure for legitimate interest – eg in closed material proceedings

  • Reduces information asymmetry – puts party on equal footing

    • Many parties may lack resources to obtain certain documents

    • Financial resources should not factor in ability to put case

  • Efficiency of litigation

    • Posner – law & economics perspective – allows both parties to make accurate estimates of outcomes – encourages settlement – said to increase chance of settlement by 15-20%

      • Even though disclosure expensive, can reduce overall cost of litigation

    • Woolf reforms – preaction disclosure & preaction protocols – plainly directed to this aim

• Limits to disclosure

  • Accuracy depends on synthesis & analysis of information, not just availability of information

  • Costs – Jackson review identified disclosure of major source of cost – undermines access to justice

    • Deterred by own cost, possibility of paying other side’s costs

    • But if (as in US) disclosure costs couldn’t be recovered would create other perverse incentives – cheaper to request than to disclose – gives advantage to small players and causes companies to settle even unmeritorious cases

Civil law jurisdictions

• Advantage that not the same kind of costs imposed on the parties

• Based on Roman Law

  • Obligation to disclose documents on which party intends to rely

  • No general obligation to produce documents that are adverse to own case

  • Power to order disclosure of adverse documents where existence can be established

    • Ie no need to disclose unhelpful documents of which other party not aware

• Sanctions less severe – eg adverse inferences drawn in case of non-disclosure

• Rationale

  • Even though inquisitorial – still mostly reliant on parties bringing to attention relevant evidence to dispute

  • Link between disclosure & burden of proof

    • Cf Common law – doesn’t link amount of evidence required for burden of proof to sources of evidence

  • Limits on speculative cases – cf common law systems, which encourage an element of speculation on the basis that no-one should be expected to have all the information before issuing a claim

  • Freedom from self-incrimination

    • Not (at least in the first instance) required to disclose adverse documents

• Has consequence of clinical asymmetry

  • In certain circs where most information likely to be in possession of D, reverse onus of proof

    • Eg medical negligence cases

  • Objections

    • reversal of onus – but fact is that in practical terms, where C discloses evidence, D has to respond or will lose

    • Still allows D to cherry-pick, discharge onus by favourable documents only

Critiques of common law jurisdictions

• Promotes fishing expedition – undoubtedly so, but can be productive – also claimants have a level of

• Difficult to police obligations – especially obligation to disclose adverse documents

  • Duties on solicitor as officer of the court – no incentive for solicitor not to comply with professional obligations

    • Has professional consequences to solicitor / substantive consequences to client

Law: CPR 31 & inherent powers of court

• Old broad test: Peruvian Guano – documents that may contain information that would directly or indirectly enable the party seeking discovery to advance his case or damage the other’s case, including documents that may lead to train of inquiry leading to either of those two outcomes

• CPR 31 – documents that really make a difference –

  • On which propose to rely

  • Adversely affect case

  • Adversely affect or support another party’s case

  • Required by a practice direction

• CPR 31 applies on fast-track and can apply on mult-track cases

• Duty to search

  • Reasonable search for documents in possession or control

  • ‘reasonable’ –

    • number of docs involved, nature & complexity of proceedings, ease & expense of retrieval, significance of likely documents

  • ‘control’ –

    • broad, includes de facto power to obtain (eg companies in same corporate group – Shell Petroleum (1980) QB 358 (where compliance with other’s command is assured)

      • applies to corporate groups; sole director companies

    • Query whether extends to document that you have a legal right to apply to obtain (eg medical records, FOI)

• 31.8 – lost & destroyed documents

  • Duty extends to documents that are or have been in possession

  • Attempts to evade – destruction of documents can be

    • Contempt & professional misconduct – Rockwell Machine v EP Barrus (1968)

    • Crime - attempt to pervert course of justice

    • Procedural consequences – strike out of pleadings: CPR 3.4

  • Court powers to remedy destruction problem

    • Adverse inferences, professional prohibition on giving advice as to destruction (NSW), strike out of pleadings, reverse burden of proof

• Process

  • Disclosure by list, indicating docs over which claimed privilege and docs no longer in possession (& why)

  • Specific disclosure can be ordered (usually the only disclosure in JR proceedings)

  • Inspection can be resisted on basis that disproportionate

Evaluation of system

• Shift from quantity to quality – but hasn’t had efficiency benefits ancitipated

  • To determine quality, still have to analyse all documents

  • Requires more principled critical examination of documents – difficult to tell whether docs will hurt/advance any party’s case at early stage

• Some firms still advising clients to give old-style plenary disclosure

• Other options

  • Categories of disclosure

  • Open door disclosure – keys to the warehouse system – other party given access to archives

    • Reserve right to claim privilege, require undertakings – lawyers do the searches not the clients

    • Give list of documents taken from archives

  • In multi-track claims – Bespoke disclosure (menu-based)

    • Multi-track under CPR

    • Court has broad powers to order appropriate form of disclosure – specific / restricted to certain issues / Peruvian Guano / standard disclosure / or any other considers appropriate

• E-disclosure – PD 31B

  • Word searches to be agreed by parties

  • Disclosure of metadata

  • Still various caveats that don’t trust technology

Pre-action disclosure: CPR 31.16

• Clearly a fishing expedition – where parties are likely to be a party to subsequent proceedings – and where desirable in order to save cost or assist resolution

• Black v Sumitomo (copper producers engaged in price-fixing scheme – trader engaged in speculating (betting on share price going down) – trader claimed that producers didn’t divest share of market as quickly as they should have – alleging market manipulation)

Non-party disclosure

• Disclosure: CPR 31.17

  • Re Howglen: court must be satisfied that

    • There are documents falling within the specified classes; and

    • The documents would (not might) support C’s case or adversely affect another party’s case

  • BUT don’t know what they are yet...