#10360 - Disclosure - BPC Civil Litigation

DISCLOSURE

The process

1. disclosure - parties send each other list of documents

2. inspection - other side can request copies of documents in list (other side usually provide photocopies)

Definitions

• disclosure = stating that the document exists / had existed (r31.2)

• document = anything in which info of any description is recorded, including e-documents (PD 31 para 2A.1); copy = by whatever means, directly or indirectly (r31.4)

  • e-document

    • = email, databases, documents stored on servers and back-up systems (even if deleted), metadata (PD 31 para 2A.1)

    • parties must discuss use of tech to manage e-doc disclosure (PD 31B para 8)

    • parties encouraged to seek directions for e-doc disclosure at first CMC (PD 31B para 9)

    • e-docs Q:

      • parties may exchange to provide info about scope, format etc. of e-doc disclosure

      • must be verified by statement of truth

DUTIES OF DISCLOSURE

Lawyers' duties

• as soon as litigation contemplated, parties' legal reps must inform clients of need to preserve disclosable documents, including e-docs which might otherwise be deleted under client's data retention policy (PD 31 para 7)

• must withdraw if client refuses to accept this advice (Code of Coduct para 608(d))

Clients' duties

• general duty of disclosure

  • continues until proceedings are concluded if documents covered by duty come to party's notice at any time during proceedings must

    • immediately notify every other party (r31.11(1), (2)); and

    • prepare + serve supplemental list of documents (PD 31 para 3.3)

• duty to search (see below)

• sign disclosure statement (see below)

WHEN DOES DISCLOSURE TAKE PLACE?

• court gives directions at first CMC OR allocation stage

DISCLOSURE

SCOPE OF DISCLOSURE

Standard disclosure

• applies to: small claims, fast-track, multi-track PI, other multi track ONLY if court directs (31.5(1))

• order for disclosure = order for standard disclosure (unless court directs otherwise)

The menu option

• applies to multi track claims, other than those including PI (unless court orders otherwise) (r31.5(2))

STANDARD DISCLOSURE

Documents to be disclosed

• party only required disclose documents which (r31.6):

1. he relies on in support of his affirmative case (Shah v HSBC, r31.6(a))

2. adversely affect his / another party's affirmative case OR support another party's affirmative case (r31.6(b)); and

3. he is required to disclose by a PD (r31.6(c))

4. PI claims: medical records back to birth (OCS v Wells)

5. professional negligence claims against solicitors: entirety of solicitor's original file (Martin v Triggs Turner Barton)

   • whether document falls within (a) - (c) judged by reference SoCs ONLY (Paddick v Ass News)

   • NOT a fishing expedition

   • NOT the same as relevance: does NOT cover documents only relevant to credibility

   • must be relevant to issues in case (Atos v Avis)

Documents in party's control (r31.8)

• duty to disclose = limited to documents in party's control

• party has control if (r31.8(2))

1. is / was in his physical possession; or

2. has / has had right to possession of it e.g. in possession of agent, medical records

-----OR------

3. has / has had right to inspect / take copies of it

Duty to make reasonable search (r31.7)

• party must make a reasonable search for documents within meaning of standard disclosure (r31.7)

• factors relevant to reasonableness

1. number of documents

2. nature + complexity of proceedings

3. ease + expense of retrieval

4. significance of documents

5. proportionality e.g. limit by date, place, category (r1.1(2)(c), PD 31 para 2)

   • unreasonable to search for document

     • if do not search on ground unreasonable, must state in disclosure statement + ID category / class of document (r31.7(3))

     • can challenge refusal to search by applying to court (Nichia Co v Argos)

Procedure (31.10)

1. party must make a reasonable search for documents in r31.6 (see above)

2. limiting standard disclosure

   1. parties may agree in writing, lodged with court to OR court may dispense with / limit standard disclosure (r31.5(c), r31.10(8), PD 31 para 1.4)

      1. specifically, parties can agree in writing to disclose documents WITHOUT making a list OR WITHOUT disclosing party making a disclosure statement

      2. includes disclosure / inspection / both in stages (r31.13)

3. list of documents in party's control (31.10)

1. each party must make + serve on every other party (r31.10(2))

2. list must

1. ID documents concisely in convenient order + manner (r31.10(3))

   1. date order

   2. consecutively numbered

   3. concise description

   4. if large number, list category, not individual document (PD 31 para 3.2)

2. indicate:

   1. section 1: (non-mandatory if any) documents disclosing party does NOT object to being inspected

   2. section 2: documents party claims a right / duty to withhold inspection (including privileged documents) (r31.10(4)(a)); and

   3. section 3: documents no longer in party's control + what has happened to them ((r31.10(4)(b))

3. include a disclosure statement (see (4)) by disclosing party (((r31.10(5)) / non-party if permitted by a PD (r31.10(9))

4. disclosure statement

   • = statement made by by disclosing party (((r31.10(5)) / non-party if permitted by a PD (r31.10(9)):

1. setting out extent of search made to locate documents required to disclose (r31.10(6)(a)):

   1. must state believe extent reasonable in all the circumstances (PD 31 para 4.2(1)) +

   2. draw attention to any limitations on extent for proportionality reasons + why adopted (PD 31 para 4.2(2))

+

2. certifying (i.e. signing) understands duty of disclosure + that, to best of his knowledge, he has carried it out (r31.10(6)(b), (c)):

   1. if legally represented, legal rep must endeavour to ensure duty understood (PD 31 para 4.4)

+

3. if disclosing party = company, firm or association (including insurer / MIB) ID statement-maker (name, address, office / position, basis on which makes statement (PD 31 para 4.3)) + explain why appropriate person to make statement (r31.10(7))

4. if insurer / MIB has financial interest in result of proceedings: either may sign on behalf of party (PD 31 para 4.7)

   • must (if applicable):

1. state if not searched for document because unreasonable + ID category / class of document (r31.7(3))

2. if party wishes to claim has right / duty to withhold document: state in writing that: he has a right / duty to withhold inspection + grounds (r31.19(3), PD 31 para 4.5)

   • proceedings for contempt of court may be brought for false disclosure statements made without honest belief in their truth (r31.23)

THE MENU OPTION

1. disclosure report

   1. not less than 14 days before first CMC, each party must file + serve disclosure report which (r31.5(3))

1. describes briefly what documents exist / may exist that are / may be relevant to matters in issue

2. describes where + with whom documents are / may be located

3. e-documents ONLY:

   1. how stored

   2. if e-documents Q exchanged, file with report (r31.5(4))

4. estimates broad range of costs for standard disclosure

5. states which orders / directions are to be sought in r31.5(7) / (8) (below)

6. is verified by a statement of truth

2. agreeing proposal for disclosure

   1. not less than 7 days before first CMC + on any other occasion court may direct, parties must (at meeting / by phone) discuss + seek to agree proposal for scope of disclosure that meets OO (r31.5(5))

   2. if parties agree proposals + court considers appropriate, court may approve without a hearing + give directions in line with proposal (r31.5(6))

3. CMC menu disclosure

   1. at first / any subsequent CMC, court will decide which of following orders to make (having regard to OO and need to limit disclosure to that required to deal with case justly) (r31.5(7)):

1. order dispensing with disclosure

2. order that party disclose documents on relies on + simultaneously request any specific disclosure required

3. order directing, where practicable, disclosure on issue-by-issue basis

4. train of enquiry documents: NOT relevant themselves BUT which could lead to train of inquiry producing relevant documents (rare as usually expensive thus disproportionate)

5. order that a party give standard disclosure

6. any other order court considers appropriate

   1. e.g. key of the warehouse order: party must hand over all documents (except privileged) + other side can choose which to use in litigation

4. disclosure directions

   1. court may give following directions in particular at any point

1. searches: where, for what, time periods, by whom, extent of search for e-documents

2. whether lists of documents required

3. how and when disclosure statement is to be given

4. what is required re: documents which no longer exist

5. whether disclosure will take place in stages

INSPECTION

THE RIGHT OF INSPECTION

Of disclosed document (31.3)

• general rule: party to whom document disclosed has right to inspect personally or by making copies

• exceptions:

1. document NO LONGER in control of disclosing party (r31.3(1)(a))

2. disclosing party has right / duty to withhold inspection (see below)

3. party considers would be disproportionate to issues in case to permit inspection AND states that disclosure NOT permitted on this ground in his disclosure statement

Of documents mentioned in SoCs etc. (r31.14)

• party may inspect document mentioned (directly alluded to) in:

1. SoC

2. witness statement

3. witness summary

4. affidavit

   • party may apply for order for inspection of document mentioned in expert's report (r31.14(2))

     • BUT if document part of expert's instructions, order only made if reasonable grounds for believing expert report is NOT a ...