#16069 - Disclosure Inspection And Privilege - BPC Civil Litigation

Disclosure and inspection of documents, CPR Part 31 [and PD31A, paras 1-2, 2A, 3-8]

Summary overview

• NB, PD28, 3.12: typical fast-track timetable from date of notice of allocation. Disclosure normally 4 weeks after notice of allocation.

• ‘cards on the table’ approach in civil litigation. All evidence is out there before trial.

• NOTE THE DISTINOCTION BETWEEN DISCLOSURE AND INSPECTION

  • Disclosure itself is simply stating that the document exists (or has existed).

  • CF Inspection = the right to see the document.

• Disclosure

  • 31.1, doesn’t apply to small claims.

  • Standard disclosure applies to all fast track claims, and PI Multi track claims

For fast-track and PI multi-track claims Disclosure (cf inspection) A party has a continuing duty (r31.11) to give:

• Standard disclosure

  • Unless the court or parties decide otherwise (31.5)

• Of All documents = (31.4) anything in which information of any description is recorded (including electronic docs)

• Which are or have been in the control of a party (31.8), i..e (a) physical possession or (b) right to possession or (c) right to inspect or take copies.

• And must make a ‘reasonable search’ (31.7) for such docs.

Right of inspection (31.3)

• Except where:

  • (a) doc no longer in the control

  • (b) right or duty to withhold inspection

  • (c) considers disproportionate

Privilege ( i.e. exception to inspection (b), ‘right’ to withhold inspection)

• Legal professional privilege

  • (1) Legal advice privilege (31.3.6)

    • (1) A document between solicitor & client.

    • (2) Must be confidential (i.e. not in public domain)

    • (3) for purpose of giving legal advice (need not give for actual or contemplated litigation)

  • (2) Litigation privilege

    • (1) a document between a legal adviser/client and third party

    • (2) must be confidential

    • (3) for purpose of actual or contemplated litigation

      • what was the ‘dominant purpose’ of the doc at the time of writing. Dominant purpose must be the furtherance of actual or contemplated litigation.

    • EG, covers: expert reports; witness statements.

  • Waiver—can only be waived by the client, not the legal adviser

• Without prejudice documentation

  • Doc between the parties

  • A communication, oral or written, between the parties, the substance of which is a genuine attempt to settle the case.

  • Joint privilege can only be jointly waived.

• Public Interest immunity, duty to withhold, r31.19

Multi-track (non PI) claims menu option disclosure

SPECIFIC APPLICATIONS FOR DISCLOSURE YOU NEED TO KNOW:

• (1) specific disclosure inspection (31.12)

• (2) pre-action disclosure (31.16)

• (3) Disclosure against non-party (31.17)

• (4) Norwich Pharmacal (31.18)

FULL NOTES

When disclosure takes place

• Main obligation to disclose in fast track and multi track cases arise as a result of directions made at the allocation stage, or at the first CMC. Generally such directions will state whether lists of docs should be provided, whether a disclosure statement is required; and will give a calendar date for compliance.

31.1, Scope of this part

• Rules re disclosure and inspection of docs.

• This Part applies to all claims EXCEPT in SMALL CLAIMS track.

31.2, Meaning of disclosure

• A party ‘discloses’ a doc by stating that the document exists or has existed.

31.3, Right of Inspection of a disclosed document [[except where (1) no longer in control; (2) claims right/duty to withhold inspection (privilege or public immunity); (3) disclosing party considers it disproportionate]]

• (1) a party to whom a doc has been disclosed has a right to inspect that doc, EXCEPT WHERE (I.E. where you don’t need to allow inspection of a doc, although this doesn’t mean that you don’t have to disclose it):

• (a) the doc is no longer in the control of the party who disclosed it

  • ( 31.8 re when a doc is ‘in control’ of a party)

• (b) the party disclosing the doc has a right or a duty to withhold inspection of it

  • ( 31.19, procedure for claiming a right or duty to withhold inspection)

  • ‘right to withhold’ legal professional privilege or without prejudice privilege, see below.

  • ‘duty to withhold’ public interest immunity (see 31.19)

• (c) where (2) applies, i.e. where a party considers it would be disproportionate to the issues in the case to permit inspection of docs within a category or class of docs disclosed under r31.6(b) [standard disclosure]:

  • (a) he is not required to permit inspection of docs within that category or class; BUT

  • (b) he must state in his disclosure statement that inspection of those would will not be permitted on the grounds that it would be disproportionate.

  • [[NB, re a doc claimed to be disproportionate, this could be challenged by an application for specific inspection (31.12)]]

• (d) r78.26 applies [cross-border disputes]

• (see 31.6 re standard disclosure; 31.10 re provision of a disclosure statement;

31.4, Meaning of document

• “Document” = anything in which information of any description is recorded

• “Copy” (re a document) = anything onto which information recorded in the doc has been copied, by whatever means, whether directly or indirectly.

PD31A, para 2A Electronic docs/disclosure

• r31.4 broad definition of document extends to electronic docs, including:

  • email and other electronic communications

  • word processed docs

  • databases.

• As well as docs readily accessible from computer systems and other electronic devices and media, the definition covers docs stored on servers and back-up systems and electronic docs that have been ‘deleted’.

• And also extends to metadata (additional info stored and associated with electronic docs).

• PD31B re provisions of electronic doc disclosure likely to be allocated to multi-track.

31.5, Disclosure

• (1) in all claims to which (2) [multi-track claims not including PI claim] does not apply the normal disclosure order is for ‘standard disclosure’

  • (a) an order to give ‘disclosure’ means to give standard disclosure, unless court directs otherwise;

  • (b) the court may dispense with or limit standard disclosure; and

  • (c) the parties may agree in writing to dispense with or to limit standard disclosure any such written agreement should be lodged with the court.

• (2) unless court directs otherwise, paras (3) to (8) apply to all multi-track claims, except those including a PI claim

So for all fast track claims and multi-track PI claims, 31.5(1) applies standard disclosure unless dispensed with/limited by court or parties

Menu option disclosure, for non-PI multi track claims

For non-PI multi-track claims, the following disclosure procedure applies instead (‘menu option’ disclosure):

• (3) Stage 1, disclosure report: not less than 14 DAYS before the first CMC -> each party must file and serve a report, verified by statement of truth, which:

  • (a) describes briefly what docs exist or may exist that are or may be relevant to the matters in issue in the case;

  • (b) describes where and with whom those docs are or may be located;

  • (c) in the case of electronic docs, describes how those docs are stored;

  • (d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored docs; and

  • (e) states which directions under (7) or (8) are sought [i.e. what they want from the ‘menu’ below].

• (4) in cases where the Electronic Documents Questionnaire has been exchanged it should be filed with the report in (3).

• (5) Stage 2, Agreeing proposal for disclosure: not less than 7 DAYS before the first CMC, and on any other occasion as court may direct, the parties must (at a meeting or by telephone) discuss and seek to agree a proposal in relation to disclosure, that meets the OO. Any agreed proposal should be filed at court.

• (6) IF: (a) the parties agree proposals for the scope of disclosure; and

  • (b) the court considers that the proposals are appropriate in all the circumstances,

  • the court may approve them without a hearing, and give directions in the terms proposed.

• (7) Stage 3, CMC menu disclosure

• at the first or any subsequent CMC, court will decide (regarding the OO and need to limit to disclosure to that which is necessary to deal with case justly), which of the following orders to make re disclosure:

  • (a) an order dispensing with disclosure;

  • (b) an order that a party disclose the docs on which it relies; and at same time request any specific disclosure it requires from any other party

  • (c) any order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;

  • (d) an order that each party disclose any docs which it is reasonable to suppose may contain info which enables that party to advance its own case, or to damage that of any other party, or which leads to enquiry which has either of those consequences (i.e. can include ‘train of inquiry’ docs);

  • (e) an order that a party give standard disclosure;

  • (f) any other order re disclosure considered appropriate.

• (8) Disclosure directions: the court may at any point give directions as to how disclosure is to be given, and in particular:

  • (a) what searches are to be undertaken, of where, for what, what time periods, and by whom, and extent of any search for electronically stored docs;

  • (b) whether lists of docs are required;

  • (c) how and when disclosure statement is to be given;

  • (d) in what format the docs are to be disclosed (and whether any ID is required)

  • (e) what is required re docs that once existed but no longer exist; and

  • (f) whether disclosure shall take place in stages.

• (9) to the extent that the docs to be disclosed are electronic PD 31B will apply in addition to above.

Standard disclosure...