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#10159 - Disclosure - Civil Litigation

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(Civil Lit Chap. 11 p. 163)

Standard Disclosure

p. 164

(SD is to Prepare&serve on other party a list of docs which are relevant to the case (Form N265)regardingdisputed/not admittedissues which whether support or affect his case. On receipt of the list, a party can view (inspect) some of the docs.)

(“Rule 31.6 Document”) UnderCPR r.31.6: a party must disclose on Form N265only:

  1. Documents on which he relies (e.g. all statements of case); and

  2. The documents which:

    1. Adversely affect his own case;

    2. Adversely affect another party’s case; or

    3. Support another party’s case; and

  3. The documents which he is required to disclose by a relevant Practice Direction

  • r31.2definesdiscl as “a party discloses a Doc by stating that the Doc exists or has existed”.

  • r.31.4defines“Document” is anything in/on which information of any kind is recorded

  • r.31.11 Disclosure is aContinuing obligation: up until the proceedings are concluded

You disclose all Docs, but that does not mean that all Docs can be Inspected (Privilege)

Limitation of Disclosure

p. 167

CPR r.31.8: disclosure is limited to the documents:

  • That are or were in his physical possession; or

  • He has or has had a right to possession of it; or

  • He has or has had a right to inspect or take copies of it

CPR r.31.9: a party need not disclose more than one copy of a document unless the copy:

  • contains a modification, obliteration or other marking on which it intends to rely or

  • supports the other party’s case, adversely affects his own or another’s case. (applies to handwritten notes on the margins of a document)

The Duty to Search

p. 168

(When doing reasonable Doc search ask:

Who r the key people involved with the disputed issues?

wherer the documents involved with the disputed issues (pc’s, cd’s, files)?

When did the events happen narrow down & identify the period?

What documents are relevant? narrow down your search.

CPR r.31.7: a party must make a reasonable andproportionatesearch for all the documents that could fall within the definition (i.e. could adversely affect his own or another party’s case):

  • T&F NoteIf a party has limited his search to specific dates, places categories or keywords (as permitted by PD 31 para 2), this must be stated in the disclosure statement

  • Factors to consider for “reasonable” and “proportionate”:

    • Nature of the documents involved

    • Location of the documents and ease and expense of retrieving them

    • Nature and complexity of the proceedings

    • How significant the documents are.

Disclosure of Electronic Documents (PD31B)(E-documents: voicemail, flash-drives, servers, data, etc)

PD31B para 6: factors to consider when searching for electronic documents:

  1. they should be managed efficiently in order to minimise the cost;

  2. technology should be used in order to ensure efficiency;

  3. disclosure should be given in a manner which effects the overriding objective;

  4. made available for inspection in a form which allows the party receiving the docs the same ability to access, search, review & display the docs as the party giving disclosure; &

  5. disclosure which has no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given.

Disclosure Statement

p. 170

Specimen of N265p. 414

CPR r.31.10(5): the disclosing party must make a signed statementon Form N265that:

  1. sets out the extent of the search to locate the documents

  2. certifying that he understands the duty to disclose documents

  3. certifying that he has, to the best of his knowledge, carried out that duty

If a false statement is provided under Form N265= contempt of court

T&F NoteSignatures on page 170of Civil Lit

The Right of Inspection

p. 169

CPR r.31.3(1): party disclosed to has a right to inspect the disclosed documents except:

  1. the document is no longer in the control of the disclosing party;

  2. the disclosing party has a right to withhold inspection; or

  3. disproportionate to the issues in the case to permit inspection (r.31.3(2))

Noticeto inspect (r.31.15)

  • Party wanting to inspect must give written notice to the other side

  • Disclosing party must permit inspection within 7 days of receipt of notice

Failure to Disclose

p. 176

Defective/ unsatisfactory disclosure?

  • If opponent gave defective disclosure, ask them to correct the problem,

  • No corrections = apply to court for Specific Disclosure CPR 31.12(1)/ CPR 31.19(5)

  • Failed to disclose?:

CPR r.31.21: where a party fails to disclose or allow inspection of a document:

  • He may not rely on that document in court without prior court permission

  • His case may be struck out (if the document is adverse to his case)

  • Failure to disclose properly may carry financial penalty (Earles v Barclays Bank [2009])
Example “Part 31.6 document as it records information the client intends to rely on/adverse to his case/supports the opponent’s case by…” “not a 31.6 document as it doesn’t record info client intends to rely on/adverse to his case/support another. Not material to…”

Civil Lit p. 175,Specimen of N265on p. 414 and Template on p 357

Scrutinising

  1. Check disclosure statement and see if limitations are reasonable& within whatever was agreed.

  2. Check Parts 1,2 and 3 (Do you need to see the originals? e.g. you notice stapler marks = doc was attached

  3. See separate green tab on ‘scrutinise’

  4. Misuse of Documents = Contempt of Court = Prosecution
Part Contents How to Fill in Check

Part 1 Doc

p. 175

List of documents which are open to inspection and not privileged.

Photocopies v Originals?

PD31A para 3.2:

  • List documents in date order

  • Number them

  • Give a concise description

  • E.g. “email from D to C dated 4 October 2000”

  • E.g. “bundle of plans, estimates, receipts for the project, dated in 2011”

Is there something that you would expect to see, but it’s not there?

  • Omitted/missing docs? Why?

  • Unexpected docs? Why?

Part 2 Doc

p. 176

See Privilege Template

List of privileged documents that are not open to inspection

(See Privilege Template)

  • List documents in date order (NO name of creator/recipient & date )

  • State why you object to Doc being inspectede.g.

  • Legal Professional Privilege Documents:

  1. Advice privilege Documents

Sol & C advise documents. (this is based on Human Right of Privacy Art. 8 ECHR)

  1. Litigation privilege Documents

Documents created when litigation was contemplated or on-going which were created for the sole purpose of litigation:

e.g.Expert’s report obtained by the C’s solicitors, when this litigation was reasonably contemplated, for the sole purpose of giving legal advice about this litigation.

 Is this accurate? Have the privileges been properly claimed, or should you challenge it under r.31.19?

Par 3 Doc

p. 176

 State Docs which the party no longer has in his control, (ii) state when it was last in the party's control and (iii) where it is now?

  • List documents in date order

  • Say when it was last in your control and where it is now

  • E.g. original letters sent, copies of which make up Part 1

 Do we need to trace any of these docs and get a copy from a party non involved in the litigation (apply for “non-party disclosure” at r.31.17)p. 178
DiscDutiesp. 178

  • T&F NoteCertify that Sol understands dutiesof disclosure&informed client of them

  • T&F NoteAdvise client about client’s disclosure obligations from the very outset of the case i.e. the first interview

  1. Firstly, write to your opponent asking for the missing documents, explaining that you believe their search to have been too restrictive or the results lacking, why you think that certain documents are disclosable and request them to comply with the CPR and the overriding objectiveCPR part 1.

  2. Then, if no response is received, submit Form N244and a witness statement(PD5.2) to court stating what documents you are looking for and why they should be disclosed and why you believe they exist (r.31.12)

  3. The court may:

    1. Make an order for specific disclosure to the party at fault to either disclose the documents

    2. Make an order for specific inspection if the documents are in the party’s control

Continue Reading?

  • Principle 4: act in client’s best interests (so, read it all)

  • O4.2: then disclose the contents of the documents to my client

  • BUT, Principles 1 & 2: as a solicitor, you are required to uphold justice and act with integrity

  • If it is clear that the document has been sent by mistake, you must not continue reading

  • IB4.4: duty to disclose is subject to exception of when it is obvious it’s been mistakenly disclosed

  • Therefore, do not take client’s instructions – you must follow Conduct and return it immediately

Use the Information?

  • r.31.10: the contents of privileged documents accidentally sent may not be used by the receiving party without the permission of the...

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