#3199 - Disclosure & Inspection - Civil Litigation

Disclosure

CPR 31

PD 31

CPR 31.2: A party discloses a document by stating that the document exists or has existed.

1. Disclosure:

Meaning of documents – CPR 31.4

• “Documents” means anything in which information of any description is recorded”

• This is a very wide definition – includes any electronic storage – texts, emails etc.

Duty to disclose is limited to documents under the party’s control – CPR 31.8

• Physical possession

• Right of possession

• Right to inspect or take copies of (e.g. medical records)

Standard Disclosure – CPR 31.6 – where there is an obligation to disclose

1. Documents on which he relies

2. Documents which

   1. Adversely affect his own case

   2. Adversely affect other party’s case; or

   3. Support another party’s case

i.e. therefore disclose documents that may support either side’s case.

Duty to make a reasonable search for documents – CPR 31.7

• What is reasonable depends on factors CPR 31.7(2)(a) – (d) –

[the number, the nature, the complexity, the ease and expense, the significance of the documents]

• The purpose for this is ‘Proportionality’ – from a cost point of view

• PD 31, Para2: parties must bear in mind overriding principal of proportionality. It may be reasonable to decide to limit the search to:

1. Documents coming into existence after a particular date

2. Documents in a particular place

3. Documents falling into a particular category.

Solicitor explaining the disclosure process – CPR PD 31, Para 44:

• It is a continuing obligation – CPR 31.11

• Any docs received from his opponent are to be used for litigation only

• The client should preserve all documents

• The client should not mark docs or create new ones

The Disclosure Statement

The client signs this! It is a statement made to the disclosing party:

1. Setting out the extent of the search

2. Certifying that he understands his duty to disclose

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

Privilege

The existence of a privileged document must be disclosed but it does not have to be offered for inspection.

Legal Professional privilege – 2 types

• Mistaken disclosure: solicitor should stop reading it and return it. Do not show it to client. (chapter 4 SRA Code of Conduct)

Scrutinising your opponent’s list of documents

1. Check Part 1,2,3 –

2. If documents are missing: write to opponent. If no reply – ...