#16828 - Disclosure & Privilege

DISCLOSURE

Duty of Standard Disclosure
CPR 31.6	A party must disclose: the documents on which he relies; and the documents which adversely affect his own case adversely affect another party’s case: or support another party’s case the documents which he is required to disclose by a relevant Practice Direction
CPR 31.8	The duty of disclosure is limited to documents which are or have been in a party’s control. This means: the document is or was in his physical possession; or he has or has had the right to possession of it; or he has or has had a right to inspect or take copies of it
PD 31A 3.1	Each party must make and serve upon every other party a list of documents in the relevant practice form N265. In order to make the process efficient the rule provides that the list must: satisfactorily identify the documents in a convenient order and manner and as concisely as possible; and indicate which documents are no longer in the party’s control and what has happened to them.
CPR 31.7 PD 31A 2	A party must make a reasonable search for documents which fall within the definition of those he should disclose. What is reasonable depends on: the number of documents involved; the nature and complexity of the proceedings; the ease and expense of retrieval of any particular document; and the significance of the document. If a party considers it unreasonable for him to search for certain documents, e.g. because it would be too expensive given the limited significance of the documents, then he must say so in his disclosure statement.
CPR 31.11	Disclosure is a continuing obligation until the proceedings are concluded. Even after lists have been exchanged, the solicitor must tell the other party if any further relevant documents have come into his control.
PD 31A 4	The disclosure statement states the extent of the search that has been made to locate documents and certifies that the party understands the duty of disclosure and that to the best of the party’s knowledge he has carried out that duty.
CPR 31.10 (6)&(7)	A party, if an individual, or its proper representative for a company should make the disclosure statement. If a party is legally represented, his solicitor must ensure that the person making the disclosure statement understands the duty of disclosure.
CPR 31.3	Parties have the right to inspection of a disclosed document except where: the document is no longer in the control of the party who disclosed it; or the party disclosing the document has a right or duty to withhold inspection of it (e.g. privilege); or a party considers it would be disproportionate to the issues in the case to permit inspection of documents within a category and states so in his disclosure statement. A party who wants to inspect must serve a written notice and the receiving party must allow inspection within 7 days of receiving the notice. Copies of documents are often obtained instead of inspection taking place.
CPR 31.12	If a party is dissatisfied with the disclosure provided by the other party and believes it is inadequate, he can apply for an order for specific disclosure. The applicant must specify which documents he wants to see and why he thinks they fall within the ambit of what should be properly disclosed. A request should be made to the other party before any application is made. A court order can require a party to disclose documents within his possession or make a search for documents.
Dispensing with Disclosure
CPR 31.5(1)(c)		Parties may agree to dispense with or limit formal disclosure by list for the fast track (e.g. where it is agreed that all relevant documents have been voluntarily disclosed in the protocol stage)
PD 31A 1.4		But they should inform the court, which will consider, under its case management powers, whether it is appropriate.
CPR 31.5(1)(b)		The court may dispense with or limit standard disclosure on the fast track.
CPR 31.5(7)(a)		The court may dispense with or limit standard disclosure on the fast track.
Notice to Admit Facts
CPR 32.18		A party who wishes his opponent to admit a fact may serve a notice to admit facts at any time up to 21 days before trial. This notice may be served where it would be time consuming and expensive to prove a certain fact or where it would otherwise be necessary to call a witness to trial to prove a fact.
Notice to Admit or Produce Documents In a case where it is alleged that the opposing party’s documents are not authentic:
CPR 32.19		Serve a notice to prove the document by the latest date for serving witness statements or within 7 days of disclosure of the document, whichever is later.
Sanction
CPR 31.21		A party who fails to disclose a document or fails to allow inspection of a document may not rely on the document unless the court permits.
Orders for Disclosure Against a Non-Party
CPR 31.17		A party can apply for disclosure against a non-party to the proceedings. The court may only order non-party disclosure if: the documents in question are likely to support the applicant’s case or adversely affect the case of another party; and disclosure is necessary to dispose fairly of the case or to save costs. The order must: specify the documents or classes of documents to be disclosed; and require the respondent to specify which documents are no longer in his control and which are privileged.
Subsequent Use of Disclosed Documents
CPR 31.22		Where a document has been disclosed to a party, he may only use that document for the purposes of the case in which it has been disclosed unless: the document has been read or referred to during a public hearing or the court grants permission; or the party who disclosed the document and the person to whom the document belongs consent.

PRIVILEGE

A document once privileged is always privileged unless and until that privilege is waived. The privilege is that of the client and the solicitor should not waive the privilege without the client’s instructions. There is no privilege from disclosure of documents, only from their inspection. However, a party is only obliged to reveal that they have privileged documents, not to specify what each document is.
Legal Professional Privilege	Legal Advice Privilege This applies to all communication and documents between solicitor and client, the dominant purpose of which must be giving legal advice, whether or not litigation is contemplated; e.g.
	Letters giving or receiving legal advice Solicitor’s internal notes or memos Draft statements Instructions to counsel and counsel’s advice Draft statements of case		Telephone attendance notes of conversations between solicitor and client Attendance notes of meeting between solicitor and client Notes of conferences with counsel
	The privilege does not apply to internal correspondence which may be confidential and damaging such as reports to insurers, board minutes, and reports on accidents at work. Where a solicitor advises in another capacity (e.g. giving financial advice on investments), the privilege does not apply.
	Litigation or Third Party Privilege This covers communications between the solicitor or client with a third party with a view to obtaining information to be used in litigation; e.g. Obtaining and collecting evidence to be used in litigation Obtaining information which may lead to the obtaining of evidence to be used in litigation Privilege will only attach to the document or communication where it is created in a situation where litigation is under way or reasonably contemplated – proceedings do not have to be issued, or even threatened. The party claiming privilege must be able to persuade the court that they reasonably contemplated legal proceedings at the time and that the dominant purpose of the document or communication was the legal proceedings and not another reason.
Without Prejudice Communications The purpose is to allow the parties to make assertions, or admissions in relation to their case to allow settlement negotiations of a case prior to trial. “Without prejudice” communications may not be referred to at trial until after judgment, when they may be referred to on the issue of costs. The words “without prejudice” do not have to be used. The test is whether the maker of the communication genuinely intended it to be a negotiation instrument. BUT to avoid doubt in practice, if the intention is negotiation then the words “without prejudice” should be prominently used. Without prejudice correspondence between the parties or their legal representatives will not normally be privileged since the parties have written to each other. However, where there is more than one claimant or defendant and not every party will see the correspondence then it becomes important to claim the privilege.
Waiver of Privilege This can arise either expressly or by implication; e.g. if material is used in an interim application, then privilege is waived for trial purposes.
CPR 31.19(5)		An application can be made to the court where one party thinks another party is making a false claim to privilege. The court may need to see the document to decide if the privilege should be upheld.
CPR 31.20		Where a party inadvertently allows a privilegeddocument to be inspected, the party who has inspected the document may use it or its contents only with the court’s permission.

Examples

List of documents: standard disclosure (acting for defendant)

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#16828 - Disclosure & Privilege - Civil Litigation

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