#10469 - Unit 8 – Evidence In The Commercial Court - Commercial Dispute Resolution

- CPR 31.4 – anything in which information of any description is recorded (notes/emails)

PD31A para 2.1 – applies to electronic documents on servers, even those you thought had been deleted but were recoverable

- Sol has duty to ensure client complies

- Familiarise yourself with client business (are calls taped etc)

CPR 31.6 - Docs which client relies upon (r31.6a) and which:

- Adversely affect own case - r31.6(b)(i)

- Adversely affect another's case - r31.6(b)(ii)

- Support another’s case - r31.6(b)(iii)

d) docs required to be disclosed by relevant PD – r31.6(c)

• Only if they relate to a point in issue

Only need to disclose copies if contain “modification, obliteration or other marking” which relates to (a,b,c,d) above – r31.9 [the copy is treated as a separate doc]

Use the specific terminology above DO NOT just say doc is relevant to the case

- CPR 31.8 docs which are or have been in their physical possession

• is/was in his/A’s physical possession/Premises – r 31.8(2)(a)

• he/A had a right to possession – r 31.8(2)(b)

• he/A had right to inspect/take copies – 31.8(2)(c) (e.g. medical records)

- Storing docs with an A (bank or sol) if client has a right to demand them then they are in their control

- Same goes for accountant or surveyor

- but docs created by the A for his own purpose belong to him and are not within control of client

Assume client is A:

- If Yes to all the below questions then need to disclose existence of docs

- No obligation on party to obtain docs which are not within parties control but he might be able to get hold of – client should not obtain papers from TP without sol prior approval n case by doing so they become disclosable

- MUST state issues are dispute (check case summary or failing that POC/Defence D’s+NA’s)

- STATE why document affects D’s case in relation to r 31.6

a) Statements of case – will ALWAYS satisfy test

b) Docs mentioned in statement of case – USUALLY satisfy, why else would it be there?

• Party may always inspect these docs, no privilege – r 31.14

c) Costs – USUALLY be in dispute (e.g. Part 36 offers adverse to party who didn’t accept)

d) Without prejudice correspondence – USUALLY satisfies test despite potentially privileged

e) Instructions on expert reports – will ALWAYS satisfy test and not privileged – r 35.10(4)

• However, specific docs that relate to instructions are privileged – r 35.10(4)(a)

f) Request for further info – SOMETIMES disclosable

Irrelevant info can be removed if contains commercially sensitive info which will give rise to data protection issues – r 31.6

• Should state in description “some parts redacted”

• Technically other party has duty of confidentiality – r 31.33 but understandable that other party may not want to rely on it

Other side can ask to see redacted party but we can use r 31.3(2) to argue its disproportionate to issues in the case

- Must make reasonable search– r31.7 bearing in mind overriding principle of proportionality – PD31 para 2

- Factors to be taken into account when determining reasonableness:

• Number of docs involved – r 31.7(2)(a)

• Nature/complexity of proceedings – r 31.7(2)(b)

• Ease and expense of retrieval – r 31.7(2)(c)

• Significance of doc – r 31.7(2)(d)

- PD 31B (electronic docs) – encourage and assist parties to reach agreement in relation to disclosure of electronic docs in proportionate and cost effective manner

- para 2A - definition covers docs that are stored on servers and back-up systems and electronic docs that have been deleted and metadata

- Para 7 – Sol must notify client as soon as litigation becomes a possibility of need to preserve electronic records and halt deletion

- Disclosure of electronic PD 31B para 6:

• Docs should be managed efficiently to minimise cost

• Technology should be used to ensure doc management efficient

• Disclosure should be given in manner giving effect to OO

• Should be available in format to allows receiver to access/search same way as sender

• Disclosure of docs not relevant to proceedings places excessive burden on receiver

Factors to be taken into account when determining reasonableness for electronic docs - PD 31B para 21:

• Location, number, accessibility, nature, costs, chances of finding info

• Modification of searches/use of keywords

• Using commercially available software (may need expert advice)

• Para 22 – may not be reasonable to search some/all of parties electronic storage against a key word

Often reasonable not to search for docs before certain date PD 31A para 2

Electronic docs questionnaire (optional) – person who signs statement of truth must attend CMC/other hearing where disclosure to be considered

• Summary to be prepares prior to 1^st CMC

- Digicel v Cable and Wireless 2008– emphasised the importance of sols making initial determination of what is a reasonable search, if you don’t discuss disclosure with other side there is a risk of an app for specific disclosure. Negotiate prior to disclosure deadline and if necessary refer issue to court determination

• Each party should serve on other a list of docs r31.10(2)/CCG E3.2

• R31.10(3) list should identify docs in a convenient order and manner and concisely as possible

- r31.10(4)(a) - should state if want to withhold inspection

- r31.10(4)(b) – should state if docs no longer in control and what happened to them

• PD 31A para 3.1 – in order to comply with r31.10(3) it is necessary to list docs in date order, numbered consecutively with concise description. Where large num of docs in one category, list them as such “50 bank statement dated X-Y

• r31.7(3) – draw attention to particular limits on extent of the search adopted for reasons of proportionality /give reasons why these were adopted (do this in disclosure statement r31.10(5) should include r31.10(6):

  • set out the extent of the search that has been made to locate docs which he is required to disclose

  • certifying that he understands the duty of disclosure

  • certifying that to the best of his knowledge he has carried out this duty

  • certifying that to the best of his knowledge he has carried out this duty

• Should be signed by a person who is in a position responsibly and authoritatively to search for docs PD31A para 4.3/CCG E3.8

• r31.10(7) – if it is a company, firm etc, should identify person making statement/explain why they are considered appropriate. Should begin with CCG E3.5 and end with E3.6

- Party can always inspect doc referred to in statements of case (WS, affidavit ect) r 31.14

- Process – party wishing to exercise his right of inspection - r 31.15:

• Must give party who disclosed written notice

• Inspection must be permitted within 7 days of notice being received

• May request a copy if undertakes to pay reasonably costs

• Copy must be supplied within 7 days of receiving request

One disclosed, party can inspect document unless – r 31.3

1. Doc no longer in control of party who disclosed it – r 31.3(1)(a)

- [‘control’ = CPR 31.8(2) – if in physical possession, has right to possession of it; has right to inspect/take copies]

2. Disproportionate to the issue in the case to disclose – r 31.6(b) docs (i.e. those that adversely affect own case/other side or support other party’s case) (CPR 31.3(1)(c) and CPR 31.3(2)).

• If a party does not permit inspection under this ground, he must state reasons in his disclosure statement (CPR 31.3(2)(c))

3. Document attracts privilege – see below (6.)

n/b bottom of p175 Civ lit book lists what to do when receiving opponents list of docs (parts 1,2,3)

- r31.19(3) a person who wishes to claim that he has a right or duty to withhold inspection of a doc or part of a doc must state in writing:

• that he has a right or duty and the grounds on which he claims that right or duty

Legal professional privilege:

Legal advice privilege =

• MUST be written by or to sol in his capacity as a sol can’t make non privileged doc privileged by sending it to sol

• Any docs which will discuss action/background to it should be created at request of sol only and market on cover as do for ease of identification

• Advice given by sols on presentational matters and what should be done in relevant legal context is covered

• When legal advice privilege applies to communication, internal docs revealing the communication also covered

• If docs sent to people other than client then they lose privilege

• Covers in house lawyers unless company in question being investigated for breach of TFEU 101/102

• Doesn’t cover compliance officer unless has formal qualifications

Litigation privilege =

- MUST be made with a view to litigation, either for sole/dominant purpose or obtaining/giving advice in regard to it, or for obtaining evidence to be used in it

• Where doc comes into existence or has duel purpose there is problems. Litigation must be the more important purpose (difficult for docs that pre-date the CF)

• Co-C’s and co-D’s treated as TP’s and can claim privilege

• Expert report is privileged until you hand it in to rely on in court

• Client and TP – dominant reason for obtaining doc was to enable sol to advise on claim or...