14. Disclosure and Inspection of Documents

Question 1

What claims does CPR 31 apply to (disclosure and inspection of documents)?

Answer 1

to all claims except a claim on the small claims track

Question 2

How does a party disclose a document?

Answer 2

a party discloses a document by stating that the document exists or has existed

Question 3

Who has a right to inspect a document?

Answer 3

a party to whom a document has been disclosed

UNLESS:
(1) the document is no longer in the control of the party who disclosed it, OR
(2) the party disclosing the document has a right or duty to withhold inspection of it, OR
(3) A party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under r. 31.6(b) (i.e. disclosure of docs which (i) adversely affect his own case, (ii) adversely affect another party’s case, or (iii) support another party’s case) - if he does not allow inspection of such docs he must state that inspection is not allowed bc it would be disproportionate

Question 4

What happens where a party considers that it would be disproportionate to permit the inspection of documents within a particular category?

Answer 4

he is not required to permit inspection of documents within that category or class; but he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Question 5

What does the commentary tell us about the term ‘disproportionate’ in relation to the exception to disclosure?

Answer 5

Th parties should bear the OO of proportionately in mind and have regard to the matters set out in r. 31(7)(2) (factors relevant to deciding the reasonableness of a search):

• number of docs involved
• nature and complexity of the proceedings
• ease and expense of retrieval of any particular doc
• significance of any doc

Question 6

What is the meaning of document?

Answer 6

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

From PD31, para 2A: includes electronic documents (e.g. e.mail), even ‘deleted’ docs and metadata

Question 7

What does ‘copy’ mean in relation to a document?

Answer 7

“copy” means anything onto which information recorded in the document has been copied by whatever means and whether directly or indirectly.

Question 8

If a court orders ‘disclosure’ (without anything more specific) what does this mean? To which types of claims does this ‘default’ rule not apply?

Answer 8

Meaning: standard disclosure

But obviously the court could dispense with or limit standard disclosure. Equally, the parties can agree in writing to dispense with or limit standard disclosure.

Default position does not apply to:

• Obviously claims to which part 31 does not apply (i.e. small track claims)
• But more importantly: multi-track claims other than those which include a claim for personal injury - in these cases the parties may obviously agree on standard disclosure or be ordered to make standard disclosure by the court, but they have to take some additional steps first

Put together this means: generally, if a court orders ‘disclosure’ it means ‘standard disclosure’ (unless the court has ordered otherwise or the parties have reached a different agreement), unless the case is a multi-track non-PI case.

Question 9

What extra steps do the parties have to take in relation to disclosure in multi-track claims other than those which include a claim for personal injuries?

Answer 9

Unless the court orders otherwise, the approach is:

(1) Each party must file and serve a report which:

• describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case
• describes where and with whom those document are or may be located
• in the case of electronic documents, describes how those documents are stored
• estimates the broad range of costs that could be involved in giving standard disclosure in the case
• states which of the disclosure directions described below are to be sought
• if the ‘electronic documents questionnaire‘ has been exchanged, the questionnaire should be filed with the report

When? –> Not less than 14 days before the first case management conference
Report must be verified by a statement of truth

(2) Parties must discuss and seek to agree a proposal on disclosure that meets the OO

• Can be at a meeting or via telephone
• When? –> Not less than 7 days before the first case management conference
• Court can approve these agreements without a hearing and give directions in the terms proposed

(3) At first or any subsequent case management conference, the court will decide which of the following orders to make:

• an order dispensing with disclosure
• an order that a party disclose the documents on which it relies and at the same time request any specific disclosure it requires from any other party
• an order that directs where practicable the disclosure to be given by each party on an issue by issue basis
• an order that each party disclose document which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party or which leads to an enquiry which has either of those consequences
• an order that a party gives standard disclosure
• any other order in relation to disclosure that the court considers appropriate.

In deciding which order(s) to make the court will have regard to the OO and the need to limit disclosure to that which is necessary to deal with the case justly

(4) The court may IN ADDITION give directions as to how disclosure is to be given at any point, particularly:

• what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored docs
• whether lists of documents are required
• how and when the disclosure statement is to be given
• in what format documents are to be disclosed (and whether any identification is required)
• what is required in relation to documents that once existed but no longer exist
• whether disclosure shall take place in stages

Question 10

What documents need to be disclosed for standard disclosure?

Answer 10

Standard disclosure requires a party to disclose only-

(1) the documents on which he relies; and
(2) the documents which-
(a) adversely affect his own case;
(b) adversely affect another party’s case; or
(c) support another party’s case; and
(3) the documents which he is required to disclose by a relevant PD.

• No definition of ‘adverse effect’ or ‘support’ - but exact wording of r. 31.6 seems to be quite important in determining which docs are/aren’t covered
• Whether a doc falls into (a) or (b) is to be judged against the statements of case ONLY - nothing else (including witness statements) can be taken into account

Question 11

Will a document that does not adversely affect a case but provides lines of inquiry leading to information which has a negative effect fall within standard disclosure?

Answer 11

No - i.e. it needs to adversely affect the case as stated in the statement of case

Question 12

What are the four categories of documents for the purposes of standard disclosure? Which of these must be disclosed under standard disclosure?

Answer 12

(1) the parties’ own documents - docs the party will rely on in support of their own case

(2) adverse documents - docs that support another party’s case or adversely affect the case of the party that discloses them

(3) the relevant documents - docs that are relevant but don’t fall into (1) or (2): i.e. part of the ‘story’ or ‘background’

(4) train of inquiry documents - docs that may lead to a train of inquiry enable a party to advance their own case or damage that of the opponent

–> standard disclosure is limited to (1) and (2)

Question 13

Are documents relating to quantum disclosable under standard disclosure?

Answer 13

Ordinarily yes if quantum is in issue

In split trials where quantum only becomes an issue once liability is determined, docs relating to quantum don’t need to be disclosed until liability has been determined

Question 14

Are train of inquiry documents ever appropriate for disclosure?

Answer 14

Not automatically included by virtue of standard disclosure, but often enhanced disclosure will be ordered in relation to them in cases of fraud, mistake or misrepresentation.

Would not normally be appropriate to order this until standard disclosure has been completed

Question 15

What is redaction used for?

Answer 15

redaction is used to remove irrelevant material from disclosed documents.

Question 16

What is the test for redaction?

Answer 16

It’s permissible to redact irrelevant material from disclosed docs - test is the same as for standard disclosure

Question 17

What is the ‘duty of search’ in relation to standard disclosure? What rules govern its operation?

Answer 17

Duty to make a reasonable search for documents which might be adverse to their own case or support another party’s case.

In determining reasonableness, relevant factors include:

• number of docs involved
• nature and complexity of the proceedings
• ease and expense of retrieval of any particular doc
• significance of any doc which is likely to be located during the search

PD31, para 2 also tells us that the parties need to keep ‘proportionality’ in mind in determining the reasonableness of any search

If a party has not searched for a doc bc they believe that it would be unreasonable to do so, they must state this in his disclosure statement and identify the doc/class of docs

Question 18

Does a party have to disclose documents that are not and have not been in its control?

Answer 18

No

Question 19

What does it mean for a document to be or have been in a party’s control?

Answer 19

if-

(1) it was in his physical possession;
(2) he has or has had a right to possession of it; or
(3) he has or has had a right to inspect or take copies of it.

Question 20

When are copies of documents disclosable?

Answer 20

• No need to disclose exact copies
• But if the copy contains a modification, obliteration or other marking or feature on which either (i) the party intends to rely or (ii) which adversely affects its own case or another party’s case or supports another party’s case, then the copy is treated as a separate doc - as such it becomes disclosable under the normal standard disclosure rules like any other doc

For reference only: this is in r. 31.9 and the commentary immediately below

Question 21

What is the procedure for standard disclosure?

Answer 21

Procedure = Each party must make and serve on every other party a list of documents in the relevant practice form. The list must identify the documents in a convenient order and manner and as concisely as possible

List must:

• Indicate those documents in respect of which the party claims a right or duty to withhold inspection
• Indicate those docs which are no longer in the party’s control and what has happened to them
• Include a disclosure statement

Form of the list:

• Form N265
• Should normally list docs in date order, number them consecutively and give each a concise description
• If there is a large number of docs that all fall into a particular category, these may be listed as a category rather than individually
• If further docs later come to light that are disclosable, the disclosing party must prepare and serve a supplemental list

A disclosure statement is a statement made by the party disclosing the documents

• setting out the extent of the search that has been made to locate documents which he is required to disclose;
• certifying that he understands the duty to disclose documents (drawing attention to limitations for proportionality reasons); and
• certifying that to the best of his knowledge he has carried out that duty (i.e. expressly state that they believe the search to have been reasonable)
• If the party believes that they have a right to withhold a doc from inspection, he must state in writing (1) that he has a right/duty, and (2) the basis on which he claims the right/duty
• If the party making the statement is a company, firm, association or other organisation the statement must identify the person making the statement (state his name, address and the office or position he holds, if any) and explain why they are considered an appropriate person to make the statement

The disclosure statement is seen as being ‘contained’ in the list - so when we’re told in r 31.19 that a party needs to state ‘in the list’ if they believe that they have a right to withhold certain docs, this doesn’t contradict what I’m saying here’

Question 22

To what variations to the standard disclosure procedure can parties agree in writing?

Answer 22

• Disclose docs without making a list
• disclose docs without disclosure statement

Any written agreement to vary or dispense with standard closure by the parties should be lodged with the court

Question 23

When does the duty of disclosure end?

Answer 23

Only once the proceedings are concluded.

If - prior to that time - docs to which the duty extends come to a party’s notice, he must immediately notify every other party

Question 24

What documents can be inspected by a party irrespective of whether they have been disclosed?

Answer 24

A document mentioned in-

(a) a statement of case
(b) a witness statement
(c) a witness summary; or
(d) an affidavit

A party can also apply for an order (you don’t need an order for the docs mentioned above) for the inspection of any document mentioned in an expert’s report that has not already been disclosed.

Question 25

What is the procedure for requesting inspection of documents mentioned in expert reports?

Answer 25

Before issuing an application for inspection, the party wishing to inspect such documents should request inspection informally. The request should normally be granted by agreement unless it is unreasonable.

N.B. where an expert report refers to a large number or volume of documents and it would be burdensome to copy or collate them, the court is likely to order only inspection of such documents if it is satisfied that it is necessary for the just disposal of the proceedings and the party cannot reasonably obtain the documents from another source.

Question 26

Where a party has a right to inspect a document, what is the procedure for inspection?

Answer 26

• Party seeking to inspect must give the party who disclosed the document written notice of his wish to inspect it.
• The party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice

Question 27

Can a party who requests inspection of a document also request a copy of that document?

Answer 27

Yes and if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

Question 28

What is the consequence of failure to disclose documents or permit inspection?

Answer 28

A party may not rely on any document which he fails to disclose or he fails to permit inspection unless the court gives permission.

Question 29

What happens if a person makes, or causes to be made, a false disclosure statement without honest belief in its truth?

Answer 29

Proceedings for contempt of court may be brought against that person.

Question 30

What is an order for specific disclosure?

Answer 30

an order that a party must do one or more of-

(1) disclose documents or classes of documents specified in the order
(2) carry out a search to the extent stated in the order
(3) disclose any documents located as a result of that search.

Question 31

What is an order for specific inspection?

Answer 31

An order that a party must permit inspection of:

(1) documents or classes of documents specified in the order
(2) document located as a result of a search carried out as specified in the order

Question 32

When can an application for specific disclosure or inspection be made?

Answer 32

• At any time, but particularly when the court is likely to make orders anyway (e.g. at a case management conference).
• Can even be made during the trial itself
• The later an app is made the less likely the court is to believe that the document is in fact necessary

Question 33

What are some key features of the court’s power to order specific disclosure or inspection?

Answer 33

• Can exercise this at any time (even before standard disclosure has taken place or a defence has been filed)
• The court will take all the circumstances into account in deciding whether to exercise its discretion, but esp the OO and proportionality
• The rationale of the power is that the overriding objective obliges the parties to give access to those documents which will assist the other’s case

Question 34

What does the court need to satisfy itself of before making an order of specific disclosure or inspection?

Answer 34

(1) That the docs are actually in the party’s control
(2) That the docs requested are relevant (analysed by reference to the pleadings)

Question 35

In PI cases, should the claimant be ordered to supply the defendant with authority to obtain his GP and hospital records?

Answer 35

Although the claimant should ordinarily disclosed these documents anyway, the court should not normally make such an order where the claimant refuses. Reason: C should retain control over their own medical records.

Question 36

What must an application notice for specific disclosure specify?

Answer 36

What order is sought and must be supported by evidence.

The grounds on which the order is sought can either be in the application notice itself or set out in the evidence filed in support of it.

Question 37

In personal injury cases what can the court do if a claimant refuses to be medically examined?

Answer 37

The court can stay proceedings.

But ultimately it is for C to prove their case and it is undesirable to force C to disclose any info of this kind.

Question 38

Can a party to whom a document has been disclosed use it for purposes other than the proceedings in which it has been disclosed?

Answer 38

General rule: no

Exceptions: if the document-

(1) has been read to or by the court or been referred to at a public hearing
(2) the court gives permission; or
(3) the party who disclosed the document and the person to whom the document belongs agree.

Question 39

Can the court restrict the use of documents disclosed in the proceedings even if the party has a right to use the documents for other purposes?

Answer 39

Yes - it can make such an order even if the document has been read to or by the court or been referred to at a public hearing

N.B. Court can also restrict the use of electronic documents questionnaires under this rule - for this purpose they’re treated as a ‘document’

Question 40

Who can apply to the court to restrict the use of documents?

Answer 40

(1) Parties to the proceedings

(2) Any person to whom the document belongs

Question 41

Can an application for disclosure be made before the proceedings begin?

Answer 41

Yes

Question 42

In what circumstance can an application for pre-action disclosure be made and what must the application be supported by?

Answer 42

Must be supported by evidence

Can be made by where -

• (1) the respondent is likely to be a party to subsequent proceedings
• (2) the applicant is also likely to be a party to those proceedings
• (3) if proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents of which the applicant seeks disclosure; and
• (4) disclosure before proceedings have started is desirable to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings OR save costs.

Question 43

What MUST an order requiring pre-action disclosure? What MAY it require?

Answer 43

MUST:

• the documents or the classes of documents which the respondent must disclose; AND
• require him to specify any of those documents which are no longer in his control or in respect of which he claims a right or duty to withhold inspection.

MAY:

• require the respondent to indicate what has happened to any documents which are no longer in his control; AND
• specify the time and place for disclosure and inspection

Question 44

What is the two-stage approach for pre-action disclosure?

Answer 44

(1) establish whether the jurisdictional thresholds prescribed are satisfied (i.e. the requirements that need to be met for the court to have the power to make such an order); and if they are
(2) whether as a matter of discretion, an order for disclosure should be made.

Question 45

Is it necessary to show that it is likely that proceedings will be brought to obtain an order for pre-action disclosure?

Answer 45

Technically, the court has the power (i.e. stage 1 - ‘jurisdiction threshold’ of the test) to make such an order even if proceedings are unlikely. BUT it would be very unusual for the court to exercise its discretion where proceedings are not likely. In practice, it must be both likely that proceedings will be brought and that they have a real prospect of success (i.e. won’t immediately end again).

Question 46

What factors will a court consider in determining whether to grant an order for pre-action disclosure?

Answer 46

(1) nature of the loss complained of
(2) clarity and identification of the issues raised by the complaint
(3) nature of the documents requested
(4) relevance of any protocol or pre-action inquiries
(5) opportunity which the complainant has to make his case without pre-action disclosure

Question 47

Are orders for pre-action disclosure in commercial cases common?

Answer 47

No - particularly rare in this context

Question 48

Can an application for an order of disclosure be made against a person who is not a party to the proceedings?

Answer 48

Yes, an application can be made but it must be supported by evidence.

Question 49

In what circumstances can a court make an order for disclosure against a person who is not a party to the proceedings?

Answer 49

The court has a discretion to make an order where-

(1) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

• The commentary to the CPR tells us that documents “are likely to support the case…” if they “may well” do so. If the party seeks disclosure of a class of documents, the relevant test must be met for each of the documents to be disclosed.

(2) disclosure is necessary in order to dispose fairly of the claim or to save costs

In a case in 2001 it was held that the court must have been satisfied that the documents in question were (rather than might be) docs whose disclosure would support the party’s case/adversely affect the case of another party. But I think that this contradicts the express words and since there have been changes to these rules since the UK left the EU, I think it’s safer to stick to the exact words of the CPR. That being said, it is clear that this power should be used very sparingly as it may interfere with the respondent’s ECHR rights.

Before a D can apply for disclosure against a 3rd party, they will probably need to plead the defence in order to show that the disclosure sought may support his or her “case”

Question 50

What must an order of disclosure against a person who is not a party specify?

Answer 50

(1) the documents, or class of documents which the respondent must disclose; and
(2) require the respondent to specify any of the documents which are no longer in his control or which he claims a right or duty to withhold inspection

Question 51

What MAY an order for disclosure against a person who is not a party state (as opposed to the things that the order MUST) state?

Answer 51

(1) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(2) specify the time and place for disclosure and inspection.

Question 52

Where is the main statutory power for disclosure by “a person who is not a party to the proceedings”?

Answer 52

in s.34 Senior Courts Act and s.53 County Courts Act

Question 53

What is the general position of third party disclosure?

Answer 53

It is the exception and not the rule

Question 54

Before the defendant can apply for third party disclosure what will they probably need to do?

Answer 54

Plead the defence.

Question 55

What is the Norwich Pharmacal principle?

Answer 55

The CPR rules do not limit any other power which the court may have to order pre-action disclosure against third parties. One of these other powers is the Norwich Pharmacal principle.

It provides that a person innocently caught up in the wrongdoing of another so that they are more than a mere witness can be compelled to disclose the identity of the wrongdoer so that proceedings may be brought against the proper defendant. This principle can also be relied on to obtain disclosure of documents and other information.

Question 56

What are the three prerequisites of Norwich Pharmacal relief?

Answer 56

(1) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer
(2) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
(3) the person against whom the order is sought must-
(a) be mixed up in it so as to have facilitated the wrongdoing; and
(b) be able or likely to be able to provide the information necessary to enable the ultimate wrong-doer to be sued.

Question 57

What nature of wrongs are covered by Norwich Pharmacal?

Answer 57

The wrong may be a crime, tort, breach of contract, equitable wrong or contempt of court - must be capable of being identified in general terms

Question 58

Does a person applying for Norwich Pharmacal relief have to prove the wrong?

Answer 58

No - but they must at least show some reasonable basis for claiming that a wrong has been committed.

Question 59

Is it a requirement under the Norwich Pharmacal principle that the applicant will bring court proceedings?

Answer 59

No - despite the 2nd requirement (there must be the need for an order to enable action to be brought against the ultimate wrongdoer) this is not necessary.

The procedure is available where an applicant “desires to obtain redress against the wrong-doer - or to protect himself against further wrongdoing”.

Question 60

What must be the connection between the person a Norwich Pharmacal order is made against and the wrongdoing?

Answer 60

They must be mixed up in the wrongdoing, they cannot simply be a bystander or a mere witness.

Question 61

Are there any defences to disclosure of the identity of a wrongdoer under Norwich Pharmacal?

Answer 61

Applying the privilege against self-incrimination, a party has a defence to the disclosure of the identity of a wrongdoer where that disclosure would tend to incriminate the disclosing party. N.B. it must be the disclosure of the identity of another person that causes the risk.

Question 62

What are the two grounds (that our syllabus covers - idk if there are others) on which a party might legitimately claim that they have a right to withhold inspection of documents?

Answer 62

(1) Legal Professional Privilege

(2) Disclosure would damage the public interest

Slightly different thing, but also worth remembering the rule on ‘without prejudice’ discussions

N.B. you can only ever withhold inspection of documents on privilege grounds. You can’t withhold disclosure. You can withhold disclosure on public policy grounds.

Question 63

What are the two limbs of legal professional privilege?

Answer 63

(1) Legal advice privilege
(2) Litigation privilege

Question 64

What happens to legal professional privilege after the client’s death?

Answer 64

Nothing - it survives death and binds/benefits the successor in title

Question 65

Which documents attract legal advice privilege?

Answer 65

• Any communications between a client in their legal advice that was made for the dominant purpose of seeking legal advice.
• Attaches to a series of communications that (as a whole) have this dominant purpose, even if not every individual communication within it quite meets that threshold
• Extends to ‘legal advice’ in a broad sense - not just info about legal rights and remedies, but also what should prudently be done

Question 66

In the case of organisations, who counts as a client for the purposes of LAP?

Answer 66

Only those employees specifically tasked with seeking and receiving legal advice from the lawyers.

But if docs containing privileged advice are circulated within the company, the circulating docs are also privileged

Question 67

Are foreign lawyers ‘lawyers’ for LAP purposes?

Answer 67

Yes they can be - all that is required is that the adviser is acting as a lawyer. No requirement that the foreign lawyers are recognised or regulated by a local professional body.

Question 68

Which documents does litigation privilege apply to?

Answer 68

• Any third party documents created for the dominant purpose of enabling the client’s legal adviser to conduct litigation
• Therefore, does not apply to copies of documents if the original document was not created for this purpose (even if was copied for litigation purposes). BUT if a solicitor copies or assembles a selection of unprivileged third party documents such selection will be privileged if its production would afford a clue to teh advice being tendered

My comment: basically LAP and litigation interact in the following way:

• LAP covers a wider range of documents (anything created for the purpose of giving legal advice), BUT applies to a narrower group of people (only communications between client and lawyer)
• Once litigation is contemplated, LAP obviously continues to apply to client-lawyer communications, but now communications between other parties and the lawyer are also privileged if they come into existence for the dominant purpose of the contemplated litigation (i.e. narrower set of circumstances than LAP)

Question 69

Who is entitled to waive legal professional privilege?

Answer 69

Only the client - the privilege is not that of the legal adviser and they cannot waive it.

Question 70

How do we know whether a waiver of privilege is limited or absolute?

Answer 70

• Highly fact-sensitive (need to look at all the circumstances and what both parties would have reasonably understood by virtue of implied or express communications)
• Just because a party has disclosed some documents does not mean that they’ve waived all privilege
• Privilege is not waived merely by reason of the docs being put to the D in examination before an examiner and exhibited to their depositions, or by being put before a judge in a private hearing in order that they may decide whether a compromise of the claim is a proper one
• Also not waived by referring to the docs in the statement of case
• BUT if part of a doc is put in evidence, or read to the court, privilege will be waived for the whole doc, unless the remaining part deals with an entirely different subject-matter
• The fundamental question is whether it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material (it’s about fairness, not consistency)
• The use of a document for the purpose of cross-examination does not itself make it part of the evidence so as to entitle the other party to investigate other privileged documents on all the topics mentioned in it

Question 71

What are ‘without prejudice communications’ and what is the significance of communications taking this form for disclosure purposes?

Answer 71

• They are oral or written communications genuinely aimed at a settlement
• They are not admissible as evidence in subsequent proceedings (i.e. if no settlement is reached)
• The words ‘without prejudice’ don’t have to be used expressly. Conversely, the fact that a doc states that it is ‘without prejudice’ does not conclusively determine that this is so.
• In some cases this rule may have the effect that the court cannot - in deciding costs - determine whether a side unreasonably refused mediation
• Applies only where there is sufficient proximity to the subsequent proceedings (not a question of time but concerns the subject-matter at issue) - the point is just that you can’t claim this kind of privilege for any discussions however long ago and unconnected to the present proceedings they might be
• Unlike legal professional privilege, this rule is not absolute - the material can be relied on in a variety of circumstances when the justice of the case requires it

Exceptions to the rule:
(1) Facts communicated between the parties in the course of without prejudice negotiations which are part of the factual matrix or surrounding circumstances and which are relevant as an aid to construction of an agreement which resulted from negotiations are admissible
(2) statements made in a mediation which had led to a settlement are admissible as an exception to the without prejudice rule, where the statements are made in proceedings between the same parties, and a party seeks to rely on the statements in proceedings relating to the settlement

Question 72

What must a party do if it wishes to change the basis of a ‘without prejudice negotiation’ to an open negotiation?

Answer 72

Must bring the change to the attention of the other party and seek to make sure that the other party realises that there has been a change.

Question 73

Can privilege conferred by the ‘without prejudice principle’ be waived?

Answer 73

The protection against disclosure is for the benefit of the parties seeking to settle. It may be waived by the parties, but the privilege is essentially joint and cannot normally be waived by one party alone. The protection is for the parties, and if they agree to waive it so that information can be put before a court, the protection cannot be claimed by a third party such as a mediator or evaluator, though such a person may be separately protected by a confidentiality clause. No negative inference should be drawn from a refusal by a party to waive privilege.

Question 74

Is it possible to exclude ‘without prejudice’ protection for certain purposes?

Answer 74

Yes - e.g. common to make an offer ‘without prejudice save as to costs’, meaning that the normal principle applies, save that the communication may be referred to on the issue of costs.

Question 75

What happens if a judge sees privileged or inadmissible material?

Answer 75

It could be that nothing happens (no necessary consequences), BUT the judge should consider whether they are disabled from fairly continuing with the case and objectively whether viewed from the standpoint of a fair minded and informed observer there was a real possibility of a real danger of there being seen to be an unfair trial.

Question 76

Is notice required when applying for an order permitting a party to withhold disclosure of a document on the ground that disclosure would damage the public interest?

Answer 76

No

Question 77

On what ground can a person apply for an order to withhold disclosure of a document?

Answer 77

On the basis that disclosure would damage the public interest

Question 78

If the court grants an order that a document does not have to be disclosed for public interest reasons, what must the order NOT do (unless the court orders otherwise)?

Answer 78

(1) be served on any other person; and must also not
(2) must be open to inspection by any person

Question 79

What must a party do when they wish to claim that they have a right or duty to withhold inspection of a document? How must they do this?

Answer 79

• State in writing that they have this right or duty and the grounds on which he claims that right or duty
• This statement must be made in the list in which the document is disclosed (more accurately - from the PD - in the disclosure statement that is contained in the list)
• If there is no list (e.g. because the parties have agreed to disclose without a list), the statement must be made to the person wishing to inspect the document

N.B. it is NOT necessary to apply to the court to be able to claim a right to withhold inspection of a document

Question 80

If a party wants to know whether it in fact has a right/duty to withhold documents can they apply to the court to find out whether they are right?

Answer 80

Yes - if a party makes such a claim they can apply to the court to determine whether the claim should be upheld

Question 81

What might the court do when deciding an application to withhold disclosure or inspection (on public interest or other grounds)?

Answer 81

(1) require the person seeking to withhold disclosure or inspection to produce that document to the court; and
(2) invite any person, whether or not a party to make representations.

Also remember: like pretty much all applications, such applications must be supported by evidence

Question 82

Can you rely on a privileges document that you have inadvertently been allowed to inspect?

Answer 82

Only with the permission of the court.