14. Disclosure and inspection of documents Flashcards
When can you withhold inspection of a document?
Legal professional privilege
Public interest immunity
Disproportionate
Incrimination
What claims does the disclosure regime in CPR 31 apply to?
All of them except those on the small claims track
How does a party ‘disclose’?
A party discloses it by stating it exists or has existed
What right does disclosure of a document give?
A party to whom the document has been disclosed has a right to inspect it, except where:
(a) That document is no longer in the control of the party who disclosed it
(b) The party disclosing it has a right or duty to withhold inspection of it
OR:
Where the party disclosing considers it disproportionate to the issues to permit inspection of documents within a category or class of document:
(a) He is not required to permit disclosure of that category or class of document; but
(b) He must state that it will not be permitted as it is disproportionate.
What guidance is there on when disclosure of a category or class of document can be considered ‘disproportionate’?
Parties should bear in mind overriding principle of proportionality
What does ‘document’ mean in context of disclosure?
Anything in which information of any description is recorded, including electronically, whether deleted or not, and also includes metadata.
What does ‘copy’ in respect of a document mean in the context of disclosure?
Anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
What does standard disclosure apply to?
Intermediate track and multi-track, except where there is a claim for personal injuries.
HOWEVER:
Standard disclosure will still be the default position even where personal injuries are included, and also for fast track cases.
Also does not apply to business and property cases where they fall under PD57AD
And UNLESS the court order otherwise
What should occur at least 14 days before any case management conference?
At least 14 days before the first case management conference, if any, each party must file and serve a report verified by a statement of truth which:
(a) Describes briefly what documents exist or may exist that are relevant
(b) Describes where and with whom those documents are located
(c) If electronic documents, describes how they are stored
(d) Estimates broadly the cost involved giving standard disclosure, including for searching and disclosing any electronically stored documents
(e) Filing any the electronic documents questionnaire where it has been exchanged
(f) States what directions are to be sought regarding disclosure
UNLESS the court directs otherwise
What should occur at least 7 days before any case management conference?
Parties must meet and discuss to agree a proposal in relation to disclosure that meets the overriding objective
What can happen if the parties agree a proposal for disclosure?
If parties agree and the court considers the proposal appropriate
It may approve it without a hearing
What may happen at the case management conference re disclosure?
Court will make the order necessary to ensure the case is dealt with justly and to comply with the overriding objective
May include:
1. Order dispensing with disclosure
2. Order party disclose the documents on which it relies and at the same time request specific disclosure from any other party
3. Order that directs the disclosure to be given on an issue by issue basis
4. Order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its case or to damage that of any other party or which leads to an enquiry which has those consequences.
5. An order for standard disclosure
6. Any other order the court considers appropriate
May specify how disclosure is to be made (i.e. what searches, what lists of documents are required, how disclosure statement is to be given, what is required in relation to documents which once exists and no longer exist, and whether it will be staged, and in what format)
May the court specify how disclosure is to be made?
Yes, may specify:
1. What searches (where, or what, what time periods, by whom, and the extent)
2. What lists of documents are required
3. How the disclosure statement is to be given
4. What is required in relation to documents which once existed but no longer do
5. And whether disclosure will be staged
6. And in what format disclosure is to be given
are electronic documents treated in the same way as other documents?
No, they have a practice direction (PD 31B) which applies to them
What does standard disclosure require?
Requires a party only to disclose:
1. The documents which he relies upon
2. And the documents which
a. Adversely affect his own case
b. Adversely affect another party’s case
c. Support another party’s case
3. Any documents which he is required to disclose by virtue of a relevant PD.
What does ‘adversely affect’ or ‘support’ mean for disclosure?
No definition. The issues in the case are an essential reference point. A document which does not directly adversely affect but would lead to lines of enquiry that would is not covered.
Affecting credibility is something which may adversely affect.
No disclosure for non-material allegations is needed
Confidentiality of a document does not by itself justify non-disclosure – it is in principle possible to redact irrelevant information but care should be taken.
Documents which relate purely to cross-examination as to credit and no other issue are outside the scope of standard disclosure
Also does not include a list of employees when it goes to a general testing of a party’s case rather than to put a positive case
Whether documents are to be read as supporting the party’s own case or adversely affecting another’s is generally decided by reference to the statements of case, not the witness statements
What categories of documents are there in disclosure?
- The party’s own documents that they rely upon
- Adverse documents which affect a parties case or support another’s
- Relevant documents (i.e. part of the story and background)
- Train of inquiry documents that may lead to a train of inquiry that can help a party to advance their own case or damage another’s
Standard disclosure is limited to 1 and 2
Are documents relevant to quantum disclosable?
Normally yes, at least where quantum is in issue. i.e. all medical reports relevant to future earnings have to be disclosed, not just those relating to the subject of the litigation. In trials where quantum is only decided once liability is established should only be disclosed once liability determined
Are documents relevant to the insurance position disclosable?
Not really, unless there is some issue that involves it i.e. such as unfair contract terms and whether they had ability to get advice about it or if there is an issue about exercising case management functions appropriately.
Are train of inquiry documents disclosable?
Potentially in cases involving allegations of fraud, dishonesty, or misrepresentation, however such enhanced disclosure should be made after standard disclosure
Does disclosure still apply where a party has been debarred from defending due to non-compliance with an unless order?
Yes.
Is redaction acceptable?
Yes, but they must be careful to not take out any information that needs to be disclosed.
What searches are parties required to make for disclosure?
A reasonable search.
What factors are relevant for determining the reasonableness of a search in disclosure?
a. Number of documents involved
b. Nature and complexity of the proceedings
c. Ease and expense of retrieval of any particular document; and
d. Significance of any document which is likely to be located
Overall, the overriding objective should be thought of.
What happens where a party does not search for a category or class of document on the grounds that it is unreasonable?
They must state this in the disclosure statement and identify this class or category of document
What documents is the duty of disclosure limited to?
Documents which are or have been in a party’s control
What documents are taken to have been in a party’s control for disclosure purposes?
Those which:
1. Are in or were in their physical possession
2. He has or had a right to possession of it
3. He has or had a right to inspect or take copies of it
Does a party need to disclose copies?
No, only one copy of a document needs to be disclosed
How are documents with modifications, obliteration, or other marking or features treated for disclosure?
If he intends to rely on them or adversely affect his own case or another party’s or supports another’s, they are treated as a separate document
What is the procedure for standard disclosure?
Each party must make and serve on every other party a list of documents in the relevant practice form, identifying the documents which are disclosable and are or have been in the party’s control
The list must identify the documents in a convenient order and manner and concisely as possible
The list must indicate:
a. Any documents the party claims to withhold from inspection
b. Those documents no longer in a party’s control; and
c. What has happened to those documents
The list must include a disclosure statement
In what form should the disclosure list be in?
N265
How should the disclosure list be formatted/documents named e.c.t.?
- Give documents in date order
- Number them consecutively
- Give a concise description
- Where there is a large number of documents falling into one category, it may be better to list those as a category
What is a disclosure statement?
A statement made by the party disclosing:
a. Setting out the extent of the search undertaken
b. Certifying he understands the duty to disclose
c. Certifying that he to the best of his knowledge had carried out that duty
What additional things must a disclosure statement from a company do?
a. Identify the person making the statement
b. Explain why he is considered an appropriate person to make such a statement
What things may the parties agree to do in respect of the disclosure statement?
In writing:
a. Disclose without making a list
b. Disclose documents without a disclosure statement
May a disclosure document be made by a non-party?
Yes, where a practice direction allows this.
When does the duty of disclosure operate from?
Throughout proceedings. If any documents come to the attention of the party during those proceedings, he must immediately identify that to the other parties.
How should a party disclose any additional documents?
In a supplemental disclosure list
In what documents does a reference to a document entitle the other party to inspect it?
A party may inspect a document mentioned in:
a. A statement of case
b. A witness statement
c. A witness summary; or
d. An affidavit
A party may also apply for an order for inspect of any document mentioned in an expert’s report which has not already been disclosed.
What happens where a party wishes to inspect a document they have a right to inspect?
They party must give the party who disclosed the document written notice of his intention to inspect it
The party who disclosed the document must allow inspect no more than 7 days after notification and
That party may request a copy of the document and, if he undertakes to pay reasonable copying costs, the party must supply him with this within 7 days of the notice
What is the consequence of a failure to disclose documents?
A party may not rely on that document unless the court gives permission
What may occur when a party gives a false disclosure statement?
Proceedings for contempt of court may be brought.
What is the normal order for disclosure?
Standard disclosure
Can the obligations under standard disclosure be varied?
Yes, they may be varied or dispensed with either by the court or by written agreement. Any written agreement should be lodged with the court
What should the disclosure statement contain?
It should:
1. Expressly state the party believes the extent of the search was reasonable
2. Draw attention to any limitations of the extent of the search which were adopted for proportionality reasons and give reasons why they were adopted (i.e. too expensive).
For a company, include details about the name and address and the office or position or basis upon which he makes the statement.
Where they are withholding, must state in writing that he has a right or duty, and the grounds for that, on why he can withhold it. Must identify the document.
What must a legal representative do when a person makes a disclosure statement?
Make sure he understands the duty of disclosure
What can an insurer or the Motor’s Insurers’ Bureau do where they have a financial interest in the result of the proceedings brought wholly or partially by or against that party?
They may sign the disclosure statement
What should a party do where they wish to inspect a document mentioned in an expert’s report?
Should first ask informally before issuing, and inspection should be provided where it is not unreasonable.
What order can the court make where a party requests inspection of a document referred to in an expert’s report but there are lots of documents?
Where it would be burdensome to copy or collate them, the court will only order inspect of such documents if it is satisfied that it is necessary for the just disposal and the party cannot reasonably obtain those documents from another source
What order may the court make for disclosure of a specific document?
The court may make an order for specific disclosure or inspection
What is an order for specific disclosure or inspect?
That a party must do one or more of the following:
1. Disclose documents or classes of documents specified in the order
2. Carry out a search to the extent stated
3. Disclose any documents located as a result
Can parties opt out of an order for specific disclosure if they believe they have the right to not disclose it?
No, they cannot.
When would a party apply for specific disclosure?
Where they believe the disclosure was inadequate
What must be contained in an application notice for specific disclosure?
The order the party wants the court to make and must be supported by evidence.
Where should the grounds for an application for specific disclosure be made?
Either in the application notice or in the evidence filed in support
What will the court take into account in an application for specific disclosure?
- All of the circumstances; and
- The overriding objective in particular
What will the court usually do on an application for specific disclosure where it is satisfied that a party has failed to comply with its disclosure obligations?
If satisfied that a party has failed to comply, it may make an order as necessary to ensure those obligations are properly complied with.
What may an order for specific disclosure contain?
A direction to:
1. Carry out a search for documents in which it is reasonable to suppose may:
a. Enable the party applying to advance his own case or to damage that of the party giving disclosure; or
b. Lead to a train of enquiry that could do the above
And
2. Disclose any documents found as a result of that search
When can an application for specific disclosure be made?
At any stage of the proceedings, any in particular at a stage where the court is giving directions as to case management. However, the lateness of an application may undermine its claim that the documents are necessary
May even order it before the defence has been filed, in order to allow a defendant to plead a full defence, rather than just a bare denial
What will the court need to satisfy itself of before making an application for standard disclosure?
- That the documents are relevant (analysed by looking at the pleadings),
- they are or have been in the party’s control
(or at least there is a prima facie case that these requirements would be met)
Where a claim may turn on a document, there is a stronger case for its disclosure
How should an order for specific disclosure of medical records be made?
In the ordinary way, the claimant’s solicitors should produce them. Unless exceptional circumstances apply, the court should not order the defendant to have authority go and access them.
What may occur where the claimant refuses to disclose a medical report or does not allow a doctor to examine them?
The court can stay the claim. Conditions can be made on any order (i.e. that a parent is allowed to be there at an examination of a child)
Can the power to order specific disclosure be used for interlocutory hearings?
Sparingly, but yes, and only then for those that are necessary for the just disposal of the proceedings.
How does the ECHR come into play for an order for specific disclosure?
Art 6 and art 8 must be balanced.
Can a court order specific disclosure in terms of documents for credibility?
Yes, but only in exceptional cases.
May a document disclosed be used for any other purpose than for the proceedings it has been disclosed in?
No, unless:
a. it has been read to or by the court, or referred to at a hearing held in public;
b. the court gives permission; or
c. the party who disclosed the document and the person to whom the document belongs agree
Can a document always be used for other purposes where it has been read or referred to at a public hearing?
No, as the court can make an order restricting or prohibiting the use of such a document
How is an application made to restrict or prohibit the collateral use of a document read or referred to at a public hearing?
By a party or to any person the document belongs
Does an Electronic Documents Questionnaire come under the provisions to restrict or prohibit collateral use of a document disclosed?
Yes it is treated as such a document.
How is disclosure at pre-action stage activated?
By the court making an order after an application.
What must accompany an application for pre-action disclosure?
Evidence.
When may the court make an application for pre-action disclosure?
Where:
1. the respondent is likely to be a party to the proceedings
2. the applicant is likely to be a party to the proceedings
3. if proceedings had started, the respondent’s duty by way of standard disclosure would extent to the documents or classes of documents the applicant seeks for disclosure
4. disclosure pre-action is desirable to:
a. dispose fairly of the anticipated proceedings
b. assist the dispute to be resolved without proceedings; or
c. save costs
What must an order for pre-action disclosure do?
It must:
1. specify the documents/classes of documents which are required to be disclosed; and
2. require him to specify:
a. which of those documents are no longer in his control; or
b. in respect of which he claims a right or duty to withhold inspection
What may an order for pre-action disclosure do?
- Require the respondent to indicate what has happened to the documents which are no longer in his control; and
- Specify the time and place for disclosure and inspection
What documents are covered by pre-action disclosure?
It is different to standard disclosure. Therefore, it is those documents which are within the party’s possession, custody or power as reflected in the Senior Courts Act 1981 s.33
CPR test may be broader.
Court looks to what would be covered by standard disclosure, without regard to the disclosure pilots.
What is the court’s approach to pre-action disclosure?
Two stages:
1. Whether the court has jurisdiction (i.e. they are both likely to be parties, respondent’s duty under standard disclosure would extend to these, desirable to fairly dispose, dispose without proceedings, save costs). Under this head there is no test of arguability
2. Whether, as a matter of discretion, the order should be made
What goes into the discretion of the court when deciding whether to order pre-action disclosure or not?
Considerations include:
a. Loss complained of
b. Clarity and identification of issues
c. Nature of documents requested
d. Relevance of any protocol or pre-action inquiries
e. Opportunity the claimant has to make his case without
Court required to take a big picture view of the case. Does not necessitate lengthy complex investigations into merits but prospect of success is relevant.
Also the Overriding objective
In addition to the considerations for the discretion and jurisdiction, what also must be present for the court to make an order for pre-action disclosure?
A real prospect of success
What is the relevance of merits when deciding an application for pre-action disclosure?
Courts should be hesitant about embarking upon any determination of substantive issues in the case. Normally sufficient for it to be properly arguable and have a real prospect of success
Applicant must show a prima facie case of entitlement to substantive relief.
Does CPR 31 limit any other powers the court has to order disclosure?
No, not for any to order disclosure before proceedings have started and against a person who is not a party to the proceedings.
How does the court come round to considering ordering disclosure against a non-party?
On an application made to the court.
What should accompany an application for non-party disclosure?
Evidence
When may a court order non-party disclosure?
On an application where:
1. The documents are likely to support the case of the applicant or adversely affect the case of another party; and
2. Disclosure is necessary in order to dispose fairly of the claim or to save costs.
What must an order for non-party disclosure do?
- Specify the documents or classes of documents which the respondent must disclose; and
- Require the respondent to specify any of those documents:
a. No longer in his control; or
b. In respect of which he claims a right or duty to withhold inspection
What may an order for non-party disclosure do?
- Require the respondent to indicate what has happened to a document no longer in his control; and
- Specify the time and place for disclosure and inspection.
Where are the powers to order non-party disclosure contained?
Section 34 Senior Courts Act 1981 (High Court) and Section 53 County Courts Act 1984
What do the statutes for non-party disclosure allow for?
To issue an order requiring a non-party to:
1. Disclose whether those documents are in his possession, custody, or power
2. Produce any such documents to the applicant, or on conditions as may be specified:
a. To the applicant’s legal advisers
b. To the applicant’s legal advisers and any medical advisers, or
c. To any other medical or other professional adviser of the applicant
It also may have the power to order:
a. Inspection, photographing, preservation, custody and detention of property which is not the property or in the possession of any of the parties but which is the subject-matter of the proceedings or an issue in it
b. The taking of samples of such property and carrying out any experiment on them
What part of the ECHR does the making of an order for non-party disclosure engage?
Art 8, but it may be justified (and potentially art 10 if making an order for disclosure of journalistic sources)
What must a court do before ordering non-party disclosure where they have had no access to the pleadings or evidence?
It must satisfy itself that:
1. The documents were ones that fell into the specified categories
2. The documents were (not merely might be) documents that would support the case of the applicant or adversely affect the case of another party
Can a court allow a third party to give submissions in respect of a third party disclosure application?
Yes
Can disclosure for a police statement be ordered?
Yes, where the confidentiality is outweighed by the particular circumstances of the case in ensuring there is a fair civil trial.
Can the court restrict who non-party disclosure is given to?
Yes, may restrict it to only legal or medical advisers.
May the court order disclosure against a party who has been ordered to pay the costs of an unsuccessful claim?
Yes
Is the provision for ordering third party disclosure a discretion?
Yes, even where the tests for relevance and necessity are satisfied
May non-party disclosure be used for the purpose of identifying an unknown party?
Yes. Court would balance the interests of the applicant against ECHR rights, including art 8.
Ample room for deciding that disclosure would not be proportionate
Can an application for non-party disclosure be made against someone outside of the jurisdiction?
Yes, where the documents are contained in England and Wales.
How is it decided whether documents sought for non-party disclosure ‘are likely to support the case?
If they may well do so as opposed to more probable than not.
Narrower test than in s34.
Must the relevance test be met for all documents where a party is asking for a class of documents in non-party disclosure?
Yes, party seeking this order must show this.
Can non-party disclosure be made for a defendant before he serves the defence?
He will probably need to plead his defence in order to show the disclosure may support his case
When is non-party disclosure ‘necessary in order to fairly dispose of the claim or to save costs’?
Court has a wide discretion for this, will look at all the circumstances of the case.
This is the exception and not the rule, will be exercised with caution.
Court will not make the order where it does not have sufficient information
What other powers does the Court have for ordering disclosure?
Norwich Pharmacal case:
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.
What can a Norwich Pharmacal order include?
An order for:
1. Disclosing the identity of the person
2. Or for documents or other information
In what situations (outside of it failing the criteria) can a Norwich Pharmacal order not be made?
- For foreign legal proceedings
- For fishing expeditions
What are the requirements to be satisfied for a Norwich Pharmacal order?
a. The applicant has to demonstrate a good arguable case in the form of a legally recognised wrong has been committed against them.
b. The respondent to the application must be mixed up in, so as to have facilitated, the wrongdoing
c. The respondent must be able, or likely able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued
d. Requiring disclosure from the respondent must be an appropriate and proportionate response in all the circumstances of the case, bearing in mind the exceptional but flexible nature of the jurisdiction
What wrongs are covered by Norwich Pharmacal?
May be a crime, tort, breach of contract, equitable wrong, or contempt of court, capable of being identified in general terms
To what cases is Norwich Pharmacal applicable?
It is of general application.
Does the applicant need to prove the wrong before a Norwich Pharmacal order is made?
No, but must at least show some reasonable basis for claiming that a wrong has been committed.
Is a Norwich Pharmacal order an order which the court will normally use?
No, it is an order of last resort where the information could not be found in another way.
Is it a requirement that the applicant be bringing court proceedings for a Norwich Pharmacal order?
No, it is available where the applicant either wants redress or to prevent further wrongdoing against him.
It can also be used in an action for the preservation of assets the subject of a proprietary claim.
Will the court order disclosure of journalistic sources under Norwich Pharmacal?
Not if there is no evidence of an intention to sue the wrongdoer.
What connection to the wrongdoing must there be for a Norwich Pharmacal order to be made?
Must be mixed up in it – not a mere bystander or witness.
What defences are there to disclosure under a Norwich Pharmacal order?
That the disclosure would self-incriminate – it must be the disclosure of the identity of the other party which causes the risk
Section 10 of the Contempt of Court – needs to be necessary n the interests of national security, justice, or for the prevention of disorder or crime.
Also court will not, save in exceptional circumstances, impose on a foreigner who is not a party to the principal proceedings a requirement to produce documents outside of the jurisdiction and concern business conducted outside of the jurisdiction.
Must a document which has been disclosed but is covered by legal professional privilege be disclosed?
They may claim that it is subject to a right or duty to withhold it and thereby not disclose it.
LPP is, generally, absolute and cannot be overridden except via a waiver or abrogated through statute.
It survives death/dissolution of a company where the relevant interest subsists.
How does one show that legal professional privilege apply to a document required to be disclosed?
That it either comes under legal advice privilege or litigation privilege.
How does one show a document falls under legal advice privilege?
The test is whether the communication or document is made confidentially for the dominant purpose of legal advice. This will be construed broadly.
To show this, they need to be both sworn and statemented to be confidential and written to or by the solicitor for the purposes of getting legal advice for their client.
Will also attach if sent to the other for the purpose of keeping client/solicitor informed so that advice can be sought and given.
Also applies to advice given on merely what should/shouldn’t be prudently done in a relevant legal context.
Communications also cover document which cover the substance of communications, including lawyers working advice.
Extends to documents including information in the public domain.
It extends to bills of costs.
DOES NOT extend to information given in the presence of the other party or which the facts are wholly in the public domain
Privilege is not affected by the fact that the action the disclosure is sought from is founded on a policy insuring the claimant against damages and costs incurred in a claim to which the disclosure relates.
Privilege extends to information which the solicitor receives in a professional capacity from a third party and which they convey to their client.
Also extends to documents generated for the negotiation for the purpose of getting litigation funding where the substance of the legal advice can be understood from those documents.
Internally circulated documents or parts revealing privileged communications are also privileged, for whatever purpose they have been circulated.
For legal advice privilege, who is the client in a large organisation?
Only of those employees authorised to seek and receive legal advice from the client’s lawyer. Does not extend to those not authorised, even if this is given to help the lawyer and they are authorised to speak to them. HAS to be authorised to seek and receive legal advice.
This principle is doubted but is still valid law.
Are communications with foreign lawyers covered by legal advice privilege?
Yes, whether or not the lawyers work in-house. All that is required is that they are acting as a lawyer.
How does one show communications are covered by litigation privilege?
Communications between a solicitor and a non-professional agent or third party, directly or through an agent that comes into existence after litigation is contemplated or commenced and made with a view to such litigation, either for the purpose of obtaining or giving advice in regard to it, or obtaining or collecting evidence to be used in it, or obtaining information which may lead to the obtaining of such evidence, are privileged.
Does not extend to documents, although obtained by the solicitor, which are copies of unprivileged documents.
Documents which come into existence for some purpose other than to instruct a lawyer or to form part of their brief are not privileged and do not subsequently become privileged simply because they are sent to a lawyer as part of their instructions.
Privilege cannot be given in respect of a copy of an affidavit obtained for the purpose of legal advice when the original is not privileged.
Documents which are prepared confidentially after a dispute has arisen between the claimant and defendant, for the purpose of obtaining information, evidence, or legal advice with reference to contemplated or existing litigation are privileged, including of transcripts of advice sessions.
Anonymous letters relevant to the dispute sent to the solicitor/counsel and to the client are confidential in respect of the solicitor/counsel, but not the client.
Are communications between a solicitor and a non-professional agent subject to litigation privilege?
Except where the non-professional agent is merely acting as a medium of communication, these communications are not privileged unless made with a view to litigation.
Example includes a surveyor’s report for the mere purpose of giving legal advice to the client unless litigation is contemplated or exists.
What things are excluded from things that attract litigation privilege?
The identity of the persons communicating, except where to reveal that would disclose some of the advice.
Are communications about settlement included in litigation privilege?
Yes, except where they are purely commercial discussions about that.
Does misleading someone about the purpose of the communication deprive that communication from litigation privilege?
No, if the dominant purpose was of obtaining information for the purpose of proceedings.
Are communications between a client and a non-professional agent or third party privileged?
Only if they come into existence for the dominant purpose of obtaining legal advice or to conduct or aid in the conduct of litigation in reasonable prospect at the time of its production in existing or anticipated proceedings.
What privilege attracts to pre-existing documents or copies or extracts therefrom?
Documents do not become privileged by the mere fact that they have been submitted to a solicitor, and neither do copies of unprivileged documents obtained from third parties.
Neither does it extend to cover an original document if the document came into existence before litigation was commenced or contemplated. It does not become privileged by merely giving it to a solicitor for the purposes of litigation.
However, original or copy documents obtained or prepared by the party for the purpose of obtaining their solicitor’s advice in view of pending or anticipated litigation are privileged.
However, there cannot be a privileged copy of an unprivileged document (except for the markings exception).
Equally, privilege does not attach to documents in the possession of both parties unless the documents would tend to indicate either the advice that might be sought or the advice given.
Where a solicitor complies a selection of unprivileged third party documents, such selection will be privileged if its production would indicate the advice being tendered. This does not extend to the client’s own documents but the court can refuse to order its production.
Copying or translation does not subtract or add to the privilege of the original documents
How can privileged be waived or lost?
It is the privilege of the client, who can expressly waive it.
Mere disclosure of privileged documents for a limited purpose does not constitute a general waiver of privileged.
The question of whether waiver is limited has to be determined by reference to the circumstances of the waiver and in particular what was expressly or impliedly communicated between the parties sending and receiving the material and what they must or ought to have reasonably understood.
The question of waiver is a fact sensitive decision, with reference to:
(a) Whether there was any reliance on the privileged material
(b) The purpose it was relied upon
(c) The particular context
The fundamental question is whether, in light of these matter considered together, it would be unfair to allow the party making the disclosure not to reveal the whole of the relevant information as it may risk misleading understanding of the material.
Even the mere statement of the conclusion of legal advice may constitute a waiver.
It is not waived by merely referring to the document in a statement of case or an affidavit.
If one part of the document is waived, the rest will be unless it is entirely different subject matter.
What happens to privilege where there has been a joint retainer?
It is shared until such time as a conflict arises and the other party decides whether or not to instruct separate solicitors
What is the effect of reading a part of a privileged document in open court?
Reading part of a privileged document in open court results in the waiver of the whole unless the non-waiving party has already seen the document.
Does the use of a document for XX result in the loss of its privilege?
It does not make it part of the evidence so as to entitle the other side to interrogate other parts of it.
Does a waiver of privilege between a solicitor and client waive privilege of other documents?
Not of the further litigation privilege of documents brought into existence for this purpose.
How should the court approach deciding the scope of a waiver of privilege in respect of one of a series of transactions?
- The court should identify which transaction’s privilege has been waived, which could be identifiable from the nature of the disclosure (i.e. advice in respect of one transaction)
- However, it could become apparent that material or other material that the transaction was wider than immediately transparent. If so, the whole transaction is disclosable.
- Further disclosure would then be necessary if that was necessary inj order to prevent unfairness
Does institution of proceedings for negligence against a solicitor constitute a waiver of privilege?
Yes, to all relevant documents necessary to adjudicate the dispute fully and fairly.
It is a limited waiver, and does not extend to the communications of the client and other solicitors.
Does a reference in an affidavit to a legal document or conversation with solicitors represent a waiver of privileged?
No
Does service of a witness statement under an order of a court waive privilege of any connected documents?
No, unless and until the statement is deployed in court.
In terms of waiving privilege, is a distinction drawn about a positive assertion and to a response to another party’s assertion about the advice?
Yes, no waiver of privilege would occur by responding to an assertion made by the other party about the advice since it is not voluntary.
Does showing an opponent a draft witness statement in court waive privilege?
Yes
Does showing a mediator privileged documents in the court of a mediation waive privilege?
No
Are without prejudice communications admissible?
No
What does the without prejudice rule protect from being admissible?
All negotiations aimed genuinely at a settlement, whether oral in in writing.
The settlement must be about a dispute and not merely the seeking of a concession for payment of an undisputed debt.
When may without prejudice material be admissible?
When the issue is whether or not negotiations ended in an agreed settlement, but not inr elation to any other issue or admission made.
Does the without prejudice rule apply to third parties?
Yes, and applies to them to not be disclosable either.
Do the words ‘without prejudice’ need to be expressly used for the rules to apply?
No
Are documents the without prejudice rule applies to susceptible to production in disclosure?
No
Can the without prejudice rule be asserted in respect of a pre-litigation dispute?
Yes, notwithstanding litigation has been threatened, as long as there is relevant proximity.
Is the without prejudice rule absolute?
No, resort may be had when the justice of the case required it, giving due weight to the purpose of the rule.
For example, where one party has settled but now seeks contribution, they would have to disclose the discussions.
Equally, they may be given in evidence where an allegation of fraud is made.
May also be given when the fact of coming to a settlement is in dispute.
Finally, communications which form part of the factual matrix or surrounding circumstances and are relevant as an aid to construction of an agreement can be admissible.
Equally, so too are such communications made in a mediation where they are made between the parties.
If one party alleges communications originally held on a without prejudice basis changed into an open basis, how is that proven?
The burden is on that party to bring the change to the attention of the other party and to establish objectively that the recipient would have realised about the change.
Does the heading “without prejudice” conclusively/automatically give without prejudice privilege?
No, if such a privilege is claimed but challenged the court ought to inspect the document and determine its nature.
Is without prejudice privilege restricted to offers?
No, it may apply to, for example, documents written in the opening stages of negotiations.
What should a judge do if they see a privileged or inadmissible document/material and recusation is sought?
Should question whether they’ve become biased/partial based upon the fair minded and informed observer test.
Where one side wishes to mention without prejudice material, should they do so unilaterally?
No, they should consult the other side and notify the court of its intention to seek the court’s views on whether or how the material should be adduced.
Can a party write a letter to settle as an open letter and thereafter refer to it in trial?
Yes, provided it does not form continuing without prejudice negotiations.
On what grounds can a party claim to withhold disclosure/inspection of a document?
Either on the ground that it would damage the public interest or that they have a right or duty to do so.
How (ie what process does he follow in order to) does a party claim he has a right or duty to withhold a document?
He must state in writing:
He has such a right or duty and
The grounds he claims this.
Such a statement must be made in the list in which the document is disclosed or, if there is no list, to the person wishing to inspect the document.
After a party has claimed one document is privileged, does the other party have no recourse to potentially inspect or have it disclosed?
It can apply to the court to se whether it should be upheld.
What can a court do when deciding an application on a claim to withhold inspection?
It may:
Require the person to produce the document to the court and
Invite any person to make representations
What should be included in an application to decide whether a claim to privilege should be upheld?
Evidence
What is the procedure for a party who wishes to withhold a document from disclosure on the grounds that it would damage public interest?
He can apply without notice for an order permitting him.
Unless the court orders otherwise an order for the above:
(a) Must not be served on any other person; and
(b) Must not be open to inspection by any one else
Can a party use a privileged document where it has been inadvertently inspected/disclosed?
Only with the permission of the court.
Does a communication with a third party in an ADR process attract legal professional privilege?
It is unlikely to, though will be protected by a duty of confidentiality.
Will the without prejudice rule apply to ADR processes?
Yes, and the court will not dissect the process to identify specific material that might be admissible.
Includes forms like mediation.
Will not apply to purely factual information however, like the cost of the process.
Can without prejudice privilege be used by a mediator or evaluator?
No, as it is the parties’ privilege.
Can the without prejudice communication be excluded for specific purposes?
Yes, such as “WP save as to costs” in order to refer to it later for costs. Indeed, where communications are not expressly said as without prejudice but are treated as being so in regards to the substantial dispute, they may be used in regards to costs.
Can a party refer to events of the mediation if referred to in a without prejudice save as to costs letter?
Yes
Is without prejudice protection waived by making a claim for indemnity costs which raises issues of conduct?
Not automatically.
May court conciliation led by a judge in collaboration with the cafcass officer and a mediator be seen as privileged on a without prejudice basis?
They may not be
Are settlement discussion explored with a judge in financial remedies cases without prejudice?
Yes, as the judge will not take a further part in the case if not settled.
Are communications between parties and a conciliation officer in employment cases protected from disclosure?
Yes
In what circumstances does the without prejudice principle not apply?
- Where the information is disclosable for some other reason
- To peripheral matter such as terms of payment where settlement of a dispute is not in issue
- If the communication is made before there is clearly a dispute
- If negotiations are carried out to prevent a dispute arising rather than to resolve it
- To matters of detail once liability it admitted
- If an open offer is made
- If a full admission on an issue is made, rather than a potential concession
- Material prepared for a discussion between expert directed by a court, even if envisaged it might be used in mediation
- Where the words without prejudice are merely hiding something that should be conveyed in an open communication.
When else may the court look to relevant communications made with a view to settlement?
- Where the issue is whether a settlement was reached or the terms of that settlement
- Where the issue is the proper interpretation of construction of a settlement
- Where ethe court is asked to consider if anything was agreed as to costs or contribution
- Where the issue is whether a settlement should be set aside on the grounds of misrepresentation, fraud, or undue influence
- Where the issue is whether an estoppel has arisen as a result of a communication made with a view to settlement being relied on
- Where material is direct relevant to the alter case and relates to different issues
- Where there is a subsequent professional negligence claim
- A limited exception may allow information to explain delay or obtain relief from a sanction
- And where there is a risk of serious harm, i.e. to a child
Will an allegation of improper conduct during settlement discussions mean that the court will look into the settlement discussions?
Only where it is of very serious conduct, such as perjury, blackmail, unambiguous impropriety, dishonest conduct, or oppressive conduct.
Therefore, only in an unambiguous and serious case will a court go behind the principle of without prejudice.
Where a party inadvertently allows a privileged document to be inspected, can the party who has inspected the document use it or its content?
only with the permission of the court
