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