14. Disclosure and inspection of documents

Question 1

When can you withhold inspection of a document?

Answer 1

Legal professional privilege

Public interest immunity

Disproportionate

Incrimination

Question 2

What claims does the disclosure regime in CPR 31 apply to?

Answer 2

All of them except those on the small claims track

Question 3

What does disclosure mean?

Answer 3

A party discloses it by stating it exists or has existed

Question 4

What right does disclosure of a document give?

Answer 4

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.

Question 5

What guidance is there on when disclosure of a category or class of document can be considered ‘disproportionate’?

Answer 5

Parties should bear in mind overriding principle of proportionality

Question 6

What does ‘document’ mean in context of disclosure?

Answer 6

Anything in which information of any description is recorded, including electronically, whether deleted or not, and also includes metadata.

Question 7

What does ‘copy’ in respect of a document mean in the context of disclosure?

Answer 7

Anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

Question 8

What does standard disclosure apply to?

Answer 8

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

Question 9

What should occur at least 14 days before any case management conference?

Answer 9

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

Question 10

What should occur at least 7 days before any case management conference?

Answer 10

Parties must meet and discuss to agree a proposal in relation to disclosure that meets the overriding objective

Question 11

What can happen if the parties agree a proposal for disclosure?

Answer 11

If parties agree and the court considers the proposal appropriate
It may approve it without a hearing

Question 12

What may happen at the case management conference re disclosure?

Answer 12

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)

Question 13

May the court specify how disclosure is to be made?

Answer 13

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

Question 14

What does standard disclosure require?

Answer 14

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.

Question 15

What does ‘adversely affect’ or ‘support’ mean for disclosure?

Answer 15

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

Question 16

What categories of documents are there in disclosure?

Answer 16

1. The party’s own documents that they rely upon
2. Adverse documents which affect a parties case or support another’s
3. Relevant documents (i.e. part of the story and background)
4. 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

Question 17

Are documents relevant to quantum disclosable?

Answer 17

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

Question 18

Are documents relevant to the insurance position disclosable?

Answer 18

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.

Question 19

Are train of inquiry documents disclosable?

Answer 19

Potentially in cases involving allegations of fraud, dishonesty, or misrepresentation, however such enhanced disclosure should be made after standard disclosure

Question 20

Does disclosure still apply where a party has been debarred from defending due to non-compliance with an unless order?

Answer 20

Yes.

Question 21

Is redaction acceptable?

Answer 21

Yes, but they must be careful to not take out any information that needs to be disclosed.

Question 22

What searches are parties required to make for disclosure?

Answer 22

A reasonable search.

Question 23

What factors are relevant for determining the reasonableness of a search in disclosure?

Answer 23

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.

Question 24

What happens where a party does not search for a category or class of document on the grounds that it is unreasonable?

Answer 24

They must state this in the disclosure statement and identify this class or category of document

Question 25

What documents is the duty of disclosure limited to?

Answer 25

Documents which are or have been in a party’s control

Question 26

What documents are taken to have been in a party’s control for disclosure purposes?

Answer 26

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

Question 27

Does a party need to disclose copies?

Answer 27

No, only one copy of a document needs to be disclosed

Question 28

How are documents with modifications, obliteration, or other marking or features treated for disclosure?

Answer 28

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

Question 29

What is the procedure for standard disclosure?

Answer 29

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

Question 30

In what form should the disclosure list be in?

Answer 30

N265

Question 31

How should the disclosure list be formatted/documents named e.c.t.?

Answer 31

1. Give documents in date order
2. Number them consecutively
3. Give a concise description
4. Where there is a large number of documents falling into one category, it may be better to list those as a category

Question 32

What is a disclosure statement?

Answer 32

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

Question 33

What additional things must a disclosure statement from a company do?

Answer 33

a. Identify the person making the statement
b. Explain why he is considered an appropriate person to make such a statement

Question 34

What things may the parties agree to do in respect of the disclosure statement?

Answer 34

In writing:
a. Disclose without making a list
b. Disclose documents without a disclosure statement

Question 35

May a disclosure document be made by a non-party?

Answer 35

Yes, where a practice direction allows this.

Question 36

When does the duty of disclosure operate from?

Answer 36

Throughout proceedings. If any documents come to the attention of the party during those proceedings, he must immediately identify that to the other parties.

Question 37

How should a party disclose any additional documents?

Answer 37

In a supplemental disclosure list

Question 38

In what documents does a reference to a document entitle the other party to inspect it?

Answer 38

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.

Question 39

What happens where a party wishes to inspect a document they have a right to inspect?

Answer 39

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

Question 40

What is the consequence of a failure to disclose documents?

Answer 40

A party may not rely on that document unless the court gives permission

Question 41

What may occur when a party gives a false disclosure statement?

Answer 41

Proceedings for contempt of court may be brought.

Question 42

What is the normal order for disclosure?

Answer 42

Standard disclosure

Question 43

Can the obligations under standard disclosure be varied?

Answer 43

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

Question 44

What should the disclosure statement contain?

Answer 44

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.

Question 45

What must a legal representative do when a person makes a disclosure statement?

Answer 45

Make sure he understands the duty of disclosure

Question 46

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?

Answer 46

They may sign the disclosure statement

Question 47

What should a party do where they wish to inspect a document mentioned in an expert’s report?

Answer 47

Should first ask informally before issuing, and inspection should be provided where it is not unreasonable.

Question 48

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?

Answer 48

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

Question 49

What order may the court make for disclosure of a specific document?

Answer 49

The court may make an order for specific disclosure or inspection

Question 50

What is an order for specific disclosure or inspect?

Answer 50

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

Question 51

Can parties opt out of an order for specific disclosure if they believe they have the right to not disclose it?

Answer 51

No, they cannot.

Question 52

When would a party apply for specific disclosure?

Answer 52

Where they believe the disclosure was inadequate

Question 53

What must be contained in an application notice for specific disclosure?

Answer 53

The order the party wants the court to make and must be supported by evidence.

Question 54

Where should the grounds for an application for specific disclosure be made?

Answer 54

Either in the application notice or in the evidence filed in support

Question 55

What will the court take into account in an application for specific disclosure?

Answer 55

1. All of the circumstances; and
2. The overriding objective in particular

Question 56

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?

Answer 56

If satisfied that a party has failed to comply, it may make an order as necessary to ensure those obligations are properly complied with.

Question 57

What may an order for specific disclosure contain?

Answer 57

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

Question 58

When can an application for specific disclosure be made?

Answer 58

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

Question 59

What will the court need to satisfy itself of before making an application for standard disclosure?

Answer 59

1. That the documents are relevant (analysed by looking at the pleadings),
2. 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

Question 60

How should an order for specific disclosure of medical records be made?

Answer 60

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.

Question 61

What may occur where the claimant refuses to disclose a medical report or does not allow a doctor to examine them?

Answer 61

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)

Question 62

Can the power to order specific disclosure be used for interlocutory hearings?

Answer 62

Sparingly, but yes, and only then for those that are necessary for the just disposal of the proceedings.

Question 63

How does the ECHR come into play for an order for specific disclosure?

Answer 63

Art 6 and art 8 must be balanced.

Question 64

Can a court order specific disclosure in terms of documents for credibility?

Answer 64

Yes, but only in exceptional cases.

Question 65

May a document disclosed be used for any other purpose than for the proceedings it has been disclosed in?

Answer 65

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

Question 66

Can a document always be used for other purposes where it has been read or referred to at a public hearing?

Answer 66

No, as the court can make an order restricting or prohibiting the use of such a document

Question 67

How is an application made to restrict or prohibit the collateral use of a document read or referred to at a public hearing?

Answer 67

By a party or to any person the document belongs

Question 68

Does an Electronic Documents Questionnaire come under the provisions to restrict or prohibit collateral use of a document disclosed?

Answer 68

Yes it is treated as such a document.

Question 69

How is disclosure at pre-action stage activated?

Answer 69

By the court making an order after an application.

Question 70

What must accompany an application for pre-action disclosure?

Answer 70

Evidence.

Question 71

When may the court make an application for pre-action disclosure?

Answer 71

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

Question 72

What must an order for pre-action disclosure do?

Answer 72

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

Question 73

What may an order for pre-action disclosure do?

Answer 73

1. Require the respondent to indicate what has happened to the documents which are no longer in his control; and
2. Specify the time and place for disclosure and inspection

Question 74

What documents are covered by pre-action disclosure?

Answer 74

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.

Question 75

What is the court’s approach to pre-action disclosure?

Answer 75

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

Question 76

What goes into the discretion of the court when deciding whether to order pre-action disclosure or not?

Answer 76

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

Question 77

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?

Answer 77

A real prospect of success

Question 78

What is the relevance of merits when deciding an application for pre-action disclosure?

Answer 78

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.

Question 79

Does CPR 31 limit any other powers the court has to order disclosure?

Answer 79

No, not for any to order disclosure before proceedings have started and against a person who is not a party to the proceedings.

Question 80

How does the court come round to considering ordering disclosure against a non-party?

Answer 80

On an application made to the court.

Question 81

What should accompany an application for non-party disclosure?

Answer 81

Evidence

Question 82

When may a court order non-party disclosure?

Answer 82

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.

Question 83

What must an order for non-party disclosure do?

Answer 83

1. Specify the documents or classes of documents which the respondent must disclose; and
2. 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

Question 84

What may an order for non-party disclosure do?

Answer 84

1. Require the respondent to indicate what has happened to a document no longer in his control; and
2. Specify the time and place for disclosure and inspection.

Question 85

Where are the powers to order non-party disclosure contained?

Answer 85

Section 34 Senior Courts Act 1981 (High Court) and Section 53 County Courts Act 1984

Question 86

What do the statutes for non-party disclosure allow for?

Answer 86

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

Question 87

What part of the ECHR does the making of an order for non-party disclosure engage?

Answer 87

Art 8, but it may be justified (and potentially art 10 if making an order for disclosure of journalistic sources)

Question 88

What must a court do before ordering non-party disclosure where they have had no access to the pleadings or evidence?

Answer 88

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

Question 89

Can a court allow a third party to give submissions in respect of a third party disclosure application?

Answer 89

Yes

Question 90

Can disclosure for a police statement be ordered?

Answer 90

Yes, where the confidentiality is outweighed by the particular circumstances of the case in ensuring there is a fair civil trial.

Question 91

Can the court restrict who non-party disclosure is given to?

Answer 91

Yes, may restrict it to only legal or medical advisers.

Question 92

May the court order disclosure against a party who has been ordered to pay the costs of an unsuccessful claim?

Answer 92

Yes

Question 93

Is the provision for ordering third party disclosure a discretion?

Answer 93

Yes, even where the tests for relevance and necessity are satisfied

Question 94

May non-party disclosure be used for the purpose of identifying an unknown party?

Answer 94

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

Question 95

Can an application for non-party disclosure be made against someone outside of the jurisdiction?

Answer 95

Yes, where the documents are contained in England and Wales.

Question 96

How is it decided whether documents sought for non-party disclosure ‘are likely to support the case?

Answer 96

If they may well do so as opposed to more probable than not.
Narrower test than in s34.

Question 97

Must the relevance test be met for all documents where a party is asking for a class of documents in non-party disclosure?

Answer 97

Yes, party seeking this order must show this.

Question 98

Can non-party disclosure be made for a defendant before he serves the defence?

Answer 98

He will probably need to plead his defence in order to show the disclosure may support his case

Question 99

When is non-party disclosure ‘necessary in order to fairly dispose of the claim or to save costs’?

Answer 99

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

Question 100

What other powers does the Court have for ordering disclosure?

Answer 100

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.

Question 101

What can a Norwich Pharmacal order include?

Answer 101

An order for:
1. Disclosing the identity of the person
2. Or for documents or other information

Question 102

In what situations (outside of it failing the criteria) can a Norwich Pharmacal order not be made?

Answer 102

1. For foreign legal proceedings
2. For fishing expeditions

Question 103

What are the requirements to be satisfied for a Norwich Pharmacal order?

Answer 103

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

Question 104

What wrongs are covered by Norwich Pharmacal?

Answer 104

May be a crime, tort, breach of contract, equitable wrong, or contempt of court, capable of being identified in general terms

Question 105

To what cases is Norwich Pharmacal applicable?

Answer 105

It is of general application.

Question 106

Does the applicant need to prove the wrong before a Norwich Pharmacal order is made?

Answer 106

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

Question 107

Is a Norwich Pharmacal order an order which the court will normally use?

Answer 107

No, it is an order of last resort where the information could not be found in another way.

Question 108

Is it a requirement that the applicant be bringing court proceedings for a Norwich Pharmacal order?

Answer 108

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.

Question 109

Will the court order disclosure of journalistic sources under Norwich Pharmacal?

Answer 109

Not if there is no evidence of an intention to sue the wrongdoer.

Question 110

What connection to the wrongdoing must there be for a Norwich Pharmacal order to be made?

Answer 110

Must be mixed up in it – not a mere bystander or witness.

Question 111

What defences are there to disclosure under a Norwich Pharmacal order?

Answer 111

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.

Question 112

Must a document which has been disclosed but is covered by legal professional privilege be disclosed?

Answer 112

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.

Question 113

How does one show that legal professional privilege apply to a document required to be disclosed?

Answer 113

That it either comes under legal advice privilege or litigation privilege.

Question 114

How does one show a document falls under legal advice privilege?

Answer 114

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.

Question 115

For legal advice privilege, who is the client in a large organisation?

Answer 115

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.

Question 116

Are communications with foreign lawyers covered by legal advice privilege?

Answer 116

Yes, whether or not the lawyers work in-house. All that is required is that they are acting as a lawyer.

Question 117

How does one show communications are covered by litigation privilege?

Answer 117

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.

Question 118

Are communications between a solicitor and a non-professional agent subject to litigation privilege?

Answer 118

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.

Question 119

What things are excluded from things that attract litigation privilege?

Answer 119

The identity of the persons communicating, except where to reveal that would disclose some of the advice.

Question 120

Are communications about settlement included in litigation privilege?

Answer 120

Yes, except where they are purely commercial discussions about that.

Question 121

Does misleading someone about the purpose of the communication deprive that communication from litigation privilege?

Answer 121

No, if the dominant purpose was of obtaining information for the purpose of proceedings.

Question 122

Are communications between a client and a non-professional agent or third party privileged?

Answer 122

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.

Question 123

What privilege attracts to pre-existing documents or copies or extracts therefrom?

Answer 123

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

Question 124

How can privileged be waived or lost?

Answer 124

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.

Question 125

What happens to privilege where there has been a joint retainer?

Answer 125

It is shared until such time as a conflict arises and the other party decides whether or not to instruct separate solicitors

Question 126

What is the effect of reading a part of a privileged document in open court?

Answer 126

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.

Question 127

Does the use of a document for XX result in the loss of its privilege?

Answer 127

It does not make it part of the evidence so as to entitle the other side to interrogate other parts of it.

Question 128

Does a waiver of privilege between a solicitor and client waive privilege of other documents?

Answer 128

Not of the further litigation privilege of documents brought into existence for this purpose.

Question 129

How should the court approach deciding the scope of a waiver of privilege in respect of one of a series of transactions?

Answer 129

1. 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)
2. 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.
3. Further disclosure would then be necessary if that was necessary inj order to prevent unfairness

Question 130

Does institution of proceedings for negligence against a solicitor constitute a waiver of privilege?

Answer 130

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.

Question 131

Does a reference in an affidavit to a legal document or conversation with solicitors represent a waiver of privileged?

Answer 131

No

Question 132

Does service of a witness statement under an order of a court waive privilege of any connected documents?

Answer 132

No, unless and until the statement is deployed in court.

Question 133

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?

Answer 133

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.

Question 134

Does showing an opponent a draft witness statement in court waive privilege?

Answer 134

Yes

Question 135

Does showing a mediator privileged documents in the court of a mediation waive privilege?

Answer 135

No

Question 136

Are without prejudice communications admissible?

Answer 136

No

Question 137

What does the without prejudice rule protect from being admissible?

Answer 137

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.

Question 138

When may without prejudice material be admissible?

Answer 138

When the issue is whether or not negotiations ended in an agreed settlement, but not inr elation to any other issue or admission made.

Question 139

Does the without prejudice rule apply to third parties?

Answer 139

Yes, and applies to them to not be disclosable either.

Question 140

Do the words ‘without prejudice’ need to be expressly used for the rules to apply?

Answer 140

No

Question 141

Are documents the without prejudice rule applies to susceptible to production in disclosure?

Answer 141

No

Question 142

Can the without prejudice rule be asserted in respect of a pre-litigation dispute?

Answer 142

Yes, notwithstanding litigation has been threatened, as long as there is relevant proximity.

Question 143

Is the without prejudice rule absolute?

Answer 143

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.

Question 144

If one party alleges communications originally held on a without prejudice basis changed into an open basis, how is that proven?

Answer 144

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.

Question 145

Does the heading “without prejudice” conclusively/automatically give without prejudice privilege?

Answer 145

No, if such a privilege is claimed but challenged the court ought to inspect the document and determine its nature.

Question 146

Is without prejudice privilege restricted to offers?

Answer 146

No, it may apply to, for example, documents written in the opening stages of negotiations.

Question 147

What should a judge do if they see a privileged or inadmissible document/material and recusation is sought?

Answer 147

Should question whether they’ve become biased/partial based upon the fair minded and informed observer test.

Question 148

Where one side wishes to mention without prejudice material, should they do so unilaterally?

Answer 148

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.

Question 149

Can a party write a letter to settle as an open letter and thereafter refer to it in trial?

Answer 149

Yes, provided it does not form continuing without prejudice negotiations.

Question 150

On what grounds can a party claim to withhold disclosure/inspection of a document?

Answer 150

Either on the ground that it would damage the public interest or that they have a right or duty to do so.

Question 151

How (ie what process does he follow in order to) does a party claim he has a right or duty to withhold a document?

Answer 151

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.

Question 152

After a party has claimed one document is privileged, does the other party have no recourse to potentially inspect or have it disclosed?

Answer 152

It can apply to the court to se whether it should be upheld.

Question 153

What can a court do when deciding an application on a claim to withhold inspection?

Answer 153

It may:
Require the person to produce the document to the court and
Invite any person to make representations

Question 154

What should be included in an application to decide whether a claim to privilege should be upheld?

Answer 154

Evidence

Question 155

What is the procedure for a party who wishes to withhold a document from disclosure on the grounds that it would damage public interest?

Answer 155

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

Question 156

Can a party use a privileged document where it has been inadvertently inspected/disclosed?

Answer 156

Only with the permission of the court.

Question 157

Does a communication with a third party in an ADR process attract legal professional privilege?

Answer 157

It is unlikely to, though will be protected by a duty of confidentiality.

Question 158

Will the without prejudice rule apply to ADR processes?

Answer 158

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.

Question 159

Can without prejudice privilege be used by a mediator or evaluator?

Answer 159

No, as it is the parties’ privilege.

Question 160

Can the without prejudice communication be excluded for specific purposes?

Answer 160

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.

Question 161

Can a party refer to events of the mediation if referred to in a without prejudice save as to costs letter?

Answer 161

Yes

Question 162

Is without prejudice protection waived by making a claim for indemnity costs which raises issues of conduct?

Answer 162

Not automatically.

Question 163

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?

Answer 163

They may not be

Question 164

Are settlement discussion explored with a judge in financial remedies cases without prejudice?

Answer 164

Yes, as the judge will not take a further part in the case if not settled.

Question 165

Are communications between parties and a conciliation officer in employment cases protected from disclosure?

Answer 165

Yes

Question 166

In what circumstances does the without prejudice principle not apply?

Answer 166

1. Where the information is disclosable for some other reason
2. To peripheral matter such as terms of payment where settlement of a dispute is not in issue
3. If the communication is made before there is clearly a dispute
4. If negotiations are carried out to prevent a dispute arising rather than to resolve it
5. To matters of detail once liability it admitted
6. If an open offer is made
7. If a full admission on an issue is made, rather than a potential concession
8. Material prepared for a discussion between expert directed by a court, even if envisaged it might be used in mediation
9. Where the words without prejudice are merely hiding something that should be conveyed in an open communication.

Question 167

When else may the court look to relevant communications made with a view to settlement?

Answer 167

1. Where the issue is whether a settlement was reached or the terms of that settlement
2. Where the issue is the proper interpretation of construction of a settlement
3. Where ethe court is asked to consider if anything was agreed as to costs or contribution
4. Where the issue is whether a settlement should be set aside on the grounds of misrepresentation, fraud, or undue influence
5. Where the issue is whether an estoppel has arisen as a result of a communication made with a view to settlement being relied on
6. Where material is direct relevant to the alter case and relates to different issues
7. Where there is a subsequent professional negligence claim
8. A limited exception may allow information to explain delay or obtain relief from a sanction
9. And where there is a risk of serious harm, i.e. to a child

Question 168

Will an allegation of improper conduct during settlement discussions mean that the court will look into the settlement discussions?

Answer 168

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.

Question 169

Where a party inadvertently allows a privileged document to be inspected, can the party who has inspected the document use it or its content?

Answer 169

only with the permission of the court