4.6 Inspection

Question 1

“A party to whom a document has been disclosed has a right to inspect that document except where -

Answer 1

CPR 31.3(1)

(a) [control]
the document is no longer in the control of the party who disclosed it;

(b) [privilege]
the party disclosing the document has a right or a duty to withhold inspection of it;

(c) [disproportionality]
paragraph (2) applies; or

(d) [cross-border mediation]
rule 78.26 applies.

Question 2

Which Rule concerns the right of inspection?

Answer 2

CPR 31.3

Question 3

What should a party do if it it believes it would be disproportionate to allow inspection of a document (generally because of privilege)?

Answer 3

CPR 31.3(2)
(a)
he is not required to permit inspection of documents within that category or class; but
(b)
he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Question 4

What are the three most important types of privilege for the purposes of withholding inspection under CPR 31.3(1)(b)?

Answer 4

1. Legal advice;
2. Litigation;
3. Without prejudice communications.

Question 5

What are the five main principles that apply to all types of privilege?

Answer 5

1. Privileged documents must still be disclosed;
2. Privilege is not the same as confidentiality;
3. Privilege can be waived;
4. Once privileged, always privileged;
5. The burden is on the party claiming privilege.

Question 6

How are privileged documents listed in the disclosure list?

Answer 6

Generically, not specifically.

Question 7

Can a party redact information that is not privileged but it does not wish to have inspected, e.g., because it is commercially sensitive or otherwise confidential?

Answer 7

Ennis Property Finance Ltd v Thompson [2017] EWHC 3263 (Ch)

A party can redact irrelevant information. This is a common law rule not covered in the CPR.

The redacted and unredacted versions must be listed separately in the disclosure list.

(NB: privileged parts of documents can also be redacted.)

Question 8

Can a party ‘cherry pick’ waiver of privilege, i.e., waive privilege over part of a document but assert privilege over the rest of it?

Answer 8

Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529
Generally, once privilege is waived over part of a document, it is waived over the whole document.

The exception is where a separate part of the document deals with an entirely separate subject matter. Then the document may be ‘severed’.

Question 9

When can privilege over ‘without prejudice’ communications be waived?

Answer 9

Rush and Tompkins Ltd v Greater London Council [1989] AC 1280
Only with consent of both parties. (Without prejudice privilege belongs to both sides.)

Question 10

How can privilege be waived?

Answer 10

Expressly or implicitly, e.g., by disclosing a privileged document to the other side.

Question 11

What is the broader effect of waiving privilege over a specific document?

Answer 11

Derby and Co Ltd v Weldon (No 10) [1991] 1 W.L.R. 660
The waiver will be taken to extend to any associated material.

e.g., waiver with regard to one advice from a solicitor may lead to waiver over the rest of the party’s communications with that solicitor.

Question 12

What does the maxim ‘once privileged, always privileged’ mean?

Answer 12

The Aegis Blaze [1986] 1 Lloyd’s Rep 203
If something is privileged in relation to a set of proceedings, it will be privileged in relation to all subsequent proceedings unless privilege is lost or waived.

Question 13

Which Rule lists the documents via which a party may implicitly disclose the existence of (and waive privilege over) documents?

Answer 13

CPR 31.14

Question 14

What documents is a party normally entitled to inspect? (i.e., they are treated as having been disclosed)

Answer 14

CPR 31.14

(1)
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

(2)
… a party may apply for an order for inspection of any document mentioned in an expert report …

Expandable v Rubin [2008] EWCA Civ 59
Subject to legal privilege.

Question 15

Which Rule sets out what a party must do in order to inspect disclosed documents?

Answer 15

CPR 31.15

Question 16

What must a party do in order to exercise its right to inspect a document?

Answer 16

CPR 31.15(a)

… give the party who disclosed the document written notice of his wish to inspect it;

Question 17

What must a party do in order to exercise its right to a copy of a disclosed document?

Answer 17

CPR 31.15(c)

that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs …

Question 18

What must a disclosing party do when the other party asserts its right to inspect a document ?

Answer 18

CPR 31.15(b)
the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice;

Question 19

What must the disclosing party do when the other party requests a copy of a document?

Answer 19

CPR 31.15(c)
… if [the requesting party] undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.