4.6 Standard disclosure

Question 1

Which Rule sets out what must be disclosed in standard disclosure?

Answer 1

CPR 31.6

Question 2

What documents are required to be disclosed in standard disclosure?

Answer 2

CPR 31.6
Standard disclosure requires a party to disclose only—
(a) the documents on which he relies; and
(b) the documents which—
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.

Question 3

What types of case is standard disclosure ordered in?

Answer 3

Most fast and multi-track cases.

Question 4

Where is ‘document’ defined for the purposes of CPR 31.6?

Answer 4

CPR 31.4

Question 5

How is ‘document’ defined for the purposes of CPR 31.6?

Answer 5

CPR 31.4
“document” means anything in which information of any description is recorded.

[eg, digital recordings, photographs, etc.]

Question 6

What is the limit on a party’s duty to disclose documents?

Answer 6

CPR 31.8(1)
A party’s duty to disclose documents is limited to documents which are or have been in his control.

[This applies to all disclosure; not just standard disclosure.]

Question 7

When are documents deemed to be under a party’s control?

Answer 7

CPR 31.8(2)
For this purpose a party has or has had a document in his control if—
(a)
it is or was in his physical possession;
(b)
he has or has had a right to possession of it; or
(c)
he has or has had a right to inspect or take copies of it.

Question 8

What are the three questions that must be asked when deciding whether standard disclosure requires a document to be disclosed?

Answer 8

1.
Is it a document? (CPR 31.4)
2.
Is the document under the party’s control? (CPR 31.8)
3.
Does the document fall into any of the standard disclosure categories (adverse effect on case, etc.)? (CPR 31.6)

Question 9

Which Practice Direction gives examples of electronic documents?

Answer 9

31B PD 5(3)

Question 10

In which Rule is the duty of search set out?

Answer 10

CPR 31.7

Question 11

What is the duty of search?

Answer 11

CPR 31.7(1)
When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

Question 12

What factors are relevant to the reasonableness of the search that a party undertakes?

Answer 12

CPR 31.7(2)
The factors relevant in deciding the reasonableness of a search include the following -
(a)
the number of documents involved;
(b)
the nature and complexity of the proceedings;
(c)
the ease and expense of retrieval of any particular document; and
(d)
the significance of any document which is likely to be located during the search.

[The court will also consider what is proportionate in accordance with the Overriding Objective.]

Question 13

What must a party do if it decides that it would be unreasonable to search for a category or class of document?

Answer 13

CPR 31.7(3)
Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.

Question 14

Which Rule sets out the procedure for standard disclosure?

Answer 14

CPR 31.10

Question 15

What is the most important part of the standard disclosure procedure?

Answer 15

CPR 31.10(2)
Each party must make, and serve on every other party, a list of documents in the relevant practice form.

[Form N265]

[Usually the parties will be directed to serve their lists at the same time.]

Question 16

In addition to the documents which the other party can inspect, what must the disclosure list contain?

Answer 16

CPR 31.10(4)
The list must indicate—
(a)
those documents in respect of which the party claims a right or duty to withhold inspection; and
(b)
(i) those documents which are no longer in the party’s control; and
(ii) what has happened to those documents.

Question 17

How should the disclosure list be arranged?

Answer 17

CPR 31.10(3)

The list must identify the documents in a convenient order and manner and as concisely as possible.

Question 18

What is a disclosure statement?

Answer 18

CPR 31.10
(5)
The [disclosure] list must include a disclosure statement.
(6)
A disclosure statement is a statement made by the party disclosing the documents—
(a)
setting out the extent of the search that has been made to locate documents which he is required to disclose;
(b)
certifying that he understands the duty to disclose documents; and
(c)
certifying that to the best of his knowledge he has carried out that duty.

Question 19

What are the three parts of the disclosure list?

Answer 19

1.
Documents available to be inspected or copied;
2.
Documents over which the party asserts privilege;
3.
Documents no longer under the party’s control.

Question 20

Which Rule deals with applications to withhold disclosure and applications to challenge withholding disclosure?

Answer 20

CPR 31.19

Question 21

What can a party do if it objects to another party asserting privilege over a document?

Answer 21

CPR 31.19(5)
A party may apply to the court to decide whether a claim made under paragraph (3) [to withhold a document] should be upheld.

Question 22

Where is the standard form of words in a standard disclosure statement set out?

Answer 22

31A PD 9 (annex)

Question 23

What can a party do if it believes that permitting inspection of certain documents would be disproportionately expensive or difficult?

Answer 23

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 24

What, additionally, must a party that is a company, firm, association or organisation include in its disclosure statement?

Answer 24

CPR 31.10(7)
… the statement must also -
(a)
identify the person making the statement; and
(b)
explain why he is considered an appropriate person to make the statement.

Question 25

What duty does a legal representative owe to her own client with regard to disclosure?

Answer 25

31A PD 4.4

The legal representative must “endeavour to ensure” that the client understands the duty of disclosure.