7 - Disclosure and Inspection

Question 1

Which CPR rules are relevant to sources and types of disclosure obligations.

Answer 1

The main CPR which support the content of this element are:
- CPR 27.4 and 27A PD Appendix B (in relation to the small claims track)
- CPR 28.2 and 28 PD 3.9 (in relation to the fast and intermediate track)
- CPR 31.5 (in relation to the multi-track)
- CPR 31.9 and CPR 31.11 in relation to broader disclosure points

Question 2

Where does the obligation to give disclosure come from?

Answer 2

There is no automatic obligation to give disclosure of anything. The obligation comes from a court order.

The order for disclosure is usually given on allocation or at a case management conference. A party can also apply for an order for disclosure at a later stage in the proceedings, although this is less common.

There are many different types of disclosure which a court could order.

Note: There is no obligation for the court to make an order for disclosure.

Question 3

What are the different types of disclosure orders that the court might give?

Answer 3

• Standard disclosure
• Alternative disclosure (or no order).

Question 4

How does the court arrive at one of the disclosure orders?

Answer 4

How the court arrives at an order for disclosure depends on the track to which the claim has been allocated.

Note: There is no requirement to file and serve a disclosure report in a personal injury claim.

Question 5

How might a court arrive at a order for disclosure in the small claims track?

Answer 5

Small claims track:
- Directions given on allocation.
- The usual order is that at least 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing (CPR 27.4(1) and (3))

Question 6

How might a court arrive at an order for disclosure in the fast and intermediate tracks?

Answer 6

Fast and Intermediate Track:
- The Court will give directions either on allocation (which his usual for fast track cases) or list the case for a CMC.
- Other than in claims which include a claim for personal injury (where unless the court orders otherwise the order will be for standard disclosure), the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which disclosure order to make (CPR28.2).
- The usual order made is standard disclosure.

The disclosure order can be:
a) An order dispensing with disclosure
b) An order that a party disclose the documents on which it relies and at the same time request any specific disclosure it requires from any other party
c) An order that directs, where practicable, the disclosure to be given by each party on an issue-by-issue basis
d) An order that each party disclose any documents which it is reasonable to suppose may contain information which enable that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences
e) An order for standard disclosure
f) Any other order for disclosure that the Court considers appropriate.

Question 7

How does the court arrive at one of the disclosure orders in the multi-track?

Answer 7

On the multi-track: there is a more complex system. This is largely because some multi-track cases can involve a large amount of documentation, and the wrong order could result in significant unnecessary inconvenience and expense.

As a result, in multi-track cases (other than personal injury cases) the parties must:
- Complete a disclosure report to be filed and served not less than 14 days before the first case management conference (CPR 31.5(3)).

• Not less than seven days before the first case management conference, consider the issues in the case and enter into discussions to seek to agree a draft disclosure order which they will then ask the court to make. The proposal should meet the overriding objective to conduct litigation at proportionate cost and to limit disclosure to that which is necessary to deal with the case justly (CPR 31.5(5)).

At the CMC (in any case), the court will consider carefully what form of disclosure order is most appropriate.

Question 8

What is a disclosure report?

Answer 8

The disclosure report briefly explains:
- What relevant documents exist, or may exist;
- Where, and with whom, they are;
- How any electronic documents are stored;
- Estimate the broad range of costs that could be involved in giving standard disclosure in the case;
- States which of the disclosure directions (several alternatives to standard disclosure are offered) are to be sought (CPR 31.5(7) and (8)).

Where there are electronic documents to be disclosed, parties should consider also using the Electronic Documents Questionnaire (EDQ - Form N264) which provides information about electronic documents.

Question 9

How does the court use the disclosure report at a CMC?

Answer 9

• The court uses the disclosure report and any other information available to consider if standard disclosure is too exspensive and to consider what disclosure order to make.
• The court might dispense with the need to carry out a search for documents, or require disclosure in relation to only some of the issues, or require disclosure in stages, for example.
• The court can make any order in relation to disclosure that it thinks is appropriate.

Note: There are concerns amongst judges and practitioners that this procedure for determining the type of disclosure which is required could be improved upon.

Question 10

Provide an overview of disclosure on the tracks.

Answer 10

Small claims track - Disclosure order included in directions given on allocation - Usual order: 14 days before hearing, file and serve documents relying on

Fast track - Disclosure order included in directions given on allocation - The Court will make an order for disclosure having regard to the overriding objective and limiting disclosure to that which is necessary to deal with the case justly.

Intermediate track - Disclosure order included in directions given on allocation/or listed for CMC - The Court will make an order for disclosure having regard to the overriding objective and limiting disclosure to that which is necessary to deal with the case justly.

Multi-track - Disclosure report filed and served not less than 14 days before CMC (not PI claims) - Conversation between the parties not less than 7 days before the CMC - Court makes appropriate disclosure order: there is no ‘usual’ order

Question 11

When do copies of documents need to be disclosed by a party?

Answer 11

A party does not have to disclose every copy of a document. Copies of documents need only be disclosed if:

• They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9). Such a copy document also needs to be separately considered for privilege; or
• The party has never had the original or no longer has the original in its control.

Question 12

What is the procedure for disclosure and inspection?

Answer 12

If the court orders standard disclosure - The procedure that accompanies that is prescribed by the CPR (CPR 31.10).

If an order other than standard disclosure has been made - The procedure (in terms of preparing lists, exchanging lists, providing copies of documents etc) will be set out as part of the order

Question 13

How long does the duty of disclosure last?

Answer 13

Any duty of disclosure continues until proceedings are concluded (CPR 31.11).

A party must disclose documents which come within its control or were created after the date it originally gave disclosure if they fall within its disclosure obligations.

Question 14

How may a party to whom a document has been disclosed use that document?

Answer 14

A party to whom a document has been disclosed may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purpose eg in other proceedings (CPR 31.22(1)).

There are some exceptions to this rule:
- The document has been read to or referred to by the court at a hearing held in public (‘read’ includes pre-read and referred to in skeleton arguments);
- The court gives permission; or
- The party who disclosed the document and the person to whom the document belongs agree.

The court can be asked to make an order restricting or prohibiting the use of a document read or referred to at a public hearing.

Question 15

What is alternative disclosure?

Answer 15

CPR 31.5(7)

(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure –

(a) An order dispensing with disclosure;
(b) An order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;
(c) An order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;
(d) An order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences (Reasonably advance or reasonably damage other party);
(e) An order that a party give standard disclosure;
(f) Any other order in relation to disclosure that the court considers appropriate.

Question 16

Provide a summary of the sources and types of disclosure obligations.

Answer 16

There is no automatic obligation to give disclosure – the obligation comes from a court order.

On the small claims track there is a ‘normal’ order, although the court can order something different.

On the fast and intermediate track, the court will make an order having regard to the overriding objective and will limit disclosure to that which is necessary to deal with the case justly.

On the multi-track, the court decides what type of disclosure order to make. This is usually considered at a CMC with sight of the parties’ disclosure reports (not in personal injury cases) and budgets.

The court can make any order in relation to disclosure that it thinks is appropriate. Instead of ordering standard disclosure, the court might (for example) dispense with the need to carry out a search for documents or require disclosure in relation to only some of the issues, or require disclosure in stages.

Only one copy of a document needs to be disclosed, unless the copies have (broadly speaking) changes / annotations which are material to the dispute.

The duty of disclosure imposed by a disclosure order carries on until proceedings are concluded.

Question 17

What is standard disclosure and what does it require a party to disclose?

Answer 17

‘Standard disclosure’ is a particular form of disclosure which the court can order, and it is the most common type of disclosure to be ordered.

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.

However, this must be read subject to two other provisions:
1. Firstly, the disclosure duty is about ‘documents’, and document is defined in the rules (CPR 31.4).
2. Secondly, a party’s duty to disclose documents is limited to documents which are or have been in his control (CPR 31.8).

Question 18

What is the meaning of a ‘document’ under standard disclosure?

Answer 18

Meaning of ‘document’ (CPR 31.4) -
A document is defined very widely and is anything which records information. It can therefore include:
- Digital recordings
- Emails
- Photographs
- Text messages
- Voicemails
- Metadata (data about data eg the time of creation or modification of a file, or its author)

Electronic documents could be stored on personal devices, desktop computers, servers, portable storage and many other locations. In many cases, the majority of documents are electronic documents.

Question 19

What is the meaning of ‘in a party’s control’ under standard disclosure?

Answer 19

Is/was it in the party’s control (CPR 31.8)? - Meaning of ‘in a party’s control’ -
The duty of disclosure is limited to documents which are or have been within a party’s control. Control is defined widely. It means:
- The document is (or was) in the physical possession of the party; or
- The party has (or has had) a right to possession of the document (eg documents held by party’s agent, such as documents a party sent to its own accountant); or
- The party has (or has had) a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records).

The obligation to disclose encompasses documents presently and formerly within a party’s control. All disclosure obligations are limited to documents which are or were in the disclosing party’s control – not just the obligation to give standard disclosure.

Question 20

How can a party determine whether a document falls within standard disclosure?

Answer 20

Does it fall within standard disclosure (CPR 31.6)? – meaning of standard disclosure - Meaning of standard disclosure:

Standard disclosure requires a party to disclose documents which:
- It relies on;
- Adversely affect its own case;
- Adversely affect another party’s case;
- Support another party’s case; or
- It is required to disclose by a relevant practice direction (eg practice direction to the pre-action protocols).

Note: The requirement to disclose is met if a document satisfies even one of these criteria - it need not satisfy mor than one of the criteria. Whether or not a document satisfies one of these criteria must be determined by considering the issues in dispute as revealed by the statements of case.
Documents which might be considered relevant in the sense that they tell the story of what happened, but which do not support or undermine either side’s case, do not need to be disclosed under standard disclosure (unless the disclosing party wishes to rely on them).

Question 21

What is the concept of a reasonable search under standard disclosure?

Answer 21

If an order for standard disclosure is made, the rules provide that a party must make a reasonable search for documents falling into categories CPR 31.6(b) and (c).

What is reasonable depends on the following:
- The number of documents involved
- The nature and complexity of the proceedings
- How difficult/expensive it is to retrieve any document
- The significance of any document likely to be found

In deciding what constitutes a reasonable search, the court must also take into account the overriding objective and of proportionality. It might be possible to limit the search to documents relating to a specific transaction, or documents created on or after a specific date. The limitations will vary with the nature of every claim.

Question 22

What is a disclosure list under standard disclosure?

Answer 22

Standard disclosure is performed by each party making a list of the required documents and serving it on the other party (CPR 31.10). The normal direction is for lists to be exchanged simultaneously.

The list falls into three parts:
(a) ‘I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.’
(b) ‘I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege].’
(c) ‘I have had the documents numbered and listed below, but they are no longer in my control.’

When listing the documents for (b), it is not necessary to individually list each document for which the party is withholding inspection:
- For example, rather than listing each and every fax and letter between the defendant and its solicitor by date, it is sufficient to describe generically such documents as correspondence between the defendant and its solicitor for the purpose of giving legal advice.
- The details of each and every document which must be disclosed, but which are privileged from inspection, are not therefore revealed in the list.
- If the recipient disagrees with the disclosing party’s assertion of privilege, it can apply to court challenging the alleged privilege (CPR 31.19(5)).

Question 23

What is a disclosure statement (under standard disclosure) found within the disclosure list?

Answer 23

Every list of documents must include a disclosure statement in the prescribed form (31A PD 4).

This:
- Sets out the extent of the search made (ie that the search was reasonable and proportionate and also what was not searched for - eg documents predating a certain date);
- Certifies the party understands its duty to disclose the documents; and
- Certifies that, to the best of the party’s knowledge, it has carried out that duty.

The disclosure statement must include details of any documents the inspection of which the party considers disproportionate (CPR 31.3(2)).

The disclosure statement must be made (signed) by the disclosing party.

If the ‘person’ making the statement is a company, the statement should be made by an appropriate officer, who must identify him/herself and state why they are the appropriate person to make the statement (CPR 31.10(7)).

Question 24

How can a solicitor ensure a party’s compliance with the duty of disclosure and what are the consequences if this is not met?

Answer 24

A solicitor is required to ‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure (31A PD 4.4). A solicitor should therefore advise its client of the disclosure obligations at the outset of the case.

A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission (CPR 31.21).

Consequences:
Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth (CPR 31.23).

However - Supplemental lists may need to be prepared and served if additional documents falling within a party’s disclosure obligations come to light, or are created, after the disclosure list is served.

Question 25

Provide a summary of standard disclosure.

Answer 25

Standard disclosure is the most common form of disclosure order.

It requires a party to disclose documents which are in their control, and which they rely on, or which are adverse to their case, adverse to another party’s case, support another party’s case, or which a practice direction requires them to disclose.

‘Documents’ has a broad definition: anything which records information.

The obligation is limited to documents which are or were in a party’s control.

A disclosing party must carry out a ‘reasonable search’ for documents falling within standard disclosure.

Procedurally speaking, standard disclosure is given by drawing up a list of documents which are being disclosed. The list has three parts: a) in control, inspection permitted; b) in control, inspection not permitted; c) no longer in control.

Question 26

What are a party’s rights to inspection?

Answer 26

A party has a right to inspect a document that has been disclosed except where:

• The document is no longer in the disclosing party’s control (CPR 31.3(1)(a));
• Allowing inspection would be disproportionate (CPR 31.3(2); or
• The disclosing party has a right or duty to withhold inspection, ie it is privileged (CPR 31.3(1)(b)).

Question 27

Why is inspection not possible when a document is no longer in the disclosing party’s control?

Answer 27

Party A cannot let Party B look at a document which is not in its control.

Question 28

When would allowing inspection be disproportionate, and therefore prevented?

Answer 28

If a party disclosing documents thinks that it is disproportionate to permit inspection of a certain category/class of documents to be disclosed then it is not required to permit inspection, but it must state in its disclosure statement (usually contained in the party’s list of documents) that inspection is not permitted and that allowing inspection would be disproportionate (CPR 31.3(2)).

This is rare. Once a document has been found and disclosed, it is unlikely that the process of letting the other party see it / providing a copy would be disproportionate. Issues of proportionality are more likely to arise at the earlier stages of deciding what disclosure order to make and the scope of the search for documents.

Inspection cannot be refused where the reason for disclosure is that a party wishes to rely on the document, or that a practice direction requires disclosure.

Question 29

When does a party have a right or duty to withhold inspection?

Answer 29

A document need not be produced if there is a right or duty to withhold inspection, privilege.

If a document falls within the scope of the order for disclosure made by the court and it is privileged, its existence must still be disclosed: it can only be withheld from inspection. Privileged documents are, however, described generically in a party’s list of documents and are not listed individually.

This includes:
- Legal advice privilege
- Litigation privilege
- Without prejudice communications

Question 30

What is redaction, and how will these documents be listed in a disclosure list?

Answer 30

Redaction means blanking out parts of a document (digitally or traditionally by covering them with paper before copying, or copying, covering with black pen, and copying again - making sure to preserve the original unmarked).

Although the CPR do not make provision for redaction, it is accepted that redaction is possible in certain circumstances.

The redacted version of the document will be listed in the first part of the list of documents and made available for inspection with the appropriate parts covered over.

The un-redacted version will be listed generically in the second part of the list of documents – inspection refused.

Question 31

What are the two main circumstances under which it may be possible to redact parts of a document?

Answer 31

1. If there is a clear and distinct part of a document which does attract privilege, but the remainder does not, then the privileged part can and indeed should be redacted, to avoid waiving privilege.
2. If the information is totally irrelevant to the dispute, it can be redacted. Confidential or commercially sensitive information that is irrelevant is generally redacted.

Question 32

What is a waiver and when is it used in disclosure?

Answer 32

Waiver of privilege occurs when a party deliberately allows inspection of a privileged document if it considers that the document helps its case.

Waiver of privilege in part of a wholly-privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with entirely different subject matter: a party cannot ‘cherry pick’ certain parts of a privileged document to reveal to the other side/the court.

Waiver of privilege in one document can lead to privilege being lost in other documents, if it would be unfair to allow the party waiving privilege not to put those documents before the court or opponent as well.

Example: Waiving privilege for a solicitor’s letter of advice may result in privilege being lost in other letters from the same solicitor dealing with the same issue.

Question 33

What is the principle of “once privileged, always privileged” and who has the burden of proof in disputes over privilege?

Answer 33

If something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings unless something takes place to cause the privilege to be lost, such as waiver (The Aegis Blaze [1986] 1 Lloyd’s Rep 203). - even if the proceedings are entirely unconnected.

Where there is a dispute over whether a document is subject to privilege, the burden of proof is on the party claiming privilege to establish it.

Question 34

What are the rules regarding inspecting documents referred to in statements of case and other specified documents?

Answer 34

A party can inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit, and (subject to certain restrictions) an expert’s report (CPR 31.14). This may take place even before the disclosure stage of proceedings.

Case law suggests that this right to inspect is subject to the usual rules on privilege, meaning privilege is not lost simply by referring to a document in a statement of case or witness statement.

However, reference to a document in a statement of case or witness statement could amount to waiver of privilege depending on the circumstances. Therefore, parties should proceed cautiously.

Question 35

What procedure must a party follow if they wish to inspect documents?

Answer 35

A party wishing to inspect documents must send a written notice of its wish to do so to the other side and the other side must allow inspection within seven days of receipt of the notice (CPR 31.15(a) and (b)). The court directions may vary these time limits.

It is possible to ask for copies instead or as well, with an undertaking to pay reasonable photocopying charges (CPR 31.15(c)). Copies must provided within 7 days of receipt of the request.

In many cases, parties are content to complete ‘inspection’ solely by receiving copies.

A party may not rely on any document in respect of which he fails to permit inspection unless the court gives permission (CPR 31.21).

Question 36

Provide a summary of inspection.

Answer 36

A party has a right to inspect a document that has been disclosed except where:

• The document is no longer in the disclosing party’s control.
• Allowing inspection would be disproportionate.
• The disclosing party has a right or duty to withhold inspection (most likely because the document is privileged).

When allowing inspection of a document, a party can redact parts which are irrelevant or which are privileged. A party cannot redact something simply because it is confidential.

A party can waive privilege in a document, but this can lead to privilege being lost in other documents.

A party wishing to inspect documents must send a written notice, and inspection must then be allowed within 7 days. A party can also / alternatively ask for copies, if it undertakes to pay reasonable copying charges, and the copies must then be provided within 7 days of the request.

Question 37

What are the three most important types of privilege?

Answer 37

• Legal advice privilege
• Litigation privilege
• Without prejudice communications

Note - These privileges have been established by common law (not by statute), therefore their reach is defined by the case law, which is always subject to interpretation and always developing.

Question 38

What is legal advice privilege?

Answer 38

“A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving or receiving legal advice”

Note at the outset that it is not a necessary element of this privilege that litigation is contemplated.

Question 39

How is confidential defined under legal advice privilege?

Answer 39

The principle is that a client should be able to get legal advice in confidence. If the document is not confidential, privilege will not apply.

The same definition applies to litigation privilege.

Question 40

How is ‘communication between a lawyer and a client’ defined under legal advice privilege?

Answer 40

A solicitor’s note of a conversation with his client concerning legal advice will be a confidential communication between lawyer and client and therefore subject to legal advice privilege.

A solicitor’s attendance note of a conversation between parties (ie normally between the solicitors for each party), or of what happens at court, is not privileged since, although the court held that the note is a communication, there is no confidentiality in notes of matters at which both sides are present (Parry v Newsgroup Newspapers [1990] NLJ 1719, CA).

This means that solicitors’ memoranda and notes are communications for the purposes of the test but they will only be privileged if prepared in relation to confidential work undertaken for their client for the purposes of legal advice.

This privilege does not currently apply to advice of a legal or quasi-legal nature given by non-lawyers (ie tax advice given by accountants rather than lawyers).

Question 41

How is the purpose of giving / receiving legal advice defined under legal advice privilege?

Answer 41

Where a solicitor is retained primarily to provide legal advice, communications between solicitor and client, even if ancillary to that purpose, are privileged as part of the “continuum of communication” (Balabel v Air India [1988] Ch 317).

Legal advice privilege covers advice on what should prudently and sensibly be done in the legal context of the case. For example, in Three Rivers District Council and others v Governor and Company of the Bank of England (No. 10) [2004] UKHL 48, the ‘presentational advice’ on how to present information to the BIU was privileged because it was given through ‘legal spectacles.’

If a client repeats legal advice provided by a lawyer internally, for example, to other personnel within the company, that repetition also enjoys the benefit of privilege (Bank of Nova Scotia v Hellenic Mutual War Risks Association (the Good Luck) [1992] 2 Lloyds Rep 540). However, clients must be careful when disseminating legal advice internally, as their own opinion, as opposed to repeating legal advice, may not be covered by privilege.

Legal advice privilege also applies to communications with in-house lawyers, provided the communication concerns advice given in a legal capacity rather than a general commercial or executive capacity. Privilege is unlikely to attach to communications with individuals who are qualified lawyers but are not employed in a legal role, even if they are giving legal advice.

Question 42

What is litigation privilege?

Answer 42

“A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect”

If the document was sent before the breach, litigation privilege cannot be relied upon.

Question 43

How is communication between the lawyer and the client / lawyer and third party / client and third party defined under litigation privilege?

Answer 43

The privilege also extends to documents which are brought into existence for the purpose prosecuting or defending the claim.

Examples include memoranda from one lawyer in a firm to one of his/her colleagues relating to a litigation case, or drafts of statements of case).

This is the case notwithstanding that (depending on your interpretation) they are not communications between a solicitor and a client nor between one of them and a third party.

Question 44

What is the dominant purpose behind obtaining evidence/advice for litigation in reasonable contemplation?

Answer 44

The dominant purpose of a document is the main reason it was created, and the test is one of dominance rather than exclusivity. If there is more than one purpose behind the document’s preparation, the court will determine which is dominant.

Establishing the dominant purpose may be difficult when a document has been produced for a dual purpose.
Example: In Waugh v British Railways Board (BRB) [1980] AC 521, a report was produced for both improving safety and submitting to solicitors for legal advice. As litigation was not the dominant purpose, the report was not privileged.

Question 45

What does it mean for litigation to be ‘reasonably in prospect’?

Answer 45

Litigation must be a real likelihood, not just a mere possibility, for documents to be privileged. A general apprehension of future litigation is insufficient to claim privilege.

Example: In USA v Philip Morris [2003] EWCH 3028, documents produced by a company because it felt it was constantly under the threat of litigation were not privileged, as there was no specific litigation in prospect.

Question 46

What are ‘without prejudice’ communications in legal disclosure?

Answer 46

‘Without prejudice’ communications are documents created for the genuine purpose of attempting to settle a dispute.

The document need not be marked ‘without prejudice’ for the privilege to apply, and conversely, a document marked ‘without prejudice’ may not be privileged if it is not genuinely intended to settle the dispute.

The court will look to the substance rather than the form of the document (Rush and Tompkins v Greater London Council [1989] AC 1280).

Question 47

When can ‘without prejudice’ documents be seen by the court?

Answer 47

‘Without prejudice’ documents are generally not seen by the court unless the privilege is expressly waived.

Some documents are marked ‘without prejudice save as to costs,’ meaning the court will see them when considering costs. The judge can then take the contents into account when deciding issues such as the parties’ conduct and liability for costs.

Question 48

Provide a summary of types of privilege.

Answer 48

A party can refuse to allow inspection of a disclosed document when that document is privileged. There are various types of privilege.

A useful definition of legal advice privilege is ‘A document which is a confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice’

A useful definition of litigation privilege is ‘A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect’. Litigation need not be the only purpose of the document, but it must be the dominant purpose.

A useful definition of without prejudice privilege is ‘A document whose purpose is a genuine attempt to settle a dispute’.

Question 49

What is specific disclosure?

Answer 49

An order for specific disclosure is an order that a party must do one or more of the following things (CPR 31.12(2)):

• Disclose documents / classes of documents specified in the order;
• Carry out a search to the extent stated in the order;
• Disclose any documents located as a result of that search.

Question 50

What are the timing requirements for an application for specific disclosure?

Answer 50

The court has the jurisdiction to make an order for specific disclosure and / or inspection at any time after proceedings have been issued.

In practice, an application for specific disclosure is generally made after standard disclosure has occurred, where the applicant considers that further disclosure should be made by the other party (or parties).

Question 51

What are the common uses of an application for specific disclosure?

Answer 51

• Opponent has not complied with its existing disclosure obligations (eg failed to comply with a direction for standard disclosure
• Applicant wants documents earlier than the current directions provide for (but after proceedings have been issued)
• Applicant wants something more than the current directions provide for

Question 52

What factors determine the success of an application for specific disclosure?

Answer 52

The success of an application for specific disclosure depends on the facts of the particular case.

The rules outline three key propositions (31A PD 5.4) that the court will consider when deciding whether to make an order for specific disclosure:
- The court will take into account all the circumstances of the case.
- The court will specifically consider the overriding objective, including proportionality and reasonableness of making an order for specific disclosure.
- If the party against whom specific disclosure is sought has ‘failed adequately to comply with the obligations imposed by an order for disclosure,’ the court ‘will usually make such an order as is necessary to ensure that those obligations are properly complied with.’

Question 53

What happens when a party has already complied with standard disclosure but further documents are required?

Answer 53

An order for specific disclosure is not limited to cases where the respondent has failed to comply with standard disclosure. The court can also make an order in situations where:
- The respondent has complied with its standard disclosure obligations but the applicant convinces the court that the disclosure is ‘inadequate.’
- The case may call for something beyond standard disclosure, such as documents that could lead to a ‘train of inquiry’ which may uncover further documents advancing the applicant’s case or harming the respondent’s case.

In such cases, even if the respondent has complied with standard disclosure, the court may still order additional specific disclosure.

Question 54

What are the procedural requirements for a specific disclosure application?

Answer 54

The application must:
- Specify the order sought, including listing the documents sought in a schedule to the order. The more specific the list, the more likely the application is to succeed; and
- Be supported by evidence (CPR 31A PD 5.2 and 5.3).

It is usual practice for the evidence in support of the application to be in the form of a witness statement, made by the party itself or by the party’s solicitor.

Question 55

What is specific inspection?

Answer 55

Specific inspection is an order that a party permits inspection of a document which has been disclosed, but the disclosing party alleges it would be disproportionate to allow inspection (CPR 31.12(3)).

This is used relatively rarely in practice because it is not common for a party to disclose the existence of a document but to then claim that it would be disproportionate to allow inspection.

This is a slightly different situation from a challenge to a party’s claim that it has a right or a duty to withhold inspection because a document is privileged (CPR 31.19(5)) which is more common.

Question 56

What is pre-action disclosure?

Answer 56

The court’s power to order pre-action disclosure enables a party to obtain disclosure of documents before proceedings have commenced (CPR 31.16).

Question 57

When will the court grant an application for pre-action disclosure?

Answer 57

The court may make an order for pre-action disclosure where:
- The respondent is likely to be a party to subsequent proceedings; and
- The applicant is also likely to be a party to those proceedings; and
- If proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks (so The scope of a pre-action disclosure order cannot be wider than that of an ordinary standard disclosure order); and
- Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

If all the prescribed conditions are satisfied (CPR 31.16(3)), the court may order pre-action disclosure, but this does not mean that it must order pre-action disclosure. The court still retains a discretion and will consider the overriding objective.

Question 58

What procedure must be followed by a party applying for pre-action disclosure?

Answer 58

As with an application for specific disclosure (CPR 31.12), the application must:

• Specify the order sought, including listing the documents sought
• Be supported by evidence

As well as specifying the documents which the respondent must disclose, a pre-action disclosure order may also require the respondent to specify those documents which are no longer under its control or which it has a right to withhold from inspection (CPR 31.16(4)).

Question 59

What are the rules regarding costs in pre-action disclosure applications?

Answer 59

The applicant and respondent in a pre-action disclosure application are parties to anticipated proceedings, though not yet parties to actual proceedings.

The general rule is that the party against whom an order for pre-action disclosure is sought (the respondent) will generally be awarded the costs of the application and of complying with it.

Therefore, the applicant for pre-action disclosure will typically have to pay the respondent’s costs.

This is not an absolute rule. The court may order otherwise in specific situations, such as if the respondent did not comply with a pre-action protocol or a modest request for pre-action disclosure. In such cases, the respondent may bear the costs of the application.

Question 60

Provide a summary of specific disclosure, specific inspection and pre-action disclosure.

Answer 60

The ‘disclosure stage’ in proceedings is not the only way in which someone might become obliged to disclose something. A party can apply for various types of disclosure order.

An order for specific disclosure is an order that party must carry out a specified search for documents and/or disclose certain documents.

When deciding whether to grant such an order, the court will consider all the circumstances, the overriding objective, and whether the respondent has failed to comply with a disclosure obligation which already exists.

An order for specific inspection is an order that a party permits inspection of a document which the disclosing party alleges it would be disproportionate to allow inspection of.

An order for pre-action disclosure allows disclosure to obtained from a likely opponent before proceedings have been issued. Specific criteria must be satisfied.

Question 61

What is non-party disclosure?

Answer 61

The court has the power to order a person who is not a party to the proceedings to give disclosure of documents (CPR 31.17).

The requirements that must be fulfilled before the court will consider making an order for disclosure by a person who is not a party to the relevant proceedings are that an order can be made where:
- The documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings (this is similar to the test for standard disclosure); and
- Disclosure is necessary in order to dispose fairly of the claim or to save costs.

Even if all the prescribed conditions are satisfied, the court may order non-party disclosure, but this does not mean that it must order non-party disclosure. The court has a discretion and will consider the overriding objective.

Note that this application (CPR 31.17) can only be used once proceedings have actually started.

Question 62

What procedure must a party follow when applying for non-party disclosure?

Answer 62

As with an application for specific disclosure (CPR 31.12), the application must:
- Specify the order sought, including listing the documents sought
- Be supported by evidence
- Require the respondent to specify those documents which are no longer under his control or which he has a right to withhold from inspection (CPR 31.17(4)).

The application notice must be served on the respondent ie the non-party from whom disclosure is sought (even though the respondent is not a party to the proceedings) and any other party to the proceedings (CPR 23.4(1)).

Question 63

What are the rules regarding costs in non-party disclosure applications?

Answer 63

The presumption is that the court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order that is made as a consequence.

This presumption may be rebutted and a different costs order made (CPR 46.1(3)). For example, if the non-party respondent has acted unreasonably in opposing the application and any previous request for disclosure.

Question 64

What is a Norwich Pharmacal Order?

Answer 64

A Norwich Pharmacal order is used when court proceedings cannot be commenced because the identity of the defendant is unknown. It orders the respondent, who is not the defendant, to disclose information that enables the claimant to sue the correct defendant.

Example: In Norwich Pharmacal Co v Commissioners of Customs & Excise [1974] AC 133, the owner of a patent discovered that unknown people were infringing their patent. HMRC knew the wrongdoers’ identities. The court ordered HMRC to disclose the information so the patent owner could bring proceedings against the proper defendant.

Question 65

How is a Norwich Pharmacal order obtained under the CPR, and what is the procedure?

Answer 65

The CPR (31.18) does not specifically outline the procedure for obtaining a Norwich Pharmacal order, but the process typically depends on the timing of the application:

Before substantive proceedings: If the application is made before suing the unknown defendant, the claimant usually issues a claim form against the third party holding the information using the alternative issue procedure in CPR 8.

After substantive proceedings: If sought after proceedings have been initiated against the unknown defendant, the application is made as an interim application within those proceedings under CPR 23.

Question 66

When will the court grant an application for a Norwich Pharmacal Order?

Answer 66

There are three conditions that must be satisfied for the court to exercise the power to order Norwich Pharmacal relief. They are:

• A wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer (for example, a tort, breach of contract or crime);
• There must be the need for an order to enable action to be brought against the ultimate wrongdoer (so it is unlikely an order will be obtained if the information can be obtained another way)
• The person against whom the order is sought must (i) be more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and (ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued.

Question 67

What are the ‘necessary and proportionate’ requirements for a Norwich Pharmacal order and who bears the costs?

Answer 67

A Norwich Pharmacal order must be both necessary and proportionate in all the circumstances of the case (Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033).

Costs:
- Generally, the successful applicant for a Norwich Pharmacal order will be required to pay the respondent’s costs, including the costs of providing the disclosure.
- The applicant may later recover those costs from the wrongdoer in either the same or subsequent proceedings.

Question 68

Provide a summary of non-party disclosure and Norwich Pharmacal Orders.

Answer 68

The court may order a person who is not a party to the proceedings to give disclosure of documents where:
- The documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings; and
- Disclosure is necessary in order to dispose fairly of the claim or to save costs.

A Norwich Pharmacal order orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant – usually the identity of the defendant. Before a court will make such an order, it must be satisfied that:
- A wrong has been carried out by an ultimate wrongdoer (not the respondent);
- The order is needed to bring a claim against the wrongdoer; and
- The respondent is (i) more than a ‘mere witness’ to the wrongdoing, and (ii) is likely to be able to provide the necessary information.