CH5. Disclosure

Question 1

What are the disclosure and inspection 5 steps?

Answer 1

1. Is it a document (CPR 31.4)?
2. Is it in your client’s control (CPR 31.8)?
3. Does it fall within standard disclosure (CPR 31.6) WHY?
4. Can the document be witheld from inspection? WHY?
5. Which section of the List of documents?

Question 2

List the different types of privilege?

Answer 2

— Legal advice privilege
— Litigation privilege
— Without prejudice
— [Common Interest]
— [Privilege against self-
incrimination]
— [Public Interest immunity]

Question 3

Explain the different sections of the List of documents.

Answer 3

Part 1 - Documents the other side CAN inspect.
Part 2 - Documents the other side CANNOT inspect, with reasons.
Part 3 - Documents no longer in the party’s control.
Part 4 - Disclosure statement.

Question 4

Define Legal Advice Privilege.

Answer 4

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.

Question 5

What is the case regarding what constitutes confidential communication?

Answer 5

Parry v Newsgroup Newspapers [1990]
A solicitor’s attendance note of a conversation between parties or what happens at court, is not privileged since,
there is no confidentiality in notes of matters at which both sides are present.

Question 6

Which case indicates the narrow definition of ‘client’?

Answer 6

Three Rivers District Council and others v Governor and Company of the Bank of England [2003]
carefully consider who the “client” would be, as communications with individuals other than those constituting the “client” may ultimately be disclosable.

Question 7

What constitutes legal advice?

Answer 7

legal advice with the benefit of legal privilege is broadly defined to include:
— Continuum of communication where a solicitor is retained primarily to provide legal advice - Balabel v Air India
— Presentation advice, through legal spectacles advising on what should prudently and sensibly be done in the context of the case - Three Rivers District Council and others v Governor and Company of the Bank of England
— Legal advice repeated internally within a client company - Bank of Nova Scotia v Hellenic Mutual War Risks Association (the Good Luck) [1992]

Question 8

Define Litigation Privilege.

Answer 8

A document which is a
- CONFIDENTIAL COMMUNICATION which passed BETWEEN A LAWYER AND HIS CLIENT OR between one of them and a THIRD PARTY (eg. solicitor & witness or expert),
- where the DOMINANT PURPOSE OF OBTAINING LEGAL ADVICE/ EVIDENCE for use in the conduct of LITIGATION (Waugh v British Railways Board (‘BRB’) [1980])
- which was at the time REASONABLY IN PROSPECT.
(USA v Philip Morris)

Question 9

Waugh v British Railways Board (‘BRB’) [1980]

Answer 9

Held: the report had a dual purpose (one purpose was to deal with general operation and safety issues and one other purpose was for the litigation) and could not therefore be
privileged from inspection.
Where a document has two purposes, litigation has to be the dominant
purpose. If the purposes are equal, the document will not be privileged.

Question 10

When establishing the dominant purpose of the document, who should be consulted?

Answer 10

The commissioner of the document should be consulted not the author of the document.

Question 11

Litigation reasonably in prospect - USA v Philip Morris [2003]

Answer 11

USA v Philip Morris [2003]
In this case, the defendant was a tobacco company and it claimed privilege by stating that it was constantly under the threat of litigation.
A general
apprehension of future litigation is insufficient.

Question 12

Define ‘without prejudice’ privilege.

Answer 12

• Documents whose purpose is a genuine attempt to settle a dispute.
• The document need not be marked ‘without prejudice’ for the privilege to apply.

The court will accordingly look to substance rather than form.
(Rush and Tompkins v Greater London Council [1989])

Question 13

Explain ‘waiver of privilege’.

Answer 13

It is possible for a party to deliberately disclose and allow inspection of a privileged document if it considers that the document helps its case. This is called waiver of privilege.

Question 14

No ‘cherry picking’ CASE.

Answer 14

Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529, CA
Waiving privilege in part of a document will, accordingly, generally lead to
privilege being waived over the whole.
You cannot “cherry pick” certain parts of a privileged document to reveal to the other side/the court.

Question 15

CPR 31.14 Waiving privilege

Answer 15

a party may inspect a document referred to in another document eg. a statement of case or a witness statement.

Question 16

Waiver of privilege is not automatic. Specify caselaw and applicable CPR rules.

Answer 16

W M Morrison Supermarkets plc and others v Mastercard and others [2013] , the court confirmed that CPR 31.14 must be read with CPR 31.3:-
- CPR 31.3(1)(b) – the right to withhold inspection of a disclosed document) and - CPR 31.19 (a claim to withhold inspection or disclosure of a document).
The right of inspection in these circumstances will be subject to the overriding objective and proportionality in accordance with CPR 31.3(2).

Question 17

part privileged and part not documents

Answer 17

1. redact the privileged part (if possible)
2. The redacted version of the document will be listed in the first part of the list of documents and will be made available for inspection with the appropriate parts covered over.
3. The un-redacted version will be listed generically in the second part of the list of documents.

Question 18

What are a solicitor’s duties regarding disclosure?

Answer 18

A solicitor owes a professional duty to:

1. ensure its client understands its duty of disclosure; (31A PD 4.4)
2. explain the obligation of disclosure is continuing (CPR 31.11), and
3. ensure that, as far as possible, the disclosure obligation has been complied with.

Question 19

If a client refuses to disclose and allow inspection of a document he is under a duty to disclose - this may result in a conflict of which solicitors duties? What should the solicitor do?

Answer 19

1. SRA Code of Conduct Chapter 1: A solicitor has a duty to act according to his client’s instructions.
   BUT
   SRA Code of Conduct Chapter 5: A solicitor is an officer of the court and therefore also owes an over-riding duty not to mislead the court.
   The solicitor must refuse to act in accordance with SRA Code of Conduct IB 5.5.