Chapter 10: Disclosure and Inspection

Question 1

1 Introduction

Answer 1

Disclosure is the stage in the proceedings when (in most cases) the parties exchange documents
relevant to the dispute. It can be seen as commonly the first exchange of evidence (documentary evidence). The common subsequent exchanges relate to evidence of witnesses of fact, and then in some cases expert evidence.

Question 2

Documents which are averse to its position

Answer 2

In many instances, a party will be required to disclose not only documents that it wants to rely on,
but also documents which are adverse to its position or which support another party’s position. In this way, disclosure is an opportunity for the parties not only to demonstrate the evidence in their
favour (they may have done this voluntarily earlier), but also to discover possible weaknesses in their opponent’s case from an evidential perspective.

Question 3

Search documents that parties have to disclose

Answer 3

It is also very common for a disclosure obligation to include an obligation to search for documents that a party might have to disclose. The process of searching for documents, reviewing them and disclosing them as required is often a time consuming and inconvenient process: it therefore has
significant cost implications in the litigation and needs careful planning and implementation.

Question 4

Disclosure and inspection

Answer 4

The stage in the proceedings generally referred to as disclosure actually involves two distinct concepts, namely a) disclosure, and b) inspection.

Question 5

Definition of disclosure and inspection

Answer 5

Disclosure: Stating [to another party] that a document exists or has existed (CPR 31.2)
Inspection: [the party to whom a document has been disclosed] looking at a document. Under CPR 31.15, where a party has a right to inspect a document, they also have a right to request a copy of that document, and this is commonly also referred to as inspection

Question 6

The purposes of disclosure and inspection are:

Answer 6

• To help clarify the issues which are in dispute
• To enable parties to evaluate the strength of the claim against them
• To encourage settlement
• To ensure the court has all the facts and evidence before it in order to deal justly and appropriately with the case

Question 7

2 Sources and types of disclosure obligation
2.1 Where does an obligation to give disclosure come from?

Answer 7

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.

Question 8

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

Answer 8

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

Question 9

2.2.1 Small claims track

Answer 9

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 10

2.2.2 Fast track

Answer 10

The court will usually give directions on allocation. Usually direction is for each party to give ‘standard disclosure’. This is a common form of disclosure. It is explained in its own section, but
broadly involves a search for relevant documents and also an obligation to disclose documents which are adverse to the disclosing party’s case (CPR 31.6). It is therefore a costly and time
consuming form of order.

Question 11

2.2.3 Multi-track

Answer 11

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:

Question 12

2.2.3 Multi-track

Answer 12

(a) complete a disclosure report to be filed and served not less than 14 days before the first case management conference (CPR 31.5(3)).
(b) 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)).

Question 13

Which kind of disclosure is considered in the CMC

Answer 13

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

Question 14

2.3 What is a disclosure report?

Answer 14

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

Question 15

2.3 What is a disclosure report?

Answer 15

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 16

2.4 At the CMC

Answer 16

At the CMC, the court uses the disclosure report and any other information available to consider
if standard disclosure is too expensive 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.

Question 17

2.4 At the CMC

Answer 17

There are concerns amongst judges and practitioners that this procedure for determining the type of disclosure which is required could be improved upon. As a result, in the Business and Property courts (part of the High Court) there is a specialist disclosure regime which is outside the scope of this module.

Question 18

2.5 Procedure

Answer 18

A party does not have to disclose every copy of a document. In summary, copies of documents need only be disclosed if:
(a) 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
(b) The party has never had the original or no longer has the original in its control.

Question 19

2.5 Procedure

Answer 19

Once an order for disclosure and inspection has been made, if the court orders standard disclosure, the procedure that accompanies it is that prescribed by the CPR (CPR 31.10). See the section ‘standard disclosure’. 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 20

2.6 Continuing obligation

Answer 20

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 21

2.7 Subsequent use of disclosed documents

Answer 21

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)).

Question 22

There are some exceptions to this rule:

Answer 22

(a) 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);
(b) The court gives permission; or
(c) The party who disclosed the document and the person to whom the document belongs agree.

Question 23

2.7 Subsequent use of disclosed documents

Answer 23

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 24

2.8 Summary

Answer 24

• There is no automatic obligation to give disclosure – the obligation comes from a court order.
• On the small claims track and fast track, there are ‘normal’ orders, although the court can order something different.
• 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.

Question 25

2.8 Summary

Answer 25

• 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 26

Standard disclosure
3.1 What is standard disclosure?

Answer 26

‘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.

Question 27

3.1 What is standard disclosure?

Answer 27

However, this must be read subject to two other provisions. Firstly, the disclosure duty is about ‘documents’, and document is defined in the rules (CPR 31.4). Secondly, a party’s duty to disclose documents is limited to documents which are or have been in
his control (CPR 31.8). We will therefore look at these three concepts in turn

Question 28

3.1.1 Meaning of ‘document’

Answer 28

A document is defined very widely and is anything which records information. It can therefore include:
(a) Digital recordings
(b) Emails
(c) Photographs
(d) Text messages
(e) Voicemails
(f) Metadata (data about data eg the time of creation or modification of a file, or its author)

Question 29

Electronic documents

Answer 29

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 30

3.1.2 Meaning of ‘in a party’s control’

Answer 30

The duty of disclosure is limited to documents which are or have been within a party’s control.
Control is defined widely. It means:
(a) The document is (or was) in the physical possession of the party; or
(b) 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
(c) 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).

Question 31

3.1.2 Meaning of ‘in a party’s control’

Answer 31

As you can see, therefore, the obligation to disclose encompasses documents presently and formerly within a party’s control. Note that 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 32

3.1.3 Meaning of standard disclosure

Answer 32

As set out above, standard disclosure requires a party to disclose documents which:
(a) It relies on;
(b) Adversely affect its own case;
(c) Adversely affect another party’s case;
(d) Support another party’s case; or
(e) It is required to disclose by a relevant practice direction (eg practice direction to the preaction protocols).

Question 33

3.1.3 Meaning of standard disclosure

Answer 33

The requirement to disclose is met if a document satisfies even one of these criteria – it need not satisfy more than one of the criteria, although many documents will. 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 34

3.2 The concept of a reasonable search

Answer 34

If an order for standard disclosure is made, the rules provide that a party must make a reasonable search for documents falling into categories (b) to (e) (which are the categories described at CPR 31.6(b) and (c)) (CPR 31.7).
What is reasonable depends on the following:

Question 35

3.2 The concept of a reasonable search

Answer 35

In deciding what constitutes a reasonable search, the court must also take into account the overriding objective and, in particular, the principle of proportionality. So 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 36

3.3 Disclosure list

Answer 36

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.

Question 37

The list falls into three parts:

Answer 37

(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.’

Question 38

3.5 Disclosure List

Answer 38

When listing the documents in the second part, it is not necessary to list individually 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

Question 39

Details of each document

Answer 39

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 40

3.3.1 The disclosure statement (part of the disclosure list)

Answer 40

Every list of documents must include a disclosure statement in the prescribed form (31A PD 4). This:
(a) 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);
(b) certifies the party understands its duty to disclose the documents; and
(c) certifies that, to the best of the party’s knowledge, it has carried out that duty.

Question 41

3.3.1 The disclosure statement (part of the disclosure list)

Answer 41

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 42

3.4 Ensuring compliance with the duty of disclosure

Answer 42

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.

Question 43

3.4 Ensuring compliance with the duty of disclosure

Answer 43

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). 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)

Question 44

Supplemental lists

Answer 44

Supplemental lists - 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 45

3.5 Summary

Answer 45

• 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.

Question 46

3.5 Summary

Answer 46

• 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 47

4. Inspection

4.1 What is inspection?

Answer 47

A party has a right to inspect a document that has been disclosed except where:
(a) The document is no longer in the disclosing party’s control (CPR 31.3(1)(a));
(b) Allowing inspection would be disproportionate (CPR 31.3(2); or
(c) The disclosing party has a right or duty to withhold inspection, ie it is privileged (CPR 31.3(1)(b))

Question 48

4.1.1 The document is no longer in the disclosing party’s control

Answer 48

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

Question 49

4.1.2 Allowing inspection would be disproportionate

Answer 49

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)).

Question 50

4.1.2 Allowing inspection would be disproportionate

Answer 50

This is going to be 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 on this ground where the reason for disclosure is that a party wishes to rely on the document, or that a practice direction requires disclosure

Question 51

4.1.3 Right or duty to withhold inspection

Answer 51

A document need not be produced if there is a right or duty to withhold inspection, a concept known as 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

Question 52

4.1.3 Right or duty to withhold inspection

Answer 52

There are many types of privilege, but the most important ones are:
(a) Legal advice privilege
(b) Litigation privilege
(c) Without prejudice communications
The types of privilege are considered in a separate section but the following principles apply to all types of privilege.

Question 53

4.2 Redaction

Answer 53

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.

Question 54

4.2 Redaction

Answer 54

Clients sometimes wish to redact parts of documents that are going to be inspected (ie documents that are not privileged). This is most often because they contain information which is
confidential and commercially sensitive. This is not generally permitted – confidentiality / commercial sensitivity alone does not justify redaction

Question 55

Two main circumstances in which it is possible to redact parts of a document

Answer 55

There are two main circumstances in which it may be possible to redact parts of a document. Firstly, 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 – waiver is explained later (remember that we are talking here about a document which on the whole is not privileged).

Question 56

Example: Redaction

Answer 56

An accountant receives a letter of complaint from a customer. He telephones his solicitor to take
advice in relation to the complaint, and makes a note of the advice on the letter from the customer. As you will come to understand later in this chapter when reading about different types
of privilege, the letter as a whole is not privileged and inspection of it would be permitted, but the note of advice from the solicitor would be privileged. That note should be redacted at the time of
inspection.

Question 57

Difference between confidentiality and privilege

Answer 57

Note that confidentiality and privilege are not the same thing. Many documents will be confidential but still not privileged. Secondly, if the information is totally irrelevant to the dispute, it can be redacted. So information which is confidential / commercially sensitive and irrelevant is generally redacted.

Question 58

Example: Redaction - confidential / commercially sensitive and irrelevant

Answer 58

There is a dispute between a law firm and a recruiter about the terms of the contract between them. The recruiter is obliged to disclose and allow inspection of the correspondence it sent to the
law firm. That correspondence also includes the addresses and personal details of work-seekers. That is sensitive information, and it is entirely irrelevant to the dispute. It can be redacted from the documents at the time of inspection.

Question 59

Example: Redaction - confidential / commercially sensitive and irrelevant

Answer 59

When it comes to listing redacted documents in a disclosure list, 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. The un-redacted version will be listed generically in the second part of the list of documents – inspection refused.

Question 60

4.3 Waiver

Answer 60

It is possible for a party to deliberately allow inspection of a privileged document if it considers that the document helps its case. This is called waiver of privilege. However, a party does not have an unrestricted right to determine precisely what it wishes to waive privilege over.

Question 61

Waiver of privilege

Answer 61

Firstly, 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 (Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529).

Question 62

By way of expansion

Answer 62

Secondly, by way of expansion of
the previous point, 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 / opponent too (for example, if they all deal with the same subject matter and
only permitting inspection of the first document could lead to the facts being misunderstood).

Question 63

Example: Waiver

Answer 63

For example: waiver of the privilege attaching to a solicitor’s letter of advice may also result in privilege being lost in respect of letters from the same solicitor dealing with the same issue.

Question 64

4.3.1 Documents referred to in statements of case and other specified documents

Answer 64

As well inspecting documents disclosed pursuant to a court order, 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 – not considered in this section) an expert’s report (CPR 31.14). This may take place even before the disclosure stage of proceedings.

Question 65

4.3.1 Documents referred to in statements of case and other specified documents

Answer 65

Case law suggests that this right to inspect is in fact subject to the usual rules on privilege, so that privilege in a document is not lost simply by reference to a document in a statement of case or witness statement, and the court in any event also has a general discretion to refuse inspection. However, reference to a document in a statement of case / witness statement could amount to waiver of privilege depending on the circumstances, and so parties should tread very carefully in
this regard.

Question 66

4.3.2 Further principles relating to privilege

‘Once privileged, always privileged’

Answer 66

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

Question 67

Burden of proof

Answer 67

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 68

4.4 Procedure for inspection

Answer 68

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.

Question 69

4.4 Procedure for inspection

Answer 69

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 70

4.5 Summary

Answer 70

• A party has a right to inspect a document that has been disclosed except where:
  (i) The document is no longer in the disclosing party’s control.
  (ii) Allowing inspection would be disproportionate.
  (iii) The disclosing party has a right or duty to withhold inspection (most likely because the document is privileged).

Question 71

4.5 Summary

Answer 71

• 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.

Question 72

4.5 Summary

Answer 72

• 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 73

5 Types of privilege

Answer 73

A party has a right to inspect a document that has been disclosed except where (CPR 31.3(1)):
(a) The document is no longer in the disclosing party’s control (CPR 31.3(1)(a));
(b) Allowing inspection would be disproportionate (CPR 31.3(2); or
(c) The disclosing party has a right or duty to withhold inspection, ie it is privileged (CPR 31.3(1)(b)).

Question 74

This section explores the third of these – the concept of privilege (the first two exceptions are addressed in another section)

Answer 74

There are many types of privilege, but the most important ones are:
(a) Legal advice privilege
(b) Litigation privilege
(c) Without prejudice communications
Many practitioners will at some point also encounter common interest privilege, privilege against self-incrimination and public interest immunity – these are not covered here.

Question 75

Established by common law

Answer 75

Note that these privileges have been established by common law (not by statute), and therefore their reach is defined by the case law, which is always subject to some interpretation and is constantly developing. We will be including the leading cases as they underpin the concepts being described, but for many programmes, you do not need to recall or cite the cases mentioned (check if you are unsure)

Question 76

5.1 Legal advice privilege definition

Answer 76

Legal advice privilege: 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.

Question 77

5.1 Legal advice privilege

Answer 77

This definition, and definitions of other privileges, are useful starting points for understanding these privileges, and should be interpreted sensibly by reference to the purpose of the privilege. Properly applied, they will guide you to the correct answer in the vast majority of circumstances. Note at the outset that it is not a necessary element of this privilege that litigation is contemplated. There is no mention of litigation in this definition.

Question 78

5.1.2 Communication between lawyer and client

Answer 78

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)

Question 79

5.1.1 Confidential

Answer 79

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.

Question 80

5.1.2 Communication between lawyer and client

Answer 80

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 nonlawyers (ie tax advice given by accountants rather than lawyers).

Question 81

5.1.3 For the dominant purpose of giving/receiving legal advice

Answer 81

Where a solicitor is retained primarily to provide legal advice, wider communications between
solicitor and client, even if ancillary to that purpose, will be privileged because they fall within the “continuum of communication” (Balabel v Air India [1988] Ch 317)

Question 82

Presentational advice

Answer 82

The House of Lords in Three Rivers District Council and others v Governor and Company of the Bank of England (No. 10) [2004] UKHL 48 held that the ‘presentational advice’ in question (ie advice including the most appropriate way to present information to the BIU) was covered by legal advice privilege. The fact that lawyers had been giving such advice through ‘legal spectacles’ was the key consideration. The advice did, therefore, fall within legal advice privilege - it related to what should prudently and sensibly be done in the legal context of the case

Question 83

How advice gets disseminated is important

Answer 83

Bank of Nova Scotia v Hellenic Mutual War Risks Association (the Good Luck) [1992] 2 Lloyds Rep 540 provides that if a client repeats internally legal advice provided by his lawyer, for example to
other personnel within his company, then that repetition also has the benefit of privilege. However, whether what a client passes on is a repetition of his lawyer’s legal advice (which is covered by privilege) or his own opinion (which is not covered by privilege) is often debateable. It is therefore important to advise clients to be very careful about how legal advice gets disseminated to the board of a company for fear of losing legal advice privilege in relation to the advice.

Question 84

Communication with in-house lawyers

Answer 84

Communications with in-house lawyers can also enjoy legal advice privilege before the English courts in civil actions, as long as the communication concerns advice given in a legal capacity rather than a general commercial or executive capacity with no legal context. However, privilege
is unlikely to attach to communications with individuals who are qualified lawyers but who are not employed in a legal role, even if they are in fact giving legal advice.

Question 85

5.2 Litigation privilege

Answer 85

Litigation privilege: 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.

Question 86

5.2.1 Confidential

Answer 86

Confidentiality is also an essential element of litigation privilege – see the explanation above in relation to legal advice privilege

Question 87

5.2.2 Communication

Answer 87

Communication between a lawyer and a client is self-explanatory, but 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 88

Communication with third party

Answer 88

An alternative is communication between a lawyer and a third party. For example, between the client and a witness.

Question 89

5.2.3 Dominant purpose

Answer 89

If there is more than one purpose behind the preparation of a document, the court will look at the dominant purpose – the test, therefore, is one of dominance and not exclusivity. Establishing the dominant purpose of a document may be particularly difficult where documents have been produced for a dual purpose.

Question 90

Example: Litigation privilege - dominant purpose

Answer 90

Following an accident on a railway, the railway faces a claim by an injured person. The railway produces a report for the dual purposes of improving safety on the railway and being submitted to the railway’s solicitors for legal advice. As the litigation was at best a purpose, not a dominant
purpose, the report was not privileged (from Waugh v British Railways Board (‘BRB’) [1980] AC 521).

Question 91

5.2.4 Litigation reasonably in prospect

Answer 91

The litigation for which the documents are to be used must be ‘reasonably in prospect’. This means litigation must be a real likelihood rather than a mere possibility. A general apprehension
of future litigation is insufficient.

Question 92

Example: Litigation privilege - litigation reasonably in prospect

Answer 92

Documents produced by a company, not for specific litigation, but because it felt it was constantly under the threat of litigation by customers, were not privileged (from USA v Philip Morris [2003] EWCH 3028).

Question 93

5.3 Without prejudice communications

Answer 93

Without prejudice communications: A document whose purpose is a genuine attempt to settle a dispute.

Question 94

Document needs to be marked

Answer 94

The document need not be marked ‘without prejudice’ for the privilege to apply. Conversely, a document marked ‘without prejudice’ may not be a genuine attempt to settle and would therefore fall to be inspected. The court will accordingly look to substance rather than form (Rush and
Tompkins v Greater London Council [1989] AC 1280).

Question 95

Privilege expressly waived

Answer 95

Without prejudice documents will not generally be seen by the court unless the privilege is expressly waived (waiver is explained elsewhere in this chapter). Some documents are, however, marked as being ‘without prejudice save as to costs’. This means that the court will not see the
document’s contents unless it is considering the costs of the action or a particular issue. If it is considering costs, the judge is generally entitled to see the document and can take its contents into account when deciding (for example) the parties’ conduct and which party is liable for
costs/the amount of costs payable

Question 96

5.4 Summary

Answer 96

• 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’

Question 97

Useful definition of privilege

Answer 97

• 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 98

Specific disclosure, specific inspection and pre-action disclosure

Answer 98

As well as stipulating what happens during the ‘disclosure stage’ in proceedings, CPR 31 includes
provisions which are generally used on the application of a party (or potential party). There are four such provisions which are commonly encountered, two of which you will study in this section.

Question 99

6.1 Specific disclosure and specific inspection

Answer 99

An order for specific disclosure is an order that a party must do one or more of the following things (CPR 31.12(2)):
(a) Disclose documents / classes of documents specified in the order;
(b) Carry out a search to the extent stated in the order;
(c) Disclose any documents located as a result of that search.

Question 100

6.1 Specific disclosure and specific inspection

Answer 100

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). The examples below are common uses of an application for specific disclosure.

Question 101

6.1.1 Specific disclosure - will an application be successful?

Answer 101

It depends on the facts of the particular case. The rules contain three propositions that help us
formulate a persuasive application and/or predict the outcome of an application (31A PD 5.4). When the court decides whether or not to make an order for specific disclosure:

Question 102

6.1.1 Specific disclosure - will an application be successful?

Answer 102

(a) The court will take into account all the circumstances of the case;
(b) The court will in particular take account of the overriding objective (including, for example, the proportionality and reasonableness of making an order for specific disclosure); and
(c) If the court decides that 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 order as is necessary to ensure that those obligations are properly complied with’.

Question 103

So, for example, if a party can show that:

Answer 103

(a) The court has made an order for standard disclosure; and
(b) On a proper consideration of the applicable disclosure rules, the documents concerned should therefore have already been disclosed by the opponent; then the court will usually order the opponent to disclose the documents.

Question 104

Disclosure is inadequate

Answer 104

An order for specific disclosure is not just confined to a case where the respondent is in breach of an obligation to give standard disclosure. The court can also/in the alternative make an order for specific disclosure even where the respondent has complied properly with its obligations to give
standard disclosure but in circumstances where the applicant satisfies the court that (a) such
disclosure is, in fact, ‘inadequate’;

Question 105

More than standard disclosure

Answer 105

(b) the case is one where something more than standard disclosure is called for - for example, disclosure of documents which may lead to a train of inquiry with the consequence of producing documents which advance the applicant’s case or damage
the respondent’s case.

Question 106

6.1.2 Specific disclosure - procedure

Answer 106

The application must:
* be made by application notice;
* 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 107

6.1.3 Specific inspection

Answer 107

Specific inspection is an order that a party permit 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 108

6.2 Pre-action disclosure (against a ‘likely’ party to proposed proceedings)

Answer 108

The court’s power to order pre-action disclosure enables a party to obtain disclosure of documents before proceedings have commenced (CPR 31.16). The court may make an order for pre-action disclosure where:
(a) The respondent is likely to be a party to subsequent proceedings; and
(b) The applicant is also likely to be a party to those proceedings; and
(c) 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

Question 109

6.2 Pre-action disclosure (against a ‘likely’ party to proposed proceedings)

Answer 109

(d) 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 mentioned above are satisfied (CPR 31.16(3)), then 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 110

6.2.1 Pre-action disclosure - procedure

Answer 110

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 111

6.3 Non-party disclosure - costs

Answer 111

The applicant and respondent to a pre-action disclosure application are parties to anticipated proceedings. Of course, at the time that the application is made, they are not yet a party to any
actual proceedings.

In relation to costs, the general rule for pre-action disclosure applications is that the party against whom an order for pre-action disclosure is sought will as a general rule be awarded the costs of the application and of complying with it. Accordingly, the applicant for pre-action disclosure will generally have to pay the respondent’s costs.

Question 112

6.3 Non-party disclosure - costs

Answer 112

This is not an absolute rule. In certain situations, the court may make a different order. For example, if the respondent did not comply with a pre-action protocol or with a relatively modest request for pre-action disclosure, it may find itself bearing the costs of the subsequent application

Question 113

7 Non-party disclosure and Norwich Pharmacal Orders

Answer 113

As well as stipulating what happens during the ‘disclosure stage’ in proceedings, CPR 31 includes
provisions which are generally used on the application of a party (or potential party). There are four such provisions which are commonly encountered, two of which you have already
encountered in a previous section and two of which you will study in this section.

Question 114

7.1 Non-party disclosure

Answer 114

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:
(a) 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
(b) Disclosure is necessary in order to dispose fairly of the claim or to save costs.

Question 115

7.1 Non-party disclosure

Answer 115

As with applications for pre-action disclosure, note that even if all the prescribed conditions are satisfied, then 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 116

7.1.1 Non-party disclosure - procedure

Answer 116

As with an application for specific disclosure (CPR 31.12), the application must:
* be made by application notice;
* 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)).

Question 117

7.1.1 Non-party disclosure - procedure

Answer 117

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 118

7.1.2 Non-party disclosure - costs

Answer 118

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 119

7.2 ‘Alternative’ disclosure – Norwich Pharmacal orders

Answer 119

The rules in relation to pre-action disclosure (CPR 31.16) and non-party disclosure (CPR 31.17) do not limit any other power which the court may have to order disclosure before proceedings have started, or to order disclosure against a person who is not a party to proceedings (CPR 31.18). This
essentially leaves the door open for an application for a ‘Norwich Pharmacal’ order. This type of order provides a solution where 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 allowing the claimant to sue the right defendant.

Question 120

Example: Norwich Pharmacal order

Answer 120

The owner of a patent for a particular chemical learns that unknown people are importing goods in a way that infringes the patent. HMRC knows the identify of the wrongdoers. The court orders HMRC to disclose the information so that the owner of the patent can bring proceedings against the correct defendant (from Norwich Pharmacal Co v Commissioners of Customs & Excise)[1974] AC 133)

Question 121

Example: Norwich Pharmacal order

Answer 121

With 31.18 applications (like Norwich Pharmacal), rather than applying on an application notice, it will be necessary for the applicant to issue a claim form against ‘Persons Unknown’ and set out its claim as best possible on the claim form against the ultimate wrongdoer. This allows the court to identify the issues early and to manage them appropriately (Santander v Westminster [2014] EWHC 2626 (Ch)).

Question 122

Example: Norwich Pharmacal order

Answer 122

The basic premise is that, subject to any statutory exceptions and also to cases of ‘intended’ actions against a person, if the court is to make an effective order against that person,
proceedings must either first be started against that person or that person must be joined into existing proceedings (Towergate Underwriting Group Ltd v Albaco Insurance Brokers Ltd [2015]
EWHC 2874 (Ch)).

Question 123

7.2.1 Norwich Pharmacal Order - when will the court grant an application?

Answer 123

There are three conditions that must be satisfied for the court to exercise the power to order Norwich Pharmacal relief. They are:
(a) a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer (for example, a tort, breach of contract or crime);
(b) 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)

Question 124

7.2.1 Norwich Pharmacal Order - when will the court grant an application?

Answer 124

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

Question 125

7.2.2 Norwich Pharmacal order - costs

Answer 125

Usually, a successful applicant for a Norwich Pharmacal order will pay the costs incurred by the respondent, including the costs of giving the disclosure. The applicant may then be able to recover those costs from the wrongdoer in either the same or subsequent proceedings.

Question 126

7.3 Summary

Answer 126

• 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.

Question 127

7.3 Summary

Answer 127

• 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.