Chapter 10: Disclosure and Inspection Flashcards
1
Q
1 Introduction
A
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.
2
Q
Documents which are averse to its position
A
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.
3
Q
Search documents that parties have to disclose
A
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.
4
Q
Disclosure and inspection
A
The stage in the proceedings generally referred to as disclosure actually involves two distinct concepts, namely a) disclosure, and b) inspection.
5
Q
Definition of disclosure and inspection
A
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
6
Q
The purposes of disclosure and inspection are:
A
- 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
7
Q
2 Sources and types of disclosure obligation
2.1 Where does an obligation to give disclosure come from?
A
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.
8
Q
2.2 How does the court arrive at one of the orders?
A
How the court arrives at an order for disclosure depends on the track to which the claim has been
allocated.
9
Q
2.2.1 Small claims track
A
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))
10
Q
2.2.2 Fast track
A
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.
11
Q
2.2.3 Multi-track
A
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:
12
Q
2.2.3 Multi-track
A
(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)).
13
Q
Which kind of disclosure is considered in the CMC
A
At the CMC (in any case), the court will consider carefully what form of disclosure order is most
appropriate.
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Q
2.3 What is a disclosure report?
A
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))
15
Q
2.3 What is a disclosure report?
A
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.
16
Q
2.4 At the CMC
A
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.
17
Q
2.4 At the CMC
A
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.
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Q
2.5 Procedure
A
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.
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Q
2.5 Procedure
A
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.
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Q
2.6 Continuing obligation
A
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
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Q
2.7 Subsequent use of disclosed documents
A
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)).
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Q
There are some exceptions to this rule:
A
(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.
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Q
2.7 Subsequent use of disclosed documents
A
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.
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Q
2.8 Summary
A
- 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.
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2.8 Summary
* 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.
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Standard disclosure
3.1 What is standard disclosure?
‘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.
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3.1 What is standard disclosure?
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
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3.1.1 Meaning of ‘document’
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)
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Electronic documents
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.
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3.1.2 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:
(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).
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3.1.2 Meaning of ‘in a party’s control’
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.
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3.1.3 Meaning of standard disclosure
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).
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3.1.3 Meaning of standard disclosure
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).
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3.2 The concept of a reasonable search
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:
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3.2 The concept of a reasonable search
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.
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3.3 Disclosure list
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.
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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.’
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3.5 Disclosure List
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
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Details of each document
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)).
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3.3.1 The disclosure statement (part of the disclosure list)
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.
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3.3.1 The disclosure statement (part of the disclosure list)
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)).
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3.4 Ensuring compliance with the duty of disclosure
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.
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3.4 Ensuring compliance with the duty of disclosure
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)
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Supplemental lists
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.
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3.5 Summary
* 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.
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3.5 Summary
* 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.
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4. Inspection
4.1 What is inspection?
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))
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4.1.1 The document is no longer in the disclosing party’s control
This is common sense. Party A cannot let Party B look at a document which is not in its control.
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4.1.2 Allowing inspection would be disproportionate
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)).
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4.1.2 Allowing inspection would be disproportionate
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
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4.1.3 Right or duty to withhold inspection
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
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4.1.3 Right or duty to withhold inspection
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.
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4.2 Redaction
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.
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4.2 Redaction
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
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Two main circumstances in which it is possible to redact parts of a document
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).
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Example: Redaction
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.
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Difference between confidentiality and privilege
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.
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Example: Redaction - confidential / commercially sensitive and irrelevant
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.
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Example: Redaction - confidential / commercially sensitive and irrelevant
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.
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4.3 Waiver
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.
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Waiver of privilege
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).
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By way of expansion
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).
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Example: Waiver
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.
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4.3.1 Documents referred to in statements of case and other specified documents
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.
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4.3.1 Documents referred to in statements of case and other specified documents
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.
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4.3.2 Further principles relating to privilege
‘Once privileged, always privileged’
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).
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Burden of proof
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.
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4.4 Procedure for inspection
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.
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4.4 Procedure for inspection
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).
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4.5 Summary
* 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).
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4.5 Summary
* 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.
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4.5 Summary
* 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.
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5 Types of privilege
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)).
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This section explores the third of these – the concept of privilege (the first two exceptions are addressed in another section)
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.
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Established by common law
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)
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5.1 Legal advice privilege definition
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.
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5.1 Legal advice privilege
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.
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5.1.2 Communication between lawyer and client
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)
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5.1.1 Confidential
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.
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5.1.2 Communication between lawyer and client
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).
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5.1.3 For the dominant purpose of giving/receiving legal advice
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)
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Presentational advice
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
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How advice gets disseminated is important
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.
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Communication with in-house lawyers
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.
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5.2 Litigation privilege
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.
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5.2.1 Confidential
Confidentiality is also an essential element of litigation privilege – see the explanation above in relation to legal advice privilege
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5.2.2 Communication
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.
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Communication with third party
An alternative is communication between a lawyer and a third party. For example, between the client and a witness.
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5.2.3 Dominant purpose
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.
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Example: Litigation privilege - dominant purpose
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).
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5.2.4 Litigation reasonably in prospect
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.
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Example: Litigation privilege - litigation reasonably in prospect
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).
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5.3 Without prejudice communications
Without prejudice communications: A document whose purpose is a genuine attempt to settle a dispute.
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Document needs to be marked
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).
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Privilege expressly waived
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
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5.4 Summary
* 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’
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Useful definition of privilege
* 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’.
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Specific disclosure, specific inspection and pre-action disclosure
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.
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6.1 Specific disclosure and specific inspection
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.
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6.1 Specific disclosure and specific inspection
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.
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6.1.1 Specific disclosure - will an application be successful?
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:
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6.1.1 Specific disclosure - will an application be successful?
(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’.
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So, for example, if a party can show that:
(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.
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Disclosure is inadequate
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’;
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More than standard disclosure
(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.
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6.1.2 Specific disclosure - procedure
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.
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6.1.3 Specific inspection
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
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6.2 Pre-action disclosure (against a ‘likely’ party to proposed proceedings)
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
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6.2 Pre-action disclosure (against a ‘likely’ party to proposed proceedings)
(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.
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6.2.1 Pre-action disclosure - procedure
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)).
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6.3 Non-party disclosure - costs
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.
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6.3 Non-party disclosure - costs
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
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7 Non-party disclosure and Norwich Pharmacal Orders
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.
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7.1 Non-party disclosure
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.
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7.1 Non-party disclosure
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.
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7.1.1 Non-party disclosure - procedure
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)).
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7.1.1 Non-party disclosure - procedure
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)).
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7.1.2 Non-party disclosure - costs
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
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7.2 ‘Alternative’ disclosure – Norwich Pharmacal orders
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.
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Example: Norwich Pharmacal order
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)
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Example: Norwich Pharmacal order
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)).
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Example: Norwich Pharmacal order
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)).
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7.2.1 Norwich Pharmacal Order - when will the court grant an application?
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)
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7.2.1 Norwich Pharmacal Order - when will the court grant an application?
(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.
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7.2.2 Norwich Pharmacal order - costs
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.
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7.3 Summary
* 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.
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7.3 Summary
* 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.
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