Civ Lit LGS06 Disclosure

Question 1

Standard disclosure requires a party to disclose which documents?

Answer 1

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 2

Does rule 31.6 cover documents merely relevant to credit:?

Answer 2

Rule 31.6 does not cover documents merely relevant to credit:

Favour Easy Management Ltd v Wu [2011] 1 WLR 1803

Question 3

Train of inquiry

Answer 3

Not included in this are “train of inquiry” documents

Compagnie Financiere v Peruvian Guano Co (1882) 11 QBD 55:

“Train of inquiry” documents are those that may lead to the discovery of other documents supporting or adversely affecting either party

Question 4

Which cases are covered by stanard disclosure?

Answer 4

More Precise: Cases covered by Standard Disclosure
This applies to:

(i) Most fast track claims (CPR, r. 31.5(1)(a)), unless the court orders otherwise
(ii) Most personal injuries claims on the multi-track (r. 31.5(2))
(iii) Other multi-track claims if the court decides to make a direction for standard disclosure (r. 31.5(7)(e))

Question 5

What is the procedure on standard disclosure?

Answer 5

2 Stages

(a) Disclosure by list of documents
(b) Inspection

Question 6

What are the stages of the “(a) Disclosure by list of documents” stage in standard disclosure?

Answer 6

(a) Disclosure by list of documents
Form N265: APA Civil Fig 31.1, pp 336-338
Divided into 3 sections (p 338)
Documents party is prepared to disclose to the other side
Documents protected by privilege
Documents no longer available

Question 7

What are the stages of the “(b) inspection” stage in standard disclosure?

Answer 7

(b) Inspection
By personal attendance
By requesting photocopies (on undertaking to pay reasonable copying costs)
In electronic format. Documents should be disclosed in their “native format”
If electronic documents are best accessed using technology not readily available to the other side, by making available reasonable additional inspection facilities to enable them to have the necessary access

Question 8

What is a “document”?

Answer 8

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

The definition of “documents” in r. 31.4 extends to electronic documents, including “deleted” documents, and things like CCTV recordings and photographs.

The definition also covers additional information stored and associated with electronic documents, which is often not readily accessible, known as metadata (PD 31B, para 5(7)).

Question 9

To which documents do disclosure obligations apply to?

Answer 9

Disclosure obligations apply to documents which are or have been in a party’s “control” (CPR r. 31.8(1)).

Question 10

When does a party have control over documents?

Answer 10

A party has control over documents (r. 31.8(2)):

(a) in his physical possession;
(b) if he has a right to possession;
(c) if he has a right to inspect or take copies.

This is wide. It will cover not only documents that a party actually has, but also ones they are entitled to call for from someone else.
For example, the Access to Health Records Act 1990 means that a party has “control” of their GP notes, even if the party has never seen them. This applies to GP notes in this country. It depends on local legislation whether the same applies to GP notes in another country:

Question 11

Reasonable search

Answer 11

Reasonable Search CPR, r. 31.7
Parties have a duty to make a reasonable and proportionate search
Any limits on their searches have to be set out in their list of documents

Question 12

Factors in deciding how wide a search is required

Answer 12

Factors in deciding how wide a search is required
Include (r. 31.7(2)):
Number of documents
Nature and complexity of the litigation
Ease and expense of retrieval
Likely significance of the documents
Also (PD 31B): Availability of the information from other sources

Question 13

Disclosure statement

Answer 13

Disclosure statement
Need for a disclosure statement CPR, r. 31.10(6)
signed by the party (note the words “…made by the party…”)
- rather than its solicitor or some close associate

Global Torch Ltd v Apex Global Management (No 2) [2014] 1 WLR 4495 (SCt)

A disclosure statement is not a mere technicality

If there are joint Claimants or Defendants, each must sign a disclosure statement

Question 14

Cases covered by menu option disclosure

Answer 14

Cases covered by menu option disclosure
This applies to:

(i) Most multi-track claims (CPR, r. 31.5(2)), unless the court orders otherwise
(ii) But not to personal injuries claims on the multi-track (r. 31.5(2))
(ii) Fast track claims and personal injuries claims if the court decides to make a direction for menu option disclosure (rr. 31.5(1)(a) and 31.5(2))

Question 15

what does Menu Disclosure procedure start with?

Answer 15

Starts with:

Filing Defence

Notice of proposed allocation (CPR r. 26.3(1(a)(ii))

If the proposed allocation is to the multi-track the notice of proposed allocation will:

Give a date (not less than 28 days) for filing directions questionnaires

Probably ask for disclosure reports

Question 16

Before the Case Management Conference what happens

Answer 16

Before the Case Management Conference

Case management conferences are not compulsory on the multi-track, but they are common. They will be dispensed with if:
The parties agree directions (APA Civil para 29.04) and the court agrees with the proposed directions; or
The court feels it has enough information (from the filed directions questionnaires) to make directions without a CMC

Question 17

What are the stages for menu option disclosure if ther is going to be a CMC?

Answer 17

Stage 1: Disclosure report
Stage 2: Agreeing disclosure directions
Stage 3: CMC menu disclosure directions

Question 18

Menu option disc

Stage 1: Disclosure report

Answer 18

For the form, see APA Civil Fig 31.2, p 343.

Not less than 14 days before the first CMC each party must file and serve a disclosure report (CPR r. 31.5(3)). This

describes the relevant documents
describes where they are
details storage of electronic documents
estimates cost of giving disclosure
includes a proposal for the most suitable disclosure direction
verified by a statement of truth

Question 19

Menu option disc

Stage 2: Agreeing disclosure directions

Answer 19

Stage 2: Agreeing disclosure directions APA

Civil para 31.24

Not less than 7 days before the first CMC the parties must:

meet or telephone each other to discuss and seek to agree a proposal for disclosure
which must meet the overriding objective of dealing with the case justly and at proportionate cost (CPR r. 31.5(5))
any agreed proposal must be filed at court
court may approve the proposal without a hearing (CPR r. 31.5(6))

Question 20

Menu option disc

Stage 3: CMC menu disclosure directions

Answer 20

Stage 3: CMC menu disclosure directions APA Civil para 31.25

If disclosure directions are not made without a hearing, at the CMC the court has the following options (CPR r. 31.5(7)):

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

Question 21

What professional duties do the legal reps have in relation to disclosure?

Answer 21

Professional duties
PD 31B, para 7

As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.

Question 22

What does a lawyer need to do if a party refuses to comply with disclosure obligations?

Answer 22

Refusal to Disclose

Duty to cease acting and return Instructions (Code of Conduct guidance gC13).

Question 23

What are the consequences for a litigant that does not disclose?

Answer 23

Litigation Consequences
Party may not rely on undisclosed documents without court permission, r. 31.21.
Ultimately the court can strike out the defaulting party’s statement of case as a sanction: Global Torch Ltd v Apex Global Management (No 2).

Question 24

What type of order for disclosure may the court make?

Answer 24

Technically two types of order
CPR, r. 31.12(1):
“The court may make an order for specific disclosure or specific inspection.”

Question 25

What is the nature of an order for specific disclosure?

Answer 25

Nature of specific disclosure
CPR, r. 31.12(2):
An order for specific disclosure is an order that a party must do one or more of the following things –
(a) disclose documents or 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 26

What is the nature for

Answer 26

Nature of specific inspection
CPR, r. 31.12(3):

An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

[r. 31.3(2) covers documents which a party refuses to allow to be inspected on the grounds of proportionality].

Question 27

What is the timing of disclosure?

Answer 27

Timing WB 31.12.1.1
At any stage of the proceedings
Typically at a CMC
As soon as apparent it is necessary or desirable (PD 23A, para 2.7)

Question 28

What factors are considered when the court is asked to make an order for disclosure?

Answer 28

Factors PD 31A, para 5.4 & WB 31.12.2
Court takes into account all the circumstances of the case
Where the documents sought should have been disclosed under an order for disclosure, specific disclosure will usually be given
Overriding objective
Relevance of the documents
How important they are likely to be, e.g., if the case is likely to turn on them
Whether the documents are necessary for the just disposal of the claim
Lateness in applying (WB 31.12.1.1)

Question 29

Mention of documents

Answer 29

Mention of documents
Parties are under a duty to disclose documents mentioned in their statements of case, witness statements, experts’ reports: CPR, r. 31.14

Question 30

When is a document mentioned?

Answer 30

A document is “mentioned in” a witness statement (etc) if it is specifically mentioned or directly alluded to. A witness statement saying “he wrote to me” without specifically saying when or exhibiting the letter makes a “direct allusion” to the letter.