Disclosure Flashcards
CPR 31.1
Scope of this Part
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(1) This Part sets out rules about the disclosure and inspection of documents.
(2) This Part applies to all claims except a claim on the small claims track.
Small claims has …. directions
send to other side 14 days ahead.
What is the Meaning of disclosure?
31.2 A party discloses a document by stating that the document exists or has existed.
What is the right to inspection?
Right of inspection of a disclosed document
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(1) A party to whom a document has been disclosed has a right to inspect that document except where –
(a) the document is no longer in the control of the party who disclosed it;
(b) the party disclosing the document has a right or a duty to withhold inspection of it;
(c) paragraph (2) applies; or
(d) rule 78.26 applies.
(Rule 31.8 sets out when a document is in the control of a party)
(Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection)
(Rule 78.26 contains rules in relation to the disclosure and inspection of evidence arising out of mediation of certain cross-border disputes.)
(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –
(a) he is not required to permit inspection of documents within that category or class; but
(b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.
(Rule 31.6 provides for standard disclosure)
(Rule 31.10 makes provision for a disclosure statement)
(Rule 31.12 provides for a party to apply for an order for specific inspection of documents)
What is a document?
Meaning of document
31.4 In this Part –
‘document’ means anything in which information of any description is recorded; and
‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
CCTV, audio recording, something written on a gravestone, all documents.
What is the first big complex rule in CPR 31
Disclosure
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(1) In all claims to which rule 31.5(2) does not apply –
(a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;
(b) the court may dispense with or limit standard disclosure; and
(c) the parties may agree in writing to dispense with or to limit standard disclosure.
(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims, other than those which include a claim for personal injuries.
(3) Not less than 14 days before the first case management conference each party must file and serve a report verified by a statement of truth, which –
(a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;
(b) describes where and with whom those documents are or may be located;
(c) in the case of electronic documents, describes how those documents are stored;
(d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and
(e) states which of the directions under paragraphs (7) or (8) are to be sought.
(4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3).
(5) Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.
(6) If –
(a) the parties agree proposals for the scope of disclosure; and
(b) the court considers that the proposals are appropriate in all the circumstances,
the court may approve them without a hearing and give directions in the terms proposed.
(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure –
(a) an order dispensing with disclosure;
(b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;
(c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;
(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;
(e) an order that a party give standard disclosure;
(f) any other order in relation to disclosure that the court considers appropriate.
(8) The court may at any point give directions as to how disclosure is to be given, and in particular –
(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;
(b) whether lists of documents are required;
(c) how and when the disclosure statement is to be given;
(d) in what format documents are to be disclosed (and whether any identification is required);
(e) what is required in relation to documents that once existed but no longer exist; and
(f) whether disclosure shall take place in stages.
(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).
What is the default disclosure?
Standard disclosure
May the court dispense with disclosure?
Disclosure
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(1) In all claims to which rule 31.5(2) does not apply –
(a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;
(b) the court may dispense with or limit standard disclosure; and
What is a train of inquiry document?
Disclosure
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(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;
Very expensive usually
Lots of paperwork.
250 full lever arch files
What is the most imporatnt rule in part 31?
Standard disclosure – what documents are to be disclosed
- 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.
What is the rule about Mention of documents?
Documents referred to in statements of case etc.
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(1) A party may inspect a document mentioned in –
(a) a statement of case;
(b) a witness statement;
(c) a witness summary; or
(d) an affidavit(GL).
(e) Revoked.
(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings.
(Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)
Includes alluded to
Includes privilege
What happens when there is inadvertent disclosure?
Restriction on use of a privileged document inspection of which has been inadvertently allowed
31.20 Where a party inadvertently allows a privileged(GL)document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.
What happens when you get disclosure.. and there are intending to give you Sch 1 docs and within them they include maybe client’s solicior explaining sol’s take of merits of claim faced (other side’s).
Herbert SMith Case Counsel
write advice
sent to clerk
send to instructing sols
bundled up
sent to solicitors (opponent’s).
31.20
Restriction on use of a privileged document inspection of which has been inadvertently allowed
31.20 Where a party inadvertently allows a privileged(GL)document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.
Issue interim app to seek to get permission to use.
If you are the owner. Get an injunction to restrain them to stop acting for the party or not use the note that was sent. Al Fayed v Met Commissioner. Approved by CoA in Rawlinson. (See WB).
Key ideas:
no duty of care to opponent, but duty to court to be honest. If the other side have lawyers you presume to think they do what they want to do. You can think they have done it intentinally. UNLESS. there has been an obvious mistake. Boundary of when you can read disclosed privileged material and when you can’t.
What is the rule on colateral use?
Subsequent use of disclosed documents and completed Electronic Documents Questionnaires
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(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.
(3) An application for such an order may be made –
(a) by a party; or
(b) by any person to whom the document belongs.
(4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed.
Litigaiton about something else
Breach of undertaking is contempt. Disclosed for evidential purposes. Trials are conducted in public so implied undertaking is lifted as soon as docs come into public realm. or even just being referred.
Opponents can agree. If app is made
What are the 4 types of privilege
LEgal pro
Wprej correspondence
self incrimination
PI immunity
What are the 2 types of legal prof priv
Legal advice privilege
they come to see you and tell you about their situation.
- id Legal advice (1/2 marks)
- requirements: confidential, between client and solicitor
any client going to see any lawyer for any purpose
litigation or not
doesn’t cover anyone who isn’t a laywer
Accountant case: tax advice about the law.
Highlights not privleged unless gives away train of advice that you give your client.
No such thing as a privleged version of a non privileged document.
Can’t send under cover of letter
If originally not privileged doesn’t becoe such because you’ve sent it to your solicitor.
