Disclosure Flashcards
Approach to exam question
(1) Is it a DOCUMENT?
CPR 31.4: ‘anything in which information of any description is recorded’
- includes drafts, drawings, recordings, photos and literally everything
(2) IS or HAS the document been in the party’s CONTROL?
CPR 31.8:
- is or was in party’s phsycial possession;
- the party has/had right to possession (e.g. if it’s in possession of your agent); OR
- the party has/had the right to inspect or take copies of the document (a legally enforceable right)
If ‘Control’ test satisfied, still have to disclose their existence! Even if document has since been destroyed!
(3) Standard disclsoure test?
(4) Relevant head of privilege (cases)
(5) Conclude - put in appropriate section of the list.
For stages 1 and 2, can bunch all documents together.
Test for Standard Disclosure
Standard Disclosure - CPR 31.6
Party must disclose ONLY if:
(a) it’s a document on which he relies
(b) documents which:
(i) adversely affect his own case; or
(ii) adversely affect another party case; or
(iii) support another party’s case; and
(c) documents which he is required to disclose by a relevant practice direction.
Litigation privilege
A DOCUMENT PREPARED, OR A COMUMUNICAITON WHICH TAKES PLACE, FOR THE SOLE OR DOMINANT PURPOSE OF LITIGATION WHICH IS PENDING OR IN REASONABLE PROSPECT.
Applies to communications:
- lawyer and client
- client and third party
- lawyer and third party
Litigation must be DOMINANT PURPOSE
WAUGH v BRB (train accident case)
- can have dual purposes, so litigation need not be the sole purpose, but must be the dominant one!
RE HIGHTRADE TRADERS
- court will look at the dominant purpose of the person who commisioned the document
- exam approach: if you don’t know why the client commissioned the document, ask them!
MUST BE LITIGATION IN REASONABLE PROSPECT
USA v PHILLIP MORRIS INC
- more than mere possibility! - here, litigation in US but no claims made or threatened in UK - held; litigation not in reasonable prospect
RE HIGHTRADE TRADERS
- if litigation depends on outcome of document/report being commissioned depends on whether there is a sufficeint prospect of the report’s conclusions leading to a dispute.
Legal Advice privilege
A CONFIDENTIAL COMMUNICATION BETWEEN A LAWYER AND A CLIENT FOR THE PURPOSE OF GIVING OR RECEIVING LEGAL ADVICE.
(Thus, only applies to lawyer/client comms)
BALABEL v AIR INDIA
- legal advice privilege attaches to the whole ‘continuum of communications’ - this means all info and communications which form part of the ordinary flow of information and instructions between lawyer and cleint relating to the matter on which the lawyer is instructed - i.e. all info and communications which lead up to the advice being given.
- includes ‘advice as to what should prudently and sensibly be done in the relevant legal context’
THREE RIVERS
- legal advice is not just pure advice on the law - includes commercial questions etc. - it’s “giving advice through legal spectacles”
THE GOOD LUCK
- Repeating legal advice in an internally circulated communication (i.e. within the company) will not mean it loses its legal advice privilege.
Without Prejudice communications
Without prejudice privilege attaches to COMMUNICATIONS WHOSE PURPOSE IS A GENUINE ATTEMPT TO SETTLE A DISPUTE.
RUSH & TOMKINS v GREATER LONDON COUNCIL
- Substance not form!
- Whilst ‘WP’ label will help, court will look to substance as to whether something is a genuine offer to settle.
THE AEGIS BLAZE
- once privileged always privileged
- means that if a document is privileged it will remain privileged for all purposes - even in a subsequent, unconnected dispute. (Applies to all 3 types or privilege)
(Separate point: some docs will be without prejudice save as to costs - can be considered at costs stage)
Waiver
A party may waive privilege (e.g. because its helpful to its case)
However:
GREAT ATLANTIC INSURANCE v HOME INSURANCE
- Can’t cherry-pick!
- If you waive privilege or part, have to disclose the whole! - will be obliged to disclose other privileged documents which go to the same issue.
THE GOOD LUCK
- a document which reproduces, summarises or paraphrases privileged information = sharing privileged information - will lose its privilege - but not internal communications!
Redaction
A document may deal with a number of different matters.
Starting point: does the document as a whole meets any of the tests of privilege?
- if yes, all goes in list 2 as whole thing is privileged
If not, consider whether part or parts attract privilege - you can redact those parts! (i.e. cross them out)
- will go in list 1 as open for inspection, but with parts redacted - will need to explain the redactions in the second section of the list.
Confidential Information?
THE GOOD LUCK
- Can redact, only if commercial info is irrelevant to to the case
- can also redact any other info that’s irrelevant to the case (although not in client’s interests to spend money doing this)
The List - sections:
SECTION 1
‘ I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies’.
SECTION 2
‘ I have control… but I object to you inspecting them [explain why - due to privilege - state which head of privilege]
SECTION 3
‘I have had the documents numbered and listed below, but they are no longer in my control’ [still disclosing of their existence].
Duty of solcitior re disclosure
Solicitor’s duty
(1) Ensure client understands duty of disclosure - PD 31A 4.4
(2) If client refuses to fulfil duty, try persuade him otherwise
(3) Warn of consequences - including CPR 31.23 - contempt of court
(4) Cease acting
