Disclosure

Question 1

What is the three-stage test for discloure?

Answer 1

1. Is it a document? - CPR 31.4
2. Is it in your client’s control? - CPR 31.8
3. Does if fall within standard disclosure, and if so why? CPR 31.6

Question 2

What are the two stages relating to inspection?

Answer 2

1. Can the document be withheld from inspection? Why?

2. Which section of the List of documents should the doc be placed in?

Question 3

Where can you find the reasons for withholding inspection?

Answer 3

CPR 31.3
1) the document is no longer within the party’s control

2) the disclosing party has the right or duty to withhold inspection (i.e privileged)
3) it would be disproportionate to allow inspection.

Question 4

What is the definition of legal advice privilege?

Answer 4

A document which is confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice.

Question 5

What is the definition of litigation privilege?

Answer 5

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 a the time reasonable in prospect.

Question 6

What is documents protected under ‘without prejudice communications’?

Answer 6

Documents whose purpose is a genuine attempt to settle a dispute.

Question 7

What is a reasonable search?

Answer 7

CPR 31.7

1. the number of documents involved;
2. the nature and complexity of the proceedings;
3. how difficult/expensive it is to retrieve any document; and
4. the significant of any documents likely to be found.

Question 8

If a party considers that it would be disproportionate to search for a particular document, what should it do and where do you find the legal guidance for it?

Answer 8

31A PD 4.2

• it need not search if; and
• it must state in its disclosure statement that the search has not been done, the category of document concerned and why it would be unreasonable to search for it.

Question 9

Which PD governs e-disclosure

Answer 9

31B PD

Question 10

Before the first case management conference, what should the parties discuss about the disclosure of electronic docs?

Answer 10

31B PD 9

• the categories, the systems on which any relevant documents may be held and document retention policies
• the scope of the reasonable search required
• the tools and techniques to reduce the cost of disclosure
• the preservation of e-doc; with a view of preventing loss of such docs before trial
• the exchange of data relating to electronic documents in an agreed electronic format

Question 11

What is Form N246?

Answer 11

Electronic Documents Questionnaire

A much more comprehensive document, similar to the Disclosure Report

Provides information to each parties in relation to the scope, extent of disclosure.

Has to be filed at court with the Disclosure Report under CPR 31.5(4)

Question 12

Where do you find the authority for the principle that ‘once privileged, always privileged’?

Answer 12

The Aegis Blaze 1986 1 Lloyd’s Rep 203

Question 13

What does Parry v Newsgroup Newspaper [1990] say?

Answer 13

A solicitor’s attendance note of a conversation between parties, or of what happens at court, is not privileged since there is no confidentiality in notes of matters at which both sides are present.

Question 14

How can solicitors memoranda and notes be privileged?

Answer 14

Only if they are prepared in relation to confidential work undertaken for their client for the purposes of legal advice.

Question 15

What does Three Rivers District Council and others v Governor and Company of the Bank of England [2003] say?

Answer 15

A narrow definition of client.

The ‘client’ for the purposes of legal advice privilege was restricted to those who are authorised to seek and receive legal advice on behalf of a client corporation and that authority to provide information to the lawyers is not sufficient.

Question 16

What does Balabel v Air India [1988] say?

Answer 16

Where a solicitor is retained primarily to provide legal advice, wider communications between solicitor and client, will be privileged because they fall within the ‘continuum of communication’

Question 17

Which case provides that if a client repeats internally legal advice provided by his lawyer that repetition has the benefit of privilege?

Answer 17

The Good Luck case 1992

Bank of Nova Scotia v Hellenic Mutual War Risks Association

Question 18

What does the Waugh v British Railways Board [1980] say?

Answer 18

Where a document has two purposes, litigation has to be the dominant purpose. If the purposes are equal, the document will not be privileged

Question 19

What does Re Highgrade Traders 1984 provide?

Answer 19

It is the commissioner’s dominate purpose that will be used in determining whether or not the document is privileged.

When establishing the dominant purpose of the document, the commissioner of the document should be consulted not the author of the document.

Question 20

What does USA v Philip Morris [2003] provide?

Answer 20

Litigation privilege is only available if a party is aware of circumstances rendering litigation between himself and a particular person or class of persons a real likelihood rather than a mere possibility.

A general apprehension of future litigation is insufficient.

Question 21

What does CPR 31.14 say and what you should therefore look out for in your statement of case?

Answer 21

CPR 31.14 states that a party may inspect a document mentioned in a statement of case or a witness statement.

You should be careful not to inadvertently refer to a privileged doc in any such documents; otherwise your client might be deemed to have waived such privilege.

Question 22

What should you state in the list of document and which CPR provides for this standard disclosure?

Answer 22

CPR 31.10
1. You need to use the prescribed form N265

2. The docs must be identified in a convenient order and as concisely as possible.
3. The list must indicate
   - the documents in respect of which a party claims a right or duty to withhold inspection (‘privileged document’; and
   - the documents which were (but are no longer) in the party’s control, and what has happened to them.

Question 23

Where do you find the CPR authority for the disclosure statement?

Answer 23

31A PD 4; at the Annex to 31A PD

• sets out the extent of the search made (i.e. that the search was reasonable and proportionate and what was not searched for
• certifies the party understands its duty to disclose the docs
• certifies that, to the best of the party’s knowledge, it has carried out that duty.

Question 24

What does CPR 31.11 provide?

Answer 24

Continuing obligation - the duty of disclosure continues until proceedings are concluded.

A solicitor must explain to its client how long the obligation lasts and the need to preserve documents and restrict their creation.

Question 25

What list do you have serve regarding continuing obligation?

Answer 25

CPR 31.11 meant that a supplemental list to be served if any docs falling within a party’s disclosure obligations come to light after the list of docs has been served, or are subsequently created.