Disclosure And Inspection

Question 1

what is the meaning of disclosure?

Answer 1

stating that a document exits or has existed

Question 2

what is the meaning of inspection?

Answer 2

where the opponent is allowed to see the actual document. which the party has disclosed.

Question 3

which part of the CPR covers disclosure and inspection of documents?

Answer 3

CPR 31

Question 4

what is the scope of CPR 31 (disclosure and inspection)?

Answer 4

applies to all claims except those on the small claims track.

Question 5

A party to whom a document has been disclosed has a right to inspect that document except where—

Answer 5

(a) the document is no longer in the control of the party who disclosed it; or
(b) the party disclosing the document has a right or a duty to withhold inspection of it.

Question 6

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 —

Answer 6

(a) they are not required to permit inspection of documents within that category or class; but
(b) they must state in their disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Question 7

what is the meaning of a “document”

Answer 7

“document” means anything in which information of any description is recorded. this includes electronic documents alike emails etc.

Question 8

what is the meaning of a “copy”

Answer 8

“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.

Question 9

when a court is making an order for disclosure, it depends on what?

Answer 9

the track on which the claim belongs to

Question 10

how does the court give an order for disclosure for a claim on the small claims track?

Answer 10

• directions are 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))

Question 11

how does the court give an order for disclosure for claims on the fast track?

Answer 11

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 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.

Question 12

in cases of small claims track, fast track and personal injury what is the rule for disclosure?

Answer 12

(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.

Question 13

For multi-track and not including personal injury cases, 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—

Answer 13

(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; and
(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

Question 14

In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed…

Answer 14

…with the report required 14 days before the first case management conference.

Question 15

If the parties agree proposals for the scope of disclosure and the court considers that the proposals are appropriate in all the circumstances…

Answer 15

…the court may approve them without a hearing and give directions in the terms proposed.

Question 16

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—

Answer 16

(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 17

The court may at any point give directions as to how disclosure is to be given, and in particular—

Answer 17

(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.

Question 18

what is the standard rule of disclosure?

Answer 18

disclose only—
(a) the documents on which he relies; and
(b) the documents which adversely affect his own case or adversely affect another party’s case or support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.

Question 19

what are the factors relevant whether a search for documents is necessary?

Answer 19

(a) the number of documents involved;
(b) the nature and complexity of the proceedings;
(c) the ease and expense of retrieval of any particular document; and
(d) the significance of any document which is likely to be located during the search.

Question 20

what documents are required for standard disclosure?

Answer 20

• the documents which adversely affect his own case or adversely affect another party’s case or support another party’s case; and
• the documents which he is required to disclose by a relevant practice direction.

Question 21

Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, they must…

Answer 21

…state this in his disclosure statement and identify the category or class of document.

Question 22

A party’s duty to disclose documents is limited to which documents?

Answer 22

which are or have been in their control.

Question 23

For this purpose a party has or has had a document in his control if—

Answer 23

(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it

Question 24

Where a document contains a modification, obliteration or other marking or feature on which a party intends to rely or which adversely affects his own case or another party’s case or supports another party’s case, shall be treated as what?

Answer 24

shall be treated as a separate document.

Question 25

how many copies of a document should be disclosed?

Answer 25

A party need not disclose more than one copy of a document.

Question 26

what must the parties do in the procedure for disclosing documents?

Answer 26

each party must make, and serve on every other party, a list of documents in the relevant practice form.

Question 27

what must the list of documents for disclosure do?

Answer 27

The list must identify the documents in a convenient order and manner and as concisely as possible.

The list must indicate—
(a) those documents in respect of which the party claims a right or duty to withhold inspection; and
(b) those documents which are no longer in the party’s control and what has happened to those documents.

Question 28

what statement must the disclosure list contain?

Answer 28

A Disclosure Statement, made by the party disclosing the documents—
(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;
(b) certifying that he understands the duty to disclose documents; and
(c) certifying that to the best of his knowledge he has carried out that duty.

Question 29

where the disclosure statement is made by company, alongside the normal rules, what else must the statement contain?

Answer 29

(a) identify the person making the statement; and
(b) explain why he is considered an appropriate person to make the statement.

Question 30

in regards to a disclosure list, what may the parties agree in writing?

Answer 30

(a) to disclose documents without making a list; and
(b) to disclose documents without the disclosing party making a disclosure statement.

Question 31

does the duty for disclosure continue throughout proceedings?

Answer 31

Yes. If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.

to do this the party can prepare and serve a supplemental list.

Question 32

a party may inspect any documents which are referenced in:

Answer 32

• a statement of case;
• a witness statement;
• a witness summary; or
• an affidavit

Question 33

Where a party has a right to inspect a document what is the procedure to be allowed to inspect it?

Answer 33

(a) that party must give the party who disclosed the document written notice of his wish to inspect it;
(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

Question 34

what is the consequence of falling to disclose and/or refusing inspection?

Answer 34

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.

Question 35

what is the consequence of false disclosure statements?

Answer 35

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.

Question 36

what form should the disclosure list be?

Answer 36

Form N265

Question 37

what is the rules regarding the inspection of documents referred to in an expert report

Answer 37

The party should request inspection of the documents informally, and inspection should be provided by agreement unless the request is unreasonable.

Where an expert report refers to a large number or volume of documents and it would be burdensome to copy or collate them, the court will only order inspection of such documents if it is satisfied that it is necessary for the just disposal of the proceedings and the party cannot reasonably obtain the documents from another source.

Question 38

The meaning of “disproportionate” when it comes to preventing disclosure and inspection

Answer 38

overriding principle of proportionality will be drawn to attention when considering disclosure.

Question 39

the meaning of “adverse affect” or “support” in the standard disclosure. Commentary 31.6.2

Answer 39

• Adverse effect is normally primarily assessed by reference to the material allegations in the statements of case.
• Masking irrelevant parts of a document by way of redaction is in principle possible but care must be taken, as the deletion of parts that are relevant could give rise to a specific disclosure order.
• Documents which relate purely to cross-examination as to credit and to no other issue in the trial are outside the scope of standard disclosure

Question 40

documents may be divided into what categories?

Answer 40

• the parties’ own documents
• Adverse Documents
• the relevant documents
• train of inquiry documents

Question 41

what is the meaning of “the parties’ own documents”?

Answer 41

these are documents which a party relies upon in support of their contentions in the proceedings.

Question 42

what is the meaning of “adverse documents”?

Answer 42

these are documents which to a material extent adversely affect a party’s own case or support another party’s case.

Question 43

what is the meaning of “the relevant documents”?

Answer 43

these are documents which are relevant to the issues in the proceedings, but which do not fall into categories 1 or 2 because they do not obviously support or undermine either side’s case. They are part of the “story” or background. The category includes documents which, though relevant, may not be necessary for the fair disposal of the case.

Question 44

what is the meaning of “Train of inquiry documents”?

Answer 44

these are documents which may lead to a train of inquiry enabling a party to advance their own case or damage that of their opponent

Question 45

what categories of documents is standard disclosure limited to?

Answer 45

• adverse documents
• parties’ own documents

Question 46

when are train of inquiry documents most appropriate for?

Answer 46

Train of inquiry documents have traditionally been accepted as potentially appropriate for disclosure in cases involving allegations of fraud, dishonesty or misrepresentation. However it would not be appropriate to order such enhanced disclosure before standard disclosure have been completed

Question 47

disclosure in particular types of cases and circumstances. Commentary 31.6.4

Answer 47

• In split trials, where quantum of damages is only determined if liability is established, there is no need to disclose documents relevant purely to quantum, and this should only be ordered if and when liability is determined
• The obligation to disclose adverse material applies even when a defendant has been debarred from defending a claim due to non-compliance with an unless order

Question 48

what is the meaning of redaction?

Answer 48

where bits of the documents are blacked out

Redaction of irrelevant material from disclosed documents is permissible in respect of both CPR r.31.6 and r.31.14. The test for redaction of such material is that set out in CPR r.31.6. Redaction is also permissible where disclosure is required by a Practice Direction

Question 49

can the court make an order for disclosure and/or inspection?

Answer 49

The court may make an order for specific disclosure or specific inspection.

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.

In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, the overriding objective. But if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are properly complied with.

Question 50

why might a party seek for a disclosure order?

Answer 50

If a party believes that the disclosure of documents given by a disclosing party is inadequate he may make an application for an order for specific disclosure

The application notice must specify the order that the applicant intends to ask the court to make and must be supported by evidence

Question 51

specific disclosure or inspection. Timing of making the application. Commentary 31.12.1.1

Answer 51

• An application under this rule may be made at any stage of the proceedings, and particularly at times when the court is likely to be giving directions in any event, such as allocation, case management conference, with the listing questionnaire, or at the pre-trial review.
• In Multi-Track cases and in the Commercial Court, applications are usually dealt with at a case management conference
• The lateness of an application may undermine its claim that the documents are in fact necessary for the forthcoming proceedings
• In Fast Track cases the appropriate time to apply for specific disclosure may be on allocation to the track and on filing of listing questionnaires, which is when case management takes place

Question 52

“the court may make an order for specific disclosure or inspection”. commentary 31.12.2

Answer 52

• The court has a discretion as to whether it makes the order. It may make an order at any time, regardless of whether standard disclosure has already occurred; and it may make orders for specific disclosure against a claimant before the service of the defence where it would assist the defendant to plead a full defence rather than an initial bare denial
• The Court of Appeal held that the only restriction which a claimant can reasonably seek is that the information which is requested should be confined to that which is relevant to the issues then existing between the parties and that unless the claimant consents to waive her right to confidentiality so that her treating doctor can answer relevant questions, the action be stayed.
• In determining whether disclosure should be ordered, the court must balance the ECHR art.6(1) right of to a fair hearing for the party seeking disclosure with the other party’s art.8 right to respect for private life

Question 53

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—

Answer 53

(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.

Question 54

application subsequent use of disclosed documents and electronic questionnaires may be made by who?

Answer 54

(a) by a party; or
(b) by any person to whom the document belongs.

Question 55

Can a court make an order to restrict or prohibit the use of a document disclosed?

Answer 55

Yes. 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.

Question 56

can there be a pre-action disclosure?

Answer 56

Yes. The court’s power to order pre-action disclosure enables a party to obtain disclosure of documents before proceedings have commenced.

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.

Question 57

what conditions should be met for a court to order pre-action disclosure?

Answer 57

(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; and
(d) Pre-action disclosure is desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings, or save costs.

Question 58

what are the legal principles applicable to an application for pre-application disclosure? Commentary 31.16.4

Answer 58

• The respondent and applicant must both be likely to be parties to subsequent proceedings. It is not however necessary to show in addition that the initiation of such proceedings is itself likely
• The documents sought must fall within the scope of the standard disclosure which the respondent would have to give in the anticipated proceedings. It follows that at the time of the application, the issues must be sufficiently clear to enable this requirement to be properly addressed.
• Disclosure before proceedings have started must be desirable (i) to dispose fairly of the anticipated proceedings, (ii) to assist the dispute to be resolved without proceedings, or (iii) to save costs.
• In considering whether to make an order, among the important considerations are the nature of the loss complained of, the clarity and identification of the issues raised by the complaint, the nature of the documents requested, the relevance of any protocol or pre-action inquiries, and the opportunity which the complainant has to make his case without pre-action disclosure
• The anticipated claim must have a real prospect of success.
• In the commercial context, a pre-action disclosure order, even if not exceptional, is unusual.

Question 59

relevant merits to the future claim for pre-action disclosure. Commentary 31.16.5

Answer 59

• The applicant must show at least a prima facie case of entitlement to substantive relief
• However the merits of the future claim should be relevant to the assessment to be conducted
• orders for pre-action disclosure should be rare in cases such as the present, concerning a dispute between financial institutions, where financial instruments are often entered into between such institutions with relatively limited documentation, but conversations are taped, so that a record exists as to what was said at the time.
• In such situations it should be rare to go further, and require disclosure by one of the institutions of its internal documentation relating to the deal. The court also noted that the disclosure sought would potentially be a burdensome exercise.

Question 60

can someone apply for disclosure from a non-party?

Answer 60

Yes.

Question 61

to make an application of disclosure against a non-party, the criteria to be fulfilled before the court are:

Answer 61

(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

Question 62

an order for disclosure against a non-party, what must the order do?

Answer 62

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection.

Question 63

what might an order against a non-party for disclosure require?

Answer 63

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection.

Question 64

is an order for disclosure from a non-party discretionary from the court?

Answer 64

Yes.

Question 65

disclosure from a non-party. “documents of which disclosure is sought are likely to support the case of the applicant or adversely affect”. Commentary 31.17.3

Answer 65

• Where a party seeks disclosure of a class of documents, the relevant test must be met for each of the documents to be disclosed.

Question 66

disclosure from a non-party. “disclosure is necessary in order to dispose fairly of the claim or to save costs”. Commentary 31.17.4

Answer 66

• The court will not make such an order if it does not have sufficient information from which it can evaluate the necessity of the disclosure for the fair disposal of the claim
• Ordering disclosure against non-parties is the exception rather than the rule and the jurisdiction should be exercised with caution.

Question 67

what is a Norwich Pharmacal Order?

Answer 67

The Norwich Pharmacal jurisdiction provides that a person innocently caught up in the wrongdoing of another so that they are more than a mere witness can be compelled to disclose the identity of the wrongdoer so that proceedings may be brought against the proper defendant

Question 68

what are the three points to be applied for an application of a Norwich Pharmacal Order?

Answer 68

(i)a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
(ii)there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
(iii)the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrong-doer to be sued.

Question 69

for a Norwich Pharmacal Order, what are the nature of the wrongs covered? Commentary 31.18.4

Answer 69

• ‘wrong’ may be a crime, tort, breach of contract, equitable wrong or contempt of court”, which is capable of being identified in general terms.
• The jurisdiction is one of general application, existing in equity wherever the person against whom disclosure was ordered had got “mixed up” in wrongful conduct which infringed a claimant’s legal rights, whether civil or criminal, e.g. breach of confidence or contract
• The applicant does not need to prove the wrong, but must at least show some reasonable basis for claiming that a wrong has been committed.

Question 70

Norwich Pharmacal Order. Need for order to assert rights against the wrongdoer. Commentary 31.18.5

Answer 70

• The second requirement of the Norwich Pharmacal jurisdiction is that it must be necessary for an order to enable a party to assert rights against the ultimate wrongdoer, or at least that it is just and convenient in the interests of justice to make the order sought.
• It is not a requirement that the applicant will be bringing court proceedings. The procedure is available where an applicant “desires to obtain redress against the wrong-doer—or to protect himself against further wrongdoing”

Question 71

Norwich Pharmacal Order. Connection to the wrongdoing. Commentary 31.18.6

Answer 71

• The person against whom the order is sought must be mixed up in the wrongdoing. Such relief cannot be granted against a “mere witness” or “bystander”.
• A claim solely for disclosure and production does not lie against a defendant who is not a wrongdoer and has no connection with the wrongdoing, i.e. has neither committed nor facilitated nor been involved in the committal of the wrongdoing.

Question 72

Norwich Pharmacal Order. Defences. Commentary 31.18.7

Answer 72

Applying the privilege against self-incrimination, a party has a defence to disclosure of the identity of a wrongdoer where that disclosure would tend to incriminate the disclosing party. In such a case it must be the disclosure of the identity of another person which causes the risk

Question 73

what are the types of privilege from inspection of documents?

Answer 73

• legal advice privilege
• litigation privilege
• without prejudice

Question 74

What is Legal Advice Privilege? Commentary 31.3.6

Answer 74

• The test is whether the communication or other document is made confidentially for the purpose of legal advice. Those purposes have to be construed broadly. As such letters and other communications passing between a party, or their predecessors in title, and his, or their solicitors are privileged from production, provided they are, and are sworn or statemented to be, confidential, and written to, or by, the solicitor in their professional capacity, and for the purpose of getting legal advice or assistance for the client
• such communications like communication between the lawyers and third parties are not within the privilege.
• Communications covered by legal advice privilege include documents which evidence the substance of communications
• Lawyers’ working papers are treated as equivalent to communications to the extent that they convey the tenor of communicated advice
• case notes of interviews conducted by in-house and external lawyers with RBS employees during the course of internal investigations were covered neither by legal advice privilege. It was also held that those notes were not covered by lawyers’ working papers privilege, because they did not contain any indication of the trend of the legal advice which had been given
• The privilege extends to information which the solicitor receives in a professional capacity from a third party and which they convey to their client
• The privilege also extends to documents used in negotiations to secure litigation funding where the substance of legal advice (merits, strategy, tactics and case funding) given to the party can be inferred from those documents

Question 75

What it litigation privilege - Solicitors and non-professional agent or third party? Commentary 31.3.8

Answer 75

• Except in the case where the non-professional agent is acting merely as the medium of communication between the solicitor and their client, such communications between a solicitor and a non-professional agent are not privileged, unless made with a view to litigation, contemplated or existing.
• This applies to information such as a surveyor’s report obtained by a solicitor with a view to giving a client legal advice, and such information is not privileged unless obtained with a view to contemplated or existing litigation
• Documents obtained by a solicitor with a view to enabling them to prosecute or defend a claim, or give advice with reference to existing or contemplated litigation, are privileged
• Documents which come into existence for some purpose other than to instruct a lawyer or to form part of their brief are not privileged, and do not subsequently become privileged simply because they are sent to a lawyer as part of their instructions.
• Documents prepared confidentially after a dispute has arisen between the claimant and the defendant, and for the purpose of obtaining information, evidence or legal advice with reference to litigation existing or contemplated between the parties to a claim, are privileged
• Litigation privilege covers communications seeking advice or information for making decisions about whether to settle, but not to purely commercial discussions about settlemen
• There is no principle of law that if one party deliberately misled another party as to the purpose for which information was required, and that party provided the information, the requesting party could not thereafter maintain privilege over the information.

Question 76

what are the types of litigation privilege?

Answer 76

• solicitors and non-professional agent or third party
• Client and non-professional agent or third party

Question 77

what is litigation privilege - Client and non-professional agent or third party? Commentary 31.3.9

Answer 77

• The general principle is that documents embodying communications with (including reports to or from) a non-professional servant, agent or third party are privileged if, and only if, coming into existence for the purpose of obtaining legal advice in existing or anticipated proceedings
• Difficulties arise, however, (a) in determining the status of documents coming into existence for more than one purpose, and (b) in deciding at what stage it can fairly be said any such purpose is obtaining advice in anticipated litigation, as contrasted with obtaining information as to an occurrence which may lead to litigation.
• The document will not be held to be privileged, however, where the insurance claim is simple and straightforward, and where the dominant purpose of the insurers in procuring the document is the assessment of the quantum of the claim rather than obtaining of legal advice on liability.
• litigation included advice to settle or avoid litigation, and hence documents produced which were concerned with settling or avoiding litigation must be created for the sole or dominant purpose of obtaining information or advice about existing or contemplated litigation to come within the scope of litigation privilege.
• where the dominant purpose in the preparation of an accident report is the avoidance of similar accidents in the future, the report will not be privileged, even although a subsidiary purpose in its preparation is its use in the conduct of anticipated litigation.

Question 78

Legal professional privilege generally. Pre-existing documents or copies of or extracts therefrom. Commentary 31.3.11

Answer 78

• legal professional privilege does not extend to cover an original document, even if obtained by a party to litigation or their legal adviser for purposes of the litigation, if the document has not come into existence for the purposes of the litigation, but is already in existence before the litigation is contemplated or commenced.
• A pre-existing document not entitled to privilege does not become privileged merely because it is handed to a solicitor for the purposes of litigation
• documents obtained or prepared by the party for the purpose of obtaining their solicitor’s advice in view of pending or anticipated litigation, or by their solicitor for the purposes of pending or anticipated litigation, are privileged.

Question 79

Waiver or loss of privilege. Disclosure and Inspection. Commentary 31.3.24.

Answer 79

• The privilege is in all cases the privilege of the client and not of the solicitor or legal adviser. It may only be waived by the client, and not the solicitor or legal adviser.
• applying the content/effect distinction to determine whether there had been a waiver of privilege was not to be done mechanistically. It was a fact-sensitive question. Any such application had to be considered by reference to: (a) whether was any reliance on the privileged material; (b) the purpose for which it was relied upon; and (c) the particular context.
• If part of a document is put in evidence, or read to the court, privilege will be waived for the whole document, unless the remaining part deals with an entirely different subject-matter.
• Similarly, if part of a letter is disclosed, the disclosing party is deemed to be waiving privilege in relation to the whole letter, unless it can be shown that the other parts of the letter are so distinct as to amount to different documents
• The fundamental question is whether, in the light of these matters considered together, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material.

Question 80

Without Prejudice Communications. Commentary 31.3.39

Answer 80

• The rule applies to exclude all negotiations genuinely aimed at a settlement, whether oral or in writing, from being given in evidence.
• Any discussions between the parties for the purpose of resolving the dispute between them are not admissible, even if the words “without prejudice” or their equivalent are not expressly used, It follows that documents containing such material are themselves privileged from production.
• There is an exception to the without prejudice rule allowing admission of facts communicated between parties in the course of without prejudice negotiations which are part of the factual matrix or surrounding circumstances, and are relevant as an aid to construction of an agreement which resulted from the negotiations
• Where an allegation of fraud is made, the party against whom that allegation is made may adduce statements made in mediation proceedings to rebut the allegation of fraud, as an exception to the rule that without prejudice communications are inadmissible
• the heading “without prejudice” does not conclusively or automatically render privileged a document so marked.
• If one party to negotiations on a without prejudice basis wishes to change the basis thenceforth to an open one, the burden is on that party to bring the change to the attention of the other party and to establish on an objective basis that the recipient would have realised that a change in the basis of negotiation was being made
• Where a judge sees privileged or inadmissible material does not raise issues of partiality or bias but if recusation is sought the judge should consider subjectively whether they are disabled from fairly continuing with the case and objectively whether viewed from the standpoint of a fair minded and informed observer there was a real possibility or a real danger of there being seen to be an unfair trial.

Question 81

section 34 Senior Courts Act 1981

Answer 81

powers of the High Court to order disclosure and inspection

Question 82

section 53 County Courts Act 1984

Answer 82

powers of the County Court to order disclosure and inspection.