DISCLOSURE AND INSPECTION

Question 1

Disclosure and Inspection

Answer 1

In this context, ‘disclosure’ means to clearly identify
and inform the other side of the existence of a document; it
does not mean to show the document. Inspection is the term given to the separate but related process which enables the other side to view certain of the documents disclosed.

Question 2

Documents that Must Be Disclosed

Answer 2

The starting point for disclosure is that a party must disclose
both any document on which it relies and any document
which adversely afects its case. The CPR makes it clear that
‘documents’ are not confned to paper or just originals. The
term ‘document’ includes anything that has information re-
corded on it, including electronically stored information such as emails (including deleted emails), databases, fle servers,
and hard drives.

Question 3

STANDARD DISCLOSURE

Answer 3

In fast track and personal injury multi-track cases, the court normally makes an order for standard disclosure. This re-
quires each party to disclose any documents on which it
relies together with any documents that:
*Afect their case adversely;
*Afect the other party’s case adversely; or
*Support the other party’s case.

Question 4

Only Documents Relevant to Issues in
Question

Answer 4

A party need disclose only documents relevant to the issues
in question, but the obligation for disclosure extends to any
document within the party’s control. This can extend to doc-
uments no longer in the party’s possession so long as they
have a right to control the document.

Question 5

When Does a Party Have Control?
A party has ‘control’ of a document if they:

Answer 5

*Have physical possession of the document;
*Have a right to possession, a right to inspect, or a right to
take copies; or
*Had the document in their possession but no longer have
it.

Question 6

Reasonable and Proportionate Search

Answer 6

The court expects each party to make a reasonable and pro-portionate search for documents. What constitutes reason-
able and proportionate depends on the nature of the case,its value, and its importance. The court will also bear in mind the ease of retrieval of documents and the costs involved.

Question 7

The order for disclosure is usually contained within the initial directions order. The court has the power to order:

Answer 7

*Disclosure on the standard basis;
*Dispensing with disclosure altogether;
*Disclosure on such basis as it directs; or
*Disclosure on an issue-by-issue basis.

Question 8

Disclosure List
In** fast track **and **personal injury multi-track **cases, the par-
ties are required to fle and serve a disclosure list. The list is divided into three sections:

Answer 8

*A list of documents in its control that they do not object
to the other party inspecting;
*A list of documents in its control that they object to the
other side inspecting, along with reasons for objecting.
(The most common reason for objecting is that the docu-
ments are privileged.)
*A list of documents that are no longer in its control, stat-
ing when they were last in their control and where they
are now.

Question 9

Disclosure Statement

Answer 9

1.Each party is required to make a disclosure statement detail-
ing the extent of the search made. The statement must certify that the person signing the statement understands the duty
to give disclosure and that they have carried out that duty,
to the best of their knowledge.
2. It is the party, not the legal representative, who signs the disclosure statement. Proceedings for contempt of court can arise against anyone who makes a false disclosure statement without an honest belief in its truth.

Question 10

Time Limits for Disclosure

Answer 10

1. Standard directions usually allow 28 days from the date
   of the directions order for the parties to serve their lists of
   documents.
2. The order will also routinely require that inspection take place within** seven days**, although in practice many solicitors send copies of the documents on which they propose to rely to their opponent when serving the disclo-
   sure list.

Question 11

Party Not Content with Disclosure

Answer 11

If a party is not content with the disclosure provided by an
opponent, they can challenge.

Question 12

Options to Obtain Information

Answer 12

1. Options are to apply for specifc disclosure, to serve a Notice to Admit Facts, or to apply for an unless order if the opponent continues to disregard their obligations under CPR
2. A Request for Information may be an alternative way of obtaining information that may be missing from a party’s disclosure list.

Question 13

Automatic Right to Inspection
Disclosure of a document provides an automatic right to
inspect unless specifcally challenged. The grounds for refus-ing inspection would include:

Answer 13

*Privilege
*The document is no longer in the party’s control; and
*It would be disproportionate to allow inspection.
If a party with a right to inspect a document wants to exer-
cise that right, they must give notice to the other party, who must permit inspection within **seven days **after the date they received the notice.

Question 14

Disclosure in MULTI-TRACK CASES

Answer 14

1. In a non-personal injury, multi-track claim, the court requires
   each party to prepare a disclosure report, which must be fled at least 14 days before the frst Case Management Confer-
   ence or otherwise with the Directions Questionnaire.

Question 15

SPECIFIC DISCLOSURE

Answer 15

1. The court can make an order for specifc disclosure, requiring a party to disclose or search for and disclose documents that:
   *It has a reason to believe may contain information which
   will assist the applicant’s case or damage the respon-
   dent’s case; or
   *May lead to a train of enquiry which has either of the
   consequences above.
   2.An application for specifc disclosure also may arise if a party believes that another party’s disclosure is inadequate. The
   application normally takes place after standard disclosure
   has taken place

Question 16

Written Request for Documents in Special Disclosure

Answer 16

A party should make a written request for the documents
before issuing the application. The request should contain:
*A description of the documents and the extent of the
search sought;
*Why it is reasonable and proportionate for the documents
to be disclosed, having regard to the overriding objective;
*An explanation of how the documents are relevant to the
matters in issue;
*The grounds for believing that the documents are or
have been in the other party’s control; and
*What safeguards can be provided to ensure, for example,
that trade secrets or other confdential information is not
put at risk.

Question 17

PRE-ACTION DISCLOSURE

Answer 17

Prior to issue of proceedings, an application for disclosure is
usually available only against a person who is likely to become a party to the proceedings. In certain cases, however, an order to disclose documents may be available against persons who are not parties to the proceedings if the case involves
*Freezing Injunctions;
*Search Orders;
*Applications for preservation of property; or
*Requests for further information pursuant.

Question 18

PRIVILEGE

Answer 18

1. Privilege entitles a party to withhold evidence from
   production—to a third party, their opponent, or the court.
2. If a document is privileged, its existence still must be disclosed, but the party holding the privilege has the right to withhold
   the document from inspection.

Question 19

There are four types of privi-
lege plus one type of immunity which functions similarly:

Answer 19

*Legal advice privilege;
*Litigation privilege;
*Common interest privilege;
*Without prejudice privilege; and
*Public interest immunity. (
The frst two types above can be described as ‘legal profes-sional privilege’.

Question 20

Legal advice privilege

Answer 20

It protects compulsory disclosure of all types of commu-nication between a client and their lawyer in which advice is given (or requested) within a relevant legal context

Question 21

Litigation Privilege

Answer 21

1. Litigation privilege relates to communications with third
   parties (that is, experts and barristers) relating to preparation of pending or contemplated litigation. There must be a real
   likelihood of litigation; a mere possibility is insufcient.
2. Not all documents prepared for litigation will be privileged
   and exempt from inspection. If a document has multiple pur-
   poses, it will be privileged only if a court decides its dominant purpose is to prepare for litigation (that is, giving advice or
   obtaining or gathering evidence)
3. Burden on Person Asserting Privilege
   The bar for claiming litigation privilege is high. The burden of proof rests with the party seeking to assert privilege.
4. Privilege Lost If Document to Be Used at Trial
   If the privilege holder wishes to use the privileged document at trial, it must be exchanged with the other side, at which
   point the privilege is lost.

Question 22

Common Interest Privilege

Answer 22

1. Common interest privilege may apply when there are mul-
   tiple defendants or group actions. The parties may send
   documents to each other and claim these documents are
   privileged from inspection by other parties because the par-
   ties who exchanged the documents have a common interest, that is, they are parties in the same action with common
   objectives.
2. For the privilege to apply, the common interest
   must have been present at the time of disclosure between
   the parties.
3. If subsequently the parties’ relationship breaks
   down, the right to claim privilege to third parties subsists.
   4.The privilege can be waived only if all interested parties agree to waive it.

Question 23

Without Prejudice Privilege

Answer 23

During the course of an action, the parties are likely to enter
into discussions regarding potential settlement and may cre-
ate documents with a view to achieving this. Often these are
labelled ‘without prejudice’ to make it clear that the party is
sending the communication on the understanding that it will
not be referred to the court in such a way which may preju-
dice the claim or defence. Such communications and docu-
ments are privileged (under the without prejudice privilege),
and the opponent cannot refer to them within the action

Question 24

LOSS OF PRIVILEGE

Answer 24

The privilege is the client’s and not the solicitor’s and, there-fore, it may be waived by the client. Once a copy of a priv-
ileged document is served on the other side, the privilege may be waived.

Question 25

Mistaken Disclosure

Answer 25

If a party inadvertently allows a priv-ileged document to be inspected, the party who has inspect-ed it may use it (or its contents) only with the permission
of the court.

Exam Tip
Remember that whether a document is privileged has
no bearing on whether it should be disclosed. Privileged documents are disclosed with a generic description in
the disclosure list, but they may not be inspected.