Disclosure and Inspection

Question 1

What is a Document?

Answer 1

Any item that records information.

This can include:

• Emails.
• Metadata.
• Voicemails.
• Photographs.
• Text Messages.
• Digital Recordings.

Question 2

What is the Source of Disclosure Obligations?

Answer 2

Court Orders, which are usually made at:

• Allocation;
• The CMC; or
• Upon Application.

Question 3

Which Documents is the Court likeliest to Order to be Disclosed?

Answer 3

Those necessary to deal with the Case justly and at proportionate cost relative to the Case’s value and complexity.

Question 4

What are the Six Types of Disclosure Order?

Answer 4

Dispensing with Disclosure:

• No Disclosure is necessary.

Limited Disclosure:

• A Party need only Disclose the Documents its Case relies upon and may request specific Documents be Disclosed.

Issue-by-Issue Disclosure:

• Disclosure is limited to certain Issues, where practical.

Reasonable Disclosure:

• A Party must disclose any Documents that may reasonably:
  • Advance its Case;
  • Damage its Counterparty’s case; or
  • Lead to inquiries that have such an effect.

Standard Disclosure:

• A Party must disclose any Documents that:
  • Advance its Case;
  • Damage its Counterparty’s case; or
  • The Law requires be Disclosed.

Specific Disclosure:

• A Party must disclose any Documents that the Court has specifically compelled it to Disclose.

Specific Inspection:

• A Party must permit Inspection any Documents that the Court has specifically compelled it to Disclose.

A Party’s Disclosure Obligations are limited to those Documents it controls or used to control.

The Court has ultimate discretion to tailor any of these Orders to the given Case, e.g. by segmenting Disclosure into stages.

Question 5

What constitutes ‘Control’ of a Document?

Answer 5

• Right to possession of the Document.
• Physical possession of the Document.
• Right to inspect or take copies of the Document.

Question 6

Which Categories of Documents must be Disclosed under Standard Disclosure?

Answer 6

Any Documents revealed by a Reasonable Search that:

• Support the Party’s Case.
• Support another’s Case.
• Adversely affect the Party’s Case.
• Adversely affect another’s Case.
• The Law requires be Disclosed.

Question 7

What constitutes a ‘Reasonable Search’?

Answer 7

A reasonable, proportionate effort to Identify and Disclose Documents within the Order’s scope, factoring in:

• The Costs incurrable.
• The number of Documents involved.
• The nature and complexity of the Case.
• The difficulty of securing certain Documents.
• The importance of the Documents likely to be found.

Question 8

What is a Disclosure List?

Answer 8

The product of Standard Disclosure, a report outlining:

• Part 1: Documents in the Party’s control that are open to Inspection.
• Part 2: Documents in the Party’s control that are not open to Inspection (Privileged).
• Part 3: Documents previously in the Party’s control but that are no longer available.

Privileged Documents need not be listed individually. Instead, they can described categorically.

Question 9

What is a Disclosure Statement?

Answer 9

A statement accompanying the Disclosure List that:

• Describes the search’s extent (including limitations).
• Certifies the Party understands its Disclosure Duties.
• Certifies the Party has fulfilled its Disclosure Duties to the best of its knowledge.

Solicitors must ensure the person making the Statement fully understands their Disclosure Duties.

Question 10

What is the Right of Inspection?

Answer 10

The right to examine Documents in the Disclosure List or referred to in a Statement of Case, Witness Statement, or Expert Report unless:

• The Document(s) is Privileged.
• The Document(s) is no longer in the Disclosing Party’s control.
• Inspection would incur disproportionate time, effort, and cost.

Refusal of Inspection on grounds of Disproportionality must be explicitly stated in the Disclosure Statement, with a description of which categories are refused and an explanation as to why.

Referring to a Document in the places above does not automatically waive privilege.

Question 11

What is the Procedure for Inspection?

Answer 11

Requesting Inspection:

• The Inspecting Party must send written Notice to the Disclosing Party, specifying the Documents it wishes to Inspect.

Timeframe for Inspection:

• The Disclosing Party must allow Inspection within 7 days of Notice.
• The court may vary this time limit through directions if necessary.

Requesting Copies:

• The Inspecting Party can request Copies of Documents, provided they undertake to pay reasonable costs.
• The Disclosing Party must provide Copies within 7 days of request.

Refusal to Permit Inspection:

• The Disclosing Party cannot rely on withheld Documents without Court permission unless it has a valid reason for withholding.

Question 12

What are the Types of Privilege?

Answer 12

Legal Advice Privilege:

• Protects confidential communications between Clients and Lawyers made predominantly to give or receive legal advice.
• This only applies to direct communications, ongoing, repeated, or otherwise, and must remain confidential.
• For In-House Lawyers, this only bites if they are acting in a legal capacity, i.e. advising on legal issues.

Litigation Privilege:

• Protects confidential communications between Clients, Lawyers, and Third Parties made predominantly to prepare for existing or reasonably anticipated litigation.
• If its Purpose is unclear, ask the Document’s Commissioner, not its Author.

Without Prejudice Privilege:

• Applies to communications between Parties attempting to Settle a Dispute, regardless of the label “Without Prejudice.”
• Such communications cannot be used as evidence if negotiations fail, as they are considered part of a genuine Settlement effort.

The status of ‘Privileged’ can be disputed in Court.

Information added by the Client, such as personal opinions, is not protected under Legal Advice Privilege. If sufficiently significant, Privilege may be Waived.

Question 13

What is Purpose of Redaction?

Answer 13

To conceal information in a Disclosable Document that is either irrelevant, Privileged, or confidential.

The Redcated Version is listed in Part 1 of the Disclosure List. The Unredcated Version is listed in Part 2, where Inspection is refused.

Question 14

When is Privilege Waived?

Answer 14

When a Party:

• Deliberately allows Inspection of a Privileged Document, which Waives Privilege to the Document.
• Explicitly references a Privileged Document in a Court Document, which Waives Privilege to the whole Class.

Question 15

Is Partial Waiver Possible?

Answer 15

• Yes, and consequently, the whole Document will be Waived;
• Unless the Waived and Unwaived parts deal with entirely different subjects.

The Exception is unreliable.

Question 16

Is Waiver across Multiple Documents possible?

Answer 16

Yes, especially if those Documents deal with the same subject matter.

Question 17

When does Privilege expire?

Answer 17

Never, even after the Litigation concludes.

Question 18

Who bears the Burden of Proof in Disputes over Privilege?

Answer 18

The Party claiming Privilege.

Question 19

What are the Consequences of Non-Disclosure or Privilege?

Answer 19

• Contempt of Court for making a Dishonest Disclosure Statement.
• An inability to rely on Undisclosed or Privileged Documents, without Court permission.

Question 20

How does the Court handle Disclosure in Small Track Claims?

Answer 20

Time of Order:

• Allocation.

Disclosure Deadline:

• All relevant Documents must be Filed and Served at least 14 days before the Final Hearing.

Question 21

How does the Court handle Disclosure in Fast and Intermediate Track Claims?

Answer 21

Time of Order:

• CMC; or
• Allocation.

Disclosure Deadline:

• As per the relevant Disclosure Order.

Question 22

How does the Court handle Disclosure in Multi-Track Claims?

Answer 22

Time of Order:

• CMC.

Necessary Preliminaries (Non-PI):

• Each Party must File a Disclosure Report at least 14 days before the First CMC.
• The Parties must try to agree a Draft Disclosure Order at least 7 days before the First CMC.

Disclosure Deadline:

• As per the relevant Disclosure Order.

Question 23

What does the Disclosure Report contain?

Answer 23

Description of Relevant Documents:

• A description and classification of the Documents relevant to the Case that exist or may exist.

Location of Documents:

• A description of where the Documents are located and who holds them.

Storage of Electronic Documents:

• A description of how Electronically Stored Information (“ESI”) is stored.

Costs Estimate:

• A Costs Estimate for searching, reviewing, and producing the Documents, especially if electronic documents are involved.

Requested Disclosure Directions:

• The Party’s recommended Disclosure Order, based on the Case’s needs.

Question 24

When must a Party Disclose a Copy of a Document?

Answer 24

• The Party does not control the Original.
• The Copy contains modifications, or other features, that meet the Test for Standard Disclosure.

Question 25

What is the Continuing Duty of Disclosure?

Answer 25

**After Initial Discloure**, Parties must Disclose: * Any **newly-created** Documents or Documents **newly under their control**; * If they **fall within** the **scope** of the Court’s Disclosure **Orders**. Such Documents must be Filed and Served in a **Supplemental Disclosure List**. ## Footnote This **continues until** the **Litigation concludes**.

Question 26

When can a Disclosed Document be used for Purposes other than Litigation?

Answer 26

* The **Court** grants **permission**. * The **Disclosing Party** grants **permission**. * The Document has been **read** or **referred** to in **Open Court**. ## Footnote A **Party** can **petition** the **Court** to **restrict** or **prohibit** a Document from being **read** or **referred to** in Open Court.

Question 27

What is a Specific Disclosure Order?

Answer 27

An Order requiring a Party to: * **Disclose** certain **Documents** or **Classes thereof**. * **Conduct** a **Search** and **disclose any further Documents** found.

Question 28

What are the Grounds for a Specific Disclosure Order, and when is it sought?

Answer 28

When the **Applicant believes**: * **Documents** are **needed sooner** than the **current Directions** allow. * The **Counterparty** has **not fully complied** with its existing **Disclosure Obligations**. * Further Documents **beyond** the **scope** of **Standard Disclosure** are **necessary** for **fairness**. ## Footnote This may be sought at any time after Proceedings commence.

Question 29

What is the Content of a Specific Disclosure Application?

Answer 29

The Applicant must: * **Specify** the **Order sought** and the **precise Documents requested**. * **Provide evidence** in support of their Application, typically using a **Witness Statement** from the **Applicant** or their **Solicitor**.

Question 30

What is Specific Inspection Order?

Answer 30

An Order to **permit Inspection** of a **Disclosed** Document **despite protestations** of **disproportionality**.

Question 31

What are the Grounds for a Specific Inspection Order?

Answer 31

**After Standard Disclosure**, the Applicant **believes** that: * The **Documents** are **relevant** to the **Litigation**; and that * **Inspection** is **necessary** for **fairness**.

Question 32

What is the Content of a Specific Inspection Application?

Answer 32

The Applicant must: * **Specify** the **Order sought** and the **precise Documents requested**. * **Provide evidence** in support of their Application, typically using a **Witness Statement** from the **Applicant** or their **Solicitor**.

Question 33

What is a Pre-Action Disclosure Order?

Answer 33

An **Order** to **compel Disclosure before Proceedings** have **begun**.

Question 34

When will the Court grant a Pre-Action Disclosure Order?

Answer 34

* The **Applicant and Respondent** are **likely Parties** to the **Proceedings**. * The **Document's requested** would **ordinarily** fall within the **Respondent's Disclosure Duties** under **Standard Disclosure**. * The **Order** would be **desirable** to: * **Reduce unnecessary expenses**. * **Ensure both Parties** are on **equal footing**. * **Encourage** an **early settlement** or **resolution**.

Question 35

What is the Content of a Pre-Action Disclosure Application?

Answer 35

The Applicant must: * **Specify** the **Order sought** and the **precise Documents requested**. * **Provide evidence** in support of their Application, typically using a **Witness Statement** from the **Applicant** or their **Solicitor**.

Question 36

Who pays the Costs of a Pre-Action Disclosure Order?

Answer 36

* Generally, the **Applicant pays** the **Costs** of the **Application** and the **Respondent's compliance**; however * If the **Respondent** has been **uncooperative** or **failed** to **comply** with **PAPs**, it **may bear Costs**.

Question 37

What is a Non-Party Disclosure Order?

Answer 37

An Order to **compel Disclosure** from **Non-Parties with information** or **evidence** **relevant** to the **Litigation**. ## Footnote This may be sought at any time after Proceedings commence.

Question 38

When will the Court grant a Non-Party Disclosure Order?

Answer 38

* The **Documents** are **likely** to **support** the **Applicant’s Case** or **adversely affect** the **Opponent’s Case**. * Disclosure is **necessary** for **fairness**. * Disclosure **does not contravene** the **OO** and the need for a **fair** and **proportionate Litigation**.

Question 39

What is the Content of a Non-Party Disclosure Application?

Answer 39

The Applicant must: * **Specify** the **Order sought** and the **precise Documents requested**. * **Provide evidence** in support of their Application, typically using a **Witness Statement** from the **Applicant** or their **Solicitor**. * **Serve Notice** on the **Respondent** (Non-Party) and **all other Litigants**.

Question 40

Who pays the Costs of a Non-Party Disclosure Order?

Answer 40

* Generally, the **Applicant pays** the **Costs** of the **Application** and the **Respondent's compliance**; however * If the **Respondent** has been **unreasonable**, it **may pay its Costs** and even the **Applicant's Costs**.

Question 41

What is a Norwich Pharmacal Order?

Answer 41

* An Order to **compel Disclosure** a **Third Party** to provide the **Claimant** with; * **Sufficient information** to **identify and sue** the **currently-unknown**, **proper Defendant**.

Question 42

When will the Court grant a Norwich Pharmacal Order?

Answer 42

* **Evidence at least arguably** suggests a **Wrong** has been **committed**. * The **Order** is **absolutely necessary** to enable the Applicant to **take action** against the **ultimate Wrongdoer**. * There must be **no alternative means** to **obtain** this **information**. * The **Respondent** must: * Have **had some involvement** in the surrounding circumstances, though **fault** is **unnecessary**. * Be **able** or **likely** to provide the **necessary information** to **identify and sue** the **ultimate Wrongdoer**. * The **Order** is **necessary and proportionate** given the circumstances.

Question 43

What is the Application Procedure for a Norwich Pharmacal Order?

Answer 43

**Before Substantive Proceedings:** * The **Applicant** must File a **Claim Form** against the **Respondent** using **CPR 8 Procedures**. **After Substantive Proceedings Have Begun:** * The Applicant must File an **Interim Application** using **CPR 23 Procedures**.

Question 44

Who pays the Costs of a Norwich Pharmacal Order?

Answer 44

* Generally, the **Applicant pays** the **Costs** of the **Application** and the **Respondent's compliance**; however * The **Applicant** may **reclaim Costs** from the **ultimate Wrongdoer** in the **same or subsequent Proceedings** should it succeed.