Disclosure and Inspection of Documents

Question 1

Meaning of disclosure

Answer 1

31.2:

Stating that the document exists or has existed

Question 2

Right to inspection:

Answer 2

31.3(1):
A party has a right to inspect a disclosed document except where:
(a) the document is no longer in the control of the party who disclosed it
(b) the party disclosing the document has a right or duty to withhold inspection of it
(c) allowing inspection would be disproportionate

Question 3

Principles applying to privilege:

Answer 3

Apply to all types of privilege:

• Privileged documents must still be disclosed
• Burden on the party claiming privilege
• Once privileged, always privileged
• Privilege can be waived
• Privilege is not the same as confidentialty

Question 4

Types of privilege:

Answer 4

• Legal advice privilege
• Litigation privilege
• Without prejudice communication
• Other case law based privileges

Question 5

Legal Advice Privilege:

Answer 5

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

Three rivers - definition of the client remains narrow

Question 6

Litigation Privilege:

Answer 6

“a document which is a confidential communication which passed between the lawyer and his client or one of them and a third party where the DOMINANT PURPOSE in creating the document is to obtain legal advice, evidence or information for the use in the ‘conduct of litigation which was at the time reasonably in prospect’”

Question 7

Waugh v British Railways Board

Answer 7

D wished to claim privilege over a dual-purpose document

Litigation was an ‘equal purpose’ and not a ‘dominant purpose’ so was not privileged from inspection

Question 8

USA v Phillip Morris

Answer 8

D claimed privilege over documents not because they were prepared for specific litigation but because it was constantly under threat of litigation by its customers

-> A general apprehension of future litigation is insufficient, must be real likelihood rather than mere possibilty

Question 9

Without Prejudice Communications:

Answer 9

“documents whose purpose is a genuine attempt to settle a dispute”

A document need not be marked “without prejudice” and one marked as such may not be a genuine attempt to settle
-> court will look at the substance rather than form

Question 10

Meaning of document:

Answer 10

31.4:

“anything in which information of any description is recorded”

Question 11

Standard Disclosure

Answer 11

31.6:
Standard disclosure requires a party to disclose only:
(a) Documents on which he relies and
(b) Documents which -
(i) adversely affect his own case
(ii) adversely affect another party's case
(iii) support another party's case
(c) documents required by any PD

Question 12

Duty of search:

Answer 12

31.7:

When giving standard disclosure, a party is required to make a reasonable search for documents

Question 13

Limitation of disclosure:

Answer 13

31.8:
Duty of disclosure limited to documents which are or have been in a party’s control:
A document has been in a party’s control if:
(a) it is or was in his physical possession
(b) he has or has had the a right to possession of it
(c) he has or has had a right to inspect or take copies of it

Question 14

Procedure for standard disclosure:

Answer 14

31. 10:
    - each party must make and serve on every other party a list of documents in the relevant practice form
    - the list must identify the documents in a convenient order and manner and as concisely as possible
    - list must indicate documents party has a right or duty to withhold inspection over
    - documents which are no longer in the party’s control and what happened to those documents
    - a disclosure statement must be included

Question 15

How long does the duty to disclose continue?

Answer 15

31.11:

Any duty of disclosure continues until the proceedings are concluded

Question 16

Specific disclosure or inspection:

Answer 16

31.12:
the court may order specific disclosure or specific inspection requiring a party to:
(a) disclose documents or classes of documents
(b) carry out a search to the extent stated in the order
(c) disclose any documents located as a result of that search

Question 17

Disclosure before proceedings start:

Answer 17

An application for pre-action disclosure must be supported by evidence and will only be granted if:

(a) the respondent is likely to be a party to subsequent proceedings
(b) the applicant is also likely to be a party to those proceedings
(c) If proceedings had started, the duty to disclose under 31.6 would extend to those documents which the applicant seeks disclosure of

Question 18

Orders for disclosure against a person who is not a party:

Answer 18

31.17:
An application must be supported by evidence and will only be granted if:
(a) the documents sought are likely to support the applicants’ case or adversely affect the case of another party
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs

Question 19

Consequence of failure to disclose documents or permit inspection:

Answer 19

31.21:
a party may not rely on any document to which he fails to disclose or permit inspection unless the court gives permission

Question 20

Norwich Pharmacal

Answer 20

Court can order D to disclose identity so that proceedings can be brought against the true wrongdoer:

The test (as refined by Mitsui):

1. a wrong must have been carried out by the ultimate wrongdoer
2. there must be a need for an order to enable action to be brought against the ultimate wrongdoer
3. the person against whom the order is sought must be:
   (i) must be more than a mere witness/bystander
   (ii) be able to provide the information to enable the ultimate wrongdoer to be sued