Disclosure and Inspection (W12)

Question 1

CPR 31.2 - Meaning of ‘disclosure’

Answer 1

A party discloses a document by stating that the document exists or has existed.

Question 2

CPR 31.3 - Right of inspection of a disclosed document

Answer 2

A party to whom a document has been disclosed has a right to inspect that 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 a duty to withhold inspection
(c) 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:
(i) he is not required to permit inspection of documents within that category or class; but
(ii) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Question 3

CPR 31.4 - Meaning of ‘document’

Answer 3

• anything in which information of any description is recorded
• “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 4

CPR 31.6 - Standard disclosure

Answer 4

• Standard disclosure requires a party to disclose only:
  (a) the documents on which he relies
  (b) the documents which:
  (i) adversely affect his own case
  (ii) adversely affect another party’s case
  (iii) support another party’s case
  and (c) the documents which he is required to disclose by a relevant practice direction.

Question 5

CPR 31.7 - Duty of search

Answer 5

• When giving standard disclosure, a party is required to make a reasonable search for documents.
• The factors relevant in deciding the reasonableness of a search include:
  (a) number of documents involved
  (b) nature and complexity of the proceedings
  (c) ease and expense of retrieval of any particular document
  (d) significance of any document which is likely to be located during the search.
• Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.

Question 6

CPR 31.8 - Duty of disclosure limited to documents within a party’s control

Answer 6

• A party’s duty to disclose documents is limited to documents which are or have been in his control.
• a party has or has had a document in his control if—
  (a) it is or was in his physical possession
  (b) he has or has had a right to possession of it
  (c) he has or has had a right to inspect or take copies of it.

Question 7

CPR 31.9 - Disclosure of copies

Answer 7

• A party need not disclose more than one copy of a document.
• A copy of a document that contains a modification, obliteration or other marking or feature—
  (a) on which a party intends to rely; or
  (b) which adversely affects his own case or another party’s case or supports another party’s case;
  shall be treated as a separate document.

Question 8

CPR 31.10 - Procedure for standard disclosure

Answer 8

• 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.
• The list must indicate—
  (a) those documents in respect of which the party claims a right or duty to withhold inspection
  (b) (i) those documents which are no longer in the party’s control
  (ii) what has happened to those documents.
• The list must include a disclosure statement.
• A disclosure statement is a statement made by the party disclosing the documents:
  (a) setting out the extent of the search
  (b) certifying that he understands the duty to disclose
  (c) certifying that to the best of his knowledge he has carried out that duty.
• Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also:
  (a) identify the person making the statement
  (b) explain why he is considered an appropriate person to make the statement.
• The parties may agree in writing:
  (a) to disclose documents without making a list
  (b) to disclose documents without the disclosing party making a disclosure statement.
• A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.

Question 9

CPR 31.11 - Duty of disclosure continues during proceedings

Answer 9

• Any duty of disclosure continues until the proceedings are concluded.
• 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.

Question 10

CPR 31.12 - Specific disclosure or inspection

Answer 10

• 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.
• An order for specific inspection is an order that a party permit inspection of a document.

Question 11

CPR 31.14 - Documents referred to in statements of case

Answer 11

• A party may inspect a document mentioned in:
  (a) a statement of case
  (b) a witness statement
  (c) a witness summary
  (d) an affidavit.
• a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed in the proceedings.

Question 12

CPR 31.15 - Inspection and copying of documents

Answer 12

• Where a party has a right to inspect a document:
  (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
  (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 13

CPR 31.16 - Disclosure before proceedings start

Answer 13

• The application must be supported by evidence.
• The court may make an order under this rule only where:
  (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 respondent’s duty by way of standard disclosure would extend to the documents;
  (d) disclosure before proceedings have started is desirable in order to—
  (i) dispose fairly of the anticipated proceedings
  (ii) assist the dispute to be resolved without proceedings
  (iii) save costs.
• An order under this rule must:
  (a) specify the documents or the classes of documents which the respondent must disclose
  (b) require him, 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.
• Such an order may:
  (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 14

CPR 31.17 - Orders for disclosure against a person not a party

Answer 14

• The application must be supported by evidence.
• The court may make an order under this rule only where:
  (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;
  (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.
• An order under this rule must:
  (a) specify the documents or the classes of documents which the respondent must disclose
  (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.
• Such an order may:
  (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 15

CPR 31.19 - Claim to withhold inspection or disclosure of a document

Answer 15

• A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.
• Unless the court orders otherwise, an order of the court under this:
  (a) must not be served on any other person; and
  (b) must not be open to inspection by any person.
• A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing:
  (a) that he has such a right or duty; and
  (b) the grounds on which he claims that right or duty.
• (4) The statement referred to must be made:
  (a) in the list in which the document is disclosed; or
  (b) if there is no list, to the person wishing to inspect the document.
• A party may apply to the court to decide whether a claim should be upheld.
• The court may—
  (a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and
  (b) invite any person, whether or not a party, to make representations.
• Application must be supported by evidence.

Question 16

CPR 31.20 - Restriction on use of a privileged document inspection of which has been inadvertently allowed

Answer 16

Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

Question 17

CPR 31.21 - Failure to disclose or allow inspection

Answer 17

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 18

CPR 31.22 - Subsequent use of disclosed documents and completed Electronic Documents Questionnaires

Answer 18

• 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:
  (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.
• 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.
• An application for such an order may be made—
  (a) by a party; or
  (b) by any person to whom the document belongs.
• For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed.

Question 19

CPR 31.23 - False disclosure

Answer 19

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 20

31APD.1 - General practice directions on disclosure

Answer 20

• The normal order for disclosure will be an order that the parties give standard disclosure.
• In order to give standard disclosure the disclosing party must make a reasonable search for documents.
• Having made the search the disclosing party must make a list of the documents of whose existence the party is aware.
• The obligations imposed by an order for standard disclosure may be dispensed with or limited either by the court or by written agreement between the parties. Any such written agreement should be lodged with the court.

Question 21

31APD.2 - The Search

Answer 21

• The parties should bear in mind the overriding principle of proportionality.
• It may, for example, be reasonable to decide not to search for documents coming into existence before some particular date, or to limit the search to documents in some particular place or places, or to documents falling into particular categories.

Question 22

31APD.3 - The List

Answer 22

• The list should be in Form N265.
• it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description
• Where there is a large number of documents all falling into a particular category the disclosing party may list those documents as a category rather than individually
• The obligations imposed by an order for disclosure will continue until the proceedings come to an end. The party must prepare and serve a supplemental list.

Question 23

31APD.4 - Disclosure Statement

Answer 23

The disclosure statement should:

(a) expressly state that the disclosing party believes the extent of the search to have been reasonable in all the circumstances
(b) draw attention to any particular limitations on the extent of the search which were adopted for proportionality reasons and give the reasons why the limitations were adopted.
- the details given in the disclosure statement about the person making the statement must include his name and address and the office or position he holds in the disclosing party or the basis upon which he makes the statement on behalf of the party.
- If the disclosing party has a legal representative acting for him, the legal representative must endeavour to ensure that the person making the disclosure statement understands the duty of disclosure.
- If the disclosing party wishes to claim that he has a right or duty to withhold a document, or part of a document, in his list of documents from inspection, he must state in writing:
(1) that he has such a right or duty, and
(2) the grounds on which he claims that right or duty.
- An insurer or the Motor Insurers’ Bureau may sign a disclosure statement on behalf of a party where the insurer or the Motor Insurers’ Bureau has a financial interest in the result of proceedings.

Question 24

31APD.5 - Specific disclosure

Answer 24

• The application notice must specify the order that the applicant intends to ask the court to make and must be supported by evidence
• The grounds on which the order is sought may be set out in the application notice itself but if not there set out must be set out in evidence filed in support of the application.
• 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.
• An order for specific disclosure may in an appropriate case direct a party to:
  (1) carry out a search for any documents which it is reasonable to suppose may contain information which may —
  (a) enable the party applying for disclosure either to advance his own case or to damage that of the party giving disclosure; or
  (b) lead to a train of enquiry which has either of those consequences
  and (2) disclose any documents found as a result of that search.

Question 25

31APD.6 - Claims to withhold disclosure or inspection of a document

Answer 25

A claim to withhold inspection of a document, or part of a document, disclosed in a list of documents does not require an application to the court. Where such a claim has been made, a party who wishes to challenge it must apply to the court.

Question 26

31APD.7 - Inspection of documents mentioned in expert’s report

Answer 26

• If a party wishes to inspect documents referred to in the expert report of another party, before issuing an application he 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 27

s.34 Senior Courts Act 1981 - Power of High Court to order disclosure of documents, inspection of property etc. in proceedings for personal injuries or death

Answer 27

(2) On the application, in accordance with rules of court, of a party to any proceedings, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim—
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order—
(i) to the applicant’s legal advisers; or
(ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or
(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.
(3) On the application, in accordance with rules of court, of a party to any proceedings, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say—
(a) the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject-matter of the proceedings or as to which any question arises in the proceedings;
(b) the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property.

Question 28

s.53 County Courts Act 1984 - Power of court to order disclosure of documents, inspection of property, etc., in proceedings for personal injuries or death

Answer 28

(2) On the application, in accordance with county court rules, of a party to any proceedings, the county court shall, in such circumstances as may be prescribed, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim—
(a) to disclose whether those documents are in his possession, custody or power; and
(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order—
(i) to the applicant’s legal advisers; or
(ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or
(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.

(3) On the application, in accordance with county court rules, of a party to any proceedings, the county court shall, in such instances as may be prescribed, have power to make an order providing for any one or more of the following matters, that is to say—
(a) the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, any party to the proceedings but which is the subject-matter of the proceedings or as to which any question arises in the proceedings;
(b) the taking of samples of any such property as is mentioned in paragraph (a) and the carrying out of any experiment on or with any such property.

Question 29

CPR 31.3.5 - Legal professional privilege

Answer 29

• two aspects:
  (1) legal advice privilege, which applies to documents that are privileged whether or not litigation was contemplated or pending
  (2) litigation privilege, which applies to documents that are only privileged if litigation was contemplated or pending when they were made or came into existence
• paramount and absolute and not subject to the balancing exercise of weighing competing public interests against each other
• It survives the client’s death
• It also survives company dissolution

Question 30

CPR 31.3.6 - Legal advice privilege

Answer 30

• The test is whether the communication or other document is made confidentially for the purpose of legal advice.
• documents that 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.
• created or sent for the dominant purpose of seeking legal advice.
• The privilege will thus obviously attach to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice.
• Where information is passed by the solicitor or client to the other as part of a process aimed at keeping both informed, so that advice may be sought and given, privilege will attach.
• The scope of legal advice privilege is not as extensive as litigation privilege. Legal advice privilege extends to advice given as to what should or should not be prudently and sensibly done in a “relevant legal context” and is not confined to advice concerning legal rights and obligations.
• Communications covered by legal advice privilege include documents which evidence the substance of communications.
• In a large organisation, the “client” for the purposes of the legal advice privilege consists only of those employees authorised to seek and receive legal advice from the client’s lawyer.
• 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.
• internally circulated documents or parts of documents revealing such communications are also privileged, whatever the purpose, other than fraud, for which such documents are brought into existence.
• Communications with foreign lawyers are covered by legal advice privilege. All that is required is that the adviser is acting as a lawyer.

Question 31

CPR 31.3.8 - Litigation privilege: Solicitors and non-professional agent or third party

Answer 31

• Communications between a solicitor and a non-professional agent or a third party, directly, or through an agent that come into existence after litigation is contemplated or commenced and made with a view to such litigation, either for the purpose of obtaining or giving advice in regard to it, or of obtaining or collecting evidence to be used in it, or obtaining information which may lead to the obtaining of such evidence, are privileged.
• 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, so are documents which come into existence merely as materials for the brief.
• This does not extend, however, to copies of unprivileged documents, such as letters, although obtained by the solicitor.
• 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 settlement.
• The fact that the recipient of a communication may have been misled as to the purpose of its sending does not deprive that communication of litigation privilege, if it otherwise was sent for the dominant purpose of obtaining information for the purpose of proceedings. 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 32

CPR 31.3.9 - Litigation privilege: Client and non-professional agent or third party

Answer 32

• 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.
• will clearly extend to communications for such purposes made to a solicitor through an agent, and to information obtained from a third party at the request of a solicitor to enable them to enforce or resist a claim by legal 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.
• a document which is produced or brought into existence where the dominant purpose of its author, or of the person or authority under whose direction (whether particular or general) it is produced or brought into existence, is the use of the document or its contents in order to obtain legal advice, or to conduct or aid in the conduct of litigation in reasonable prospect at the time of its production, is privileged and excluded from inspection
• The dominant purpose of a document does not necessarily fall to be ascertained by reference to the intention of its actual composer. The person or authority under whose direction a document is produced or brought into existence is in many cases the employer of the author; in such cases reference must be made to the intentions of the employer rather than to the intention of the author alone.
• 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.
• if litigation is reasonably in prospect, documents brought into existence for the purpose of enabling solicitors to advise whether a claim shall be made, settled or avoided are protected by privilege, whether or not a decision to instruct solicitors has been made at the time the documents are brought into being, subject only to establishing that such purpose is the dominant purpose of their creation.
• litigation includes advice to settle or avoid litigation
• the time at which the dominant purpose of the author of a document, or of the person or authority under whose direction it is made, is to be judged, is the time when the document is brought into being.

Question 33

CPR 31.6.2 - meaning of ‘adversely affect’ and ‘support’

Answer 33

• In determining the issues in a party’s case the statements of case are an essential reference point
• A document which of itself does not “adversely affect” a case, but which may provide lines of inquiry leading to other information having a negative effect, is not covered by this provision.
• a document casting doubt on the credibility of a party whose own evidence was important could be seen as one “adversely affecting” that party’s case.
• 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 34

CPR 31.6.3 - Categories of documents

Answer 34

(1) The parties’ own documents: these are documents which a party relies upon in support of their contentions in the proceedings.
(2) Adverse documents: these are documents which to a material extent adversely affect a party’s own case or support another party’s case.
(3) The relevant documents: 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.
(4) Train of inquiry documents: 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

• “standard” disclosure is limited to documents falling within categories 1 and 2.

Question 35

CPR 31.6.4 - Disclosure in particular types of cases and circumstances

Answer 35

• Documents relevant to quantum are normally disclosable, at least where quantum is in issue.
• 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.
• Documents relating to the insurance position of a party are not normally relevant and so not disclosable.
• Train of inquiry documents have traditionally been accepted as potentially appropriate for disclosure in cases involving allegations of fraud, dishonesty or misrepresentation.

Question 36

CPR 31.6.8 - Redaction

Answer 36

Redaction of irrelevant material from disclosed documents is permissible.

Question 37

CPR 31.12.1.1 - Timing of application for specific disclosure

Answer 37

• may be made at any stage of the proceedings
• In Multi-Track cases and in the Commercial Court, applications are usually dealt with at a case management conference unless at QBD, in which case a separate claim under Part 23 should be made.
• The lateness of an application may undermine its claim that the documents are in fact necessary.
• 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 38

CPR 31.12.2 - The court may make an order for specific disclosure or specific inspection

Answer 38

• The court will take into account all the circumstances of the case and in particular the overriding objective.
• It may make an order at any time.
• 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 will need to satisfy itself as to the relevance of the documents sought, and that they are or have been in the party’s control, or at least that there is a prima facie case that these requirements will be met.
• in a personal injury action in the ordinary way the claimant’s solicitors should produce the claimant’s GP and hospital records and the claimant should not be ordered to supply the defendant with authority to obtain his GP and hospital records. Although there is jurisdiction to order that the claimant permit inspection of GP and hospital records, such an order should only be made in exceptional circumstances because in principle a patient should retain control over his/her own medical records.
• In personal injury cases the court can stay proceedings if the claimant refuses to be medically examined or to give consent to hospitals or doctors to disclose otherwise confidential matters. In general, it is undesirable for conditions to be attached to any such consent; it is for the claimant to justify any such conditions, e.g. it may be entirely reasonable and desirable to have a parent present at an examination of a child.
• The power to order disclosure for the purpose of interlocutory proceedings should be exercised sparingly and then only for such documents as can be shown to be necessary for the just disposal of the application.
• 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.
• The court does have jurisdiction under CPR r.31.12 to order disclosure of documents relating only to credibility, but this will only be ordered in an exceptional case.

Question 39

CPR 31.18.2 - The Norwich Pharmacal principle: disclosing the identity of a wrongdoer

Answer 39

• 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
• While such applications are most commonly brought for the purpose of obtaining disclosure of the identity of a person, they can be made for the disclosure of documents and other information.

Question 40

CPR 13.18.3 - Norwich Pharmacal requirements

Answer 40

(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 41

31.18.4 - ‘wrong’ in Norwich Pharmcal

Answer 41

• the “‘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 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 42

31.18.5 - need for Norwich Pharmcal order to assert rights against wrongdoer

Answer 42

• 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 43

31.18.6 - Norwich Pharmacal: connection to the wrongdoing

Answer 43

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”.

Question 44

31.18.7 - Defences to Norwich Pharmacal order

Answer 44

• 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.
• Section 10 of the Contempt of Court Act 1981 may provide a defence, unless disclosure is “necessary” in the interests of national security, the interests of justice, or for the prevention of disorder or crime.
• The court will not, save in exceptional circumstances, impose on a foreigner, in particular a foreign bank, who or which is not a party to the principal proceedings, any requirement to produce documents which are outside the jurisdiction and which concern business transacted outside the jurisdiction

Question 45

Jackson ADR - Legal Professional privilege and ADR

Answer 45

• Legal advice privilege extends to communications between lawyers and their clients for the purpose of obtaining legal advice, but it does not extend to communications with other professional people, even if they give legal advice
• Legal professional privilege is the privilege of the client, and can be waived by the client, either expressly or by referring to a document as part of their case.
• Litigation privilege relates to documents prepared for the primary purpose of litigation. Where information or advice is sought from a third party, such as an expert, privilege may be claimed for a communication between a client or lawyer and the third party where the sole or dominant purpose of the communication is to assist in the conduct of litigation that has commenced or is reasonably in prospect.
• A communication with an independent third party in an ADR process is unlikely to attract legal professional privilege, though it would normally be protected by a duty of confidentiality. The privilege will also not apply to a meeting between lawyers and clients on opposing sides of a case, even where the purpose is to discuss tactics in potential litigation.

Question 46

Jackson ADR - the ‘without prejudice’ principle

Answer 46

• The concept of ‘without prejudice’ has been developed by the courts as a matter of public policy. The intention is to protect from disclosure any communication made between parties with a view to settling an existing dispute.
• Any oral or written communication passing between parties made in an attempt to settle a dispute will be protected from disclosure in the current and any subsequent proceedings between the same parties and concerned with the same subject matter.
• This is a matter of principle, and it is not necessary for the communication to be marked ‘without prejudice’.
• The communication must be part of a genuine ADR process aimed at settlement.
• A settlement agreement will not itself be without prejudice as the dispute is resolved at that stage.
• the rule will not apply to purely factual information, such as the costs of a mediation
• It may be waived by the parties, but the privilege is essentially joint and cannot normally be waived by one party alone.
• It is possible to exclude protection for specific purposes, though this should be done expressly. It is, for example, common to make an offer ‘without prejudice save as to costs’, meaning that the normal principle applies, save that the communication may be referred to on the issue of costs.
• communications that relate to attempting to reach a compromise and are treated as ‘without prejudice’ as regards the substantive dispute, but are not expressly labelled ‘without prejudice’, may be referred to in relation to costs.
• As the principle is a matter of public policy, it may not apply where justice demands otherwise, for example because the principle is being abused, for example to try to protect a threat or oppressive conduct.
• A court may be prepared to look at communications related to settlement where the principle might otherwise be used as a cloak for perjury, blackmail, or other ‘unambiguous impropriety’,or where the principle is being abused, for example through dishonest or oppressive conduct. However the importance of protecting communications made in an attempt to settle is such that only an unambiguous and serious case will lead a court to go behind the principle