Dispute Resolution - Disclosure, Evidence, Trials and Appeals

Question 1

Disclosure:

How does a party disclose a document?

What orders for disclosure can the court make?

Answer 1

By stating it exists or has existed.

Orders
- Standard disclosure
- Specific disclosure
- Dispensing with disclosure
- Issue-by-issue disclosure

“A document” means information of any description that is recorded.

Question 2

Disclosure

Provide an overview of disclosure on the multi-track.

Answer 2

1. The parties compile a disclosure report at least 14 days before the CMC.
2. The parties seek to agree a proposal for disclosure at least 7 days before CMC, and this is filed at court.
3. The court will usually make the disclosure order at the CMC.

In seeking a proposal for disclosure, the overriding objective must be kept in mind.
In the multitrack, parties are given a ‘menu of options’ as to disclosure to choose from.

Question 3

Standard disclosure

If the court orders standard disclosure, what are parties required to disclose?

What do references to “the case” mean?

What is the duty to disclose limited to?

Answer 3

(a) the documents on which they intend to rely;
(b) the documents which hinder the party’s case.

Issues that are in dispute (not agreed matters).

Documents within the party’s control.

Technically, (b) is comprised of documents that:

• adversely affect their case;
• adversely affect another party’s case; or
• support another party’s case.

Question 4

Standard Disclosure: control

What is the meaning of ‘documents in the party’s control’?

Answer 4

Documents that:
- are or were in their physical possession;
- they have a right to possess; or
- they have a right to inspect.

Question 5

Duty to search

What is the scope of search required of each party?

Answer 5

A reasonable and proportionate search of documents that:
- adversely affect their case;
- adversely affect another party’s case; or
- support another party’s case.

Question 6

Duty to search

Reasonableness of a party’s search depends on:

Answer 6

• number of documents;
• nature and complexity of proceedings;
• ease and expense of retrieval of any document;
• significance of the document.

Question 7

Duty to search: limiting the scope

How might a party limit the extent of their search?

When would such limitations be acceptable?

Answer 7

• not searching before a certain date;
• specifiying a particular** place** they search;
• limiting the categories of documents

If they would not affect the proper investigation of the merits of the case.

Such limitations need to be justified.

Seek early proposals of limitations with the other party to adhere to the overriding objective.

Question 8

How disclosure is made

What form is used for disclosure of documents?
What are the formalities?

What are some requirements of the disclosure statement?

What is the penalty for a false disclosure statement?

Answer 8

N265.
The court, claim number and parties are set out at the top right hand corner.

Disclosure statement:

• parties must sign to confirm the extent of the search.
• parties must certify that they understand their duty of disclosure.
• A legal representative cannot sign the disclosure statement on behalf of the client.
• If a party does not permit inspection of a category or class of documents, reasons must be given.

Penalty: contempt of court proceedings may be brought.

Examples of reasons for not permitting a class of documents to be inspected are:

• difficulty or expense of search compared to marginal relevance.

Disclosure is a continuing duty

Question 9

Form N265: the list

What is the list comprised of?

Answer 9

Part 1 - documents within the party’s control which the other party can inspect.
Part 2 - documents within the party’s control which the other party cannot inspect.
Part 3 - documents which are no longer in the party’s control.

Question 10

Form N265: the list

How should you structure Part 1?

What documents are usually listed in Part 2?

Give a common example of the use of Part 3.

What is the consequence of failing to disclose a document?

Answer 10

Part 1: Number list documents in date order with a concise description of each.

Part 2: Privileged documents.

Part 3: A copy of a document is listed in Part 1, and Part 3 states “the original of the letter from the claimant’s solicitor to the defendant dated [x] which was last in the claimant’s control on the day it was posted”.

You may not rely on it at trial unless the court permits and if such a document is harmful to your case, the case could be struck out altogether.

Part 1 example “email from A to B dated 10 May 2024” or “contract dated 10 May 2024 between A and B”.

Question 11

Disclosure: withholding inspection of documents

When would a party legitimately withhold inspection of documents, and how would this be listed in the N265?

Answer 11

Legal professional privilege.

In Part 2, described generically.

“Correspondence, attendance notes, instructions to counsel and counsel advice created for the sole or dominant purpose of giving or receiving legal professional advice and so covered by legal advice privilege.”

“Correspondence between the claimant’s solicitors and witnesses, both expert and factual, including proofs, statements, reports, drafts and similar documentation created when this litigation was reasonably contemplated and so covered by legal professional litigation privilege.”

Question 12

Disclosure: withholding inspection of documents

What are the two types of legal professional privilege?

Answer 12

Legal advice privilege.
Litigation privilege.

“Correspondence, attendance notes, instructions to counsel and counsel advice created for the sole or dominant purpose of giving or receiving legal professional advice and so covered by legal advice privilege.”

“Correspondence between the claimant’s solicitors and witnesses, both expert and factual, including proofs, statements, reports, drafts and similar documentation created when this litigation was reasonably contemplated and so covered by legal professional litigation privilege.”

Question 13

Disclosure: withholding inspection of documents

What is legal advice privilege?

Answer 13

Communications between a lawyer and his client, where the sole or dominant purpose is to seek or give legal advice.

Where there is a dual purpose, the dominant purpose must be established.

Do not confuse disclosure with the documents to be used at trial. E.g. an attendance note will be generically disclosed in the N265, but it wouldn’t be referred to at trial.

Question 14

Disclosure: withholding inspection of documents

What is litigation privilege?

Answer 14

Communication which:
- passed between the client or lawyer and a third party;
- came into existence when litigation was contemplated or ongoing; and
- was produced with a view to the litigation either for the sole or dominant purpose of legal advice or obtaining evidence.

Includes: expert report, witness statements.

Question 15

Waiving privilege: privileged document mistakenly disclosed

Suppose the claimant’s barrister sends a letter to the defendant’s solicitor in error, having intended for it to go to to the claimant’s solicitor, what should the defendant’s solicitor do?

Answer 15

Return the advice to the barristers’ chambers confirming they have not read it. They should not inform their client.

Question 16

Waiving privilege: without prejudice correspondence

What is without prejudice correspondence and does it need to be disclosed?

Answer 16

Correspondence which is not to be made aware to the trial judge until costs are considered (in an attempt to settle the case).

This needs to be disclosed as a document falling within standard disclosure.

Note: disclosure/inspection of documents is purely between the parties, not the trial judge.

Also note: a party may apply to court to challenge a claim for privilege, in which case the court may require the other party to produce the document and invite representations, but such application is rarely effective.

Question 17

RIght of inspection

After receiving the opponent’s list, what should the solicitor do in order to inspect the documents?

Answer 17

Request inspection in writing, which will be granted in seven days.

Parties may ask for copies of the documents if they agree to pay the costs; electronic documents are usually provided on a hard drive or USB.

Parties often agree a longer time for which inspection will be granted.

Question 18

Orders for disclosure

After the list is served and the contents scrutinised, what should a party do if the opponent’s disclosure appears inadequate?

Answer 18

1. Write to the other side.
2. If this fails, file an application notice (N244) to court for specific disclosure, accompanied by a witness statement and serve on opponent

The witness statement must explain why the applicant believes the document exists and justify the application.

Question 19

Orders for disclosure: specific disclosure

What would an order for specific disclosure require?

Answer 19

• a more extensive search and disclosure of documents located as a result; or
• disclosure of specific documents that the party would have expected to see.

Question 20

Pre-action disclosure

If a party wishes to apply to the court for pre-action disclosure, what must they satisfy to the court?

Answer 20

• Applicant and respondent are likely to be parties to proceedings;
• the documents sought would come within standard disclosure; and
• disclosure is desirable to dispose fairly of anticipated proceedings, and to avoid proceedings/costs.

Question 21

Non-party disclosure

If a party wishes to apply to the court for non-party disclosure, what must they satisfy to the court?

What will the order require?

Answer 21

• the documents are likely to support the applicant’s case or adversely affect another party’s case; and
• disclosure is necessary to dispose fairly of the case or save costs.

The documents to be disclosed; and the non-party to identify which documents are no longer in their control and which are privileged.

Question 22

Evidence: Witness statements

What are some formalities of the witness statement?

Answer 22

• Numbered paragraphs.
• Numbers expressed as figures.
• Dates expressed as 4 August 2024.
• Written in first-person, using witness’ own words.
• Documents attached are exhibited ‘AP1’
• There must be a statement of truth.

Question 23

Evidence: Witness statements

What can be done if a witness statement is not possible to obtain?

Answer 23

The party can apply to court without notice for an order to serve a witness summary, containing:
- the witness’ name and address,
- the witness’ evidence, or if not available, the disputed issues on which the witness would have been questioned at trial.

Question 24

Evidence: Witness evidence

What is the starting point for admissibility of evidence?

Opinion evidence is generally inadmissible. What are the two exceptions?

Answer 24

Irrelevant material is inadmissible.

• the statement conveys facts personally perceived by the witness, without drawing a conclusion.
• expert evidence.

Note: “He was driving at high speed” is admissible. “He was driving too fast” is not admissible, as it draws a conclusion.

Question 25

Evidence: Hearsay

Is hearsay admissible in civil proceedings?

Answer 25

Yes, provided that the party adducing it serves the other party with the statement.

Question 26

Evidence: Hearsay

When is a hearsay notice required?

What must the hearsay notice contain?

What is the effect of the hearsay notice not being made?

Answer 26

When a party is relying upon a witness statement without calling them to give oral evidence.

Notice must contain a statement that “it is not proposed to call [x] as a witness at trial as [reason]”

The hearsay is still admissible, but the failure can be taken into account when assessing the weight to be given to it, or in costs order.

Must be served at same time as witness statement served.

Question 27

Evidence: Hearsay

What can the opponent do if he wants to object to the hearsay statement being adduced?

Answer 27

• Ask court that the witness attends for cross-examination; or
• Serve notice of intention to attack the evidence’s credibility.

Question 28

Evidence: Hearsay

Since hearsay is ‘second best’ evidence, the court must assess the weight to be attached to it. What factors should it consider under s.4 of the Civil Evidence Act 1995?

Answer 28

• Whether reason is credible
• Whether original statement was contemporaneous with event in question.
• Whether multiple hearsay
• Motive to conceal or mispresent matters
• Whether original statement was edited
• Whether the circumstances suggest an attempt to prevent proper evaluation of weight of evidence.

Note: as a starting point, judge should consider “all the circumstances”

Question 29

Evidence: Expert evidence

When can a party call expert evidence?

The court’s permission is always required. What factors will it consider?

Answer 29

When the court is satisfied that it is necessary to decide an issue in dispute.

Value of claim, proportionality and likely costs.

Question 30

Evidence: expert evidence

What are some formalities of the expert report?

Answer 30

• Must address the court
• Must provide details of expert’s qualifications
• Must provide detail of literature/materials relied upon
• Where there is a range of opinion, summarse and give reasons for own opinion

Question 31

Trials - witness summons

What is the procedure for a witness summons to be served?

Answer 31

The witness summons is served at least seven days before the witness’ attendance is required. If not possible, court’s permission required.

Question 32

Hostile Witnesses

If a party’s witness turns out to be hostile, what can the party do?

Answer 32

Ask the judge to declare them a hostile witness, after which the advocate can attack their credibility and cross-examine them as if they were a witness for the other side.

Question 33

Appeals

When would the court grant permission for a first appeal?

What must be raised if the appeal is to the Court of Appeal or Supreme Court?

Answer 33

When it considers that the appeal:
- has a real prospect of success; or
- there is some other compelling reason why it should be heard.

An important point of principle or practice.

Compelling reason: e.g. important question of law or policy.

Second appeals are much rarer, and require permission from the Court of Appeal.

Question 34

Appeal: Grounds

What are the grounds of appeal?

Answer 34

The decision of the lower court was:
- wrong in law, interpretation of facts or exercise of discretion; or
- unjust due to serious procedural irregularity.

Question 35

Appeals: procedure

What is the procedure for making an appeal?

Answer 35

• The request is (usually) made at the end of trial and the judge decides whether to grant permission.
• If unsuccessful, the party can apply for permission from the appeal court which will (usually) deal with the request without a hearing.

If the request is made to the Court of Appeal, it must list an oral hearing no later than 14 days after the direction if the application cannot be fairly determined without the presence of the parties.

Question 36

Appeals: procedure

What is the time limit for making an appeal?

Answer 36

Appealing County Court and High Court decisions: 21 days
Appealing Court of Appeal decisions: 28 days.

Question 37

Appeals: procedure

Set out the destination of appeals.

Answer 37

• District judge of the County Court > Circuit judge, County Court
• District and Circuit judge of the High Court > High Court judge
• High Court judge > Court of Appeal

It is possible to leapfrog (e.g. County Court to Court of Appeal, but only if important point of principle or policy, or some other compelling reason.

Question 38

When would a leapfrog appeal be possible to the Court of Appeal (e.g. county court to Court of Appeal)?

What is the process for a High Court leapfrog appeal to the Supreme Court?

Answer 38

• If the Court of Appeal considers that there is an important point of principle/policy or some other compelling reason.

1. Grant of leapfrog certificate from trial judge; and
2. Grant of permission to appeal by Supreme Court.

Leapfrog to Supreme Court is extremely rare. Only if it involves a point of general public importance.