Disputes (Disclosure)

Question 1

What is the usual order for disclosure in the small claims track?

Answer 1

At least 14 days before the date fixed for final hearing, each party must file and serve copies of all documents on which they intend to rely at hearing (CPR 27.4(1)&(3))

Question 2

What directions might the court give regarding disclosure for the fast or intermediate track?

Answer 2

The court may dispense with disclosure, order disclosure of documents relied upon with requests for specific disclosures, direct disclosure on an issue-by-issue basis, or order standard disclosure.

Question 3

What must parties do in a multi-track case?

Answer 3

• Complete a disclosure report no less than 14 days before the first CMC
• Consider the issues, and attempt to agree on a draft disclosure order no less than 7 days before the CMC.

Question 4

What is a disclosure report?

Answer 4

It explains the existence of relevant documents, how e-documents are stored, estimates costs for standard disclosure, and states the disclosure direction being sought.

Question 5

What does the court consider regarding disclosure at the CMC?

Answer 5

The court uses the disclosure report and other information to determine if standard disclosure is too expensive and to make an appropriate order.

Question 6

Do parties need to disclose every copy of a document?

Answer 6

No, only copies with modifications, obliterations, or markings satisfying the test for standard disclosure need to be disclosed.

Question 7

What is the procedure for standard disclosure?

Answer 7

The procedure is prescribed in CPR 31.10.

Question 8

How is the procedure set for an order other than standard disclosure?

Answer 8

It is set out as part of the order.

Question 9

What must a party do during proceedings regarding continuing obligation?

Answer 9

The party must disclose any documents created after the original disclosure if they fall within the disclosure obligation.

Question 10

How can a disclosed document be used?

Answer 10

It can only be used for the purpose of the proceedings unless it has been read by the court, the court gives permission, or the disclosing party agrees.

Question 11

What does CPR 31.6 require regarding standard disclosure?

Answer 11

ParPer CPR 31.6, parties must disclose only:

• the documents on which he relies; and
• the documents which adversely affect his own case;
• the documents which adversely affect another party’s case; or support another party’s case; and

The documents are limited to those which are or have been in his control (CPR 31.8)

Question 12

Is it a document?

Answer 12

Digital recordings, emails, photographs, text messages, voicemails, metadata, and electronic documents stored on various devices qualify.

Question 13

Was the document in the party’s control? How is this defined?

Answer 13

Control is defined widely:

• The document is (or was) in the physical possession of the party; or
• The party has (or has had) a right to possession of the document (eg documents held by party’s agent, such as documents a party sent to its own accountant); or
• The party has (or has had) a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records).

The obligation to disclose encompasses documents presently and formerly within a party’s control.

Question 14

What constitutes a reasonable search for documents?

Answer 14

Reasonableness depends on the number of documents, complexity of the case, retrieval difficulty, and document significance.

Question 15

What is a disclosure list?

Answer 15

Each party makes a list of required documents, often exchanged simultaneously, describing documents generically.

Question 16

What is a disclosure statement?

Answer 16

Every list of documents must include a disclosure statement certifying compliance with disclosure obligations.

Question 17

What is inspection in the context of disclosure?

Answer 17

A party has the right to inspect a disclosed document, unless it is no longer in control, inspection is disproportionate, or there is a right or duty to withhold it.

Question 18

What makes inspection disproportionate?

Answer 18

If inspecting a category of documents is deemed too costly or burdensome, it may be withheld.

Question 19

Under what conditions can inspection be withheld?

Answer 19

Inspection can be withheld if there is a right or duty to do so, such as privilege.

Question 20

What is redaction?

Answer 20

Redaction involves blanking out parts of a document, either due to privilege or irrelevance.

There are two reasons why redaction may be permitted:

• If there is a clear and distinct part of a document which attracts privilege and the remainder does not, the privileged part should be redacted
• The information is totally irrelevant to the dispute and can be redacted. Usually, confidential and commercially sensitive and irrelevant information

Question 21

What happens when privilege is waived?

Answer 21

A party can allow inspection of a privileged document if it considers the document helps its case.

However the following must be noted:

• Waiver in part of a wholly privileged document will lead to waiver of privilege over the entire document A party cannot cherry pick certain parts.
• Waiver in one document can lead to privilege being lost in other documents if it would be unfair to allow the party waiving it not to put those other documents before the court too.

Question 22

Who bears the burden of proving privilege?

Answer 22

The party claiming privilege must prove that a document is privileged.

Question 23

What is the procedure for inspecting documents?

Answer 23

A written notice must be sent to the other party, and inspection must be allowed within 7 days, unless the court directs otherwise.

Question 24

What is legal advice privilege (LAP)?

Answer 24

LAP applies to confidential communications between a lawyer and client, prepared for the dominant purpose of giving or receiving legal advice.

• It is not necessary for litigation to be contemplated.
• It does not apply to advice of a legal/quasi-legal nature given by non-lawyers (e.g. tax advisors)

Question 25

Can solicitor’s notes be privileged?

Answer 25

A solicitor’s note of a conversation with a client about legal advice is privileged, but notes about court proceedings involving both sides are not.

Question 26

If a client repeats advice of a solicitor (not necessarily verbatim) is that covered by LAP?

Answer 26

Yes.

If a client repeated internally legal advice provided by his lawyer, that repetition is also privileged.

Question 27

What is litigation privilege?

Answer 27

Litigation privilege covers documents created to obtain legal advice for the dominant purpose of litigation, including communications between lawyers and third parties.

• The privilege covers communication between a lawyer and third party (e.g. lawyer and a witness) or client & a third party.
• If there is more than one purpose behind the preparation of a document, the test is one of dominance. What is the dominant purpose? Is it litigation?
• The litigation for which the documents are to be used must be ‘reasonably in prospect’ - that’s a real likelihood rather than a mere possibility of litigation.

Question 28

What are without prejudice communications?

Answer 28

These communications are made in an attempt to settle a dispute and are not admissible in court, except for costs-related matters.

If it is ‘without prejudice as to costs’ it can only be used/seen by the court when deciding how parties bear the costs of proceedings.

Question 29

What is specific disclosure?

Answer 29

Specific disclosure requires a party to disclose particular documents, classes of documents, or conduct a search as specified in the order.

Question 30

What are common uses of specific disclosure?

Answer 30

It is used when a party fails to comply with disclosure obligations, when additional documents are needed, or when early disclosure is requested.

Question 31

When will an application for specific disclosure be successful?

Answer 31

The court will consider the circumstances of the case, the overriding objective, and whether the other party has failed to comply.

Question 32

What is the procedure for specific disclosure?

Answer 32

The application must….
* Specify the order sought
* Listing any documents sought in the schedule
* Support with evidence
* Be as specific as possible!

Question 33

What is specific inspection?

Answer 33

Specific inspection is an order for permitting inspection of documents that have been disclosed but where the disclosing party argues inspection is disproportionate.

Question 34

What is pre-action disclosure?

Answer 34

Pre-action disclosure allows a party to obtain documents before proceedings commence, if it is necessary to resolve the dispute fairly, assist in settlement, or save costs.

Question 35

What is the pre-action procedure?

Answer 35

It involves specifying the order sought, listing the documents, and providing supporting evidence.

Question 36

What is non-party disclosure?

Answer 36

The court can order a non-party to disclose documents if they are likely to support the applicant’s case or adversely affect another party’s case. Further, disclosure of these documents must be necessary in order to dispose fairly of the claim or to save costs

Question 37

What are the requirements for non-party disclosure?

Answer 37

The documents must support the applicant’s case or damage another party’s case, and disclosure must be necessary to fairly dispose of the claim or save costs.

Question 38

What is the procedure for non-party disclosure?

Answer 38

• Specify the order sought
• Include listing of documents
• Support with evidence
• Require the respondent to specify those documents no longer under their control or being withheld
• Applicant must serve notice on the respondent.

Question 39

What is a Norwich Pharmacy order?

Answer 39

This order compels a third party to disclose information that allows the claimant to identify the correct defendant in a case.

Used when the defendant is unknown.

Question 40

What are the conditions for a Norwich Pharmacy order?

Answer 40

Three conditions must be satisfied:

• a wrong must have been carried out by an ultimate wrongdoer
• there must be the need for an order to enable action to be brought against the ultimate wrongdoer
• the person against whom the order is sought must (i) be more than a mere witness / bystander; and (ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued

Question 41

Do court documents that the other party have access to already fall within standard disclosure?

For example, Letters of Claim

Answer 41

Yes

Documents such as Particulars and Letter of Claim would fall within the scope of standard disclosure as it is adverse to the defendant’s claim and supports the claimant’s case

As the document is an open document (in its final, sent form) it would not fall within the scope of any privilege and as such must be made available for inspection.

The fact that the claimant authored the document and has a copy is not relevant to the defendant’s obligations