DR

Question 1

What happens once the parties have filed and served their statements of case?

Answer 1

The court will issue directions for the future conduct of the proceedings - the first of these is usually a requirement for the disclosure and inspection of documents.

Question 2

What is the purpose of disclosure?

Answer 2

This enables parties to evaluate the strength and weaknesses of their cases in advance of the trial.

This will assist them in making an informed decision about whether or not to pursue the matter or whether to seek early settlement.

Question 3

What are the parties required to do in disclosure?

Answer 3

They are required to reveal to each other any documents that have a bearing on the case.

Question 4

What section of the CPR is disclosure governed by?

Answer 4

Part 31 which applies to all claims except those on the small claims track.

Question 5

How is disclosure done?

Answer 5

The parties prepare and serve a list of documents on all the other parties.

Question 6

What counts as ‘documents’?

Answer 6

Anything in which information is recorded - includes written documents, audiotapes, videotapes, photos - though this is not an exhaustive list.

Emails, word-processed documents and databases are also subject to disclosure.

Question 7

What is irrelevant in disclosure?

Answer 7

It is irrelevant whether the document is admissible or whether a party wishes to rely on the document - if it contains information relating to the case that they seek to rely on, it needs to be disclosed.

Question 8

How does disclosure work on the small claims track?

Answer 8

Each party should, at least 14 days before the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely on at the hearing.

Question 9

How does disclosure work on the fast and intermediate tracks?

Answer 9

Disclosure must be limited to what is NECESSARY to deal with the case justly and at a proportionate cost.

On the fast track, standard disclosure is an option but the court may direct a more limited approach e.g. that no disclosure takes place, or specify the documents/classes of documents which the parties must disclose.

Question 10

What are the 6 things the court can choose to do with disclosure on the intermediate track?

Answer 10

The court can:

• Choose to dispense with disclosure

-Order disclosure of documents on which a party relies and, at the same time, a request for any specific disclosure it requires from any other party

• Disclosure on an issue by issue basis
• Disclosure of documents which it is reasonable to suppose may contain information which enables a party to advance its own case or damage that of another party or which leads to an enquiry which has these consequences
• Standard disclosure
• Any other disclosure order considered appropriate

Question 11

What type of disclosure is usually ordered on multi-track claims and how can the court vary this?

Answer 11

Standard disclosure is usually ordered.

However, the court may tailor the order to the requirements of the particular case, taking account of the importance of the issues and the complexity of the matter.

Question 12

Regarding disclosure on the multi-track, how do the parties notify the court of their requirements for disclosure?

Answer 12

They compile a disclosure report.

Question 13

Regarding disclosure on the multi-track, when must this be filed and served?

Answer 13

Not less than 14 days before the first case management conference (CMC).

Question 14

Regarding disclosure on the multi-track, what happens after the disclosure report is filed and served?

Answer 14

Not less than 7 days before the first CMC, the parties must discuss and SEEK TO AGREE A PROPOSAL for disclosure that meets the overriding objective.

Any agreed proposal must be filed at court.

Question 15

Regarding disclosure on the multi-track, what orders for disclosure can the court make?

Answer 15

An order for standard disclosure or any other order that the court considers appropriate.

Question 16

Regarding disclosure on the multi-track, give 3 examples of what type of disclosure the court may order.

Answer 16

An order:
- Dispensing with disclosure
- Disclosure on an issue by issue basis
- For specific disclosure

Question 17

What options do the parties have on the multi-track regarding disclosure?

Answer 17

In recognition of the variety of cases that are dealt with on the multi-track, the parties have the benefit of a menu of options for disclosure from which they can select the most appropriate for their matter.

Question 18

What do courts have to bear in mind when ordering disclosure?

Answer 18

Courts are required to actively consider limiting disclosure to deal with the case justly.

Question 19

What does standard disclosure involve?

Answer 19

It requires a party to disclose:
- The documents on which they rely and
- The documents which:
(i) Adversely affect their own case
(ii) Adversely affect another party’s case
(iii) Support another party’s case

Also called Rule 31.6 documents.

Question 20

What type of disclosure should there be between the parties?

Answer 20

Mutual disclosure - so they should receive similar disclosure from the other party (meaning documents that support the other party’s claim, adversely affect other parties, adversely affect themselves and support their own claim).

Question 21

Do the documents need to reflect information related to agreed matters, agreed and disputes matters or just disputed matters?

Answer 21

Documents containing info on disputed matters - no need to search and disclose documents that record only info relating to agreed matters.

Question 22

Complete the sentence: The duty to disclose documents in limited to documents in ….’

Answer 22

Documents in the party’s control.

This means documents that are:
- Either are or were in their physical possession
- They have a right to possess or
- They have a right to inspect (e.g. medical records).

Examples of documents that they would have a right to possess include documents held by third parties (e.g. documents relating to the claim for loss of profits that accountants might have).

Question 23

What is the duty to search that the parties are required to carry out?

Answer 23

Duty to search for documents - this is a REASONABLE and PROPORTIONATE search.

Question 24

What is ‘reasonable’ in the duty to search?

Answer 24

This depends upon:
- The number of documents involved
- The nature and complexity of the proceedings
- The ease and expense of any retrieval of any particular document and
- The significance of the document.

E.g. if the claim was of a high value, the search required is likely to be more extensive than for a low value one.

Question 25

How can a party limit the extent of their duty to search?

Answer 25

• By not searching for documents that came into existence before a particular date or
• By specifying a particular place or places they search or
• By limiting the categories of documents

*Note: any such limitation would need to be justified

Question 26

How would these limitations be acceptable to the court?

Answer 26

If the court is satisfied that limiting the search would NOT affect a proper investigation into the merits of the case.

Question 27

How can problems be avoided between the parties when putting in limitations?

Answer 27

Deciding and agreeing on any limitations early in the proceedings, either when drafting the disclosure report or when attending a directions hearing.

Question 28

If the search is limited in any way, how can this be reflected?

Answer 28

If the search is limited in any way, this must be specifically stated in the lists of documents.

Question 29

What is included under ‘electronic documents’?

Answer 29

Electronic documents include those which are readily accessible from computer systems and other electronic devices and media (but also those stored on servers and back up systems even if they’ve been deleted).

Question 30

How does the CPR require parties to deal with electronic documents?

Answer 30

The CPR requires the parties to manage electronic documents to minimise the cost incurred in disclosure and to use tech to ensure the search is undertaken efficiently and effectively.

Question 31

How do the parties ensure the work is kept to a sensible level regarding electronic documents?

Answer 31

The parties must discuss and (ideally agree) such matters as:
- the categories of electronic documents to be disclosed
- how data will be exchanged
- the format for inspection and any limitations (e.g. what keywords will be used)

This must be done before directions are given for the conduct of the case.

Question 32

What happens at a case management conference regarding electronic documents?

Answer 32

The parties will discuss disclosure and the court will then either give written directions on how electronic disclosure will proceed or order a separate hearing to deal with this aspect.

Question 33

What form is used for disclosure?

Answer 33

Form N265

Question 34

What does ‘formalities’ consist of in the disclosure form?

Answer 34

• The court
• Claim number
• Parties

Set out in the top right hand corner.

Question 35

What is the disclosure statement on the form?

Answer 35

The party must sign to confirm the extent of the search made to locate any documents. They must also certify that they understand their duty of disclosure and that, to the best of their knowledge, that duty has been carried out.

Question 36

Who can sign the disclosure statement?

Answer 36

A legal representative CANNOT SIGN THE DISCLOSURE STATEMENT on behalf of their client.

When the party is a partnership, LLP, company or corporation, an individual in that organisation who was responsible for overseeing the disclosure process should sign.

The name, address, and the office/position that the signatory holds in the disclosing party or the basis upon which they have made the statement on behalf of the party MUST BE INCLUDED.

Question 37

If the party decides not to permit inspection of a category or class of documents, what must they do?

Answer 37

They must explain their reasons on the disclosure statement e.g. the difficulty/expense of such a search.

Question 38

What happens if a party makes a false disclosure statement without an honest belief in its truth?

Answer 38

Proceedings of contempt of court could be brought against anyone that does this.

This is also a continuing duty so, if after signing the statement and at any time before the proceedings are concluded, the party becomes aware of additional documents, they must prepare and serve a supplemental list of documents.

Question 39

After they have prepared and served the new list of documents, what should they do if their opponent doesn’t agree?

Answer 39

If they wish to rely upon the ‘new document’ at trial and the opponent doesn’t agree, the court’s permission will have to be obtained.

Question 40

On the final page, what is part 1?

Answer 40

Part 1 of the list are documents that are within the party’s control and which they don’t object to the other party inspecting.

Usually numbered and listed in date order with a concise description.

Question 41

What is in part 2?

Answer 41

Part 2 are documents are those which are in the party’s control but where there is an objection to the inspection, usually because they are privileged?

Question 42

What is in part 3?

Answer 42

The final, third part sets out the documents that are NOT privileged but are no longer in the party’s control.

It must be stated what happened to these documents e.g. they were lost or destroyed in a fire.

The most common scenario in which this happens is correspondence - a copy of a letter retained by solicitors on their file would be disclosed in Part 1 and Part 3 might state: The original of the letter from C’s solicitors to the defendant was last in the claimant’s control on the day it was posted.

Question 43

What happens if a party fails to disclose a document?

Answer 43

They may not rely on it at trial unless the court permits and, if such a document is harmful to their claim or defence, it could even be struck out.

Question 44

When can a party legitimately withhold documents?

Answer 44

When they come within the definition of legal privilege.

Note: they must still be disclosed but the other parties cannot inspect them and they are instead described generally e.g. ‘instructions to counsel’.

Question 45

What 2 things make up legal privilege?

Answer 45

Advice privilege and litigation privilege

Question 46

Can a party claim privilege because the document is adverse to their case or confidential?

Answer 46

No, it must satisfy the test for legal privilege.

Question 47

Who is covered by legal privilege?

Answer 47

Solicitors, licensed conveyancers, legal executives, in-house lawyers, barristers and foreign lawyers but NOT legal advice given by a non-lawyer e.g. an accountant.

Question 48

When does advice privilege apply?

Answer 48

Where the sole/dominant purpose of the communication is to seek or give legal advice.

If the document has a dual purpose, the dominant one must be established.

Question 49

Is something that would not be referred to at trial disclosable?

Answer 49

Yes, because it is likely to contain info on which the client would rely or might adversely affect their case.

Question 50

What are the 3 aspects to litigation privilege?

Answer 50

The document must be a communication:

(a) passing between the client or lawyer and a third party
(b) which came into existence when litigation was contemplated or ongoing and
(c) which was produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it or for obtaining evidence to be used in the litigation.

E.g. a report from an expert obtained by a solicitor in order to advise their client on existing/contemplated proceedings

or witness statements obtained by a legal executive for the purpose of using as evidence.

Question 51

Who is the waiving of privilege meant to benefit?

Answer 51

The client and not their lawyer.

Question 52

When does this happen?

Answer 52

Often happens intentionally during litigation in order to advance proceedings - e.g. while a party’s solicitors are drafting statements of case and witness statements, they are privileged from inspection.

However, once these are served on the other side, the privilege is waived.

Question 53

What should a lawyer do if they’ve read a privileged document mistakenly sent to them from the other side? Should they inform their client?

Answer 53

No - they shouldn’t inform their client. The general duty to make a client aware of all relevant info DOES NOT APPLY if that info is contained in a privileged document that has been mistakenly disclosed.

Question 54

What does ‘without prejudice’ correspondence mean? (e.g. if something is labelled as ‘without prejudice’)?

Answer 54

Means it contains info as part of a party’s genuine attempt to settle a case.

This SHOULD NOT be put in front of the trial judge, who should stay unaware of its contents.

Question 55

What documents can the other party inspect? Part 1 and/or Part 2 and/or Part 3?

Answer 55

The party is entitled to inspect documents contained in Part 1.

They cannot inspect documents in Part 2 as they are covered by legal professional privilege.

Part 3 documents are no longer in the party’s in control.

Question 56

How must the request to inspect be made?

Answer 56

It must be made in writing and granted within 7 days, though a longer period is usually agreed between the parties.

Question 57

What happens if a party is dissatisfied with their opponent’s efforts for disclosure?

Answer 57

Before going to the court, the party should write to the other side first as this may lead to a quicker and cheaper resolution of the issue.

Question 58

What happens if writing to the other side fails?

Answer 58

Then the party can file an application notice (Form N244) accompanied by a witness statement and served on the opponent.

Question 59

What does an application for specific disclosure mean?

Answer 59

This could request an order that the party:
- Carry out a more extensive search and
- Disclose any further documents located as a result of that search or
- Disclose specific documents that the party would have expected to see.

Question 60

What does the accompanying witness statement do?

Answer 60

This should explain why the applicant believes the document exists, perhaps because a party has seen it before, and justify the application.

Could be that the document is necessary to establish the issue of liability or the information contained will enable the party to pursue a line of enquiry into the disputed facts.

Question 61

Why could this not be as effective as the party intends?

Answer 61

The general description in Part 2 of the documents means that it’s hard for a party to evaluate whether privilege is being correctly claimed or not.

Question 62

What does pre-action disclosure entail?

Answer 62

The pre-action protocols require the parties to prospective litigation to share information - however doesn’t have to be the contents of the information.

Therefore, prior to a claim form being issued, the parties may select the documents which they wish to show and hide those they don’t.

Question 63

What is an application for pre-action disclosure?

Answer 63

Applying to the court which allows the party to make an informed decision about whether issue proceedings against the intended defendant.

Question 64

What must the application be supported with and what must the court be satisfied about?

Answer 64

The application must be supported by a witness statement and the court must be satisfied that:
* both the applicant and the respondent are likely to be a party to subsequent
proceedings;

• the documents sought would come within standard disclosure; and
• disclosure is desirable to dispose fairly of the anticipated proceedings, assist the dispute
  being resolved without proceedings or save costs

Question 65

What is non-party disclosure?

Answer 65

Where the other side indicates in their list of documents that they no longer have a document in their possession but that X does.

The party may then write to X asking for a copy of the document.

If X refuses, an application may be made for non-party disclosure against X.

Question 66

When will the non-party disclosure be ordered?

Answer 66

The application must be supported by evidence and disclosure will only be ordered if:
(a) the documents in question are likely to support the applicant’s case or adversely affect
the case of another party; and

(b) disclosure is necessary to dispose fairly of the case or to save costs.

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