Inspection

Question 1

A party has a right to inspect a document that has been disclosed, except where…

Answer 1

a) the document is no longer in the disclosing party’s control - CPR 31.3(1)(a)

b) allowing inspection would be disproportionate - CPR 31.3(2)

c) the disclosing party has a right or duty to withhold inspection, ie it’s privileged - CPR 31.3(1)(b)

Question 2

The document is no longer in the disclosing party’s control

Answer 2

• Party A can’t let Party B look at a document which isn’t in its control

Question 3

Allowing inspection would be disproportionate - if a party disclosing document’s thinks that it’s disproportionate to permit inspection of a certain category/class of documents, is it required to permit inspection?

Answer 3

No, but it must state in its disclosure statement (usually contained in the party’s list of documents) that inspection isn’t permitted and that allowing inspection would be disproportionate - CPR 31.3(2)

Question 4

Is it rare for inspection to be disproportionate?

Answer 4

Yes - once a document has been found & disclosed it’s unlikely that the process of letting the other party see it/providing a copy would be disproportionate

Question 5

Can inspection be refused on this ground where the reason for disclosure is that a party wishes to rely on the document, or that a practice direction requires disclosure?

Answer 5

No.

Question 6

Does a document need to be produced if there’s a right/duty to withhold inspection?

Answer 6

No (known as privilege)

Question 7

If a document falls within the scope of the order for disclosure made by the court and it’s privileged, does its existence need to be disclosed?

Answer 7

Yes its existence needs to be disclosed, it can only be withheld from inspection.

Question 8

Are privileged documents listed individually?

Answer 8

No, they’re described generically in a party’s list of documents.

Question 9

What are the most important types of privilege?

Answer 9

• legal advice privilege
• litigation privilege
• without prejudice communications

Question 10

Which principles apply to all types of privilege?

Answer 10

• redaction
• waiver

Question 11

What is meant by redaction?

Answer 11

Redaction means blanking out parts of a document (digitally or traditionally by covering them with paper before copying, or copying, covering with black pen, and copying again - making sure to preserve the original unmarked)

Question 12

Does the CPR make provision for redaction?

Answer 12

No, but it’s accepted that redaction is possible in certain circumstances.

Question 13

Why do clients sometimes wish to redact parts of documents that are going to be inspected (documents that aren’t privileged)?

Answer 13

Because they contain info which is confidential & commercially sensitive.

Question 14

Is it generally permitted for a client to redact documents due to them containing info which is confidential & commercially sensitive?

Answer 14

No, confidentiality/commercial sensitivity alone doesn’t justify redaction.

Question 15

What are the two main circumstances in which it may be possible to redact parts of a document?

Answer 15

1) If there’s a clear & distinct part of a document which does attract privilege, but the remainder doesn’t, the privileged part should be redacted (to avoid waiving privilege)

2) If the info is totally irrelevant to the dispute, it can be redacted - info which is confidential/commercially sensitive & irrelevant is generally redacted

Question 16

Redaction - example

Answer 16

An accountant receives a letter of complaint from a customer. He phones his solicitor to take advice in relation to the complaint & makes a note of the advice on the letter from the customer - the letter as a whole isn’t privileged, inspection of it would be permitted, but the note of advice from the solicitor would be privileged - that note should be redacted at the time of inspection.

Question 17

Are confidentiality & privilege the same thing?

Answer 17

No - many documents will be confidential but still not privileged.

Question 18

Redaction (confidential/commercially sensitive & irrelevant) - example

Answer 18

There’s a dispute between a law firm & a recruiter about the terms of the contract between them. The recruiter is obliged to disclose & allow inspection of the correspondence it sent to the law firm. That correspondence also includes the addresses & personal details of work-seekers. That’s sensitive info & is entirely irrelevant to the dispute - can be redacted from the documents at time of inspection.

Question 19

When it comes to listing redacted documents in a disclosure list, will the redacted version of the document be listed in the first or second part of the list of documents?

Answer 19

In the first part of the list of documents & will be made available for inspection with the appropriate parts covered over.

Question 20

Where will the un-redacted version of the document generically be listed?

Answer 20

In the second part of the list of documents - inspection refused.

Question 21

Is it possible for a party to deliberately allow inspection of a privilege document if it considers that the document helps its case?

Answer 21

Yes.

Question 22

What is waiver of privilege?

Answer 22

When a party deliberately allows inspection of a privileged document if it considers the document helps its case.

Question 23

Does a party have an unrestricted right to determine precisely what it wishes to waive privilege over?

Answer 23

No.

Question 24

What will waiver of privilege in part of a wholly-privileged document lead to?

Answer 24

Waiver of privilege over the remainder of that document, unless it deals with entirely different subject matter - a party can’t cherry pick certain parts of a privileged document to reveal to the other side/the court (Great Atlantic Insurance v Home Insurance 1981)

Question 25

Can waiver of privilege in one document lead ri privilege being lost in other documents?

Answer 25

Yes - if it would be unfair to allow the party waiving privilege not to put those documents before the court/opponent too

(for example if they all deal with the same subject matter and only permitting inspection of the first document could lead to facts being misunderstood).

Question 26

Waiver - example

Answer 26

Waiver of the privilege attaching to a solicitor’s letter of advice may also result in privilege being lost in respect of letters from the same solicitor dealing with the same issue.

Question 27

As well as inspecting documents disclosed pursuant to a court order, what else can a party inspect?

Answer 27

A party can inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit and (subject to certain restrictions an expert’s report - CPR 31.14 - this may take place even before the disclosure stage of proceedings

Question 28

Does case law suggest that this right to inspect is subject to the usual rules on privilege?

Answer 28

Yes - this right to inspect is subject to the usual rules on privilege, so that privilege in a document isn’t lost simply by reference to a document in a statement of case or witness statement.

Question 29

Does the court have a general discretion to refuse inspection?

Answer 29

Yes.

Question 30

Can reference to a document in a statement of case/witness statement amount to waiver of privilege?

Answer 30

Yes, depending on the circumstances - so parties should tread carefully in this regard.

Question 31

‘once privileged, always privileged’

Answer 31

if something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings unless something takes places to cause the privilege to be lost, such as waiver
- The Aegis Blaze 1986

Question 32

Where there’s a dispute over whether a document is subject to privilege, who is the burden of proof upon to establish this?

Answer 32

The burden of proof is on the party claiming privilege.

Question 33

What must a party wishing to inspect documents do?

Answer 33

Must send a written notice of its wish to do so to the other side.

Question 34

Once a party sends a written notice of its wish to inspect documents, what should the other party do?

Answer 34

Must allow inspection within seven days of receipt of the notice (CPR 31.15(a & b))

Question 35

Can the court vary the time limit of seven days for inspection of documents?

Answer 35

Yes.

Question 36

Is it possible to ask for copies?

Answer 36

Yes, with an undertaking to pay reasonable photocopying charges - CPR 31.15(c).

Question 37

What is the time limit for copies to be provided?

Answer 37

Copies must be provided within 7 dats of receipt of the request.

Question 38

Can a party rely on any document in respect of which he fails to permit inspection?

Answer 38

No, unless the court gives permission (CPR 31.21)