SA14. Disclosure and Inspection of Documents

Question 1

Which CPR Part?

Answer 1

Part 31

Question 2

To which claims does Part 31 apply?

Answer 2

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

Question 3

What is a ‘document’?

Answer 3

Anything in which information is recorded. Therefore, it includes electronic communications and photos. It also includes documents stored on servers and back-up systems, and electronic documents that have been ‘deleted’. Extends to info stored and associated with electronic documents, known as metadata.

Question 4

When does a copy need to be disclosed?

Answer 4

When it contains a modification, obliteration or other marking or feature (where the party intends to rely on the modification etc. or it adversely affects their or another party’s case or supports another party’s case)

Question 5

What is ‘disclosure’?

Answer 5

‘Disclosure’ is stating that a document exists or has existed.

Question 6

What right does a person to whom a document is disclosed have?

Answer 6

A right of inspection, except where it is no longer in the control of the party who disclosed it or that party has a right or duty to withhold inspection of it, or where a party considers it would be disproportionate to the issues in the case to permit inspection (although in this case must state in disclosure statement that inspection will not be permitted on the ground that it is disproportionate).

Question 7

In which cases will there be menu option disclosure?

Answer 7

Unless the court orders otherwise, multi-track cases that are not PI

Question 8

Procedure for menu option disclosure

Answer 8

Not less than 14 days before the first case management conference, each party must file and serve a report verified by a statement of truth. This report describes briefly which (potentially) relevant documents exist or may exist, their (potential) location, estimates a broad range of costs for standard disclosure, and states which directions relating to disclosure are sought.

If here is an Electronic Documents Questionnaire, should file it with this report.

Not less than 7 days before the first CMC or on any other occasion as the court may direct, the parties must have an (in person or telephone meeting) where they discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

If they agree proposals for the scope of the disclosure and the court considers them appropriate in all the circumstances, the court may approve the without a hearing and give directions in the terms proposed.

At the first or any subsequent CMC, the court will decide (with regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly) which order from the statutory menu to make in relation to disclosure (this can be standard disclosure; its one of the options).

The court may at any point give directions as to how disclosure is to be given (example directions in the statute).

Question 9

Disclosure when menu option does not apply.

Answer 9

Fast track and PI claims. An order by the court to give disclosure is an order to give standard disclosure unless the court directs otherwise. The court may dispense with or limit standard disclosure and the parties may agree in writing to dispense with or limit standard disclosure. Any such written agreement should be lodged with the court.

Question 10

What must a party disclose in standard disclosure?

Answer 10

The documents on which he relies; those which adversely effect his own case or another party’s case; those which support another party’s case; those which he is required to disclose by a rule or PD. A party’s duty to disclose documents is limited to documents which are or have been in his control. This means has/had physical possession, right to possess, or right to inspect or take copies of it.

Question 11

How are the issues in a party’s case determined so as to assess ‘adverse effect’?

Answer 11

By reference to statements of case. Should not be assessed by reference to matters raised elsewhere, including in witness statements.

Question 12

‘Train of inquiry’ documents

Answer 12

Standard disclosure doesn’t cover cover a document which doesn’t itself adversely affect the party’s case, but which may provide lines of inquiry. For example, there was a case where the court ruled that standard disclosure would not cover documents revealing the identity of a party’s employees.

Train of inquiry documents have traditionally been accepted as potentially appropriate in cases involving fraud, dishonesty, or misrep. However, it would not be appropriate to order such enhanced disclosure before standard disclosure has been completed.

Question 13

Credibility evidence

Answer 13

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.

Question 14

Non-material allegations

Answer 14

Parties probably don’t need to give disclosure of documents relating to non-material allegations, i.e. those which would not affect the result.

Question 15

Confidentiality

Answer 15

Confidentiality of a document does not of itself justify non-disclosure

Question 16

Redaction

Answer 16

Masking irrelevant parts of a document by way of redaction is possible but care must be taken because the deletion of parts that are relevant could give rise to a specific disclosure order.

Question 17

Documents relating to other incidents

Answer 17

Documents relating to other incidents or transactions other than the one directly the subject of the dispute may be relevant as supporting or adversely affecting another party’s case.

Question 18

‘Similar fact’ evidence

Answer 18

A court may refuse to require disclosure of ’similar fact’ evidence of other claims for negligence against the same defendant made by other people in respect of other matters: even where such material is relevant, the court may limit the disclosure required.

Question 19

Cross examination as to credit

Answer 19

Documents relating purely to cross-examination as to credit and no other issue in the trial are outside the scope of standard disclosure.

Question 20

Documents relevant to quantum

Answer 20

Documents relevant to quantum are normally disclosable, at least where quantum is in issue, e.g. all documents relating to loss of future earnings, not just those relating to the injury (the subject of the litigation). In split trials, where quantum is normally only determined if liability is established, there is no need to disclose documents purely relevant to quantum and this should only be ordered if and when liability is determined.

Question 21

Insurance documents

Answer 21

Documents relating to the insurance position of a party are not normally relevant and so are not disclosable. However, there may be unusual situations where the insurance position of a party is relevant, e.g. when they rely on UCTA and an issue arises as to the availability of insurance and the terms on which it was available.

Case where court hold that it has the power to order disclosure of an after the event insurance policy on the basis that its disclosure was necessary to enable the court to exercise its case management function proportionately and efficiently. In the general case an after the event insurance policy would not be relevant but there could be exceptions, such as in group litigation where the claimants had the benefit of several liability. Legal professional privilege was unlikely to attach to such polices, other than for the redaction of passages that conveyed the legal advice which had been given.

Question 22

Defendant debarred from defending claim

Answer 22

The obligation to disclosure adverse material applies even when a defendant has been debarred from defending a claim due to non-compliance with an unless order.

Question 23

Duty of search

Answer 23

When giving standard disclosure, a party is required to make a reasonable search for documents he is required to disclose. Factors relevant in determining reasonableness of search include number of documents involved; nature and complexity of proceedings; ease and expense of retrieval of any particular document; and significance of any document which is likely to be located during the search.

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.

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 say so in his disclosure statement and identify the category or class of document.

Question 24

Procedure for standard disclosure

Answer 24

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 as concisely as possible. It must indicate those documents in respect of which the party claims a right or duty to withhold inspection, those which are no longer in the party’s control, and what happened to those documents.

It will normally be necessary to list the documents in date order, to number them consecutively, and to give each a concise description (e.g. letter, claimant to defendant).

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 e.g. ‘50 bank statements relating to account number _ at _ Bank _’

Must include a disclosure statement.

Question 25

What is a disclosure statement?

Answer 25

This is a statement setting out the extent of the search that has been made, certifying that he understands duty to disclose, and certifying that to the best of his knowledge he has carried out this duty.

It must expressly state that the disclosing party believes the extent of the search to have been reasonable in all the circumstances, and, in setting out the extent of the search, must 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, e.g. the difficulty or expense that a search not subject to those limitations would have entailed or the marginal relevance of categories of documents omitted from the search.

Any statement that he has a right or duty to withhold a document from inspection and the grounds should normally be included in the disclosure statement and must indicate the document, or part of a document, to which the claim relates.

Question 26

Where the party making the disclosure statement is a company, firm, association or other organisation

Answer 26

Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also identify the person making the statement and explain why he is considered an appropriate person to make it. 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.

Question 27

Parties’ agreement to dispense with procedural aspects of standard disclosure

Answer 27

The parties may agree in writing to disclose documents without making a list and to disclose documents without the disclosing party making a disclosure statement.

Question 28

Continuing duty of disclosure

Answer 28

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 other time during the proceedings, he must immediately notify every other party. They must also prepare and serve a supplemental list.

Question 29

What is the ordinary order for disclosure?

Answer 29

An order to give standard disclosure.

Question 30

Where the disclosing party has a legal representative acting for him

Answer 30

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.

Question 31

Insurer of the Motor Insurance Bureau

Answer 31

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 brought wholly or partially by or against that party.

Question 32

When will a party apply for specific disclosure?

Answer 32

If a party believes that the disclosure of documents given by a disclosing party is inadequate he may make an application for an order for specific disclosure.

Question 33

What must be included in an application for specific disclosure?

Answer 33

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 the evidence filed in support of the application.

Question 34

What will the court take into account in determining whether to make an order for specific disclosure?

Answer 34

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.

Question 35

Inspection of documents referred to in a statement of case

Answer 35

A party may inspect a document mentioned in a statement of case, witness statement, witness summary, or an affidavit.

Question 36

Inspection of documents referred to in expert’s report

Answer 36

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.

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 37

Inspection and copying of documents

Answer 37

Where a party has a right to inspect a document, that party must give the party who disclosed the document written notice of his wish to inspect it. The party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and that party may request a copy of the document and, if he undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days from the date when he received the request.

Question 38

Pre-action disclosure

Answer 38

This is disclosure before proceedings start. Application must be supported by evidence.

The court may make an order for pre-action disclosure only where:

The respondent is likely to be a party to subsequent proceedings.
The applicant is also likely to be a party to those proceedings.
If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents of which the application seeks disclosure; and
Disclosure before proceedings have started is desirable in order to dispose fairly of the anticipated proceedings; assist the dispute to be resolved without proceedings; or save costs.

Question 39

What will be contained in an order for specific disclosure?

Answer 39

An order under this rule must specify the documents or class of documents which the respondent must disclose and require him, when making disclosure, to specify any of those documents which are no longer in his control or in respect of which he claims a right or duty to withhold inspection.

Such an order may require the respondent to indicate what has happened to any of the documents no longer in his control and specify the time and place for disclosure and inspection.

Question 40

Orders for disclosure against a person not a party

Answer 40

An application for disclosure by a person who is not a party must be supported by evidence. The court must make an order under this rule only where:

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; and
Disclosure is necessary in order to dispose fairly of the claim or to save costs.

Question 41

What will be contained in an order for disclosure against a non-party?

Answer 41

An order under this rule must specify the documents or the classes of documents which the respondent must disclose, and require the respondent when making disclosure to specify any of those documents which are no longer in his control or in respect of which he claims a right or duty to withhold inspection.

Such an order may require the respondent to indicate what has happened to any documents which are no longer in his control and specify the time and place for disclosure and inspection.

Question 42

Claim to withhold inspection or disclosure of a document

Answer 42

A person may apply, without notice, for an order permitting him to withhold disclosure of a document [i.e. making the other party aware of its existence] on the ground that disclosure would damage the public interest.

Unless the court orders otherwise, such an order must not be served on any other person and 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 that he has such a right or duty and the grounds in which he made it.

The statement must be made in the list in which the document is disclosed or, if there is no list, to the person wishing to inspect the document.

A party may apply to the court to decide whether such a claim should be upheld.

Therefore, NB: 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.

For the purpose of deciding such an application, the court may require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and invite any person, whether or not a party, to make representations.

Application must be supported by evidence.

Question 43

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

Answer 43

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 44

Consequence of failure to disclose documents or permit inspection

Answer 44

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 45

Subsequent use of disclosed documents and completed Electronic Documents Questionnaires

Answer 45

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 the document has been read to or by the court, or referred to, at a hearing which has been held in public; the court gives permission; or 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 by a party or by any person to whom the document belongs.

Question 46

False disclosure statements

Answer 46

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.