SGS 5: Disclosure

Question 1

Where is disclosure defined in the CPR and how?

Answer 1

• CPR 31.2

- Stating to the other party that a document exists or has existed

Question 2

Where is inspection defined and how?

Answer 2

• CPR 31.3

- Actually seeing those documents, unless there is a reason to withhold inspection.

Question 3

Is disclosure a one-off obligation?

Answer 3

• No, is ongoing
• CPR 31.11
• CPR 31.7 - client has a duty to make reasonable endeavour to find the relevant documents.

Question 4

Where is ‘document’ defined?

Answer 4

• CPR 31.4
• Anything in which information of any description is recorded
• Copy - anything onto which information is recorded in the document has been copied
• By whatever means: direct / indirectly.
• CPR 31A PD 2A.1 - includes e-documents

Question 5

Where is ‘client control’ defined?

Answer 5

• CPR 31.8
  (1) A party need only disclose documents which are or have been in his control.
  (2) Will have/have had control if:
  (a) He has/had physical possession
  (b) He has/had a right to possession of it e.g. solicitor or accountant
  (c) He has/had a right to inspect/take copies of it

Question 6

How can disclosure satisfy the requirements of standard disclosure under CPR 31.6?

Answer 6

• Why would they rely on this document?
• Is there anything that is commercially sensitive
• Party only needs to disclose
• Documents that he relies on
• Documents which:
  • Adversely affect his own case
  • Adversely affect anothers case or
  • Support another case AND
  • Documents which required to disclosed by a relevant PD.

Question 7

Can the document be withheld from inspection? Why?

Answer 7

• Privilege
• Document might not need to be produced if there is a right or duty to withhold inspection.
• The Aegis Blaze: once privileged, always privileged.

Question 8

Explain what the criteria for Part 1, Part 2 and Part 3 of the list of documents?

Answer 8

Part 1 – No objection to inspection – Disclose & Inspect
Part 2 – Objection to inspection – Privileged
Part 3 – Have had documents but not longer in control – had but no longer have

Statement = CPR 31.10(7)
Notice to inspect = CPR 31.15
Disclosure by Form N265 - other side copies / originals for inspection within 7 days of notice.

Question 9

Explain the PCR issues regarding disclosure:

Answer 9

31 PD 4.4 -
• : Solicitor has a duty to ensure client understands duty to disclose. If doesn’t allow:
• CPR 31.23: Breach of disclosure statement&raquo_space; liable for contempt of court
• O 5.1 & 5.2: Solicitor – breach of duty to not knowingly deceive the court/be complicit
• IB 5.5: If refusal continues – must cease to act for the client

Question 10

What happens following the exchange of the lists?

Answer 10

CPR 31.15 – Send written notice of wish to inspect;

Other side must then provide copies and/or originals for inspection within 7 days of receipt of notice.

Question 11

What are the 3 types of privilege?

Answer 11

1. Legal advice privilege
2. Litigation privilege
3. Without prejudice privilege

Question 12

What is legal advice privilege?

Answer 12

“A document which is a confidential communication between a lawyer and a client and which was prepared for the purpose of giving/receiving legal advice”

Question 13

What are the 5 key cases related to Legal Advice privilege and what do they say?

Answer 13

† Parry v Newsgroup – Open correspondence (i.e. not confidential)between sol./parties NOT privileged.
† Three Rivers v Bank of England CoA – Narrow definition of ‘client’.
† Balabel v Air India – Wider communication between solicitor/client ARE privileged because they fall within ‘continuum of communication’, even if ancillary to purpose of providing legal advice.
† Three Rivers v Bank of England HC – Presentation advice IS covered by privilege because it relates to what should be prudently and sensibly done in the legal context of the case.
† Bank of Nova Scotia – If a client internally repeats legal advice, then that is also privileged (.: discuss with client the best way of communicating internally – only repeat, no new comment).

Question 14

What is litigation privilege?

Answer 14

“A document which is a confidential communication which passed between the lawyer and a client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect”

Question 15

What are the 3 key cases regarding litigation privilege and what did they hold?

Answer 15

• Waugh v BRB – Litigation has to be the dominant purpose – if an equal purpose, then not privileged. (Why has the document been created?)
• Re Highgrade Traders – In establishing the purpose, consult the ‘commissioner’ of the document, not the author where they are separate people.
• USA v Philip Morris – Litigation must be a ‘real likelihood rather than a mere possibility’ - e.g. litigation having already started
• Cannot be inspected by the other party if falls under litigation privilege

Question 16

What is without prejudice privilege?

Answer 16

“Documents whose purpose is a bona fide attempt to settle a dispute”

• Rush & Thompkins v Greater London – Court will look at the ‘substance not the form’ of the document to decide whether the purpose of the document was a bona fide attempt to settle.

Question 17

Who can waive privilege? Why would they do this?

Answer 17

• Only the client can waive

- When the document is privileged but the party thinks it may help its case.

Question 18

What are the 4 ways that privilege can be waived?

Answer 18

i. Agreement e.g. Without prejudice document
ii. Loss of confidentiality against other side’s litigation e.g. Public or other party has seen it
iii. Mentioning document in statement of case, affidavit or witness statement CPR 31.14
iv. Service of the document on the other side

Great Atlantic Insurance Co – Cannot waive privilege over part of a document – ‘all or nothing’

Question 19

What happens if a privileged document is received in error?

Answer 19

CPR 31.20 – The party who inspected the document can only rely on it with the court’s permission.
PCR Issue
Š O(4.2) - duty to client to disclose all information material to the retainer
Š IB(4.4) - if obvious (objective) that it was sent in error, then cannot tell client material info

Question 20

What is redaction?

Answer 20

This is where a document contains severable parts, with some irrelevant or privileged information, those parts can be blanked out.

Question 21

Which documents can be redacted?

Answer 21

If the document as a whole is not privileged but contains severable parts that are privileged or irrelevant then they can be redacted.

Question 22

Can commercially sensitive information be redacted?

Answer 22

Inspection allowed unless:

i. It is privileged or
ii. Irrelevant to issues in dispute and outside the scope of Standard Disclosure

Question 23

What happens if a client knowingly signs a false disclosure statement?

Answer 23

• Would be in contempt of court
• CPR 31.23
• This is a serious issue - fine / imprisonment

Question 24

As a solicitor, what happens if you allow client to delete a document from the List?

Answer 24

• Breach of O5.1 and O5.1 of the SRA code of conduct

- As this is misleading to the court

Question 25

What should you do if client insists that you remove a document from the List?

Answer 25

• Advise him that your firm will cease to act on their behalf
• IB 5.5 SRA Code of Conduct