Standard Disclosure

Question 1

What is standard disclosure?

Answer 1

A particular form of disclosure which the court can order & the most common type of disclosure to be ordered.

Question 2

CPR 31.6 - standard disclosure requires a party to disclose only…

Answer 2

the documents on which he relies & the documents which:
i) adversely affect his own case;
ii) adversely affect another party’s case; or
iii) support another party’s case

AND the documents which he’s required to disclose by a relevant practice direction.

Question 3

The disclosure duty is about documents - where is documents defined?

Answer 3

CPR 31.4

Question 4

What is a party’s duty to disclose documents limited to?

Answer 4

Limited to documents which are or have been in his control - CPR 31.8

Question 5

What are the three questions which must be asked when it comes to standard disclosure?

Answer 5

1) Is it a document - CPR 31.4
2) Is/was it in the party’s control - CPR 31.8
3) Does it fall within the standard disclosure - CPR 31.6

Question 6

What is ‘document’ defined as and what can it include?

Answer 6

Document - anything which records information. Can include: digital recordings, emails, photographs, text messages, voicemails, metadata (data about data - eg time of creation, modification, author).

Question 7

Are the majority of documents electronic?

Answer 7

Yes - electronic documents could be stored on personal devices, computers, servers, portable storage etc.

Question 8

The duty of disclosure is limited to documents which are or have been within a party’s control. What is meant by ‘control’?

Answer 8

a) the document is/was in the physical possession of the party, or

b) the party has/had a right to possession of the document (eg documents held by party’s agent, such as documents a party send to its own accountant), or

c) the party has/had a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records)

Question 8

Do documents that might be considered relevant in the sense that they tell the story of what happened (but which don’t support/undermine either side’s case) need to be disclosed under standard disclosure?

Answer 8

No, unless the disclosing party wishes to rely on them.

Question 8

What is the concept of a reasonable search, if an order for standard disclosure is made?

Answer 8

If an order for standard disclosure is made, the rules provide that a party must make a reasonable search for documents falling into categories (b) to (e) (which are the categories described at CPR 31.6(b) and (c)) - CPR 31.7

Question 9

What are the four factors in determining a reasonable search?

Answer 9

1) the number of documents involved
2) the nature & complexity of the proceedings
3) how difficult/expensive it is to retrieve any document
4) the significance of any document likely to be found

Question 10

In addition to the factors in determining a reasonable search, what else should the court take into account when deciding what constitutes a reasonable search?

Answer 10

the overriding objective & principle of proportionality.

Question 11

How is standard disclosure performed?

Answer 11

By each party making a list of the required documents and serving it on the other party - CPR 31.10
- the normal direction is for lists to be exchanged simultaneously

Question 12

If a party says ‘I have control of the documents numbered & listed here, but I object to you inspecting them (due to privilege) - what should the recipient do if they disagree with the disclosing party’s assertion of privilege?

Answer 12

Apply to court challenging the alleged privilege - CPR 31.9(5)

Question 13

Must every list of documents include a disclosure statement in the prescribed form (31A PD 4)?

Answer 13

Yes.

Question 14

What is the disclosure statement?

Answer 14

• sets out the extent of the search made (that the search was reasonable/proportionate & also what wasn’t searched for - eg documents predating a certain date)
• certifies the party understands its duty to disclose the documents
• certifies that, to the best of the party’s knowledge, it has carried out that duty

Question 15

What must the disclosure statement include?

Answer 15

Details of any documents the inspection of which the party considers disproportionate - CPR 31.3(2)

Question 16

Who must the disclosure statement be made/signed by?

Answer 16

The disclosing party.

Question 17

If the person making the statement is a company, who should the statement be made by?

Answer 17

By an appropriate officer, who must identify themselves and state why they’re the appropriate person to make the statement - CPR 31.10(7)

Question 18

What is required from a solicitor to ensure compliance with the duty of disclosure?

Answer 18

A solicitor is required to ‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure - 31A PD 4.4
- solicitor should advise its client of the disclosure obligations at the outset of the case

Question 19

Can a party rely on a document which they fail to disclose or in respect of which they fail to permit inspection?

Answer 19

No, unless the court gives permission - CPR 31.21

Question 20

Can proceedings for contempt of court be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth?

Answer 20

Yes - CPR 31.23

Question 21

When may supplemental lists need to be prepared/served?

Answer 21

If additional documents falling within a party’s disclosure obligations come to light, or are created, after the disclosure list is served.

Question 22

What is the most common form of disclosure order?

Answer 22

Standard disclosure.

Question 23

Standard disclosure…

Answer 23

Standard disclosure is given by drawing up a list of documents which are being disclosed. The list has three parts:
a) in control, inspection permitted
b) in control, inspection not permitted
c) no longer in control