Unit 12 Disclosure and Inspection

Question 1

Part 32 governs disclosure and inspection. What claims does it apply to?

Answer 1

All claims except a claim on the small claims track.

Question 2

What is the meaning of “disclosure”?

Answer 2

A party discloses a document by stating that the document exists or has existed.

Question 3

If a document is disclosed to a party, do they then have the right to inspect it?

Answer 3

(1) A party to whom a document has been disclosed has a right to inspect that document except where—
a. the document is no longer in the control of the party who disclosed it;
b. the party disclosing the document has a right or a duty to withhold inspection of it;
c. paragraph (2) applies; or
d. rule 78.26 applies.
(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b)—
a. he is not required to permit inspection of documents within that category or class; but
b. he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Question 4

What is the overriding principle for disclosure?

Answer 4

The parties should bear in mind the overriding principle of proportionality

Question 5

What is Legal Advice Privilege?

Answer 5

Legal advice privilege, which applies to documents that are privileged whether or not litigation was contemplated or pending

Question 6

What is Litigation Privilege?

Answer 6

Litigation privilege, which applies to documents that are only privileged if litigation was contemplated or pending when they were made or came into existence.

Question 7

Is legal professional privilege limited by public interest?

Answer 7

No. Where legal professional privilege exists and is not waived or abrogated by statute, it is paramount and absolute and not subject to the balancing exercise of weighing competing public interests against each other as in the field of public interest immunity.

Question 8

What is the test for Legal Advice Privilege?

Answer 8

The test is whether the communication or other document is made confidentially for the purpose of legal advice. Those purposes have to be construed broadly. As such letters and other communications passing between a party, or their predecessors in title, and his, or their solicitors are privileged from production, provided they are, and are sworn or statemented to be, confidential, and written to, or by, the solicitor in their professional capacity, and for the purpose of getting legal advice or assistance for the client.

Question 9

To what does legal advice privilege apply?

Answer 9

The privilege will thus obviously attach to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. It does not follow, however, that all other communications between solicitor and client lack privilege. Where information is passed by the solicitor or client to the other as part of a process aimed at keeping both informed, so that advice may be sought and given, privilege will attach.
Legal advice privilege extends to advice given as to what should or should not be prudently and sensibly done in a “relevant legal context” and is not confined to advice concerning legal rights and obligations.
The principle that a client should be able to obtain legal advice in confidence requires that, where professional privilege applies to lawyer-client communications, internally circulated documents or parts of documents revealing such communications are also privileged, whatever the purpose, other than fraud, for which such documents are brought into existence .

Question 10

Who is legal advice privilege limited to?

Answer 10

Claimant and solicitor/counsel

Question 11

Who is litigation privilege limited to?

Answer 11

Claimant and solicitor/counsel but also non-professional agent and third party.

Question 12

What is litigation privilege?

Answer 12

Communications between a solicitor and a non-professional agent or a third party, directly, or through an agent that come into existence after litigation is contemplated or commenced and made with a view to such litigation, either for the purpose of obtaining or giving advice in regard to it, or of obtaining or collecting evidence to be used in it, or obtaining information which may lead to the obtaining of such evidence, are privileged.
Documents obtained by a solicitor with a view to enabling them to prosecute or defend a claim, or give advice with reference to existing or contemplated litigation, are privileged, so are documents which come into existence merely as materials for the brief.

Question 13

What documents would NOT be subject to litigation privilege?

Answer 13

This does not extend, however, to copies of unprivileged documents, such as letters, although obtained by the solicitor.
Documents which come into existence for some purpose other than to instruct a lawyer or to form part of their brief are not privileged, and do not subsequently become privileged simply because they are sent to a lawyer as part of their instructions. Privilege cannot be claimed in respect of a copy of an affidavit taken for the purposes of legal advice when the original affidavit is not privileged.

Question 14

Does litigation privilege cover discussions about settlement?

Answer 14

Litigation privilege covers communications seeking advice or information for making decisions about whether to settle, but not to purely commercial discussions about settlement.

Question 15

What is the test for whether a document by a third party is covered by litigation privilege?

Answer 15

The general principle is that documents embodying communications with (including reports to or from) a non-professional servant, agent or third party are privileged if, and only if, coming into existence for the purpose of obtaining legal advice in existing or anticipated proceedings.
The application of this test is easy enough in straightforward cases; privilege will clearly extend to communications for such purposes made to a solicitor through an agent, and to information obtained from a third party at the request of a solicitor to enable them to enforce or resist a claim by legal proceedings.

Question 16

What if a document was made for more than one purpose in determining litigation privilege?

Answer 16

Consider the dominant purpose.

Question 17

For litigation privilege, is it enough that there is a likely contingency of it becoming necessary to obtain legal advice to make or resist a claim by litigation, or whether must there be an actual, present intention to obtain such advice at the time that the documents are made?

Answer 17

In answer to this question the Court of Appeal has held that, if litigation is reasonably in prospect, documents brought into existence for the purpose of enabling solicitors to advise whether a claim shall be made, settled or avoided are protected by privilege, whether or not a decision to instruct solicitors has been made at the time the documents are brought into being, subject only to establishing that such purpose is the dominant purpose of their creation
E.g. where the dominant purpose in the preparation of an accident report is the avoidance of similar accidents in the future, the report will not be privileged, even although a subsidiary purpose in its preparation is its use in the conduct of anticipated litigation.

Question 18

Are original documents covered by Legal Professional Privilege?

Answer 18

Documents do not become privileged by the mere fact that they have at some time been submitted to a solicitor.
Legal professional privilege does not extend to cover an original document, even if obtained by a party to litigation or their legal adviser for purposes of the litigation, if the document has not come into existence for the purposes of the litigation, but is already in existence before the litigation is contemplated or commenced. A pre-existing document not entitled to privilege does not become privileged merely because it is handed to a solicitor for the purposes of litigation. However, original or copy documents obtained or prepared by the party for the purpose of obtaining their solicitor’s advice in view of pending or anticipated litigation, or by their solicitor for the purposes of pending or anticipated litigation, are privileged.

Question 19

How does confidentiality impact privilege?

Answer 19

Communications between a lawyer and client in circumstances where they could not reasonably have expected confidentiality to be maintained are not covered by the privilege.

Question 20

Are communications between co-claimants or co-defendants privileged?

Answer 20

Only as a third party so only in accordance with litigation privilege. Where one of several trustees is a solicitor however, communications between them and their co-trustees which would be privileged if they were not a co-trustee, are privileged.

Question 21

Can a solicitor waive legal privilege?

Answer 21

No. The privilege is in all cases the privilege of the client and not of the solicitor or legal adviser. It may only be waived by the client, and not the solicitor or legal adviser. Disclosure of privileged documents for a limited purpose does not, without more, constitute a general waiver or loss of privilege.

Question 22

If part of a document is put into evidence, is the rest of the document still privileged?

Answer 22

If part of a document is put in evidence, or read to the court, privilege will be waived for the whole document, unless the remaining part deals with an entirely different subject-matter. Similarly, if part of a letter is disclosed, the disclosing party is deemed to be waiving privilege in relation to the whole letter, unless it can be shown that the other parts of the letter are so distinct as to amount to different documents.

Question 23

What is the process for identifying whether privilege extends to other transactions?

Answer 23

• “(i) One should first identify the transaction in respect of which the disclosure has been made.
• (ii) That transaction might be identifiable simply from the nature of the disclosure made; for example, advice given by counsel on a single occasion.
• (iii) However, it might be apparent from that material, or from other available material, that the transaction was wider than that which was immediately apparent. If it did, then the whole of the wider transaction had to be disclosed.
• (iv) When that had been done, further disclosure would be necessary if that was necessary in order to avoid unfairness or misunderstanding of what had been disclosed.”

Question 24

What does a real risk mean with regard to privilege?

Answer 24

A real risk in this regard means more than a fanciful or theoretical risk

Question 25

Is there a rule that a solicitor cannot act against a former client?

Answer 25

There is no absolute rule that a solicitor cannot act in litigation against a former client. If he concludes he can continue to act, then the court retains the power to grant an injunction to prevent him from acting. Where a former client has imparted information in confidence in the course of a fiduciary relationship, and/or where that information is privileged, there are strong public policy reasons which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest. 
In exceptional circumstances, in the exercise of inherent jurisdiction, the court can prevent an advocate from acting, even if he had no relevant confidential information, if satisfied that there was a real risk that his continued participation would require the order made at the trial to be set aside on appeal.

Question 26

Are “without prejudice” negotiations admissible?

Answer 26

“Without prejudice” material will be admissible if the issue is whether or not negotiations resulted in an agreed settlement, but in relation to any other issue an admission or acknowledgment made in order to achieve a compromise should not be held against the maker of the admission or received in evidence; moreover an admission or acknowledgment made to reach a settlement with a party is not admissible in proceedings between the maker of the admission or acknowledgment and a different party, even if such proceedings are within the same litigation.

Question 27

Is the without prejudice rule absolute?

Answer 27

The without prejudice rule is not absolute and resort may be had to the without prejudice material for a variety of reasons when the justice of the case requires it, always giving due weight to the purpose of the rule itself.

Question 28

What if there is conflict between full and frank disclosure and the “without prejudice” rule?

Answer 28

Where there is a conflict between the without prejudice rule and the requirement that those who make without notice applications make full and frank disclosure, the court will make a judgment as to whether the public policy in favour of confidence is overridden by the possibility of the court being misled

Question 29

Can a waiver of “without prejudice” privilege be set aside?

Answer 29

Yes. Where a party has waived privilege concerning without prejudice material by referring to it in their pleadings, the waiver may subsequently be set aside if they are successful in applying to amend their proceedings.

Question 30

What are the disclosure orders available to the court at the first or any subsequent case management conference?

Answer 30

a. An order dispensing with disclosure;
b. an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;
c. an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;
d. an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;
e. an order that a party give standard disclosure;
f. any other order in relation to disclosure that the court considers appropriate.

Question 31

What does standard disclosure require a party to disclose?

Answer 31

Standard disclosure requires a party to disclose only—
a. the documents on which he relies; and
b. the documents which—
I. adversely affect his own case;
II. adversely affect another party’s case; or
III. support another party’s case; and
c. the documents which he is required to disclose by a relevant practice direction.
Documents which relate purely to cross-examination as to credit and to no other issue in the trial are outside the scope of standard disclosure.

Question 32

Categories of documents:

Name the four categories

Answer 32

The parties’ own documents
Adverse Documents
The relevant documents
Train of inquiry documents

Question 33

Categories of documents:

Define “The parties’ own documents”

Answer 33

These are documents which a party relies upon in support of their contentions in the proceedings.

Question 34

Categories of documents:

Define “Adverse Documents”

Answer 34

These are documents which to a material extent adversely affect a party’s own case or support another party’s case.

Question 35

Categories of documents:

Define “The relevant documents”

Answer 35

These are documents which are relevant to the issues in the proceedings, but which do not fall into categories 1 or 2 because they do not obviously support or undermine either side’s case. They are part of the “story” or background. The category includes documents which, though relevant, may not be necessary for the fair disposal of the case.

Question 36

Categories of documents:

Define “Train of inquiry documents”

Answer 36

These are documents which may lead to a train of inquiry enabling a party to advance their own case or damage that of their opponent.

Question 37

What is the parties’ duty of search for standard disclosure documents?

Answer 37

1. When giving standard disclosure, a party is required to make a reasonable search for documents falling within it.
2. The factors relevant in deciding the reasonableness of a search include the following—
   a. the number of documents involved;
   b. the nature and complexity of the proceedings;
   c. the ease and expense of retrieval of any particular document; and
   d. the significance of any document which is likely to be located during the search.
3. 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 state this in his disclosure statement and identify the category or class of document.

Question 38

What is a parties’ duty to disclose limited to?

Answer 38

Duty of disclosure limited to documents which are or have been in a party’s control

1. A party’s duty to disclose documents is limited to documents which are or have been in his control.
2. For this purpose a party has or has had a document in his control if—
   i. it is or was in his physical possession;
   ii. he has or has had a right to possession of it; or
   iii. he has or has had a right to inspect or take copies of it.

Question 39

What three categories should the list of disclosure documents be divided into?

Answer 39

1. documents still in the party’s control, where inspection is not objected to;
2. documents still in the party’s control, where inspection is objected to; and
3. documents no longer in the party’s control.

Question 40

When does the duty of disclosure end?

Answer 40

1. Any duty of disclosure continues until the proceedings are concluded.
2. If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.

Question 41

If the court makes an order for specific disclosure/inspection, what does that mean?

Answer 41

An order for specific disclosure is an order that a party must do one or more of the following things—

a. disclose documents or classes of documents specified in the order;
b. carry out a search to the extent stated in the order;
c. disclose any documents located as a result of that search.

Question 42

Why is the timing of an application for specific disclosure important?

Answer 42

The lateness of an application may undermine its claim that the documents are in fact necessary for the forthcoming proceedings.

Question 43

What documents can a party inspect?

Answer 43

A party may inspect a document mentioned in—
a. a statement of case;
b. a witness statement;
c. a witness summary; or
d. an affidavit
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.

Question 44

What happens where a party has a right to inspect a document?

Answer 44

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

Question 45

When can disclosure be ordered before the commencement of proceedings? (pre-action disclosure)

Answer 45

1. his rule applies where an application is made to the court under any Act for disclosure before proceedings have started.
2. The application must be supported by evidence.
3. The court may make an order under this rule only where—
   a) the respondent is likely to be a party to subsequent proceedings;
   b) the applicant is also likely to be a party to those proceedings;
   c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
   d) disclosure before proceedings have started is desirable in order to—
   I. dispose fairly of the anticipated proceedings;
   II. assist the dispute to be resolved without proceedings; or
   III. save costs.

Question 46

Deciding pre-action disclosure requires what approach?

Answer 46

Formally requires a two-stage approach. (1) The first stage is to establish whether the jurisdictional thresholds prescribed by heads (a) to (d) in subrule (3) are satisfied; if they are, the court proceeds (2) as a second stage to consider whether, as a matter of discretion, an order for disclosure should be made.
For the purpose of satisfying the jurisdictional criteria in heads (a) and (b) in sub-rule (3) an applicant does not have to demonstrate an “arguable” or “prima facie” case; there is no jurisdictional “arguability threshold”

2. The application must be supported by evidence.
3. The court may make an order under this rule only where—
   a) the respondent is likely to be a party to subsequent proceedings;
   b) the applicant is also likely to be a party to those proceedings;
   c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
   d) disclosure before proceedings have started is desirable in order to—
   I. dispose fairly of the anticipated proceedings;
   II. assist the dispute to be resolved without proceedings; or save costs.

Question 47

Can a third party make an application for disclosure?

Answer 47

Yes, under 31.17 they can make an application supported by evidence and the court MAY use its discretion to grant it. The court can order that disclosure be made only to legal and/or medical advisers, or on the giving of certain undertakings restricting their future disclosure and use.
Such orders may be made against a third party who been ordered to pay the costs of an unsuccessful claim. 

Question 48

Where a party is seeking disclosure of multiple documents, must they only satisfy one test?

Answer 48

They must satisfy the disclosure test in relation to every document. Any documents that do not satisfy the test will not be disclosed.

Question 49

What is the principle of a Norwich Pharmacal Order?

Answer 49

“A person innocently caught up in the wrongdoing of another so that they are more than a mere witness, can be compelled to disclose the identity of the wrongdoer so that proceedings may be brought against the proper defendant.”

Question 50

What are the requirements to obtain a Norwich Pharmacal Order?

Answer 50

o A wrong must have been (arguably) carried out by an ultimate wrongdoer
o There must be a need for an order to enable action to be brought against the ultimate wrongdoer.
o The person against whom the order is sough must:
- Be mixed up in it so as to have facilitated the wrongdoing; and,
- Be able or likely to be able to provide the information necessary to enable the ultimate wrong-doer to be sued

Question 51

What is a “wrong” for the purposes of an NPO?

Answer 51

A wrong includes torts, crimes or breaches of contract. There must be a good arguable case/reasonable basis for claiming that there has been wrongdoing. There is no need for proceedings to actually exist.

Question 52

Why must an applicant show a NEED for an NPO?

Answer 52

NPOs are a remedy of last resort. If the information can be obtained using an alternative route (e.g. CPR) than an NPO should not be made.
o E.g. CPR 31.16. An order may also be refused if the applicant already has sufficient information to commence an action.
o There is no need for the applicant to establish a definite intention to bring proceedings against the wrongdoer.

Question 53

What does “facilitated” mean for the purpose of an NPO?

Answer 53

The application will not succeed if the proposed defendant was a mere witness to the wrongdoing, they must be involved in it.

Question 54

If there are no current proceedings, what must the claimant do to make an NPO?

Answer 54

If there are no current proceedings, the applicant must issue a CLAIM against the “innocent” party to obtain the information.

Question 55

Does the applicant need to prove a “wrong” in applying for an NPO?

Answer 55

No. The applicant does not need to prove the wrong, but must at least show some reasonable basis for claiming that a wrong has been committed.

Question 56

Is it a requirement of an NPO that the applicant will bring court proceedings against the wrongdoer?

Answer 56

No. It is not a requirement that the applicant will be bringing court proceedings. The procedure is available where an applicant “desires to obtain redress against the wrong-doer—or to protect himself against further wrongdoing.” The jurisdiction can be used in an action for the preservation of assets the subject of a proprietary claim

Question 57

What is the defence available to a disclosing party in an NPO?

Answer 57

Applying the privilege against self-incrimination, a party has a defence to disclosure of the identity of a wrongdoer where that disclosure would tend to incriminate the disclosing party. In such a case it must be the disclosure of the identity of another person which causes the risk.
Section 10 of the Contempt of Court Act 1981 may provide a defence, unless disclosure is “necessary” in the interests of national security, the interests of justice, or for the prevention of disorder or crime.

Question 58

What are the Rugby Football Union case’s non-exhaustive factors for whether the court should exercise its discretion in granting an NPO?

Answer 58

i. strength of the possible cause of action contemplated by the applicant for the order;
ii. the strong public interest in allowing an applicant to vindicate their legal rights;
iii. whether the making of the order will deter similar wrongdoing in the future;
iv. whether the information could be obtained from another source;
v. whether the respondent to the application knew or ought to have known that they were facilitating arguable wrongdoing;
vi. whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result;
vii. the degree of confidentiality of the information sought;
viii. the privacy rights under art.8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed;
ix. the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed;
x. the public interest in maintaining the confidentiality of journalistic sources, as recognised in s.10 of the Contempt of Court Act 1981 and art.10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Question 59

What is the procedure for a NPO?

Answer 59

A first application for Norwich Pharmacal relief, even if it is not expected to be contested, should be made by claim form under Pt 7 or, in most cases, Pt 8. This is to enable issues arising to be identified early and managed appropriately. An order can, exceptionally, be granted without notice where delay may result in substantial and irreparable harm. An order may also be made during an existing action.

Question 60

Does a claim to withhold inspection or disclosure of a document require notice?

Answer 60

No.

(1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.
(2) Unless the court orders otherwise, an order of the court under paragraph (1)—
a. must not be served on any other person; and
b. must not be open to inspection by any person.

Question 61

What is the procedure for claiming to withhold inspection/disclosure of a document?

Answer 61

(3) 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—
a. that he has such a right or duty; and
b. the grounds on which he claims that right or duty.
(4) The statement referred to in paragraph (3) must be made—
a. in the list in which the document is disclosed; or
b. if there is no list, to the person wishing to inspect the document.

Question 62

What may the court require to help it decide on claims for the withholding of disclosure/inspection?

Answer 62

For the purpose of deciding an application to withhold disclosure or a claim to withhold inspection the court may—

a. require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and
b. invite any person, whether or not a party, to make representations.

Question 63

Can the party use a privileged doc that’s inadvertently disclosed?

Answer 63

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 64

What is the consequence of failing to disclose a document or permit inspection?

Answer 64

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 65

How does a party “disclose” a document? (common exam question, know wording!)

Answer 65

“A party discloses a document by stating that the document exists or has existed.”

(It does not mean showing the document, simply admitting its existence)

Question 66

Does privilege apply to disclosure?

Answer 66

No. Nothing is privileged from disclosure. If something is relevant it must be disclosed.
o Privilege only engages in respect of inspection.
o Privilege from disclosure means inadmissible because nothing is really excusable from disclosure.

Question 67

What is the relevant form for disclosure?

Answer 67

N265

Question 68

On what grounds can you object to inspection?

Answer 68

Legal Professional Privilege
Divides into two categories;
• Legal Advice – protecting communications made in confidence between a lawyer and a client for the dominant purpose of giving or receiving legal advice.
• Litigation Privilege – confidential communications between a client or lawyer and a third party where litigation is contemplated, or has commenced, and the communication is made for the dominant purpose of that litigation.
Public Interest Immunity: Disclosure may injure public interest (e.g. national security)
Privilege against self-incrimination: Some civil charges are liable for criminal penalty. E.g. tax avoidance (legal) v tax evasion (illegal).
Disproportionality: A part may state on its disclosure statement that inspection will not be permitted on the grounds that it would be disproportionate to the issues to do so (CPR 31.3(2)).
• Proportionality is key to efficiency and cost management. Preventing prejudice and disadvantage.

Question 69

What are “without prejudice” documents limited to?

Answer 69

All communications/negotiations between parties that are taken with a view to settlement, are not admissible in any proceedings.

Question 70

Does using the label “without prejudice” on a document engage the exception?

Answer 70

No. The exception Relates to substance, not form. (Label “without prejudice” does not necessarily engage the exception)
Substance:
o When document was created, was there a risk of litigation?
o Is the document a genuine effort to avoid that litigation?

Question 71

Where does “without prejudice” documents go on the N265 form?

Answer 71

Privilege vests in only one party. But without prejudice vests in both parties. Therefore, without prejudice documents remain fully disclosable between the parties because they’ve already seen them.
o This does not mean they will appear in the trial bundle. The judge will not see form N265 of the without prejudice documents.
o The disclosure form is about full transparency between parties. Everyone has a right to know the case against them.
• Privilege documents = section 2
• Without prejudice documents = section 1

Question 72

Pre-Action disclosure summary

Answer 72

Stage one – jurisdiction threshold – 31.16 (a)-(d) are satisfied
o Are the parties likely to be parties to subsequent proceedings?
o Would the documents sought be disclosable under CPR 31.6?
o Is the disclosure desirable?
o Can we specify the documents we need? 31.16.4
o Would the application be disproportionate or oppressive?
Stage two – exercise discretion
o Is the disclosure desirable? 31.16(d)
- Nature of the loss
- Nature of the documents requsted
- Whether the applicant has enough material already to make a claim
• Think about
o The cause of action (determines relevance)
o The documents you will be requesting
Applicant needs to have some basis for asserting that a type of document exists
Restrictions
• An order is unlikely to be made if it is a mere fishing exercise.
• Costs – usual rule = party applying is likely to have to cover the costs, including the reasonable costs for searching for any documents. Unless you are sure the document exists and could lead somewhere, it could be an expensive exercise. (CPR46.1)
o Courts can derogate from this principle if it finds that this document should have been disclosed to the applicant under the pre-action protocol anyway.