UNIT 4: CASE MANAGEMENT + DISCLOSURE

Question 1

Six objectives the court should seek to achieve when dealing with cases: (r 1.1(2))

Answer 1

1. ensuring that the parties are on an equal footing;
2. saving expense;
3. dealing with the case in ways that are proportionate to:
4. the amount of money involved
5. the importance of the case
6. the complexity of the issues, and
7. the financial position of each party
8. ensuring that the case is dealt with expeditiously and fairly;
9. allotting to it an appropriate share of the court’s resources, whilst taking into account the need to allot resources to other cases; and
10. enforcing compliance with rules, practice directions and orders

Question 2

What is the overriding objective of case management?

Answer 2

Enable the court to deal with cases justly and at proportionate cost

1. Court must give effect to this
2. Parties must help the court with this

Question 3

How does the court exercise an active role?

Answer 3

1. encouraging the parties to co-operate with each other in the conduct of the proceedings;
2. identifying the issues at an early stage;
3. deciding promptly which issues need to be fully investigated and dealt with at a trial;
4. deciding the order in which issues are to be resolved;
5. encouraging the parties to use ADR procedures if appropriate;
6. helping the parties to settle the case;
7. fixing timetables or otherwise controlling the progress of the case;
8. considering whether the likely benefits of taking a particular step to justify the cost of taking it;
9. dealing with as many aspects of the case as it can on the same occasion;
10. dealing with the case without the parties needing to attend at court;
11. making use of technology; and
12. giving directions to ensure that the trial of a case proceeds quickly and effectively.

Question 4

How are cases provisionally allocated?

Answer 4

Who initially?

court officer

Confirmed later after involvement of the parties

1. Upon filing defence → court provisionally allocated
2. Court then serves notice of proposed allocation → parties complete directions questionnaire

Directions questionnaire

• A draft order for directions should accompany the return of the questionnaire.
• Additional documents required for provisional multi-track allocation?
  
  • case summary
  • disclosure report
  • costs budget and budget discussion report

Question 5

Contents of direction questionnaire

Answer 5

• What are the contents of the directions questionnaire?
  
  1. Settlement procedure
  2. Court
  3. Pre-action protocols
  4. Case management information
  5. Experts
  6. Witnesses
  7. Trial
  8. Costs
  9. Other information
  10. Directions → by agreement or individual drafts
• 1. If claim is for money at CC → court serves notice on defaulting party requiring compliance within 7 days - if still no compliance, case automatically struck out
  2. Other cases → order as appropriate, eg:
     
     • an order for directions
     • striking out a statement of case
     • listing the matter for a case management conference

Question 6

DQ Settlement procedure

Answer 6

• Solicitor explains to client the need to try to settle, options, cost sanctions, one month stay to attempt - if agree, court will stay proceedings for ONE MONTH,
• if not , party objecting must provide reasons,
• or court may of its own initiative (whether or not party instigates) can order stay of any length.

Question 7

DQ Court

Answer 7

Reasons why particular court

Question 8

DQ Pre-action protocols

Answer 8

Any complied with, why not

Question 9

DQ Case management info

Answer 9

• Whether any apps have been made to court;
• Any objections to provisional allocation/reasons for a dif track
• Submissions on appropriate complexity band for fast + immediate track cases
• Scope + extent of disclosure of docs inc. proposals on how to deal with electronic docs

Question 10

DQ experts

Answer 10

• If case is suitable for single joint expert + if not provide details of expert evidence they wish to rely on at trial including cost.

Question 11

DQ witnesses

Answer 11

• Parties must name / provide number of witnesses of fact they intend to call at trial + identify points they will address

Question 12

DQ trial

Answer 12

• Realistic estimate of how long trial will last

Question 13

DQ Costs + other info

Answer 13

8. Costs
   * If multi-track + legal rep, costs budget must be filed
9. Other information
   * Ie, apps that party intends to make

Question 14

DQ Directions → by agreement or individual drafts

Answer 14

• Parties should attempt to agree directions + draft order to accompany questionnaire:
• Fast track = standard directions
• Intermediate/multi-track = specimen directions on MoJ website

Question 15

Will the court aggregate a claim and counterclaim in case allocation?

Answer 15

court will not generally aggregate a claim and a counterclaim, and the largest of them will usually determine the financial value

court also considers

o remedy sought
o complexity of the facts and the law
o number of parties involved
o value of any counterclaim
o amount of oral evidence
o circumstances of the parties

Question 16

Track values?

Answer 16

1. Small claims = £10,000 or less
   
   • road traffic cases occurring after 31 May 2021 = damages claimed for pain, suffering and loss of amenity aspect must be £5,000 or less
2. Fast track = £10,000.01 → £25,000 inclusive
3. Multi-track = more than £25,000

Question 17

Small claims track

Answer 17

Value:
* ‘small claims’ = financial value of £10,000 or less
* road traffic cases occuring after 31 May 2021 = damages claimed for pain, suffering and loss of amenity aspect must be £5,000 or less
Type:
* consumer disputes
* disputes about ownership of goods
* landlord and tenant disputes (but not for possession)
* lower value personal injury cases
Procedure:
* Certain parts of the CPR do not apply to the small claims track (disclosure and inspection and provisions relating to evidence and experts)
* Directions will be issued by the court  simple as solicitors not usually involved / costs cannot generally be recovered from the losing party.
* Typical directions include:
o each party delivering to the others copies of all documents on which they intend to rely;
o a requirement for them to bring original documents to the hearing; and
o the parties not being allowed to rely on an expert’s report without express permission from the court.
* Hearing is informal and, if all parties agree, a court can make a decision based on the statements of case and documents submitted rather than by hearing oral evidence.

Question 18

Fast track claim

Answer 18

• The claim must fall on or between the relevant financial bands:
  o £10,000.01 - £25,000
• Court will also consider the likely length of the trial before making a final decision on allocation.
• Only those cases where the trial is expected to last no longer than one day are generally suitable for the fast track.

Question 19

Fast track time periods / procedure

Answer 19

• Court will give directions on how the matter is to proceed to trial

o Usually, the court will simply issue standard direction.

• Timetable:
  Disclosure 4 weeks
  Exchange of witness statements 10 weeks
  Exchange of experts’ reports 14 weeks
  Court sends pre-trial checklists 20 weeks
  Parties file pre-trial checklists 22 weeks
  Hearing (trial) 30 weeks

o These periods run from the date of allocation
o Time between each step is intended to be sufficient to allow the parties to prepare their case, whilst being short enough to discourage tactical litigation such as making technical applications.
o Court will fix the date and place of the trial.

• Parties may agree different directions, but these must be approved by the court.
• Parties can also agree in writing to vary the timetable.
• Parties cannot agree to vary
  o the trial date
  o the date for returning the pre-trial checklists

Question 20

fast track - variation of timetable?

Answer 20

Parties may agree different directions, but these must be approved by the court.
* Parties can also agree in writing to vary the timetable.
* Parties cannot agree to vary
o the trial date
o the date for returning the pre-trial checklist

Question 21

fast vs multi

Answer 21

1. Directions are standard, so not tailored to the individual case
2. Expert evidence is more limited. The court will usually order a single joint expert, unless there is a good reason to appoint separate experts, and will rely upon their written report at trial rather than allowing the expert to give oral evidence.
3. The trial is expected to last no longer than a day.
4. The power to award costs is more limited and the judge will generally assess these summarily (instantly) at the end of the trial.

Question 22

Multi-track claims

Answer 22

• Usually cases with a value of more than £25,000.
• Multi-track includes an enormously wide range of cases - fairly straightforward claims, to complex and weighty matters involving claims for millions of pounds, and multi-party claims.
  Procedure:
• In simpler matters, the standard directions as used on the fast track would be adequate. The court will usually:
  o give directions for the management of the case; and
  o set a timetable for the steps to be taken up to trial.
• In complex claims, the court will need to adopt a flexible approach:
  o fix a case management conference to ensure that appropriate directions relating to the management of the case are given.

Question 23

CMC - procedure

Answer 23

o (a) review the steps the parties have already taken to prepare the case;
o (b) check their compliance with any directions the court has made (e.g., following an application for summary judgment that has been dismissed); and
o (c) consider and give directions about future steps to ensure the claim proceeds in accordance with the overriding objective.

• Initial CMC may be listed as soon as a claim is allocated to the multi-track.
  o Usually 1 CMC enough
  o If necessary, the court may order further CMCs to review the progress the parties have made.
  o If trial is approaching, such a hearing may also be referred to as a ‘pre-trial review’ but the purpose and substance is similar.

Question 24

CMC attendance

Answer 24

• If a party has a legal representative, an individual who is familiar with the case should attend the CMC
  o usually someone who is personally involved in the conduct of the case and who has the (1) authority, and (2) information available, to deal with any matter that may reasonably be expected to arise.
   e.g., fixing the timetable, identifying issues, matters of evidence.
• ‘wasted costs order’ – Where the inadequacy of the person attending leads to the hearing being adjourned, the court may order that the other party’s costs incurred in preparing for and attending the hearing are paid either by the solicitor personally or their firm

Question 25

Intermediate track - value and procedure

Answer 25

• Vast majority of claims valued at more than £25,000, but not more than £100,000

Procedure
* Max 3 parties needed, no more than two experts giving oral evidence on each side and anticipated trial of three days max.
* Court may fix discretionary CMC
* Parties must either agree appropriate directions (likely to be standard) or submit proposals to court AT LEAST 7 DAYS PRIOR TO CONFERENCE. Matters to be dealt with are:

• Disclosure of docs
• Service of witness statements; total length of all permitted witness statements + summaries must not exceed 30 pages
• Expert evidence, w/ oral expert evidence limited to one witness per party, except where second is reasonably required + proportionate  report must not exceed 20 pages inc. details of issues, conclusions, reasons, excluding supporting material ie photos/plans/academic articles
• Whether to fix pre-trial review
• Listing for trial (must not exceed 3 days)

Standard period between giving of directions and trial = no more than 30 weeks.
If the parties have agreed directions (which must include a timetable of the progress of the case to trial), the court may approve these without a hearing.

Question 26

Complexity bands - fast track claims

Answer 26

BAND 1: defended debt claims, road traffic accident, non-personal injury claims.
BAND 2/3: road traffic accident related PI claims + other types of PI claims
BAND 4: professional negligence claims + complex claims

Question 27

Complexity bands - intermediate claims

Answer 27

BAND 1: defended debt + claims with one issue in dispute, trial no more than 1 day
BAND 2/3: one or more issue, inc PI claims, band 2 less complex than 3
BAND 4: serious issues/fact + complex claims, three day trial anticipated

Question 28

Case summary

Answer 28

• Case summary - describes what matters are still in dispute and which are agreed (essentially an updated case analysis)
• Purpose - prepared for the CMC to assist the judge in determining how the case should proceed to trial
• Contents of the case summary:
  o brief chronology of the claim
  o factual issues that are agreed and those that are not
  o evidence needed to decide them
• Usually C is responsible for preparing the document, but it should be agreed with the other parties if possible.

Question 29

multi track - variation limitations

Answer 29

• The following cannot be changed without an application to the court:
  (a) any case management conference;
  o (b) a pre-trial review;
  o (c) the return of a pre-trial checklist; or
  o (d) the trial or the trial period.

Question 30

multi track - case settled?

Answer 30

inform the court immediately if the claim is settled and to file a draft consent order giving effect to their agreement

• issue of costs of the CMC will be determined and, normally, an order will be made for costs in the case.

Question 31

failure to comply with directions

Answer 31

• Generally - If a party fails to keep precisely to the directions timetable, this will not generally be an issue provided the parties co-operate and are able to meet certain key dates, such as the CMC and the trial.
• However, to ensure the case proceeds without delay, if a step is missed:
  o any other party may apply for an order enforcing compliance and/or for a sanction to be imposed.
• Further, to comply with the overriding objective:
  o the trial date is sacrosanct and the court will not allow failure to comply with directions to lead to the postponement of the trial, unless the circumstances are exceptional.

Question 32

Costs budget precedent h contents

Answer 32

o a detailed breakdown of the costs and disbursements already incurred (pre-action, issue of proceedings, and statements of case) - ‘incurred costs’; and
o an estimate of future costs and the assumptions on which those are based for the future phases of the proceedings, namely, case management, disclosure, evidence, pre-trial review, trial preparation and trial stages, along with any ADR or settlement discussions and contingencies - ‘budgeted costs’.
* A budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.

Question 33

Cost budget procedure

Answer 33

• Cost budgets must be filed:
  o with the directions questionnaire for claims of less than £50,000; and
  o no later than 21 days before the first CMC for all other claims.
• After this, the parties must complete a budget discussion report (Precedent R) no later than 7 days before the first CMC.
  o itemises the figures for phases that are agreed and those that are not, with a brief summary of the grounds of dispute

Question 34

Judge’s role with costs budgets

Answer 34

• Judge will review those costs which are disputed
  o will do so by systematically cross-referring between the parties’ proposed directions and their budgets, to ensure the suggested costs are reasonable and proportionate to the case at hand
• The budget will then be revised as necessary
• Timing: The court normally conducts a costs and case management conference at the same time but they may be held separately in complex cases.

Question 35

Amending costs budget?

Answer 35

• Once a costs budget has been agreed or approved by the court, it is extremely difficult to amend or update it.
• Only if the other party agrees – which is unlikely – or the court can be persuaded that there have been significant developments, for example the need for an additional expert’s report that could not have been anticipated, may it be revised.
  o In such circumstances, the parties must file a budget variation summary sheet (Precedent T).

Question 36

Failure to file costs budget on time

Answer 36

• If the costs budget is late or not filed, there will be consequences for (1) that party, and (2) potentially their lawyers.
• Rule 3.14 - unless the court orders otherwise, the party will be treated as having filed a costs budget consisting only of the court fees.
  o e.g. the lawyers are at risk of not being paid for their work after the sanction is imposed
  o Andrew Mitchell MP v News Group Newspapers Ltd: high profile case  lawyers were six days late in filing their costs budget without any adequate excuse and so were treated as having filed a budget consisting of court fees only: conducted expensive and strongly contested litigation with no prospect of being paid for their work after the date of the sanction.

Question 37

costs management order

Answer 37

• Courts are now highly likely to make a costs management order.
• It will be imposed unless the judge is satisfied that the litigation can be conducted justly and at proportionate cost. (3.15 CPR)
• In the order the court will:
  o record the extent to which any incurred or budgeted costs are agreed between the parties; and
  o in respect of the budgeted costs that are not agreed, record the court’s approval after making appropriate revisions

Question 38

Effect of CMO

Answer 38

• Allows the court to control the parties’ budgets in respect of recoverable costs.
• If at trial one party is ordered to pay another party’s costs to be assessed by the court on the standard (usual) basis, the court will not depart from the receiving party’s last approved or agreed budget unless satisfied there is a good reason for doing so.
• Consequence - parties are tied to their costs budget figures even if the litigation proves far more expensive than anticipated.

Question 39

Effect if no cmo

Answer 39

• There will be more flexibility when dealing with costs.
• Where there is a difference of 20% or more between the costs claimed by the receiving party and the costs as set out in the budget, the receiving party must provide a statement of the reasons for the difference.
• After this, it is for the court to decide whether the additional amounts can be recovered.

Question 40

Striking out a case?

Answer 40

1. the statement of case discloses no reasonable grounds for bringing or defending the claim; and
2. there has been a failure to comply with a rule, practice direction or court order.

Question 41

Other sanctions along with striking out case?

Answer 41

In addition to striking out, the court has other sanctions at its disposal including:
* Costs: a common sanction is to require the party in default to pay the other party’s
additional costs on an indemnity (penalty) basis or to provide an uplift on the fixed costs.
* Interest: orders could be made increasing or reducing – depending upon which party is at fault – the interest payable on any damages.
* The unless order: if a party has not taken a step in the proceedings in accordance with a court order, an application may be made to the court for an ‘unless’ order – ie unless D files full defence 7 days after service, struck out or C can file request for judgement w/ interests

Question 42

Relief from sanctions?

Answer 42

• If the court imposes a sanction, it will take effect unless the party applies to obtain relief (i.e., to overturn the penalty)
• For costs orders - the party in default will have to appeal against the order
• For other sanctions (r 3.9(1)) - the court will consider all the circumstances of the case, including the need:
  o for litigation to be conducted efficiently and at proportionate cost; and
  o to enforce compliance with rules, practice directions and orders

The Denton Test: (^ summarised)
4. Is the breach serious or significant?
5. Was there good reason for the breach?
6. All the circumstances of the case

Question 43

Disclosure - rationale

Answer 43

• Purpose - to enable the parties to evaluate the strengths and weaknesses of their case in advance of the trial. This will assist them in making an informed decision about whether to pursue the matter or whether to seek an early settlement.
• Procedure - parties are required to reveal to each other any documents that have a bearing on the case, even if they are unhelpful to the party giving disclosure and which they would rather keep hidden.
  o Disclosure - completing a list of documents; governed by Part 31 CPR (applies to all claims except small track claims)
  o Inspection - after disclosure, the parties may inspect (read) some of the other party’s documents. This is to ensure they are not taken by surprise at the trial and that the court has all the relevant information to ensure justice is done.

Question 44

What are disclosure documents?

Answer 44

a party discloses a document by stating that it exists or has existed.
* Procedure - preparing and serving a list of documents on all the other parties.
Definition:
* Documents - anything in which information of any description is recorded
o includes written documents, audiotapes, videotapes, photographs, electronic documents (e.g., emails, word-processed documents, databases)

Question 45

Disclosure on small tracks claim

Answer 45

• General rule - each party shall, at least 24 days before the date of the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely at that hearing

Question 46

Disclosure on fast track

Answer 46

• Disclosure limited to what is necessary to deal with the case justly at proportionate cost
• Fast track: standard disclosure option, but court may disclose more limited approach such that no disclosure takes place or specify docs/classes of doc which parties much disclose.

Question 47

Disclosure on intermediate track

Answer 47

• to dispense with disclosure;
• disclosure of documents on which a party relies and, at the same time, a request for any specific disclosure it requires from any other party;
• disclosure on an issue-by-issue basis;
• disclosure of documents which it is reasonable to suppose may contain information which enables a party to advance its own case or to damage that of another party or which leads to an enquiry which has these consequences;
• standard disclosure.
• any other disclosure order considered appropriate.

Question 48

disclosure - multi-track

Answer 48

Although standard disclosure is usually ordered, the court may tailor the order to the
requirements of the particular case, taking account of the importance of the issues and the
complexity of the matter.

How do parties notify the court of their requirements for disclosure?
By compiling a disclosure report

When must this be filed and served?
Not less than 14 days before the first case management conference (CMC)

Next steps?
Not less than 7 days before the first CMC the parties must discuss and seek to agree a proposal for disclosure that meets the overriding objective. Any agreed proposal must be filed at court

What orders for disclosure can the court make?
An order for standard disclosure or any other order that the court considers appropriate

Examples?
An order:
- dispensing with disclosure;
- for specific disclosure;
- disclosure on an issue by basi

Question 49

Standard disclosure?

Answer 49

• requires a party to disclose:
• (a) the documents on which they rely; and
• (b) the documents which:
  o (i) adversely affect their own case;
  o (ii) adversely affect another party’s case; or
  o (iii) support another party’s case.
• ‘case’ - refers to issues in dispute, not ones that have already been agreed.

Question 50

Control of documents

Answer 50

• The duty to disclose is limited to documents in the party’s control (CPR, r 31.8).
• This means documents that:
  o either are or were in their physical possession;
  o they have a right to possess; or
  o they have a right to inspect.

Question 51

Search duty scope

Answer 51

• A party is required to make a reasonable and proportionate search for all documents that:
  o adversely affect their own case;
  o adversely affect another party’s case; and
  o support another party’s case.
• Documents on which the party intends to rely are not listed but, presumably, the party would look for these anyway as it is in their interests to do so.
• Reasonability depends on:
  o the number of documents involved;
  o the nature and complexity of the proceedings;
  o the ease and expense of retrieval of any particular document; and
  o the significance of the document.
• If a document is peripheral to the main issues and would be expensive to locate, it would not be reasonable to search for it.
• NB If the claim is of a high value, the search required is likely to be more extensive than for a low value claim.

Question 52

Limitations on searches

Answer 52

• A party may limit the extent of their search by:
  o not searching for documents that came into existence before a particular date; or
  o specifying a particular place or places they search; or
  o limiting the categories of documents.
• Any limitation would need to be justified.

sensible to agree limitations earlier in the proceedings, either when drafting the disclosure report or attending a directions hearing.

Question 53

electronic documents

Answer 53

o parties must discuss and (if possible) agree matters like -
 the categories of electronic documents to be disclosed
 how data will be exchanged
 the format for inspection
 any limitations (e.g, what keywords will be used)
o ^ must be done before directions are given for the conduct of the case
o the parties may use an electronic disclosure questionnaire for this purpose
* At the CMC, the parties will discuss disclosure and the court will then either:
o give written directions on how electronic disclosure will proceed; or
o order a separate hearing to deal with this aspect.

Question 54

List form N265 - contents

Answer 54

1. Formalities - the court, claim number, and parties will be set out in the top right-hand corner
2. Disclosure statement - party must sign to confirm the extent of the search made to locate any documents. They must also certify that they understand their duty of disclosure and that, to the best of their knowledge, the duty has been carried out.
3. legal representative cannot sign on behalf of client
4. where party is an LLP, partnership, company, or corporation - an individual in that organisation who was responsible for overseeing the disclosure process should sign
5. name, address, and office or position that the signatory holds should be included
6. if not ^, then include the basis upon which they have made the statement on behalf of the party.
7. if a party does not permit inspection of a category or class of documents because they consider it disproportionate to the issues in the case, they must explain their reasons on the disclosure statement
8. e.g., difficulty or expense that the search would have entailed; marginal relevance of the documents.
9. proceedings for contempt of court may be brought against anyone who makes a false disclosure statement without an honest belief in its truth.
10. duty of disclosure is a continuing duty - if, after signing the statement and at any time before proceedings are concluded, the party becomes aware of additional documents, they must prepare and serve a supplemental list
11. if they want to rely upon the ‘new’ document at trial and the opponent does not agree, they will need the court’s permission

Question 55

The list - part 1 - 3

Answer 55

1. Part 1 - documents that are within the party’s control and which they do not object to the other party inspecting.
2. usually numbered and listed in date order with a concise description
3. Part 2 - documents which are in the party’s control but where there is an objection to inspection
4. usually because they are privileged documents
5. Part 3 - documents that are not privileged from inspection but are no longer in the party’s control
6. must state what happened to the documents (e.g., lost or destroyed in fire)
7. most common scenario where this arises is in relation to correspondence –
    a copy of a letter retained by solicitors on their file would be disclosed in Part 1, and Part 3 might state: ‘The original of the letter from the claimant’s solicitors to the defendant dated 12 October 20XX which was last in the claimant’s control on the day it was posted.’
   * NB a party who fails to disclose a document may not rely on it at trial unless the court permits and, if such a document is harmful to their claim or defence, their case could even be struck out.

Question 56

Withholding inspection of documents?

Answer 56

• Documents which fall within the definition of legal professional privilege can be legitimately withheld.
• They must be disclosed in the list, however:
  o the other parties cannot inspect them; and
  o they are described generically
• cf Part 1 documents, which must be described precisely so the other party can identify what they are.

Question 57

Legal professional privilege?

Answer 57

1. Advice privilege:
2. Protects - solicitors, licensed conveyancers, legal executives, in-house lawyers, barristers and foreign lawyers. (but not ppl like accountants, etc)
3. Application - applies where the sole or dominant purpose of the communication is to seek or to give legal advice.
4. if the document has a dual purpose, the dominant one must be established.
    e.g., if found that the dominant purpose is to obtain commercial advice from a lawyer, the document is not privileged.
5. Litigation privilege:
6. The document must be a communication:
7. passing between the client or lawyer and to a third party;
8. which came into existence when litigation was contemplated or ongoing; and
9. which was produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or for obtaining evidence to be used in the litigation
10. Examples
     report from an expert obtained by a solicitor in order to advise their client on existing or contemplated proceedings
     witness statements obtained by a legal executive for the purpose of using as evidence.

Question 58

Advice v Litigation privilege

Answer 58

Type of privilege
Definition
Examples
Advice
Communications between a client and their lawyer prepared for the sole or dominant purpose of giving or receiving legal advice
- Letters or emails seeking or giving advice between solicitor and client

• Attendance notes of a meeting between solicitor and client
• Instructions to counsel and counsel’s advice
  Litigation
  Who?
  Communications passing between the client or the lawyer and a third party

Timing?
Provided they came into existence after litigation was contemplated or commenced

Purpose?
and where made for the sole or dominant purpose of obtaining advice for using as evidence in the litigation-
Who?
- Letters to a witness, proofs of evidence, and witness statements
- Instructions to an expert and their report

Timing?
- After the client makes an appointment with their lawyer to discuss proceedings
- After proceedings are issued

Purpose?
- an expert’s report to advise on whether a contract was breached
- an accountant’s report on the losses suffered
- the statement of a witness who saw the accident

Question 59

Right of inspection?

Answer 59

1. documents in Part 1 (documents that are within the party’s control and which they do not object to the other party inspecting)
   o NOT documents in Part 2 (because of LPP)
   o NOT those in Part 3 (because of no control)
   * Request to inspect:
   o must be made in writing;
   o must be granted within 7 days (though a longer period is often agreed between the parties)
   * Parties can request copies of the documents if they agree to pay reasonable copying costs (rather than travelling for a personal inspection

Question 60

Specific disclosure?

Answer 60

• Practice note - before applying to the court, the party should write to the other side first as this may lead to a quicker and cheaper resolution of the issue.
• If this fails, an application notice (Form N244) must be filed at court accompanied by a witness statement, and served on the opponent.
  Specific disclosure:
• If a disclosure appears inadequate, an application may be made for specific disclosure under r 31.12 CPR.
• The application can request an order that the party:
  o carry out a more extensive search; and
  o disclose any further documents located as a result of that search; or
  o disclose specific documents that the party would have expected to see.
• Witness statement - must accompany the application
  o should contain an explanation as to why the applicant believes the document exists
  o should justify the application
• In deciding whether or not to make the order for specific disclosure, the court takes into account all the circumstances of the case and, in particular, the overriding objective

Question 61

Disputing privilege?

Answer 61

• An application can be made to challenge a claim for privilege (r 31.19 CPR)
  o court may:
   require the party claiming privilege to produce the document
   invite any person (whether or not a party) to make representations
   determine whether it has been correctly categorised
   if not, the court will order that the document is to be revealed to the opponent
• NB the effectiveness of this option is limited by the broad nature of the claim for privilege and the general description in Part 2 of the list of documents, which makes it difficult for a party to evaluate whether privilege is being correctly claimed or not