Case Management and Disclosure (WS9)
Disclosing the existence of documents: The list
" A party discloses a document by stating that the document exists or has existed. " There are two possible ways of disclosing the existence of a document, namely by identifying either: o (a) the actual document itself; or o (b) the type of document. PART 1 of the list " In the first part of the list of documents, the actual documents are identified so that the other parties can decide whether or not they wish to inspect them. " Remember that these are documents in the party's control which he does not object to being inspected. PART 2 of the list " In the second part of the list of documents the party should disclose the type of documents for which he is claiming privilege from inspection, for example 'confidential correspondence between the claimant and his solicitors'; 'various experts' reports and witness statements', etc. It is quite proper to do this. " The existence of the document has been disclosed and so the duty to give disclosure is thereby discharged. However, the general description as to the type of document ensures that the contents are not indirectly revealed. The objections to inspection must then be stated. A legitimate ground must be claimed. " It is not a ground of objection that the document is adverse to the party's case or is confidential. " In practice, the most common objection is based on legal professional privilege. For advice privilege, the objection to inspection is that the documents are communications between the party and his solicitor that were created for the purpose of obtaining legal advice. " For litigation privilege, there are two key matters to include: o (i) when the document was created, and o (ii) why it was created. o An example might be: 'Expert's report obtained by the Claimant's solicitors when this litigation was pending for the sole purpose of having as evidence to be used in this litigation.' " If different grounds are relied on for different documents, they should be arranged and listed separately PART 3 of the list " In the third part of the list of documents the party must state the actual (non-privileged) documents that he once had, but no longer has, in his control. " This often comprises little more than the original letters, written by or on behalf of the party, copies of which have already been detailed in the first part of the list. In respect of each document it is necessary to state when it was last in the party's control and where it is now. The purpose is to enable the parties receiving the list to continue their investigations elsewhere. If they can locate the present whereabouts of the documents they may be able to obtain copies on an application for disclosure by a non-party " A template to help you draft a list of documents may be found at Appendix B(9).
Documents tending to incriminate the party who would produce them
" A party is entitled to claim privilege for documents that will tend to incriminate either him or his spouse. " This rule applies to criminal liability or penal proceedings under the law of any part of the UK. The details are beyond the scope of this book.
Disclosure of copies (r31.9)
" A party need not disclose more than one copy of a document unless the copy contains 'a modification, obliteration or other marking or feature' on which the party intends to rely, or which supports another party's case, or which could adversely affect his own or another party's case. " In that case, the copy document is treated as a separate document. " The most common example in practice of a document that has been modified, so creating another copy, is one where handwritten notes have been made on the original.
Failure to disclose (r31.21)
" A party who fails to disclose a document or fails to allow inspection of a document may not rely on that document at trial unless the court permits. " Note importantly, however, that a party who fails to disclose a document that harms his case may find that his case is struck out as a result of failure to comply with an order for specific disclosure " A party who fails to give disclosure properly may be penalised financially.
Challenging a claim to privilege (r31.19)
" A party who wishes to challenge his opponent's claim to privilege can apply for the court to decide whether the claim to privilege should be upheld. " In any case where there is a claim to privilege, the court may require the party claiming privilege to produce the document to the court and may invite any person, even if not a party, to make representation
Withholding inspection
" As we have already seen, a party can withhold the right to inspect a document that has been disclosed. " The usual reason for this is that a party claims that the documents are privileged from inspection. These privileged documents fall into three classes: o (a) documents protected by legal professional privilege; o (b) documents tending to incriminate the party producing them; o (c) documents privileged on the grounds of public policy.
Identify the issues in dispute
" As we have just seen, standard disclosure obligations require the parties to disclose the existence of documents that record information on which they intend to rely on, or which adversely affect or support another party's 'case'. " The 'case' should have been set out and defined by the statements of case. So the parties should focus on the issues in dispute and search for documents dealing with those issues. " In many cases both liability and quantum will be the legal issues in dispute. But costs will also normally be a live issue at trial, and so documents that record information concerning costs (such as Part 36 or other offers of settlement:) should be included as part of standard disclosure. " Do documents that only call into question the reliability or credit of a party or one of his witnesses adversely affect that party's own case or otherwise support his opponent's case? No - there is no obligation to disclose documents on matters that record information that would be used solely in cross-examination as to credit: Favor Easy Management Ltd v Wu [2010]
Continuing obligation (r31.11)
" Disclosure is an obligation that continues until the proceedings are concluded. " If documents to which the duty of disclosure extends come to a party's notice at any time during the proceedings, even though the party has already supplied a list of documents, he must immediately notify every other party. " If a document is found after a party's list of documents has been served and it satisfies the test in r 31.6, notice should be given by way of letter or a supplemental list. " If the party wishes to rely on the document at trial, either the opponent will have to agree or a successful application made to the court for permission to do so. " Even if permission is given, the opponent may still argue at trial that little weight should be attached to the evidence. Late disclosure of an important document can be highly damaging to a case.
Disclosure report
" For all multi-track claims which do not include a claim for personal injuries, r 31.5(3) requires the parties to file and serve a disclosure report not less than 14 days before the first case management conference. " The report should be in Form N263 (a copy is at Appendix A(11)). " The report should: o (a) describe what documents exist or may exist that are or may be relevant to the matters in issue in the case; o (b) describe where and with whom those documents are or may be located; o (c) describe how any electronic documents are stored; o (d) include an estimate of the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents. The basis on which the estimate is given should be set out; o (e) state what disclosure directions are sought o (f) be verified by a statement of truth. On the form this reads: 'I believe that the facts stated in this Disclosure Report are true.' The form provides that it can be signed by the party or his legal representative.
Applying for specific disclosure (r31.12)
" If a party is dissatisfied with disclosure provided by the other party and believes it is inadequate, he may make an application for an order for specific disclosure. " The application notice must specify the order the applicant wants the court to make, and the grounds of the application must be set out in the application notice or in the supporting evidence. o For example, in a claim arising out of the supply of allegedly defective goods sold by the defendant to the claimant, the claimant may suspect that the defendant should have quality control records. If these have not been disclosed then an application for specific disclosure may be justified. " Before making such an application, a party should write to the other side explaining why he believes the documents are disclosable and asking the other party to comply properly with the order for disclosure. If a satisfactory response is not forthcoming then it would be appropriate to issue the application. " An application will require a witness statement in support. This should detail the date of the order for standard disclosure and the document or documents that the applicant believes should have been included in the list. If it is not obvious, the witness statement should explain how these documents satisfy the definition of standard disclosure and why the applicant believes they exist. A reference to the request for the documents and the respondent's response should be made to show that the applicant has complied with the overriding objective by trying to avoid making an application. " An order for specific disclosure may require a party to: o (a) disclose specified documents or classes of documents; o (b) carry out a search as specified by the order and disclose any documents located as a result of that search. " When deciding whether to make an order for specific disclosure, the court will take into account all the circumstances of the case and, if satisfied that the respondent has failed adequately to comply with the obligations imposed by the order for disclosure, will usually make such order as is necessary to make sure those obligations are adequately complied with. " For example, the order will often be made in the form of an 'unless' order. " The applicant would also seek an order that the respondent pay the applicant's costs. " A party can also apply for an order for specific inspection, which would require a party to permit inspection of documents which he omitted from his disclosure statement on the grounds that inspection would be disproportionate
Documents privileged on the ground of public policy
" If producing a copy of a document would be injurious to the public interest, it may be withheld on the ground of public policy. " The judge has to consider whether the withholding of the documents is necessary for the proper functioning of the public service. " Examples of documents which have been withheld from production on this ground are documents dealing with matters of national defence, information as to ill-treatment of children given to the NSPCC, local authority social work records, probation service records, and evidence which might reveal the identity of a police informant.
Meeting the overriding objective
" Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective. " The court will seek to tailor the order for disclosure to the requirements of the particular case. The financial position and views of the parties, the importance of the case and the complexity of the issues will be taken into account when considering what order to make.
Solicitors' duties
" Practice Direction 31A, at para 4.4, also states that 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 " A solicitor therefore is under a clear duty to advise his client as to the requirements of disclosure. The solicitor must ensure as far as possible that all documents which have to be disclosed are preserved and made available for inspection. This is obviously something a solicitor must explain to the client on receiving instructions. It is best practice to confirm that advice in writing.
The Right of Inspection (r 31.3)
" Rule 31.3(1) gives a party a right of inspection of a disclosed document, except where: o (a) the document is no longer in the control of the party who disclosed it; o (b) the party disclosing the document has a right or a duty to withhold inspection of it; or o (c) a party considers it would be disproportionate to the issues in the case to permit inspection of documents within a category and states in his disclosure statement) that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. " By r 31.15, where a party has a right to inspect a document, that party wishing to inspect must give written notice of his wish to inspect, and the party who disclosed the document must permit inspection not more than seven days after the date on which he received the notice. " Rather than going to inspect the documents personally, a party may also request a copy of the document, provided the party also undertakes to pay reasonable copying costs. In this case, the party who disclosed the document must supply him with a copy not more than seven days after the date on which he received the request
Standard Disclosure (r31.6)
" Standard disclosure is defined in r 31.6 and requires a party to disclose only: o (a) the documents on which he relies; and o (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 o (c) the documents which he is required to disclose by a relevant practice direction. [At the time of writing, there are none.]
Disclosure obligations and solicitors' duties (CONDUCT)
" The SRA Code of Conduct 2011, Outcome 5.1, provides that a solicitor must never deceive or knowingly mislead the court. " This duty might be broken if a solicitor does not promptly disclose a document that he becomes aware of during the course of a case, which should have been, but was not, disclosed. Obviously, this situation may arise after the client's list of documents has been served. The solicitor needs to advise the client to disclose it and determine how the document should be disclosed. A supplemental list is probably appropriate. If the document is privileged from inspection, it should be listed in the second part of the list. If it is not privileged from inspection, it should be listed in the first part, and, of course, the opponent may then wish to inspect it. " If a client refuses to allow disclosure, the solicitor should withdraw from the case. In order to keep client confidentiality (see Outcome 4), the solicitor should not inform any other party (or the court) of the reasons for ceasing to act. " A solicitor must ensure that his client understands the duties to conduct a reasonable and proper search and then give full and frank disclosure. The client must also appreciate that disclosure is an ongoing obligation. Moreover, the client should sign the disclosure statement only after receiving legal advice. Remember, that statement includes the following: I certify that I understand the duty of disclosure and that to the best of my knowledge I have carried out that duty. I further certify that the list of documents set out in or attached to this form, is a complete list of all documents which are or have been in my control and which I am obliged under the order to disclose. I understand that I must inform the court and the other parties immediately if any further document required to be disclosed by Rule 31.6 comes into my control at any time before conclusion of the case. " So during the first three Stages of Civil Litigation the client must be made aware of the extent of his disclosure obligations and the importance of not destroying documents that might have to be disclosed. A solicitor should advise a client that if he destroys disclosable documents deliberately and contumaciously, or such that a fair trial is rendered impossible, his statement of case is likely to be struck out.
Control of documents
" The duty of disclosure is limited to documents that are or have been in a party's control (see r 31.8). This means that: o (a) the document is or was in his physical possession; or o (b) he has or has had a right to possession of it; or o (c) he has or has had a right to inspect or take copies of it. " Documents held by a party's agent would therefore be within that party's control. " Note that it is open to the parties to agree in writing to dispense with or limit standard disclosure, but this is not common. Any difficulties in giving disclosure, etc, should be raised at the first opportunity, eg at a case management conference " Remember that a document is anything in which information is recorded. " You are not concerned at this stage about what use, if any, your client or opponent might make of any particular document at trial. Your task is to scrutinise the contents of documents to see if any fall within the r 31.6 definition.
Waiver of privilege
" The privilege is the client's and not the solicitor's, and therefore it may be waived by the client. Once a copy of a privileged document is served on the other side, the privilege is waived. " Note that subsequent to disclosure and inspection, each party is required by the court to serve on the other(s) copies of the witness statements and expert reports upon which he intends to rely at trial. This waives the privilege in these documents, unless it had been waived earlier. " Special considerations apply to the written instructions given by a solicitor to an expert whose report is relied upon at trial
Subsequent use of disclosed documents (r31.22)
" Where a document has been disclosed to a party, he may use that document only for the purposes of the case in which it has been disclosed unless: o (a) the document has been read or referred to during a public hearing (eg, at trial); or o (b) the court grants permission; or o (c) the party who disclosed the document and the person to whom the document belongs consent. " Where (a) applies, the court may make an order restricting or prohibiting the use of the document.
Procedure for standard disclosure
" Where an order for standard disclosure has been made, each party must make and serve a list of documents using Practice Form N265 (a copy of which appears in the case study at Appendix D(10)), which must identify the documents in a convenient order and manner and as concisely as possible. " Practice Direction 31A, at para 3.2, states that it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (eg, letter, claimant to defendant). It also suggests that 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. The list is in three parts on the final page: 1. The FIRST PART of the list sets out the documents within the party's control and which he does not object to the other party inspecting. 2.The SECOND PART of the list sets out other documents of which the party has control but where the party objects to the other party inspecting them. The most common reason for objection is that the party claims privilege from inspection in relation to those documents 3.The THIRD PART of the list consists of documents which are not privileged from inspection but are no longer in the party's control. The list must state what has happened to these documents.
Non-party disclosure (31.17)
" Where proceedings have commenced, a party to the proceedings can apply for disclosure against a non-party. " This procedure enables a party to proceedings that are already in existence to obtain disclosure of documents from a non-party if it is going to help resolve the issues in the case. " The most common application of this procedure would be where a party indicates in his list of documents that he no longer has a document in his possession. He also indicates that X now has possession of that document. The other party may then write to X asking for a copy of the document. If X refuses to supply that copy voluntarily, the other party could then apply for an order for non-party disclosure against X. " The application must be supported by evidence. " The court may order non-party disclosure only if: o (a) the documents in question are likely to support the applicant's case or adversely affect the case of another party; and o (b) disclosure is necessary to dispose fairly of the case or to save costs. " The order must: o (a) specify the documents or classes of documents to be disclosed; and o (b) require the non-party to specify which documents are no longer in his control and which are privileged. " The order may specify a time and place for disclosure and inspection, and may require the non-party to indicate what has happened to the documents no longer in his control.
Disclosure before proceedings start (r31.16)
" a party may make an application for pre-action disclosure. " This procedure will normally be used where a party is unsure whether he has a good case against another party, and therefore does not know whether to issue proceedings. The party could apply for pre-action disclosure against the intended defendant so that he can then make an informed decision as to whether or not to issue proceedings against that person.
Without prejudice correspondence
" without prejudice correspondence will record information as part of a party's genuine attempt to settle a case. " The correspondence will probably therefore satisfy the r 31.6 definition, as it is likely to set out the strengths of a party's case, and indeed may contain concessions that are adverse to that case and support the opponent. " You should remember that it is irrelevant to standard disclosure that the recipient of a document has already seen it. " So without prejudice correspondence, just like the other common correspondence between parties that meets the r31.6 test, should be disclosed and no privilege from inspection claimed. This is because when the letters were being drafted by a solicitor and before being sent to the other party, the letters were privileged from inspection; but the privilege was waived by sending them to the other side. NOT ADMISSABLE " The fact that a party does not claim privilege from inspection of without prejudice correspondence does not make it admissible. As explained all negotiations generally aimed at a settlement are excluded from being given in evidence. " The only time privilege from inspection is relevant to without prejudice correspondence is in multi-party litigation where not all the parties are involved in that correspondence.
Legal professional privilege
1. Communications passing between a party and his legal advisers or between a party's legal advisers ('ADVICE PRIVILEGE') " Letters and other communications passing between a party and his solicitor are privileged from inspection provided they are written by or to the solicitor in his professional capacity and for the purpose of obtaining legal advice or assistance for the client. " 'Legal advice' is not confined to telling the client the law; it includes information passed by solicitor to client, or vice versa, so that advice may be sought and given, and it includes advice about what should prudently and sensibly be done in the relevant legal context. " Privilege, however, does not extend without limit to all solicitor/client communications. " The privilege extends to communications between a party and his solicitor's employee or agent, and also to communications between a party and a solicitor in his service, for example a solicitor to a government department or in a legal department of a commercial enterprise. " The underlying purpose of legal professional advice privilege is to allow free access to the legal profession So, in this context, solicitors, in-house solicitors, barristers and foreign lawyers are included. " The privilege therefore also covers instructions and briefs to counsel, counsel's opinions, and counsel's drafts and notes. However, the privilege does not apply to an accountant who gives legal advice (R (on the application of Prudential Plc) v Special Commissioner of Income Tax [2013] UKSC 1) 2. Communications passing between the solicitor and a third party ('LITIGATION PRIVILEGE') " Communications passing between the solicitor and a third party are privileged from inspection only if: o (a) they come into existence after litigation is contemplated or commenced; and o (b) they are made with a view to the litigation, either for the sole or dominant purpose of obtaining or giving advice in regard to it, or for obtaining evidence to be used in it. " Examples of documents that may come within this head of privilege are a report from an expert obtained by a solicitor with a view to advising his client about existing or contemplated litigation, or witness statements obtained by a solicitor for the purpose of existing or contemplated litigation. 3. Communications between the client and a third party ('LITIGATION PRIVILEGE') " Documents that have passed between the client and a third party are privileged if the sole or dominant purpose for which they were produced was to obtain legal advice in respect of existing or contemplated litigation, or to conduct, or aid in the conduct of, such litigation, usually to have as evidence. " It must be the case that litigation was reasonably in prospect at the time when the document was created, and that the sole or dominant reason for obtaining the document was either to enable solicitors to advise as to whether a claim should be made or resisted, or to have as evidence. " In order to determine whether the document is privileged, one must look at the dominant purpose at the time when it came into existence. So if a client asks an expert to prepare a report, it is the client's intention that is relevant. If the document is subsequently used by solicitors for the purposes of litigation, that will not mean that it is privileged if the original purpose of the document was something different. " See example p182 " Where a client is not an individual, this form of privilege is also applied to communications between individuals within that organisation.
Outcomes
1. Draft a case summary. 2. Draft a Directions Order in a multi-track claim. 3. Draft a List of Documents for standard disclosure. WS8: Apply knowledge of the relevant law and legal practice to advise a client on disclosure of documents.
The duty to search (r.31.7)
A reasonable and proportionate search " In order to give standard disclosure, a party must make a reasonable and proportionate search for all documents that could adversely affect his own or another party's case, or which support another party's case. " What is reasonable depends on: o (a) the number of documents involved; o (b) the nature and complexity of the proceedings; o (c) the ease and expense of retrieval of any particular document; and o (d) the significance of the document. Electronic documents " Practice Direction 31B sets out detailed provisions for the disclosure of electronic documents where the case has been or is likely to be allocated to the multi-track. " The following general principles are prescribed by para 6: (p178) " It is crucial that the parties try to agree any limitations they intend to place on their reasonable search for electronic documents. " the parties must file a summary of the matters on which the parties agree and disagree in relation to the disclosure of electronic documents. The court will either give written directions or order a separate hearing in relation to electronic disclosure, and may direct the parties to complete and exchange the Questionnaire if they have not already done so. Putting limits on a search " If a party has limited the search for certain documents, he must state this in his disclosure statement. " Practice Direction 31A suggests, at para 2, for example, that it may 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.
The Disclosure statement
An individual must sign " A party is under an obligation to disclose documents that could be very detrimental to that party's chances of success, but which the other party does not know exist until disclosure. " It is, therefore, essential that parties comply fully and honestly with the requirements of disclosure. " Partly for that reason, the list of documents contains a disclosure statement (see r 31.10(5)). " This is a statement made by the party disclosing the documents: o (a) setting out the extent of the search that has been made to locate documents of which disclosure is required; o (b) certifying that he understands the duty to disclose documents; o (c) certifying that, to the best of his knowledge, he has carried out that duty. WHO SIGNS? " 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, the office or position he holds, and explain why he is considered the appropriate person to make the statement. " In what circumstances can (and should) a solicitor sign a disclosure statement? Obviously if a firm of solicitors is itself a party to proceedings then, as a party, the solicitor in the firm who deals with disclosure should sign. " Otherwise, by r 31.10(9), a disclosure statement may be made by a person who is not a party only where this is permitted by a relevant Practice Direction. Contempt of court " 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. " The proceedings require the permission of the court unless they are brought by the Attorney-General (see Part 81).
Inadvertent disclosure of privileged documents (CONDUCT)
An obvious mistake " If privileged documents are mistakenly listed in part 1 of a party's list (instead of part 2), no harm is done if the error is spotted before the other side inspects the document since the list may be amended and re-served. " But what if inspection of privileged material is allowed inadvertently, for example where copies of privileged documents have been sent in error to the other side's solicitor? In IBM Corporation v Phoenix International (Computers) Ltd [1995], it was held: o (a) If it is obvious to the solicitor receiving the privileged document that a mistake has been made, the solicitor should return the document. There is no question of asking the client what should be done. Any breach of this obligation may see the court order that the solicitor can no longer act in the litigation. o In Ablitt v Mills & Reeve (solicitors) and Norwich Union (1995) (read files when box delivered) The claimant's application for an injunction restraining the solicitors' firm from acting for Norwich Union in the proceedings was granted. o (b) If it is not obvious to the solicitor receiving the privileged document that a mistake has been made, the receiving party may make use of the document in the litigation, but the disclosing party may obtain an injunction to prevent its use if it can persuade the court that it would have been obvious to a hypothetical reasonable solicitor that disclosure had occurred as the result of a mistake. In addition, the court may also order that the receiving party's solicitors can no longer act in the litigation. Relevant factors to consider when deciding whether or not an obvious mistake has been made include the nature of the document and the date it was created. Practical point " As we have just seen, if it is obvious to a solicitor receiving a document that it is privileged from inspection and that the disclosing party has made a mistake, the solicitor should return the document. " The answer is that in order to uphold the proper administration of justice and to act with integrity, the solicitor should stop reading the document once he realises it is privileged from inspection and an obvious mistake has been made. Further, whilst the solicitor has a duty of disclosure of relevant information to his client regardless of its source, that duty is subject to exceptions, and this is one of those exceptional circumstances. " Where it is not obvious to a solicitor receiving a document that it is privileged from inspection but the solicitor has any doubt, it is best practice to point out to the other side if and when reliance will be placed on the document in the litigation.
Disclosure checklist
Could involve: -Advising a client / supervisor: o Whether particular documents must be disclosed on the facts, by reference to the CPR o Whether inspection can be withheld, and why o How documents should actually be described in the disclosure list (including any claim to privilege) -Identifying and requesting missing disclosable documents from an opponent -Explaining at what point and how to make an application to court for specific disclosure
Disclosure and Inspection of Documents - CPR 1998, Part 31
Purpose of disclosure and inspection " The main purpose of the disclosure and inspection stage(s) of the litigation process are to enable the parties better to evaluate the strength of their opponent's case in advance of the trial. The parties have to reveal to each other the documents which have a bearing on the case. This is the disclosure stage. -It is usually done by each party providing the other with a list of their documents. The parties may then inspect, that is read, some of the other side's documents. -The process is intended to promote settlements and therefore a saving in costs. It ensures that the parties are not taken by surprise at the trial and that the court has all relevant information in order to do justice between the parties. However, inspection is subject to restrictions, and some documents may not have to be shown to the opponent " Disclosure is governed by Part 31 of CPR 1998, which applies to all claims save those allocated to the small claims track
OUTCOME: Apply knowledge of the relevant law and legal practice to advise a client on disclosure of documents.
SEE BELOW
Inspection of standard disclosure documents (WHAT TO LOOK FOR)
Scrutinise the opponent's list " What checks should you make when you receive an opponent's list of standard disclosure documents? " Start with the disclosure statement. None of this should come as a surprise if both parties have fully cooperated in setting the parameters of the reasonable search, especially for electronic documents. But always double-check the limitations imposed and ensure they are in line with any agreement reached or what you consider to be reasonable. " Before you look at Part 1 of your opponent's list, ask yourself, the client and any expert instructed on a disputed issue what you should expect to see in it. That way you may be able to spot any documents omitted from the list. Also, see if there are any unexpected documents. If your opponent has included a document and you do not know why, you will need to inspect it. Likewise, any document not already seen needs to be inspected. " Part 2 of your opponent's list is likely to be uncontroversial. Just check that each privilege has been properly claimed. " Part 3 will usually only refer to the originals of any copy documents listed in Part 1. But it is always worth checking just in case your opponent has listed something else here or omitted to include a document Inspection " When requesting inspection of Part 1 documents, consider carefully whether photocopies of paper documents will suffice or if the originals need to be seen. Disclosure of electronic documents should normally be given in the format in which the document was created and stored. " A key point to bear in mind is that a photocopy of a paper document will not necessarily reveal if another document was once attached to it by something like a paperclip or staple. Also, handwritten notes in the margins or on the back of a document can easily be overlooked in the photocopying process. Equally, when you do inspect, check that all relevant documents have been sent. For example, an e-mail may refer to an attachment, but have you received a copy of the attachment?
Disclosure on each track
Small claims track " The provisions for disclosure and inspection in Part 31 do not apply on the small claims track. " The usual direction on that track is that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert's report) on which he intends to rely at the hearing. Fast track " The norm is for the parties to give standard disclosure Multi track " For all multi-track claims which include a claim for personal injuries, the norm is for the parties to give standard disclosure
Definition of 'Disclosure' (r31.2) and 'Documents' (r31.4)
The meaning of 'disclosure' " 'Disclosure' is defined in r 31.2, which states: A party discloses a document by stating that the document exists or has existed. " This is done by preparing and serving a list of documents on every other party . What is a 'document' " 'Documents' are defined in r 31.4 as being anything in which information of any description is recorded. " 'Documents' therefore include written documents, audiotapes, videotapes and photographs. Electronic documents " Electronic documents, such as e-mails, word-processed documents and databases, are also documents. NOTE " The procedure has nothing to do with whether or not the document itself is admissible at trial. " It is also irrelevant whether or not a party would wish to rely on the document itself at trial. " Remember, it is what a document records that governs whether or not it will form part of disclosure
Disclosure directions
WHAT DISCLOSURE DIRECTIONS MIGHT BE SOUGHT? =Rule 31.5(7) gives the following 'menu' of options: o (a) an order dispensing with disclosure; o (b) an order that a party disclose the documents on which he relies, and at the same time request any specific disclosure he requires from any other party; o (c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis; o (d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance his own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; o (e) an order that a party give standard disclosure o (f ) any other order in relation to disclosure that the court considers appropriate. HOW MIGHT THE COURT ASSIST THE PARTIES OR IMPOSE DISCLOSURE OBLIGATIONS? " Rule 31.5(8) provides that the court may at any point give directions as to how disclosure is to be given, and in particular: o (a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents; o (b) whether lists of documents are required; o (c) how and when the disclosure statement is to be given; o (d) in what format documents are to be disclosed (and whether any identification is required); o (e) what is required in relation to documents that once existed but no longer exist; o (f ) and whether disclosure should take place in stages.
