Chapter 11: Disclosure and Inspection

• Disclosure


  Clearly identifying and informing the other side of the existence of a document, but not showing the document
• Inspection


  The separate but related process which enables the other side to view certain of the documents disclosed
• Duty to disclose


  • Continues throughout the case and terminates only on conclusion of the proceedings
  • Part of the 'cards on the table approach' encouraged by the CPR
  • Ensures each party knows the case it has to meet
• Documents that must be disclosed

  • Any document on which a party relies
  • Any document which adversely affects its case
  • Includes anything that has information recorded on it, including electronically stored information
• Standard disclosure


  1. Disclose any documents on which a party relies

  2. Disclose any documents that affect their case adversely

  3. Disclose any documents that affect the other party's case adversely

  4. Disclose any documents that support the other party's case
• A party need disclose only documents relevant to the issues in question, but the obligation for disclosure extends to any document within the party's control
• Duties of legal representatives

  • Advise clients of their disclosure obligations
  • Owe duties to the court and their opponent
  • Must cease to act for a client who is not prepared to comply
• Control of a document

  • Having physical possession
  • Having a right to possession, a right to inspect, or a right to take copies
  • Had the document in their possession but no longer have it
• Reasonable and proportionate search

  • What constitutes reasonable and proportionate depends on the nature of the case, its value, and its importance
  • The court will also bear in mind the ease of retrieval of documents and the costs involved
• Disclosure list


  1. List of documents in its control that they do not object to the other party inspecting

  2. List of documents in its control that they object to the other side inspecting, along with reasons for objecting

  3. List of documents that are no longer in its control, stating when they were last in their control and where they are now
• Disclosure statement


  • Details the extent of the search made
  • Certifies that the person signing the statement understands the duty to give disclosure and that they have carried out that duty, to the best of their knowledge
  • Declares that they believe that the extent of the search made is reasonable and explain why any particular search may not have been carried out
• Time limits for disclosure

  1. Standard directions usually allow 28 days from the date of the directions order for the parties to serve their lists of documents

  2. Inspection should take place within seven days
• Reasons not to disclose

  Public interest immunity, where it is in the public interest for a party not to disclose documents because they contain sensitive political or state information
• Options if a party is not content with disclosure

  1. Apply for specific disclosure

  2. Serve a Notice Admit Facts

  3. Apply for an unless order if the opponent continues to disregard their obligations

  4. Request for Information may be an alternative way of obtaining Information that may be missing from a party's disclosure list
• Automatic right to inspection

  Grounds for refusing inspection include privilege, the document is no longer in the party's control, and it would be disproportionate to allow inspection
• Redaction of documents


  Possible to blank out irrelevant and confidential information, for example, commercially sensitive information
• Disclosure in small claims cases

  Limited to such documents that the court considers necessary and proportionate to resolve the case
• Disclosure in multi-track cases

  1. Each party must prepare a disclosure report, which must be filed at least 14 days before the first Case Management Conference or otherwise with the Directions Questionnaire

  2. Parties are encouraged to try to agree the scope of the disclosure requirements in the case

  3. Disclosure required is similar to standard disclosure but with particular emphasis on how any electronic documents are stored and the estimated costs of giving standard disclosure
• Specific disclosure


  The court can make an order requiring a party to disclose or search for and disclose documents that it has a reason to believe may contain information which will assist the applicant's case or damage the respondent's case, or may lead to a train of enquiry which has either of these consequences
• Application for specific disclosure


  May arise if a party believes that another party's disclosure is inadequate, and normally takes place after standard disclosure has been provided
• First Case Management Conference or otherwise with the Directions Questionnaire


  1. Parties encouraged to try to agree the scope of the disclosure requirements in the case

  2. Disclosure required is similar to standard disclosure but with particular emphasis on how any electronic documents are stored and the estimated costs of giving standard disclosure, including the cost of searching for and disclosing any electronically held documents
• Specific disclosure


  The court can make an order for specific disclosure, requiring a party to disclose or search for and disclose documents that it has a reason to believe may contain information which will assist the applicant's case or damage the respondent's case, or may lead to a train of enquiry which has either of the consequences above
• Application for Specific Disclosure - Based on Inadequate Disclosure

  1. An application for specific disclosure may arise if a party believes that another party's disclosure is inadequate, normally after standard disclosure has taken place

  2. Disclosure may be inadequate if documents referred to in the Statement of Case or correspondence have not been disclosed, or the client or a witness might refer to a document or documents which do not appear
• Terms of the Order for Specific Disclosure

  1. Disclose certain documents or classes of documents specified in the order

  2. Prepare a supplemental list of documents

  3. Carry out a search to the extent specified in the order

  4. Disclose any documents located by the search
• Written Request for Documents before Specific Disclosure Application

  1. Description of the documents and the extent of the search sought

  2. Why it is reasonable and proportionate for the document to be disclosed, having regard to the overriding objective

  3. Explanation of how the documents are relevant to the matters in issue

  4. Grounds for believing that the documents are or have been in the other party's control

  5. What safeguards can be provided to ensure, for example, that trade secrets or other confidential information is not put at risk
• Pre-action disclosure


  Prior to issue of proceedings, an application for disclosure is usually available only against a person who is likely to become a party to the proceedings, except in certain cases involving freezing injunctions, search orders, applications for preservation of property, or requests for further information
• Privilege


  Entitles a party to withhold evidence from production to a third party, their opponent, or the court
• Types of privilege


  • Legal advice privilege
  • Litigation privilege
  • Common interest privilege
  • Without prejudice privilege
  • Public interest immunity
• Legal advice privilege


  Protects compulsory disclosure of all types of communication between a client and their lawyer in which advice is given (or requested) within a relevant legal context
• Litigation privilege


  Relates to communications with third parties (experts and barristers) relating to preparation of pending or contemplated litigation, where there must be a real likelihood of litigation
• If a document has multiple purposes, it will be privileged only if a court decides its dominant purpose is to prepare for litigation
• The burden of proof rests with the party seeking to assert litigation privilege
• If the privilege holder wishes to use the privileged document at trial, it must be exchanged with the other side, at which point the privilege is lost
• Common interest privilege


  May apply when there are multiple defendants or group actions, where the parties have a common interest and exchange documents
• Without prejudice privilege


  Applies to communications and documents created during the course of an action with a view to achieving settlement, which cannot be referred to the court
• Public interest immunity


  A party may withhold disclosure of a document if disclosure may harm the nation or the administration of justice
• Loss of privilege


  The privilege may be waived by the client, such as by serving a copy of a privileged document on the other side
• If a party inadvertently allows a privileged document to be inspected, the party who has inspected it may use it (or its contents) only with the permission of the court
• Whether a document is privileged has no bearing on whether it should be disclosed - privileged documents are disclosed with a generic description in the disclosure list, but they may not be inspected
• Electronic disclosure


  Relevant documents include emails, electronically stored documents, information in databases, and deleted documents