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Summary SGS 5 Civil Litigation LPC (Disclosure) Lecture, SGS and Solution Notes and Exam Structure (High Distinction)
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SGS 5- Civil: Disclosure and Inspection of documents and conduct issues for thisDisclosure CPR 31 and Inspection
What is disclosure?
Disclosure is the stage in the proceedings when parties must inform each other of the documents that they have
which are relevant to the claim as ordered by the court.
Formally stating to the other side that classes of documents do or have existed CPR 31.2
General rule is that a party must disclose documents that:
o It has under its control or
o that it intends to rely on or
o which adversely affects its own case
Purpose of disclosure
- To help clarify issues in dispute
- Enable parties to evaluate the strength of their case
- Encourage settlement
- Ensure the court has the facts to deal justly and appropriately with the case
E-Disclosure
- As soon as litigation is contemplated, practitioners should advise their clients to preserve an electronic documents
which may be materially relevant to any issue 31 PD 7.
- 31B PD 9 states the parties must discuss the disclosure of electronic documents before the first case management
conference.
- The Disclosure Report to be filed in advance of the case management conference provides that the parties should
describe how the electronic documents are stored, where, what is being stored and how it will be given.
Electronic Documents Questionnaire
Contains a comprehensive list of e-documents and e-disclosure.
If used, it should be filed with the disclosure report at court CPR 31.5(4).
Meaning of inspection
Even if a party discloses a document to notify the other party of its existence, the other party cannot inspect the document
if:
a) The document is no longer in the disclosing party’s control
b) If the document is privileged
c) If allowing inspection would be disproportionate
FULL TEST FOR DISCLOSURE AND INSPECTION
1
, SGS 5- Civil: Disclosure and Inspection of documents and conduct issues for this
Test for Disclosure
1. It must be a document Meaning of a document- CPR 31.4
- Anything which holds information.
- This includes e-documents too (31APD2A.1).
- STATE WHAT THE DOCUMENTS ARE AND WHO COMMUNICATIONS ARE
BETWEEN
IF 2 OR MORE DOCS DEAL WITH DISCLOSURE TOGETHER AND THEN SEPARATE
FOR INSPECTION.
2. It must be in your or Meaning of ‘in a party’s control’- CRP 31.8
your client’s control - Are of has the document been within a party’s control?
- The document is or was in physical possession of the party; or
- The party has or had a right to possession of the document; or
- The party has or had a right to take copies of the document
3. Does it fall within Standard disclosure is defined in CPR 31.6 as:
standard disclosure? a) A document which the party relies;
b) A document which
AND WHY? i. Adversely affects its own case,
ii. Adversely affects another party’s case,
AND MUST IT BE iii. Support another party’s case;
DISCLOSED? c) The document which it is required to disclose by a relevant practice direction
BE DESCRIPTIVE OF WHY IT ADVERSELY AFFECTS ITS OWN CASE OR
ANOTHERS CASE ETC
Must it be disclosed? Likely yes.
If the document contains irrelevant commercially sensitive information, this may be redacted
from the document. Therefore, the part to be redacted will not fall within CPR 31.6. This will
mean that the redacted parts will be in part 1 of the list and the unredacted will be in part 2.
(Note: A document does not need to satisfy all of the criteria a-c despite it saying ‘and’)
Apply the facts of the matter and say why… is it adverse, is the client relying on it and why?
Test for Inspection
- CONSIDER IF THE DOCUMENT HAS ALREADY BEEN WAIVED OR SUBMITTED OR
ACKNOWLEDGED
4. Can the document be - State which privilege applies (if any) AND FULLY STATE WHAT IT IS: DEFINE IT
withheld from - Apply the case law to the facts.
inspection? IE Does - LOOK BELOW AT THE PRIVILGE TABLE AND SEE IF THE DOCUMENT IS
privilege apply? PRIVLEGED.
- IF NOT COVERED BY ANY, STILL SAY WHAT PART OF LIST IT GOES IN.
AND WHY?
Draft particulars of claim may fall under litigation privilege.
Letter to settle may fall under without prejudice privilege
Board minutes may fall under legal advice privilege
5. Which section of the Disclosure by list CPR 31.10
List of Documents - Part 1 = I have control of the document. I do not object to you inspecting it/producing copies.
should the list be - Part 2 = I have control of the documents. But, I object to you inspecting them and here is why.
placed in on the - Part 3 = I have had the document. But, it is no longer in my control.
N265?
Redacted versions of documents would go in part 1 whereas the unredacted would go in part 2.
Type of Privilege and Relevant Caselaw Brief Summary
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