Inspection Flashcards
(39 cards)
A party has a right to inspect a document that has been disclosed, except where…
a) the document is no longer in the disclosing party’s control - CPR 31.3(1)(a)
b) allowing inspection would be disproportionate - CPR 31.3(2)
c) the disclosing party has a right or duty to withhold inspection, ie it’s privileged - CPR 31.3(1)(b)
The document is no longer in the disclosing party’s control
- Party A can’t let Party B look at a document which isn’t in its control
Allowing inspection would be disproportionate - if a party disclosing document’s thinks that it’s disproportionate to permit inspection of a certain category/class of documents, is it required to permit inspection?
No, but it must state in its disclosure statement (usually contained in the party’s list of documents) that inspection isn’t permitted and that allowing inspection would be disproportionate - CPR 31.3(2)
Is it rare for inspection to be disproportionate?
Yes - once a document has been found & disclosed it’s unlikely that the process of letting the other party see it/providing a copy would be disproportionate
Can inspection be refused on this ground where the reason for disclosure is that a party wishes to rely on the document, or that a practice direction requires disclosure?
No.
Does a document need to be produced if there’s a right/duty to withhold inspection?
No (known as privilege)
If a document falls within the scope of the order for disclosure made by the court and it’s privileged, does its existence need to be disclosed?
Yes its existence needs to be disclosed, it can only be withheld from inspection.
Are privileged documents listed individually?
No, they’re described generically in a party’s list of documents.
What are the most important types of privilege?
- legal advice privilege
- litigation privilege
- without prejudice communications
Which principles apply to all types of privilege?
- redaction
- waiver
What is meant by redaction?
Redaction means blanking out parts of a document (digitally or traditionally by covering them with paper before copying, or copying, covering with black pen, and copying again - making sure to preserve the original unmarked)
Does the CPR make provision for redaction?
No, but it’s accepted that redaction is possible in certain circumstances.
Why do clients sometimes wish to redact parts of documents that are going to be inspected (documents that aren’t privileged)?
Because they contain info which is confidential & commercially sensitive.
Is it generally permitted for a client to redact documents due to them containing info which is confidential & commercially sensitive?
No, confidentiality/commercial sensitivity alone doesn’t justify redaction.
What are the two main circumstances in which it may be possible to redact parts of a document?
1) If there’s a clear & distinct part of a document which does attract privilege, but the remainder doesn’t, the privileged part should be redacted (to avoid waiving privilege)
2) If the info is totally irrelevant to the dispute, it can be redacted - info which is confidential/commercially sensitive & irrelevant is generally redacted
Redaction - example
An accountant receives a letter of complaint from a customer. He phones his solicitor to take advice in relation to the complaint & makes a note of the advice on the letter from the customer - the letter as a whole isn’t privileged, inspection of it would be permitted, but the note of advice from the solicitor would be privileged - that note should be redacted at the time of inspection.
Are confidentiality & privilege the same thing?
No - many documents will be confidential but still not privileged.
Redaction (confidential/commercially sensitive & irrelevant) - example
There’s a dispute between a law firm & a recruiter about the terms of the contract between them. The recruiter is obliged to disclose & allow inspection of the correspondence it sent to the law firm. That correspondence also includes the addresses & personal details of work-seekers. That’s sensitive info & is entirely irrelevant to the dispute - can be redacted from the documents at time of inspection.
When it comes to listing redacted documents in a disclosure list, will the redacted version of the document be listed in the first or second part of the list of documents?
In the first part of the list of documents & will be made available for inspection with the appropriate parts covered over.
Where will the un-redacted version of the document generically be listed?
In the second part of the list of documents - inspection refused.
Is it possible for a party to deliberately allow inspection of a privilege document if it considers that the document helps its case?
Yes.
What is waiver of privilege?
When a party deliberately allows inspection of a privileged document if it considers the document helps its case.
Does a party have an unrestricted right to determine precisely what it wishes to waive privilege over?
No.
What will waiver of privilege in part of a wholly-privileged document lead to?
Waiver of privilege over the remainder of that document, unless it deals with entirely different subject matter - a party can’t cherry pick certain parts of a privileged document to reveal to the other side/the court (Great Atlantic Insurance v Home Insurance 1981)
