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Flashcards in SGS 3 Deck (24):
1

Key CPR for Track Allocation

r 26.3: provisional allocation and directions questionnaire
r 26.5: Allocation
r 26.6: scope of each track
r 26.8: matters relevant to allocation
See LG 3 Notes and APA Civil Chapter 15

2

“Standard Disclosure” – What has to be disclosed?: Q 2(a)

Parties must disclose documents
that party relies upon
which adversely affect his own case
which adversely affect another party’s case
which support another party’s case
as required by any Practice Direction – PD 31B – electronic disclosure is the relevant one
See: r 31.6
See WB commentary paras 31.6.2-31.6.4 on the syllabus and the Note on Moodle

3

Question 2(b): disclosure statement

Who signs the list of documents?
The parties themselves - declaring that they have made all the necessary checks in the appropriate places for the documents
The parties complete and sign the disclosure statement r.31.10(6) PD 31 para 4
note: r.31.10(8) permits the parties to agree in writing to carry out disclosure without a list and without a disclosure statement, see WB para 31.10.10; they must lodge the agreement with the court, 31APD1.4
also note that the court may vary the procedure for standard disclosure generally: WB commentary 31.10.12

4

Disclosure statement

Note the extent of the declaration
The party is confirming:
the extent of the search made to locate documents which he/she is required to disclose
that he/she understands the duty of disclosure; and
has complied with the duty
r 31.10(6) and notes on the purpose at WB 31.10.5
Consequences of failure to disclose/permit inspection: r31.12
Consequences of false disclosure: r 31.23
Note also: under PD 31B (electronic documents disclosure), the electronic documents questionnaire must be verified by a statement of truth; it can be signed by C/D or someone duly authorised to sign it: PD 31B para 11

5

Question 2(c): specific disclosure, r.31.12

(ii) Procedure
Application Notice under Part 23
Application Notice must specify the terms of the order sought PD 31A para 5
set out documents or classes of documents for which disclosure sought WB para 31.12.1
be supported by evidence, which should include the grounds, if these are not in the Application Notice

6

Specific disclosure test:Q2(c)

(iii) Test:
all the circumstances of the case taken into account
in particular the overriding objective (r.1.1)
are documents necessary for the just disposal of the case?
has the D failed to comply with his obligation to disclose?
if so, court will usually make the order
Obligation under standard disclosure: documents: he relies on, adversely affect his case, or another’s case or support another’s case r.31.6 (and WB para 31.6.3)
Relevance/significance of the documents?
are the documents in the control of the D?
likelihood of existence of documents
expense/cost of searching
proportionality of search
court must balance one party’s right to a fair hearing (ECHR art 6) with the other party’s right to respect for private life (ECHR art 8) -
see PD31A para 5 (esp. 5.4) and WB commentary at 31.12.2

7

Overview of specific disclosure and/or specific inspection: r 31.12

Power: CPR r.31.12
Application under Part 23; notice must specify terms of the order sought (PD31A para 5.2)
Procedure PD 31A para 5
PD 31A para 5.4: matters the court will consider
Requirements of standard disclosure: r.31.6 (and see WB para 31.6.3)
See WB para 31.12.2

8

Standard disclosure

Defined in r 31.6
Standard disclosure is the default order for disclosure, where menu option disclosure does not apply (see below): r 31.5(1)(a)
But the court may dispense with or limit standard disclosure, in any event: r3.15(1)(b)
And the parties may agree to dispense with or limit standard disclosure: r3.15(1)(c)

9

Menu option disclosure: r.31.5(2)-(9)

This means that the court has a choice of what kind of disclosure to order
From the ‘menu’ at r.31.5(7)
It applies to all multi track cases
Except personal injury (pi) multi track cases
But ‘unless the court otherwise orders’,
r 31,5(2), means that the court may choose to direct menu option disclosure in a multi track pi case or in a fast track case

10

SAQ Practice – answers (a)

Standard disclosure
(0.5 marks)
Because this is a personal injury case and the starting position for disclosure in a pi case is standard disclosure/menu option disclosure is not the usual order in a personal injury case/this is a pi case which is on the multi track and this is the usual order for disclosure
(0.5 marks)
Total 1 mark

11

SAQ Practice – answers (b)

To carry out a reasonable search (1 mark)
Factors
Number/volume of documents (1 mark)
Nature/complexity of proceedings (1 mark)
Ease/expense of retrieval of documents (0.5 marks)
Importance/significance of any document likely to be located in the search (1 mark)
Proportionality/it must be a proportionate search (0.5 mark)

Total 3 marks max

12

SAQ Practice – answers (c)

Documents on which they rely; and
Documents which adversely affect their own case
Documents which adversely affect another party’s case
Documents which support another party’s case
Documents which they are required to disclose by a relevant PD
0.5 marks for each bullet point up to a maximum of 2 marks
Total 2 marks max

13

Overview of Pre-action disclosure r. 31.16 (statutory)

2 stage test:
Jurisdiction first
r.31.16(3) and
S 33(2) SCA 1981
Then should discretion be exercised?
See: LG 6 Notes
Note: Much of WB commentary at 31.16.4 has been overtaken by :
Smith v SS Energy & Climate Change [2014] 1 WLR 2283

14

Pre-action disclosure Test: 3(b)

First: r.31.16(3)
R (the hospital) likely to be a party to future proceedings
A (Michael Butler) likely to be a party to future proceedings
R would be required to disclose the documents sought under standard disclosure
It likely that the records are in the hospital’s possession, custody or power (s. 33(2) SCA 1981, WB para 31.16.3
the disclosure sought is desirable in order either to dispose fairly of the proposed proceedings, assist in resolving the dispute without proceedings or to save costs

15

Pre-action disclosure (2nd stage)

Stage 2: discretion
Degree to which documents are likely to support the proposed claim
Are they “train of enquiry documents”?
Consider merits: has A shown some reason to believe they have suffered a compensatable injury?
And: WB 31.6.4
Nature of injury or loss
How clear are the issues raise by the A
Nature of documents sought
Relevance of PAP inquiries
A’s ability to make case without this disclosure now
See: LGS 6 Notes (pre session folder, week 12)

16

Norwich Pharmacal Situation

CLAIMANT KNOWS THERE IS A GOOD CLAIM AGAINST
SOMEONE, BUT DOESN’T KNOW WHO IT IS.
FACILITATOR TO PROVIDE IDENTITY OF THE
DEFENDANT; see r 31.18 and WB commentary

Where C does not know the identity of the proposed D
C may apply against someone who has innocently become mixed up in the wrong doing
And who has facilitated it
For information as to the identity of the wrongdoer
So the proceedings may be brought against the proper D
The respondent to such an application is more than a mere witness
WB commentary paras on syllabus: WB 31.18.2 and 31.18.4-31.18.8

17

Disclosure against a non party under r 31.17

Disclosure against a non party is exceptional
Court must be satisfied:
The documents (or class of documents) exist
The documents would be disclosable under standard disclosure
Disclosure is necessary in order to dispose fairly of the claim/save costs
In Q 2, the issue is the existence of the documents, so the application should be against the D under r 31.12
In Qu 3, the hospital is likely to be a party to the claim, so the application is under r 31.16 
See WB para 31.17.1; LGS 6 notes
WB commentary paras on syllabus: 31.17.1, 31.17.2.1 and 31.17.3

18

Comparison of Norwich Pharmacal and Pre-action disclosure

NP:

C does not know identity of perpetrator
Against someone who has facilitated the wrong doing by getting mixed up in it
Seeks information about the identity of the D
No fault required on part of facilitator
Brought under inherent jurisdiction of the court


PAD:
Application against potential D
Who is likely to be a D in subsequent procs, and it is likely has documents in his possession
Seeks documents, which would be covered by standard disclosure
Against likely D
Jurisdiction in statute: s 33(2) SCA 1981

19

Legal Advice” Privilegeconfidential communicationsbetween a legal adviser and clientfor the purpose of giving/seeking legal advice

Client and legal advisor

20

“Litigation” Privilegeconfidential communications between legal adviser and a third partyfor the dominant purpose of conducting litigationat the time pending, or reasonably in prospect

Client - expert - legal advisor

21

‘Without prejudice’on a letter

The sender of the letter is asserting that the letter is not admissible in evidence because it is part of the negotiations
The negotiations (here, in the letter) must actually form part of negotiations (or other ADR) which constitute a genuine attempt to settle the dispute

22

How does without prejudice work?Notes from WB 31.3.40 (1)

The public policy is to encourage parties to settle rather than litigate*
Each party will be protected from embarrassment by any admissions or acknowledgements made during the negotiations
The protection extends to prevent negotiations from being disclosable to third parties *
* Rush v Tompkins [1989] AC 1280
If the letter is a mere assertion of someone’s rights, or arguing the case, it will not attract the privilege: Buckinghamshire CC v Moran [1989]

23

w/o prejudice notes…(2)

The use of ‘without prejudice’ is useful, but not a conclusive indicator
And omitting the words is not fatal: Chocoladefabiken v Nestle [1978]
There must be a sufficient proximity to the litigation: Barneston v Framlington Group [2007] 3 All ER 1054
So, the privilege can attach to pre litigation disputes
However, the without prejudice material will be admissible on the issue of whether or not an agreement was actually reached (ie where one party is disputing the settlement): Walker v Wilsher (1889)

24

w/o prejudice …(3)

Without prejudice communications can also be used to interpret the terms of a negotiated settlement, where those are part of the factual matrix or surrounding circumstances: Oceanbulk Shipping v TMT Asia Ltd [2011] 1 AC 662
Without prejudice privilege is effectively a joint privilege and cannot be waived by one party alone
If one party wishes to change the basis of the negotiations to an open negotiation, the burden is on that party to bring the change to the attention of the other party: Cheddar Valley Engineering v Chaddlewood Homes [1992]
The privilege will be lost if there is unambiguous impropriety and a very clear case of the privilege being abused
WB commentary para 31.3.40