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Flashcards in Week 8 material Deck (18):
1

Key rules for disclosure and inspection of documents (1)

Meaning of disclosure: r 31.2 … by stating that the document exists or has existed
Duty of disclosure: r. 31.8 documents which are or have been in his control
Standard disclosure: r. 31.6 (a) rely on, (b) adversely affect own case, adversely affect another’s case, support another’s case, (c) required by PD

2

Key rules …. (2)

Search duties: r 31.7 a reasonable search for documents in (b) or (c); factors for reasonableness: r 31.7(2)

Document: r 31.4 anything in which info is recorded; includes e documents: see PD 31B Disclosure of electronic documents

3

What actually happens? 2 stage process – disclosure and inspection

Disclosure by list of documents: r.31.10
Look at what it MUST include
Disclosure statement: r 31.10(6) and (7)
Right of inspection of any document disclosed, with exceptions: r 31.3
Except: no longer in party’s control, party has asserted a right (= privilege) or a duty (= PII) to withhold inspection: r. 31.3(1)
Or: where it is disproportionate to permit inspection of documents within a category or class: r.31.3(2)

4

The list of documents

See the Standard Disclosure List of documents form (N265) (also at Form 31.1 in APA Civil Procedure)

Note:
the limits on the search,
the description of the nature of the electronic search,
the limits on inspection of disproportionate documents
The 3 sections of the form - r.31.10(4)

5

The breadth of the obligations

See the breadth of the disclosure statement
Obligation of the party (not the solicitor)
Continuing obligation to disclose: r 31.11
Lawyer’s obligations to advise on preservation of documents, including e documents: PD 31B para 7
Consequences of non disclosure: may not rely on undisclosed documents without court’s permission: r 31.21

6

Menu option disclosure: r 31.5

Purpose: so that disclosure may be restricted further, in order to reduce costs WB 31.5.1
Applies:
most multi track (MT),
but not PI MT,
But court can opt in for fast track and PI cases
Court will order a disclosure report for the CMC: r 31.5(3) - filed and served not less than 14 days before CMC
Parties must seek to agree disclosure directions

7

The court’s choices: r.31.5(7)

Dispense with disclosure
Documents on which rely + request specific disclosure
On an issue by issue basis
Train of enquiry disclosure
Standard disclosure
Any order the court considers appropriate
Decision: based on OO, need to limit disclosure to what is necessary to deal with case justly , and costs budgets ( r.3.17 )

8

Notes on WB commentary paras 31.6.2 – 31.6.4

• Look at the statements of case, as the essential reference point to determine whether the documents adversely affect/support a party’s case (31.6.2 1st para and 31.6.3 last para)

• The rule does not use the word ‘relevance’
• So, it is not part of the test (it was under the RSC) 31.6.2
• A relevant document would only fall within disclosure if it also fell into r.31.6(a) or 31.6(b(i) and (ii) and (iii) (31.6.3)

9

• “train of enquiry” documents are not covered

• These are documents which may lead to the discovery of other documents supporting or adversely affecting either party (31.6.3)
• Though they may be potentially appropriate for disclosure where there are allegations of fraud, dishonesty or misrepresentation (so, an exception)

• Documents relevant to quantum are normally disclosable if quantum is in issue (31.6.4)

• Insurance documents are not normally relevant and so not disclosable
• But if the insurance position were an issue in the case, then they would be disclosable
• Eg UCTA 1977 claim (see 31.6.4 2nd para)

10

(a) How many tracks are there?

3: small claims, fast track, multi track

11

(b) What are the general financial limits for each track?

small claims: Under £10,000,
fast track: £10,000 to £25,000,
multi-track: over £25,000 and specialist courts

12

(c) List 3 matters the parties will need to consider in completing the directions questionnaire for this case – there are probably about 15 (see APA Civil Fig 15.1)

 Check that your solicitor has discussed settlement with the client
 If not, consider the issue of ADR and
 Whether a stay should be sought at this stage; if not, why not
 Whether the PD Pre-action Conduct and Protocols has been followed
 Whether your solicitors have considered with the other side –electronic disclosure
(PD31B)Whether it is likely they will reach agreement
 Whether your solicitors have prepared the disclosure report
 Whether they have attempted to agree directions with the other side
 Expert evidence:
o Account: whether seek to rely on this; is this evidence necessary
(reasonably required) and/or sufficient
o Technical expert: Is this necessary? Could Mr Mason give the
relevant evidence? Name of expert under consideration; single joint
expert?
o Costs of expert evidence
 Costs budget: Form H

13

(d) Where do you find the standard directions on the fast track?

PD 28 para 3.9

14

(d) What are they?
(re standard directions on fast track)

o Directions for filing and service of any further information required to clarify
either party’s case (RFI Part 18)
o Direct standard disclosure between the parties – 4 weeks
o Disclosure of WS by simultaneous exchange – 10 weeks
o Directions for a single joint expert, unless there is a good reason not to do so
o If not a SJE:
• Simultaneous disclosure of the experts reports – 14 weeks
• Direct a discussion between experts, if reports not agreed
o Pre trial check lists to be filed – 22 weeks
o Hearing (trial date/window) – 30 weeks
o (all times, from date of allocation notice)

15

Eighteen months ago, a train crash occurred when a train owned by Super Trains plc crashed into an empty, stationary train at Sleepy Halt Station. Super Trains were
also responsible for the maintenance of the rail track in that area at the time. Fred James was the driver of the train and suffered injuries as a result of the crash.
On the day of the accident, an initial report was prepared. Following receipt of this, Super Trains commissioned a full investigation report (‘the Full Report”) to establish
the cause of the accident, to ensure that the all the evidence was preserved and to provide information on how such an accident could be avoided in the future. The
Full Report was, in due course, sent to Super Trains’ solicitors. Fred James has started proceedings against Super Trains, claiming damages in excess of £50,000.
The case has been allocated to the multi-track. Super Trains’ solicitors now claim that the Full Report is privileged.
Answer the following questions:
(a) What type of direction for disclosure is likely to be made in this case?

ANSWER
(a)
 Standard disclosure (0.5 marks)
 Because this is a personal injury (pi) 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)

Why standard disclosure:
 the choice of answers here is between standard disclosure (under r31.6) and menu option disclosure (ie under r 31.5(3) to (9))
 see r 31.5 and APA Civil 31.22-25
 This is because of the stage of the litigation in this case
 Here it is track allocation and an order for disclosure would follow next
 Had disclosure already taken place, specific disclosure would have been the right answer
 Specific disclosure under r31.12 is generally relevant after such disclosure as ordered by the court has taken place
 Read and analyse the facts carefully
 You need to know the steps in the litigation process IN ORDER to know what has already happened and what will happen next: see the flowchart at Fig 1.1,

Exam Tips
 Give a reason;
 if one mark is available, you are unlikely to get full marks if you give a one or 2 word answer
 When reading the question, ask yourself what stage the litigation has reached and what should already have happened and what should happen next

16

(b) What obligations do the parties have to search for documents that are or have been in their control? What factors are pertinent when deciding the extent of that search?

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 mark)
 significance/importance of any document likely to be located during the search (1 mark)
 proportionality/it must be a proportionate search (0.5 mark)
 Total 3 marks max

Tips
 Note that you cannot tell at (b) how many points you are required to make;
 make as many points that you are sure are right, bearing in mind how many marks are available;
 the fact that 3 marks are available for a relatively straightforward test, should alert you to the fact that you are being asked to provide significant detail.
 r 31.7

17

(c) How should the parties decide which of the documents in their control they are required to disclose?

(c) They should disclose:
 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
Tips
 Look carefully at what you are being asked at (c). This is asking you about the limits on the type of disclosure in this case. So, it is the same as the question in the SGS workbook at 2(a): “What categories of documents must
each party disclose under standard disclosure?”;
 Question (c) should also alert you to the fact that this is likely to be a standard disclosure case, since in menu option disclosure, the court could prescribe any type of disclosure.
 Always read the whole fact pattern and all of the parts of the question before starting to answer. You may need to think carefully about what the examiners are looking for. If you did not look ahead, it would be easy to be confused about the answers being sought for (b) and (c).
 r.31.6

18

(d) What types of communication attract legal professional privilege? How is it asserted? What test will the court apply in considering whether Super Trains
are right in asserting that the Full Report is privileged in this case?

(d)
Types of communication attracting legal professional privilege:
 Confidential communications between a lawyer and client for the purpose of giving or receiving legal advice, whether or not litigation is contemplated; known as legal advice privilege (1 mark)
 Confidential communications between a client or lawyer and a 3rd party where the dominant purpose is to use the document for the purpose of obtaining legal advice or to help in the conduct of litigation, which was reasonably in prospect/reasonably contemplated at the time; known as
litigation privilege (1 mark)

How is such privilege asserted?
 It is asserted by disclosing the existence of the document, but asserting the right or duty to withhold inspection of it. It will be listed in the 2nd section of
the list of documents. (1 mark)

Test here:
 Here: the court will apply the litigation privilege test (1 mark)

Are Super Trains right?
 The court needs to decide whether the dominant purpose of D at the time it obtained/commissioned the Full Report was to seek legal advice/legal help and whether at the time the litigation was reasonably
contemplated/reasonably in prospect (1 mark)
 There may be 2 purposes here; for the Full Report to be privileged, the court will need to determine that the dominant purpose was to obtain the report for the purpose of obtaining legal advice/ the purpose in relation to the cause and prevention of the accident was not an equal purpose or the dominant purpose (I mark)
 4 marks max
Tips
 Note how many marks for (d) and that you are asked several questions in this part.
 In (d) you are asked both general questions about the test and about application in this case.
 Continue to write in bullet points even when you are applying the test.