written exercise - q5 (doc preservation) Flashcards
disclosure general
what is disclosure?
identifying and making available docs relevant to issues in proceedings
must disclose docs that are currently or formerly in the party’s control that are supportive of and adverse to case
CPR 31 / PD57AD for BPC
document contains all forms on which info is recorded including metadata, edata, instant messages
business and property courts - pd57ad (but does not apply in county court or admin court)
bespoke approach to fit needs of individual case
less need for specific disclosure applications
duty of preser
duty of preservation (PD57AD) - should not do anything with the docs and accidentally change metadata
suspend deletion or destruction processes
issue document preservation notice
sent to current and former employees
where there is reasonable grounds to believe they may possess disclosable documents not also held by the party
need to identify docs or classes of docs that need to be preserved. recipient should not delete or destroy and take reasonable steps to preserve
documents held by agents and third parties
confirm compliance when serving PoC/Defence
lawyer duty re preservation
notify client of disclosure duties above (para 4.4(1))
ensure client returns countersigned copy of disclosure duties letter (para 4.4(2))
to liaise and cooperate with other party (3.2(3))
act honestly giving and reviewing disclosure (para 3.2(4))
both sets of duties arise as soon as party knows that it is, or may become, a party to proceedings that may or have been commenced
procedural steps in PD57ad
- preserve docs when claim arises
- give initial disclosure if required
- poc/defence
- state if extended disclosure is needed
- c serves completed DRD (table setting out each side’s position on issues for discl and which mdoel should apply to each issue)
- D serves alternative/proposed wording within 21 days
- provide opponent with completed DRD and opponent has 21 days to respond
- no later than 14 days before CMC, exchange drafts of DRD
- no later than 5 days before cmc, file DRD
- court orders extended discl at CMC
- when court orders, give extended discl
duty of disclosure / timing / docs - step 1 of flowchart
The Client’s Obligations: The Continuing Duty
Duty of disclosure continues until judgment or settlement.
Parties must notify all parties if new disclosable documents come to light after the initial exchange.
Data Protection Issues
Data protection requirements must be considered alongside the disclosure process.
Timing of Disclosure
Disclosure usually occurs after statements of case are served.
Pre-action disclosure and non-party disclosure are also possible.
“Document” Includes Electronic Documents
Definition of “document” includes electronic information, deleted data, and metadata.
The Scope of the Obligation: “Control”
Disclosure is limited to documents within a party’s control (physical possession, right to obtain, right to inspect).
The Reasonable Search
Parties must conduct a reasonable search for documents, considering factors like the number of documents, complexity, and cost.
Disclosure of Multiple Copies
Copies must be disclosed if they contain annotations or amendments.
docs that are relevant to disclosure
docs that adversely affect client’s case, opponent’s case / support your case/opponent’s case
arb process to disclosure
In arbitration, the process similar to disclosure in litigation is often referred to as “document production” or “discovery”. Here are the key points:
Terminology:
While “disclosure” is commonly used in litigation, arbitration typically uses terms like “document production” or “discovery.”
Rules and Guidelines:
The rules for document production in arbitration are usually set by the arbitration agreement, the rules of the chosen arbitration institution (e.g., ICC, LCIA), or the arbitral tribunal’s directions.
The IBA Rules on the Taking of Evidence in International Arbitration are often used as guidelines.
Scope and Relevance:
Parties are required to produce documents that are relevant and material to the outcome of the case.
The scope is generally narrower than in litigation to avoid excessive and burdensome requests.
Requests and Objections:
Parties submit requests for specific documents or categories of documents.
The opposing party can object to requests on grounds such as irrelevance, privilege, or excessive burden.
Tribunal’s Role:
The arbitral tribunal decides on the scope of document production and resolves disputes over requests and objections.
The tribunal may order the production of specific documents or categories of documents.
Confidentiality:
Document production in arbitration is typically confidential, and parties are expected to maintain the confidentiality of the documents produced.
case law on discl confidential info
In Bank of England v Treasury Solicitor [2025] EWHC 488 (KB), the High Court set aside an order requiring the Bank of England to disclose confidential documents pursuant to a letter of request issued by the Commercial Court of Kyiv under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters on the basis that disclosure of the requested documents was prohibited by primary legislation.
clarke v guardian
distinction between lit priv and document preservation test
lit priv = reasonably in prospect i.e. doesnt have to be 50%
preservation = litigation in contemplation / reasonable in contemplation
but in this case both parties relied on reasonable contemplation wording
3.4(2) - power to strike out where dont obey PD
PD31b para 7 requires you to notify clients of doc pres obl when lit in contemp
strike out is two part test: both on the grounds that the defendant has not perverted or attempted to pervert the course of justice, and because such limited pre-action deletion of documents as has occurred is not such as to preclude a fair trial of the claim
grounds for strike out
(2) The court may strike out(GL) a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.
n244 app for strike out
rights of inspection
cpr 31.3 - right to inspection unless
- document is no longer in control of party
- right to withold inspection
- disproportionate to disclose
legal advice privilege
- was communication confidential?
- was communication between client and lawyer?
- was communication for the dominant purpose of giving or receiving legal advice?
- has there been any waiver of privilege?l
litigation privilege
- was the communication confidential?
- was the communication between either the client and a third party or the client’s lawyer and a third party?
- was adversarial litigation taking place or contemplated at the time the communication was created?
- was communication for dominant purpose of giving or receiving legal advice?
- any waiver of privilege?
case law on deliberate destruction
- Active Media Service v Burmester - Court may infer that document destruction was deliberate
- Rebekah Vardy v Coleen Rooney – media files from Vardy and agent missing. She said the whatsapps wouldn’t upload and that the whatsapp conversations were lost because she accidentally dropped her phone while on a boat trip
- Judge found that it was likely that Ms Vardy had deliberately deleted her WhatsApp chat and that Ms Watt deliberately dropped her phone in the sea. She drew inferences that messages in the deleted WhatsApp thread would have shown that certain of Ms Rooney’s private Instagram posts had been disclosed by Ms Vardy or by Ms Watt to the tabloid press, which in turn would have supported the defence of truth that Ms Rooney ran.
