Chapter 11: Disclosure And Inspection Of Documents PDF

Disclosure and Inspection of Documents – CPR 1998, Part 31 195 CHAPTER 11 Disclosure and Inspection of Documents – CPR 1998, Part 31 11.1 Purpose of disclosure and inspection 195 11.2...

Disclosure and Inspection of Documents – CPR 1998, Part 31 195 CHAPTER 11 Disclosure and Inspection of Documents – CPR 1998, Part 31 11.1 Purpose of disclosure and inspection 195 11.2 Definition of ‘disclosure’ (r 31.2) and ‘documents’ (r 31.4) 196 11.3 Disclosure on each track 197 11.4 Standard disclosure (r 31.6) 198 11.5 Disclosure of copies (r 31.9) 200 11.6 The duty to search (r 31.7) 200 11.7 The right of inspection (r 31.3) 201 11.8 Procedure for standard disclosure 201 11.9 The disclosure statement 202 11.10 Continuing obligation (r 31.11) 203 11.11 Withholding inspection 203 11.12 Disclosing the existence of documents: the list 209 11.13 Failure to disclose (r 31.21) 210 11.14 Subsequent use of disclosed documents (r 31.22) 211 11.15 Applying for specific disclosure (r 31.12) 211 11.16 Disclosure before proceedings start (r 31.16) 212 11.17 Non-party disclosure (r 31.17) 212 11.18 Disclosure obligations and solicitors’ duties 212 11.19 Inspection of standard disclosure documents 213 LEARNING OUTCOMES After reading this chapter you will have learned: the role of disclosure and inspection how to carry out a search for documents what constitutes a claim for legal professional privilege the effect of inadvertent disclosure how to complete the prescribed form for giving standard disclosure what applications might be made for disclosure. 11.1 PURPOSE OF DISCLOSURE AND INSPECTION In plain language, litigation in this country is conducted ‘cards face up on the table’. Some people from other lands regard this as incomprehensible. ‘Why’, they ask, ‘should I be expected to provide my opponent with the means of defeating me?’ The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object. ( per Sir John Donaldson MR in Davies v Eli Lilly & Co 1 WLR 428) 196 Civil Litigation As we saw in Chapter 3, the pre-action protocols require the parties to prospective litigation to share information. However, there is no general obligation on a party to show their opponent the contents of documents, and in particular no requirement to show documents that are adverse to the party’s own position. A party may request that an opponent disclose documents that they would normally show during court proceedings, but the only way to compel that disclosure is by way of court order (see 3.9 and 11.16). Therefore, prior to a claim form being issued, the parties may to a large extent select those documents they wish to show and keep all the others hidden. The main purpose of disclosure and inspection is to enable the parties better to evaluate the strength of their opponent’s case in advance of the trial. The parties have to reveal to each other the documents which have a bearing on the case. This is the disclosure stage. It is usually done by each party providing the other with a list of their documents. The parties may then inspect, that is read, some of the other side’s documents. The process is intended to promote settlements and therefore a saving in costs. It ensures that the parties are not taken by surprise at the trial and that the court has all relevant information in order to do justice between the parties. However, inspection is subject to restrictions, and some documents may not have to be shown to the opponent (see 11.11). Disclosure is governed by Part 31 of CPR 1998, which applies to all claims save those allocated to the small claims track (see 9.6.1). 11.2 DEFINITION OF ‘DISCLOSURE’ (r 31.2) AND ‘DOCUMENTS’ (r 31.4) 11.2.1 The meaning of ‘disclosure’ ‘Disclosure’ is defined in r 31.2, which states: A party discloses a document by stating that the document exists or has existed. This is done by preparing and serving a list of documents on every other party (see 11.8). But before we consider how disclosure is given in civil litigation, let us briefly consider how a document can be described. This will then help you understand disclosure. There are two ways. Consider the book that you are now reading. I can describe the actual document to you, namely it is the ‘the Civil Litigation Textbook published by CLP’. Alternatively, I can just describe it generally as ‘a textbook’. However, either way, I have disclosed to you the existence of a document. In the first example you know precisely what document I am referring to; whilst in the second example you only know that it is some sort of textbook. Bear this in mind as you read the rest of this chapter. 11.2.2 What is a ‘document’ ‘Documents’ are defined in r 31.4 as being anything in which information of any description is recorded. ‘Documents’ therefore include written documents, audiotapes, videotapes and photographs. 11.2.2.1 Electronic documents Electronic documents, such as texts, e-mails, apps and the messages on them, word- processed documents and databases, are also documents. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition includes those documents that are stored on servers and back-up systems, and electronic documents that have been ‘deleted’. See further 11.6.2. 11.2.2.2 Information recorded in a document Whilst it is important to appreciate how wide the definition of a document is under the CPR 1998, it is crucial to your understanding of how to give disclosure that you spend some time with this definition. You should focus on three words, namely ‘information … is recorded’. It  Disclosure and Inspection of Documents – CPR 1998, Part 31 197 is the information recorded in a document that will determine whether or not it forms part of disclosure. The procedure has nothing to do with whether or not the document itself is admissible at trial. It is also irrelevant whether or not a party would wish to rely on the document itself at trial. Remember, it is what a document records that governs whether or not it will form part of disclosure. 11.3 DISCLOSURE ON EACH TRACK 11.3.1 Small claims track The provisions for disclosure and inspection in Part 31 do not apply on the small claims track. The usual direction on that track is that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely at the hearing. 11.3.2 Fast and intermediate tracks The norm is for the parties to give standard disclosure (see 11.4) but a ‘menu’ of options is available (see 9.6.2.2 and 11.3.3.3). 11.3.3 Multi-track For all multi-track claims that include a claim for personal injuries, the norm is for the parties to give standard disclosure (see 11.4). Note that proceedings in the Business and Property Courts are subject to their own separate disclosure regime in PD 57AD which is outside the scope of this book. 11.3.3.1 Disclosure report For all multi-track claims which do not include a claim for personal injuries, r 31.5(3) requires the parties to file and serve a disclosure report not less than 14 days before the first case management conference. The report should be in Form N263 (a copy is at Appendix A(11)). The report should: (a) describe what documents exist or may exist that are or may be relevant to the matters in issue in the case; (b) describe where and with whom those documents are or may be located; (c) describe how any electronic documents are stored; (d) include an estimate of the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents. The basis on which the estimate is given should be set out; (e) state what disclosure directions are sought (see 11.3.3.2); and (f ) be verified by a statement of truth. On the form this reads: ‘I believe that the facts stated in this Disclosure Report are true.’ The form provides that it can be signed by the party or their legal representative. 11.3.3.2 Meeting the overriding objective Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective. The court will seek to tailor the order for disclosure to the requirements of the particular case. The financial position and views of the parties, the importance of the case and the complexity of the issues will be taken into account when considering what order to make. 198 Civil Litigation 11.3.3.3 Disclosure directions As to (e), what directions might be sought? Rule 31.5(7) gives the following ‘menu’ of options: (a) an order dispensing with disclosure; (b) an order that a party disclose the documents on which they rely, and at the same time request any specific disclosure they require from any other party; (c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis; (d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance their own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; (e) an order that a party give standard disclosure (see 11.4); (f ) any other order in relation to disclosure that the court considers appropriate. How might the court assist the parties or impose disclosure obligations? Rule 31.5(8) provides that the court may at any point give directions as to how disclosure is to be given, and in particular: (a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents; (b) whether lists of documents are required; (c) how and when the disclosure statement is to be given; (d) in what format documents are to be disclosed (and whether any identification is required); (e) what is required in relation to documents that once existed but no longer exist; and (f ) whether disclosure should take place in stages. 11.4 STANDARD DISCLOSURE (r 31.6) Standard disclosure is defined in r 31.6 and requires a party to disclose only: (a) the documents on which he relies; and (b) the documents which— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case; and (c) the documents which he is required to disclose by a relevant practice direction. [At the time of writing, there are none.] It should not be difficult to identify information in a document on which the client relies, as most clients provide their solicitors with favourable documents from the outset of a case. But that is not always true, and a thorough search for documents – both favourable and unfavourable (wholly or in part) – should be made at Stage 1 (see Chapters 1 to 3). 11.4.1 Identify the issues in dispute As we have just seen, standard disclosure obligations require the parties to disclose the existence of documents that record information on which they intend to rely on, or which adversely affect or support another party’s ‘case’. So what is the ‘case’? Remember that we have just reached Stage 3 of Civil Litigation and are dealing with what is normally the first procedural step. At Stage 2 the ‘case’ should have been set out and defined by the statements of case (see 7.5.1). So the parties should focus on the issues in dispute and search for documents dealing with those issues and which affect the  Disclosure and Inspection of Documents – CPR 1998, Part 31 199 case ‘to a material extent’. See Depp v News Group Newspapers Ltd & Another EWHC 1689 (QB). Consider Example 2 at 7.5.1. The claimant should search for documents concerning the issues identified as being in dispute. There is no need to search for and disclose documents that record only information relating to agreed issues (see Example 1). For instance, there is no need to search for documents dealing with delivery of the Unit in June 2023 as this is not disputed. But as it is not admitted that the claimant installed the Unit in July 2023, documents that record information concerning that matter should be searched for and disclosed. In many cases both liability and quantum will be the legal issues in dispute. But costs will also normally be a live issue at trial, and so documents that record information concerning costs (such as Part 36 or other offers of settlement: see Chapter 13) should be included as part of standard disclosure. Do documents that only call into question the reliability or credit of a party or one of their witnesses adversely affect that party’s own case or otherwise support their opponent’s case? No – there is no obligation to disclose documents on matters that record information that would be used solely in cross-examination as to credit: Favor Easy Management Ltd v Wu EWCA Civ 1630. 11.4.2 Control of documents The duty of disclosure is limited to documents that are or have been in a party’s control (see r 31.8). This means that: (a) the document is or was in their physical possession; or (b) they have or have had a right to possession of it; or (c) they have or have had a right to inspect or take copies of it. Documents held by a party’s agent would therefore be within that party’s control. Note that it is open to the parties to agree in writing to dispense with or limit standard disclosure, but this is not common. Any difficulties in giving disclosure, etc, should be raised at the first opportunity, eg at a case management conference (see 9.6.3.2). 11.4.3 Practical point Remember that a document is anything in which information is recorded (see 11.2). You are not concerned at this stage about the admissibility of a document at trial nor what use, if any, your client or opponent might make of any particular document at trial. Your task is to scrutinise the contents of documents to see if any fall within the r 31.6 definition. CASE STUDY: RULE 31.6 DOCUMENTS Consider the case study in Appendix D. Assume that you act for the claimants. Is the letter before claim (Appendix D(2)) a r 31.6 document? By comparing para 3 of the particulars of claim with para 3 of the defence and counterclaim, we know that the defendant denies the legal issue of liability and the factual basis of the claim, ie the allegation in the letter that he ‘drove up the drive at excessive speed and without properly controlling the Car.’ So the letter before claim records information on which your clients rely. It is therefore a r 31.6 document. What about the particulars of claim and the defence and counterclaim (Appendix D(4) and (5))? Are these r 31.6 documents? The answer is yes. The particulars of claim record information on which your clients rely, ie the legal issues of liability and quantum and their factual bases in paras 3 and 4 respectively. The defence and counterclaim record information adverse to your clients’ case and supporting the defendant’s case; for example, as to liability, that the collision was caused or contributed to by your clients (para 4). Your clients have denied this in para 2 of the reply and defence to counterclaim (Appendix D(6)). So the reply and defence to counterclaim is also a r 31.6 document. 200 Civil Litigation 11.5 DISCLOSURE OF COPIES (r 31.9) A party need not disclose more than one copy of a document unless the copy contains ‘a modification, obliteration or other marking or feature’ on which the party intends to rely, or which supports another party’s case, or which could adversely affect their own or another party’s case. In that case, the copy document is treated as a separate document. The most common example in practice of a document that has been modified, so creating another copy, is one where handwritten notes have been made on the original. EXAMPLE A managing director of a company receives a letter before action. She forwards it to a colleague to get out any records that might still exist, having written on the letter, ‘I remember this person’s accident. It was the company’s fault but after all this time he probably can’t prove it.’ What this copy of the letter now records is adverse to the company’s case if it does go on to defend the claim. The handwritten note is a form of admission. So this will meet the r 31.6 definition (see 11.4) and that copy will be subject to standard disclosure. 11.6 THE DUTY TO SEARCH (r 31.7) 11.6.1 A reasonable search In order to give standard disclosure, a party must make a reasonable search for all documents that could adversely affect their own or another party’s case, or which support another party’s case. What is reasonable depends on: (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; and (d) the significance of the document. 11.6.2 Electronic documents Practice Direction 31B sets out detailed provisions for the disclosure of electronic documents where the case has been or is likely to be allocated to the multi-track. The following general principles are prescribed by para 6: (1) Electronic Documents should be managed efficiently in order to minimise the cost incurred; (2) technology should be used in order to ensure that document management activities are undertaken efficiently and effectively; (3) disclosure should be given in a manner which gives effect to the overriding objective; (4) Electronic Documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure; and (5) disclosure of Electronic Documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given. Before directions are given or any case management conference occurs, the parties should discuss and, if possible, agree such matters as the categories of electronic documents and where these are held; keywords; preservation of documents; exchange of data and the format for inspection. It is crucial that the parties try to agree any limitations they intend to place on their reasonable search for electronic documents. For example, a party identifies that 20 people were involved in the disputed issues in a case, but decides that only five played any significant role and might hold relevant data. The opposing party may well object to some or  Disclosure and Inspection of Documents – CPR 1998, Part 31 201 all of the other 15 people being excluded. Similarly, where one party proposes to conduct a search by certain keywords, the other side may wish to suggest additional keywords. A simple example is the spelling of the keyword itself. If relevant documents might have been created using both the American and English spelling of a keyword, both should be used. Keyword searches can be conducted with a high degree of sophistication, including use of ‘wildcards’ and ‘boolean operators’. Wildcards enable searches of words containing a variant of a keyword: thus “cat*” may bring up documents referring to ‘cats’, ‘category’ and ‘catechism’. Boolean operators enable the use of conjunctions (‘and’, ‘or’, ‘not’, etc) to combine or exclude keywords in a search (as observed by Smith J in Agents’ Mutual Ltd v Gascoigne Halman Ltd EWHC 3104 (Ch) at ). The Practice Direction includes an Electronic Disclosure Questionnaire that the parties can use, although this is not mandatory. When preparing for any case management conference, the parties must file a summary of the matters on which the parties agree and disagree in relation to the disclosure of electronic documents. The court will either give written directions or order a separate hearing in relation to electronic disclosure and may direct the parties to complete and exchange the Questionnaire if they have not already done so. 11.6.3 Putting limits on a search If a party has limited the search for certain documents, they must state this in their disclosure statement (see 11.9). Practice Direction 31A suggests, at para 2, for example, that it may be reasonable to decide not to search for documents coming into existence before some particular date, or to limit the search to documents in some particular place or places, or to documents falling into particular categories. 11.6.4 Practical point: anticipate any potential problems or disputes Before case management directions are given (see Chapter 9), and particularly prior to the first case management conference in a multi-track case (see 9.6.3.2), the parties should discuss any issues that may arise regarding searches for, and the preservation of, documents. 11.7 THE RIGHT OF INSPECTION (r 31.3) Rule 31.3(1) gives a party a right of inspection of a disclosed document, except where: (a) the document is no longer in the control of the party who disclosed it (see 11.4); (b) the party disclosing the document has a right or a duty to withhold inspection of it (see 11.11); or (c) a party considers it would be disproportionate to the issues in the case to permit inspection of documents within a category and states in their disclosure statement (see 11.9) that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate. By r 31.15, where a party has a right to inspect a document, that party wishing to inspect must give written notice of their wish to inspect, and the party who disclosed the document must permit inspection not more than seven days after the date on which they received the notice. Rather than going to inspect the documents personally, a party may also request a copy of the document, provided the party also undertakes to pay reasonable copying costs. In this case, the party who disclosed the document must supply a copy not more than seven days after the date on which they received the request. 11.8 PROCEDURE FOR STANDARD DISCLOSURE Where an order for standard disclosure has been made, each party must make and serve a list of documents using Practice Form N265 (a copy of which appears in the case study at Appendix D(10)), which must identify the documents in a convenient order and manner and 202 Civil Litigation as concisely as possible. Practice Direction 31A, at para 3.2, states that it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (eg, letter, claimant to defendant). It also suggests that where there is a large number of documents all falling into a particular category, the disclosing party may list those documents as a category rather than individually. The list is in three parts on the final page. The first part of the list sets out the documents within the party’s control and which they do not object to the other party inspecting. The second part of the list sets out other documents of which the party has control but where the party objects to the other party inspecting them. The most common reason for objection is that the party claims privilege from inspection in relation to those documents (see 11.11). The third part of the list consists of documents which are not privileged from inspection but are no longer in the party’s control. The list must state what has happened to these documents. See further 11.12. 11.9 THE DISCLOSURE STATEMENT 11.9.1 An individual must sign It will have been seen from the definition of standard disclosure at 11.4 that a party is under an obligation to disclose documents that might adversely affect their own case or support another party’s case. A party is therefore under an obligation to disclose documents that could be very detrimental to that party’s chances of success, but which the other party does not know exist until disclosure. It is, therefore, essential that parties comply fully and honestly with the requirements of disclosure. Partly for that reason, the list of documents contains a disclosure statement (see r 31.10(5)). This is a statement made by the party disclosing the documents: (a) setting out the extent of the search that has been made to locate documents of which disclosure is required; (b) certifying that they understand the duty to disclose documents; (c) certifying that, to the best of their knowledge, they have carried out that duty. Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also identify the person making the statement, the office or position they hold, and explain why they are considered the appropriate person to make the statement. In what circumstances can (and should) a solicitor sign a disclosure statement? Obviously if a firm of solicitors is itself a party to proceedings then, as a party, the solicitor in the firm who deals with disclosure should sign. Otherwise, by r 31.10(9), a disclosure statement may be made by a person who is not a party only where this is permitted by a relevant Practice Direction. The only provision in PD 31A is at para 4.7, which provides that ‘an insurer or the Motor Insurers’ Bureau may sign a disclosure statement on behalf of a party where the insurer or the Motor Insurers’ Bureau has a financial interest in the result of proceedings brought wholly or partially by or against that party’. However, remember that the different divisions of the High Court produce their own Court Guides (see 5.1), and these should be consulted for any variation of this general rule. 11.9.2 Contempt of court Proceedings for contempt of court may be brought against a person if they make, or cause to be made, a false disclosure statement without an honest belief in its truth. The proceedings require the permission of the court unless they are brought by the Attorney-General (see Part 81).  Disclosure and Inspection of Documents – CPR 1998, Part 31 203 11.9.3 Solicitors’ duties Practice Direction 31A, at para 4.4, also states that if the disclosing party has a legal representative acting for them, the legal representative must endeavour to ensure that the person making the disclosure statement understands the duty of disclosure (see further at 11.18). A solicitor therefore is under a clear duty to advise their client as to the requirements of disclosure. The solicitor must ensure as far as possible that all documents which have to be disclosed are preserved and made available for inspection. (See 11.18.) This is obviously something a solicitor must explain to the client on receiving instructions. It is best practice to confirm that advice in writing. 11.10 CONTINUING OBLIGATION (r 31.11) Disclosure is an obligation that continues until the proceedings are concluded. If documents to which the duty of disclosure extends come to a party’s notice at any time during the proceedings, even though the party has already supplied a list of documents, they must immediately notify every other party. If a document is found after a party’s list of documents has been served and it satisfies the test in r 31.6 (see 11.4), notice should be given by way of letter or a supplemental list. If the party wishes to rely on the document at trial, either the opponent will have to agree or a successful application made to the court for permission to do so (see 11.13). Even if permission is given, the opponent may still argue at trial that little weight should be attached to the evidence (see 12.9.3). Late disclosure of an important document can be highly damaging to a case. 11.11 WITHHOLDING INSPECTION As we have already seen, a party can withhold the right to inspect a document that has been disclosed. The usual reason for this is that a party claims that the documents are privileged from inspection. These privileged documents fall into three classes: (a) documents protected by legal professional privilege; (b) documents tending to incriminate the party producing them; (c) documents privileged on the grounds of public policy. 11.11.1 Legal professional privilege 11.11.1.1 Communications passing between a party and their legal advisers or between a party’s legal advisers (‘advice privilege’) Letters and other communications passing between a party and their solicitor are privileged from inspection provided they are written by or to the solicitor in their professional capacity and for the sole or dominant purpose of obtaining legal advice or assistance for the client (the so-called ‘dominant purpose test’ might otherwise be described as ‘mainly or predominantly’: see Civil Aviation Authority v R (on the application of Jet2.com Ltd) EWCA Civ 35, and also the case of Waugh at 11.11.1.3). ‘Legal advice’ is not confined to telling the client the law; it includes information passed by solicitor to client, or vice versa, so that advice may be sought and given, and it includes advice about what should prudently and sensibly be done in the relevant legal context. Let us briefly consider an example. In a conveyancing transaction the buyer’s solicitor sends a short letter, asking the client to make an appointment to see the solicitor to discuss the contract. The letter contains no legal advice. At that meeting, when legal advice is given, the client makes notes of what their solicitor says and the solicitor subsequently makes an attendance note of the legal advice given. Is the letter to the client, asking them to make an appointment, privileged from inspection? No, as legal advice is not given. However, unless the 204 Civil Litigation document meets the test in r 31.6 (see 11.4) it would not be disclosable. What about the client’s and the solicitor’s notes of the meeting? As these record legal advice given, they are privileged from inspection. Privilege, however, does not extend without limit to all solicitor/client communications. The range of assistance given by solicitors to their clients has greatly broadened in recent times; for example, many solicitors now provide investment advice to clients. The scope of legal professional privilege has to be kept within reasonable bounds (Three Rivers District Council and Others v Governor and Company of the Bank of England UKHL 48, 3 WLR 1274). The privilege extends to communications between a party and their solicitor’s employee or agent, and also to communications between a party and a solicitor in their service, for example a solicitor to a government department or in a legal department of a commercial enterprise. It also applies to communications from a solicitor to a third party containing information provided by the client to the solicitor which is covered by legal advice privilege and which the client has given the lawyer authority to disclose (Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd and Ashurst LLP EWCA Civ 11). The underlying purpose of legal professional advice privilege is to allow free access to the legal profession (see 11.11.1.4) So, in this context, solicitors, in-house solicitors, barristers and foreign lawyers are included. The privilege therefore also covers instructions and briefs to counsel, counsel’s opinions, and counsel’s drafts and notes. However, the privilege does not apply to an accountant who gives legal advice (R (on the application of Prudential Plc) v Special Commissioner of Income Tax UKSC 1). 11.11.1.2 Communications passing between the solicitor and a third party (‘litigation privilege’) Communications passing between the solicitor and a third party are privileged from inspection only if: (a) they come into existence after the litigation is contemplated or commenced; and (b) they are made with a view to the litigation, either for the sole or dominant purpose of obtaining or giving legal advice in regard to it, or to conduct, or aid in the conduct of, such litigation, usually to have as evidence. As to (a), how does the party claiming privilege establish that litigation was reasonably contemplated? It is not sufficient to show that there was a mere possibility of litigation, or that there was a distinct possibility that someone might at some stage bring proceedings, or a general apprehension of future litigation. Where litigation has not been commenced at the time of the communication, it has to be ‘reasonably in prospect’; this does not require the prospect of litigation to be greater than 50% but it must be more than a mere possibility. (per Eder J in Tchenguiz v Director of the SFO EWHC 2297 (QB) at [48(iii)]) As to (b), the party claiming privilege must show that the relevant communications were for the dominant purpose of either (i) enabling legal advice to be sought or given, and/or (ii) seeking or obtaining evidence or information to be used in or in connection with ongoing or reasonably contemplated proceedings. Where communications may have taken place for a number of purposes, it is incumbent on the party claiming privilege to establish that the dominant purpose was litigation. If there is another purpose of equal or more importance, this test will not be satisfied (Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA BCLC 583, 589–90 (cited in Tchenguiz above at –); West London Pipeline and Storage Ltd v Total UK Ltd 2 CLC 258 at ). Examples of documents that may come within this head of privilege are a report from an expert obtained by a solicitor solely for the purpose of advising the solicitor’s client about contemplated litigation, or witness statements obtained by a solicitor for the sole purpose as having as evidence in existing litigation.  Disclosure and Inspection of Documents – CPR 1998, Part 31 205 Does an AEI policy attract this privilege? Yes, the communications in the negotiation and drafting of the policy, as well as the final agreed policy, would have been brought into existence for the dominant purpose of conducting litigation and would reflect the legal advice given as to the prospects of success (see Arroyo v BP Exploration Co (Colombia) Ltd LTL, 4 June (QBD)). 11.11.1.3 Communications between the client and a third party (‘litigation privilege’) Documents that have passed between the client and a third party are privileged if the sole or dominant purpose for which they were produced was to obtain legal advice in respect of existing or contemplated litigation, or to conduct, or aid in the conduct of, such litigation, usually to have as evidence. It must be the case that litigation was reasonably in prospect at the time when the document was created, and that the sole or dominant reason for obtaining the document was either to enable solicitors to advise as to whether a claim should be made or resisted, or to have as evidence. When privilege is challenged, the burden of proof is on the party claiming privilege to establish that the dominant purpose test is satisfied. A mere claim in evidence before the court that the document was for a particular purpose will not be decisive (Neilson v Laugharne QB 736). The evidence in support of a claim for litigation privilege should normally be given by the individual responsible for the creation of the document. Their evidence should be specific enough to show something of their analysis of the purpose for which the document was created, and should refer to such contemporary material as it is possible to do without disclosing the privileged material (West London Pipeline and Storage Ltd v Total UK Ltd 2 CLC 258 at ). In order to determine whether the document is privileged, one must look at the dominant purpose at the time when it came into existence. So if a client asks an expert to prepare a report, it is the client’s intention at the time of instructing the expert that is relevant. If the document is subsequently handed by the client to their solicitor to be used by the solicitor for the purposes of litigation, that will not mean that it is privileged if the original purpose of the document was something different. CASE EXAMPLE In Waugh v British Railways Board AC 521, the claimant’s husband, an employee of the defendant Board, was killed in an accident while working on the railways. In accordance with the defendant’s usual practice, a report on the accident was prepared by two of its officers very shortly after the accident. Although the report was headed ‘For the information of the Board’s solicitor’, the defendant accepted that it had been prepared for two purposes. First, to establish the cause of the accident so that appropriate safety measures could be taken. Secondly, to enable the defendant’s solicitor to advise in the litigation that was almost certain to follow. Whilst the first purpose was more immediate than the second, the defendant stated that both were of equal importance. The House of Lords held that as preparing the report for use in anticipated litigation was merely one of the purposes and not the dominant purpose for which it was prepared, the report was not privileged from inspection. Where a client is not an individual, this form of privilege is also applied to communications between individuals within that organisation. Thus, a memorandum sent by one partner of a firm to another would be privileged if it was prepared for the dominant purpose of obtaining legal advice in respect of existing or contemplated litigation, or to aid the conduct of such litigation. Two cases illustrate the importance of ensuring that no documents are created internally by a company which could fall outside the scope of litigation privilege and become disclosable. In Director of the Serious Fraud Office v Eurasian Natural Resources Corporation (ENRC) Ltd EWCA 206 Civil Litigation Civ 2006, the Court of Appeal overturned the High Court decision concerning the extent to which litigation privilege could apply in internal investigations. ENRC successfully argued that documents prepared during internal investigations, both by its lawyers and a firm of forensic accountants, were protected by litigation privilege. The test for litigation privilege is whether, at the time a communication is made: (a) litigation, in the form of adversarial proceedings, is reasonably in contemplation; and (b) the communication is made for the dominant purpose of conducting that litigation. In the second case, WH Holding Ltd v E20 Stadium LLP (No 2) EWCA Civ 2652, the Court of Appeal considered whether privilege can be claimed over internal client communications that discussed a commercial proposal for settlement of the dispute. In its judgment at para 27, the Court provided the following guidance: i) Litigation privilege is engaged when litigation is in reasonable contemplation. ii) Once litigation privilege is engaged it covers communications between parties or their solicitors and third parties for the sole or dominant purpose of obtaining information or advice in connection with the conduct of the litigation … iii) Conducting the litigation includes deciding whether to litigate and also includes whether to settle the dispute giving rise to the litigation. iv) Documents in which such information or advice cannot be disentangled or which would otherwise reveal such information or advice are covered by the privilege. v) There is no separate head of privilege which covers internal communications falling outside the ambit of litigation privilege as described above. 11.11.1.4 Purpose of legal professional privilege Legal professional advice privilege is concerned with the fundamental human right to respect for private life guaranteed by Article 8 ECHR. In this context it means that a client should be able to consult their lawyer in confidence, knowing that whatever is said will not be revealed without the client’s agreement. So documents which record confidential communications between a client and their lawyer are privileged from inspection if the purpose of the communication was to give or receive legal advice. The same principle applies to legal professional litigation privilege. Its objective was described in the classic statement of Jessel MR in Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 649: The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule. 11.11.1.5 Waiver of privilege The privilege is the client’s and not the solicitor’s, and therefore it may be waived by the client. Once a copy of a privileged document is served on the other side, the privilege is waived. Note that subsequent to disclosure and inspection, each party is required by the court to serve on the other(s) copies of the witness statements and expert reports upon which they intend to rely at trial (see further Chapter 12). This waives the privilege in these documents unless it had been waived earlier.  Disclosure and Inspection of Documents – CPR 1998, Part 31 207 Special considerations apply to the written instructions given by a solicitor to an expert whose report is relied upon at trial (see 12.13.3). 11.11.2 Documents tending to incriminate the party who would produce them A party is entitled to claim privilege for documents that will tend to incriminate either themselves, their spouse or civil partner. This rule applies to criminal liability or penal proceedings under the law of any part of the UK. The details are beyond the scope of this book. 11.11.3 Documents privileged on the ground of public policy If producing a copy of a document would be injurious to the public interest, it may be withheld on the ground of public policy. The judge has to consider whether the withholding of the documents is necessary for the proper functioning of the public service. Examples of documents which have been withheld from production on this ground are documents dealing with matters of national defence, information as to ill-treatment of children given to the NSPCC, local authority social work records, probation service records, and evidence which might reveal the identity of a police informant. 11.11.4 Challenging a claim to privilege (r 31.19) A party who wishes to challenge their opponent’s claim to privilege can apply for the court to decide whether the claim to privilege should be upheld. In any case where there is a claim to privilege, the court may require the party claiming privilege to produce the document to the court and may invite any person, even if not a party, to make representations. See, for example, Atos Consulting Ltd v Avis plc (No 2) EWHC 323 (TCC). 11.11.5 Inadvertent disclosure of privileged documents 11.11.5.1 An obvious mistake If privileged documents are mistakenly listed in part 1 of a party’s list (instead of part 2), no harm is done if the error is spotted before the other side inspects the document since the list may be amended and re-served. But what if inspection of privileged material is allowed inadvertently, for example where copies of privileged documents have been sent in error to the other side’s solicitor? In IBM Corporation v Phoenix International (Computers) Ltd 1 All ER 413, it was held: (a) If it is obvious to the solicitor receiving the privileged document that a mistake has been made, the solicitor should return the document. There is no question of asking the client what should be done. Any breach of this obligation may see the court order that the solicitor can no longer act in the litigation. In Ablitt v Mills & Reeve (solicitors) and Norwich Union (1995) The Times, 25 October, the claimant was suing Norwich Union, which had instructed the firm of solicitors, Mills & Reeve. During the course of the litigation, seven lever-arch files in two large cardboard boxes were sent in error by a clerk in the claimant’s barrister’s chambers to the defendant firm of solicitors. The papers contained a great many documents attracting legal professional privilege, the contents of which were highly confidential to the claimant. They included, for example, advice from counsel in relation to the merits of the claimant’s claim, a 20-page advice on evidence, draft statements from over 20 possible witnesses – including expert witnesses – and a substantial quantity of privileged correspondence passing between solicitor and client and between solicitor and counsel. Whilst the defendant firm of solicitors recognised this was an obvious error, it still read the papers on its client’s instructions to do so. The claimant’s application for an injunction restraining the solicitors’ firm from acting for Norwich Union in the proceedings was granted. 208 Civil Litigation To my mind it offends elementary notions of fairness and justice if, by knowingly taking advantage of the mistaken delivery of [the claimant’s barrister’s papers], Norwich Union, although not itself told what those papers contained, can nevertheless continue to have the services in the action of those who, on its instructions, have read all of those papers and who, as a result, have a very accurate perception of just how those who act for the [claimant] view the merits of the [claimant’s] claim and of the steps, tactically and otherwise, which they are advising the [claimant] to take in the pursuit of his claim. (per Blackburne J) (b) If it is not obvious to the solicitor receiving the privileged document that a mistake has been made, the receiving party may make use of the document in the litigation, but the disclosing party may obtain an injunction to prevent its use if it can persuade the court that it would have been obvious to a hypothetical reasonable solicitor that disclosure had occurred as the result of a mistake. In addition, the court may also order that the receiving party’s solicitors can no longer act in the litigation. Relevant factors to consider when deciding whether or not an obvious mistake has been made include the nature of the document and the date it was created. 11.11.5.2 Practical point As we have just seen (at 11.11.5.1), if it is obvious to a solicitor receiving a document that it is privileged from inspection and that the disclosing party has made a mistake, the solicitor should return the document. Why? Because surely it will be in the best interests of the solicitor’s client to read the document if it appears to undermine the disclosing party’s case? And surely in those circumstances the solicitor will have a duty to pass that information on to their client as it may assist their client in the litigation? The answer is that in order to comply with the SRA Principles of upholding the proper administration of justice and acting with integrity, the solicitor should stop reading the document once they realise it is privileged from inspection and an obvious mistake has been made. Further, whilst the solicitor has a duty of disclosure of relevant information to their client regardless of its source, that duty is subject to exceptions, and this is one of those exceptional circumstances (see SRA Code of Conduct, para 6.4). Where it is not obvious to a solicitor receiving a document that it is privileged from inspection but the solicitor has any doubt, it is best practice to point out to the other side if and when reliance will be placed on the document in the litigation. 11.11.6 Without prejudice correspondence As we saw at 3.10.1, without prejudice correspondence will record information as part of a party’s genuine attempt to settle a case. The correspondence will probably therefore satisfy the r 31.6 definition, as it is likely to set out the strengths of a party’s case, and indeed may contain concessions that are adverse to that case and support the opponent. You should remember that it is irrelevant to standard disclosure that the recipient of a document has already seen it. So without prejudice correspondence, just like the other common correspondence between parties that meets the r 31.6 test, should be disclosed and no privilege from inspection claimed. This is because when the letters were being drafted by a solicitor and before being sent to the other party, the letters were privileged from inspection; but the privilege was waived by sending them to the other side. We do accept that many practitioners claim privilege from inspection for any without prejudice correspondence written to, or received from, another party. Indeed, some textbooks encourage this on the basis that there is some sort of general without prejudice privilege. With respect, we disagree with this approach. It confuses the step required by standard disclosure to allow inspection of all non-privileged r 31.6 documents with the issue of admissibility of without prejudice correspondence at trial. The fact that a party does not claim privilege from inspection of without prejudice correspondence does not make it admissible. As explained at 3.10.1, all negotiations genuinely aimed at a settlement are excluded from being given in evidence.  Disclosure and Inspection of Documents – CPR 1998, Part 31 209 The only time privilege from inspection is relevant to without prejudice correspondence is in multi-party litigation where not all the parties are involved in that correspondence. So what does that mean if, for example, C sues D1 and D2, but C has without prejudice correspondence only with D1? As between C and D1, that correspondence will go in the first part of their respective list of documents as not being privileged from inspection. However, as between C and D2, that correspondence will go in the second part of C’s list of documents as it is privileged from inspection by D2. The correspondence will not, of course, appear in D2’s list of documents as D2 never received it. In BGC Brokers LP v Tradition (UK) Ltd EWCA Civ 1937, the Court summarised the key principles as follows (at –): Written or oral communications which are made for the purpose of a genuine attempt to compromise a dispute between the parties may generally not be admitted in evidence …. In disputes between the parties to the without prejudice communication (‘two-party’ cases), an additional basis for the rule may be an express or implied agreement between the parties. In situations involving a third party who was not a party to the negotiations (‘three-party’ cases), however, the documents are protected as against the third party purely by reason of the public policy justification: see Muller v Linsley & Mortimer PNLR 74 at 77 (Hoffmann LJ). Where communications are inadmissible on the basis of without prejudice privilege, they are also protected from inspection by other parties in the same litigation, whether or not a settlement was concluded: see Rush & Tomkins Ltd v Greater London Council 1 AC 1280 at 1300, 1305 (Lord Griffiths). 11.12 DISCLOSING THE EXISTENCE OF DOCUMENTS: THE LIST A party discloses a document by stating that the document exists or has existed. As we saw at 11.2, there are two possible ways of disclosing the existence of a document, namely by identifying either: (a) the actual document itself; or (b) the type of document. 11.12.1 Part 1 of the list In the first part of the list of documents, the actual documents are identified so that the other parties can decide whether or not they wish to inspect them. Remember that these are documents in the party’s control which they do not object to being inspected. What if a Part 1 document contains material that is confidential and irrelevant to any issues in the claim? When giving inspection, that part of the document can be redacted, that is to say blanked out. The description of such a document in Part 1 of the list should make it clear that the document disclosed is redacted (Ennis Property Finance Ltd v Thompson EWHC 3263 (Ch)). For example, ‘Minutes of board meeting of [date] save the confidential and irrelevant entries that are blanked out.’ 11.12.2 Part 2 of the list In the second part of the list of documents the party should disclose the type of documents for which they are claiming privilege from inspection, for example ‘confidential correspondence between the claimant and their solicitors’; ‘various experts’ reports and witness statements’, etc. It is quite proper to do this. The existence of the document has been disclosed and so the duty to give disclosure is thereby discharged. However, the general description as to the type of document ensures that the contents are not indirectly revealed. The objections to inspection must then be stated. A legitimate ground must be claimed. It is not a ground of objection that the document is adverse to the party’s case or is confidential. For examples of different possible grounds, see 11.11. 210 Civil Litigation In practice, the most common objection is based on legal professional privilege. For advice privilege, the objection to inspection is that the documents are communications between the party and their solicitor that were created for the sole or dominant purpose of giving or receiving legal advice. For litigation privilege, there are two key matters to include: (i) when the document was created – it must be when the litigation was reasonably contemplated or ongoing, and (ii) why it was created – it must be for the sole or dominant purpose of obtaining or giving legal advice in regard to the litigation, or to conduct, or aid in the conduct of, the litigation, usually to have as evidence. An example might be: ‘Expert’s report obtained by the Claimant’s solicitors when this litigation was ongoing for the sole purpose of having as evidence for this litigation.’ If different grounds of privilege are relied on for different documents, they should be arranged and listed separately. 11.12.3 Part 3 of the list In the third part of the list of documents, the party must state the actual non-privileged documents that they once had, but no longer have, in their control. These are the documents that would have been disclosed in the first part of the list had they still been within the party’s control. These often comprise of little more than the original letters, written by or on behalf of the party, copies of which have already been disclosed in the first part of the list since the copies are in the party’s control but the originals are not. In respect of each document it is necessary to state when it was last in the party’s control and where it is now. The purpose is to enable the parties receiving the list to continue their investigations elsewhere. If they can locate the present whereabouts of the documents they may be able to obtain copies on an application for disclosure by a non-party (see 11.17). CASE STUDY: CLAIMANTS’ LIST OF DOCUMENTS The claimants’ list of documents can be found by way of example in the case study at Appendix D(10). You will note that this is on the prescribed form, N265. The first two pages are taken up mostly with the disclosure statement. Did you spot how the claimants limited their search? Then the final page contains the three parts of the list. Note how each document in the first part is explicitly described so that the defendant can identify it and decide whether or not to inspect it. Contrast that with the second part of the list. Here, the documents are identified only generally but, most importantly, the claim to privilege from inspection is described in full. Look closely at the wording used. Lastly, the third part records the fact that the claimants once had in their possession the originals of the copy documents listed in the first part of their list. 11.12.4 Template A template to help you draft a list of documents may be found at Appendix B(9). 11.13 FAILURE TO DISCLOSE (r 31.21) A party who fails to disclose a document or fails to allow inspection of a document may not rely on that document at trial unless the court permits. Note importantly, however, that a party who fails to disclose a document that harms their case may find that their case is struck out as a result of failure to comply with an order for specific disclosure (see 11.15). A party who fails to give disclosure properly may be penalised financially. For example, in Earles v Barclays Bank Plc EWHC 2500 (Mercantile), the court held that the successful defendant should recover only one half of its costs because of its failure to conduct disclosure adequately.  Disclosure and Inspection of Documents – CPR 1998, Part 31 211 11.14 SUBSEQUENT USE OF DISCLOSED DOCUMENTS (r 31.22) Where a document has been disclosed to a party, they may use that document only for the purposes of the case in which it has been disclosed unless: (a) the document has been read or referred to during a public hearing (eg, at trial); or (b) the court grants permission; or (c) the party who disclosed the document and the person to whom the document belongs consent. Where (a) applies, the court may make an order restricting or prohibiting the use of the document. 11.15 APPLYING FOR SPECIFIC DISCLOSURE (r 31.12) If a party is dissatisfied with disclosure provided by the other party and believes it is inadequate, they may make an application for an order for specific disclosure. The application notice must specify the order the applicant wants the court to make, and the grounds of the application must be set out in the application notice or in the supporting evidence. For example, in a claim arising out of the supply of allegedly defective goods sold by the defendant to the claimant, the claimant may suspect that the defendant should have quality control records. If these have not been disclosed then an application for specific disclosure may be justified. See, for example, Icon SE LLC v SE Shipping Lines Pte Ltd EWCA Civ 1790 where the issue in the case was whether the defendant had acted in anticipatory breach of contract by refusing to pay a commitment fee. The court ordered specific disclosure by the defendant of its documents in relation to the commitment fee. Before making such an application, a party should write to the other side explaining why they believe the documents are disclosable and asking the other party to comply properly with the order for disclosure. If a satisfactory response is not forthcoming then it would be appropriate to issue the application. An application will require a witness statement in support. This should detail the date of the order for standard disclosure and the document or documents that the applicant believes should have been included in the list. If it is not obvious, the witness statement should explain how these documents satisfy the definition of standard disclosure and why the applicant believes they exist. A reference to the request for the documents and the respondent’s response should be made to show that the applicant has complied with the overriding objective by trying to avoid making an application. An order for specific disclosure may require a party to: (a) disclose specified documents or classes of documents; (b) carry out a search as specified by the order and disclose any documents located as a result of that search. When deciding whether to make an order for specific disclosure, the court will take into account all the circumstances of the case: [W]here a detailed disclosure exercise has already been undertaken, it is not sufficient that the party seeking disclosure simply speculates that further documents may or should exist or that it is implausible that they do not. Something more is needed to show that there is a likelihood (as opposed to a possibility) of further relevant documents existing. (per Mr Robin Vos in Sheeran v Chokri EWHC 3553 (Ch) at ) If the court is satisfied that the respondent has failed adequately to comply with the obligations imposed by the order for disclosure, will usually make such order as is necessary to make sure those obligations are adequately complied with. For example, the order will 212 Civil Litigation often be made in the form of an ‘unless’ order (see 9.3.4). The applicant would also seek an order that the respondent pay the applicant’s costs. A party can also apply for an order for specific inspection, which would require a party to permit inspection of documents which they omitted from their disclosure statement on the grounds that inspection would be disproportionate (see 11.7). 11.16 DISCLOSURE BEFORE PROCEEDINGS START (r 31.16) As we saw at 3.9, a party may make an application for pre-action disclosure. This procedure will normally be used where a party is unsure whether they have a good case against another party, and therefore does not know whether to issue proceedings. The party could apply for pre-action disclosure against the intended defendant so that they can then make an informed decision as to whether or not to issue proceedings against that person. In the case of Taylor Wimpey UK Ltd v Harron Homes Ltd EWHC 1190 (TCC), the agreement between the parties contained a dispute resolution (DR) clause. An application for pre-action disclosure pursuant to r 31.16 by the potential defendant was refused. To allow the application would have undermined or frustrated the DR clause. As to enforceability of DR clauses, see 4.3.1. 11.17 NON-PARTY DISCLOSURE (r 31.17) Where proceedings have commenced, a party to the proceedings can apply for disclosure against a non-party. For an example, see Secretary of State for Transport v Pell Frischmann Consultants Ltd EWHC 2756. This procedure enables a party to proceedings that are already in existence to obtain disclosure of documents from a non-party if it is going to help resolve the issues in the case. The most common application of this procedure would be where a party indicates in their list of documents that they no longer have a document in their possession. The party also indicates that X now has possession of that document. The other party may then write to X asking for a copy of the document. If X refuses to supply that copy voluntarily, the other party could then apply for an order for non-party disclosure against X. The application must be supported by evidence. The court may order non-party disclosure only if: (a) the documents in question are likely to support the applicant’s case or adversely affect the case of another party; and (b) disclosure is necessary to dispose fairly of the case or to save costs. The order must: (a) specify the documents or classes of documents to be disclosed; and (b) require the non-party to specify which documents are no longer in their control and which are privileged. The order may specify a time and place for disclosure and inspection, and may require the non-party to indicate what has happened to the documents no longer in their control. Can an order be made if the documents are within the jurisdiction but the non-party outside the jurisdiction? Yes, see Gorbachev v Guriev EWCA Civ 1270. 11.18 DISCLOSURE OBLIGATIONS AND SOLICITORS’ DUTIES The SRA Code of Conduct, para 1.4, provides that a solicitor must never mislead the court. This duty might be broken if a solicitor does not promptly disclose a document that they  Disclosure and Inspection of Documents – CPR 1998, Part 31 213 become aware of during the course of a case, which should have been, but was not, disclosed. Obviously, this situation may arise after the client’s list of documents has been served. The solicitor needs to advise the client to disclose it and determine how the document should be disclosed. A supplemental list is probably appropriate (see 11.10). If the document is privileged from inspection, it should be listed in the second part of the list. If it is not privileged from inspection, it should be listed in the first part, and, of course, the opponent may then wish to inspect it. If a client refuses to allow disclosure, the solicitor should withdraw from the case. In order to keep client confidentiality (see para 6.3), the solicitor should not inform any other party (or the court) of the reasons for ceasing to act. A solicitor must ensure that their client understands the duties to conduct a reasonable and proper search and then give full and frank disclosure. In all proceedings … the court must, in the first instance, rely on the parties, conscientiously to comply with disclosure obligations, where necessary with the assistance of their professional advisers. In every case that is the first and always the most important stage of the disclosure process, notwithstanding the possibility later, for applications for specific disclosure. Conscientious compliance requires accurate understanding and application of disclosure principles; exorbitant disclosure works against the interests of justice as much as disclosure that errs in the opposite direction. As hard as it may be, the first stage in any disclosure process is that the parties must strive accurately to meet their obligations, no less and no more. (per Swift J in FMA v Secretary of State for the Home Department EWHC 1579 (Admin) at ) The client must also appreciate that disclosure is an ongoing obligation. As an officer of the court, a solicitor has a duty to ensure disclosure is properly given and that the court is not misled. Moreover, the client should sign the disclosure statement only after receiving legal advice. Remember, that statement includes the following: I certify that I understand the duty of disclosure and that to the best of my knowledge I have carried out that duty. I further certify that the list of documents set out in or attached to this form, is a complete list of all documents which are or have been in my control and which I am obliged under the order to disclose. I understand that I must inform the court and the other parties immediately if any further document required to be disclosed by Rule 31.6 comes into my control at any time before conclusion of the case. So during the first three Stages of Civil Litigation the client must be made aware of the extent of their disclosure obligations and the importance of not destroying documents that might have to be disclosed. A client should start to preserve documents when first notified of the claim (Ayannuga v One Shot Products Ltd EWHC 2930 (QB)). A solicitor should advise a client that if the client destroys disclosable documents deliberately and contumaciously, or such that a fair trial is rendered impossible, the client’s statement of case is likely to be struck out. Woods v Martin’s Bank 1 QB 55 imposes a duty on a solicitor to the court to examine their client’s documents themselves in order to ensure that proper disclosure is made. Myers v Elman AC 282 provides that if the client will not permit this, or insists on giving imperfect disclosure, the solicitor must withdraw from the case, as otherwise they will be participating in a deception of the court. 11.19 INSPECTION OF STANDARD DISCLOSURE DOCUMENTS 11.19.1 Scrutinise the opponent’s list What checks should you make when you receive an opponent’s list of standard disclosure documents? Start with the disclosure statement. None of this should come as a surprise if both parties have fully cooperated in setting the parameters of the reasonable search, especially for 214 Civil Litigation electronic documents. But always double-check the limitations imposed and ensure they are in line with any agreement reached or what you consider to be reasonable. Before you look at Part 1 of your opponent’s list, ask yourself, the client and any expert instructed on a disputed issue what you should expect to see in it. That way you may be able to spot any documents omitted from the list. Also, see if there are any unexpected documents. If your opponent has included a document and you do not know why, you will need to inspect it. Likewise, any document not already seen needs to be inspected. Remember, Part 1 of the list will not contain any explanation as to why your opponent has included the documents. Part 2 of your opponent’s list is likely to be uncontroversial. Just check that each privilege has been properly claimed. Part 3 will usually only refer to the originals of any copy documents listed in Part 1. But it is always worth checking just in case your opponent has listed something else here or omitted to include a document. 11.19.2 Inspection When requesting inspection of Part 1 documents, consider carefully whether photocopies of paper documents will suffice or if the originals need to be seen. Disclosure of electronic documents should normally be given in the format in which the document was created and stored. A key point to bear in mind is that a photocopy of a paper document will not necessarily reveal if another document was once attached to it by something like a paperclip or staple. Also, handwritten notes in the margins or on the back of a document can easily be overlooked in the photocopying or scanning process. Equally, when you do inspect, check that all relevant documents have been sent. For example, an e-mail may refer to an attachment, but have you received a copy of the attachment? Before you start to inspect your opponent’s documents, make sure that your case analysis is up to date. Ask yourself: what are the legal and factual issues in dispute? What information is recorded in the document that supports your opponent’s case? Is there any information supporting your client’s case? Do you need to take your client’s instructions on any particular document or interview a witness about it? Should any document be passed on to your client’s expert for comment? All this will allow you to better assess the strengths and weaknesses of your client’s case. It should also feed into the advice that you give the client and the evidence that follows by way of witness statements and experts reports.