SQE Dispute Resolution Chapter 11-13 PDF

DISPUTE RESOLUTION SQE prep NOTES 11 DISCLOSURE AND INSPECTION 11.1 OVERVIEW You might recall that one of...

DISPUTE RESOLUTION SQE prep NOTES 11 DISCLOSURE AND INSPECTION 11.1 OVERVIEW You might recall that one of the standard directions is a direction that the parties provide disclosure and that this will precede exchange of witness statements and experts’ reports. In this context, ‘disclosure’ means to clearly identify and inform the other side of the existence of a document; it does not mean to show the document. Inspection is the term given to the separate but related process which enables the other side to view certain of the documents disclosed.tThisbe b o cb distinction is addressed further below. ln 9 da hal 11.1.1 Duty to Disclose de s 0 9 r e and sduty During litigation, the parties f have a to disclose and permit inspectiondof 2 ou ws The obligation to 9-certain ldocuments. c provide disclosure - ac continues a h t la l throughout the case and ter- minates only 3 on t conclusion o of r i gthe proceedings. This is part of the ‘cards4 st papproach’ 7d on theretable y encouraged by the CPR 6 - te c o and 8 6 ensuresdthat in each by party knows the case it has to meet. - Incevaluating n the dparties’ obligations for disclosure, howev- 8 beer,RIthe court , a willc teconsider the overriding objective and the e t tle rote to 67 RBrequirements i. deal with cases proportionately in a fair, just, 4 3 BA tand s , efficient p s emanner. ie r: 21 righ are rpo h pu Documents that Must Be Disclosed tif 20 all hic11.1.2 n ny starting point for disclosure is that a party must disclose I de ht © ns f w r aThe s er yrig I ow all o fo both any document on which it relies and any document U op BR ls, old which adversely affects its case. The CPR makes it clear that C AR ria or s ‘documents’ are not confined to paper or just originals. The B ate ed term ‘document’ includes anything that has information re- m ar corded on it, including electronically stored information such s h as emails (including deleted emails), databases, file servers, and hard drives. The term also includes relevant photographs and objects (for example, a model in a claim involving con- struction of a building). 11.2 STANDARD DISCLOSURE The starting point for all cases apart from those on the small claims track is that the court makes an order for standard dis- closure. This requires each party to disclose any documents on which it relies together with any documents that: 608  DISPUTE RESOLUTION SQE prep Affect their case adversely; NOTES Affect the other party’s case adversely; or Support the other party’s case. EXAMPLES 1) A client is suing her solicitor for negligent legal advice in respect of a conveyancing transaction. The Particulars of Claim makes it clear that if the solicitor had conducted all relevant legal searches and advised her correctly that the t be neighbouring property had a right of way over her backyard, c bb l no the client would not have bought the property. The solicitor da al disputes liability stating that in the defence that he carried de9 d sh out all relevant searches. The client must disclose the 2f09solic- itor’s report on title as she relies on this to demonstrate that u rses an 9- o w ll c t la no mention was made of the neighbour’s easement. cd a h -a o 2) Suppose the client also emailed the7solicitor d 3 t to ssay t she y rig was desperate to buy the property,6as re cowas -4 anothertebuyer p 8 interested, and that the solicitor6should complete in bythe paper- - c also ndisclose d work as fast as possible. She 8 b must e I , a cted this email, as it is potentially adverse to her case, that she would have ebought R tle robecause 67 RBthe tproperty i te. it suggests 4 3 BA ts, e p sin e any event. : h r o i f ier 021 l rig h a urp 11.2.1 Only n t 2 al hicRelevant Documents p to Issues in Question e © s n y r Id ht wn of w r a rig Idisclose se pyneed A party o all onlyfodocuments relevant to the issues U in question, o RB but R a l sthe s old , obligation for disclosure extends to any C document r i within r the party’s control. This can extend to doc- BA no uments t a ree longer d o in the party’s possession so long as they m have a right a sh to control the document. EXAMPLE A car manufacturer is defending a claim for hearing loss by an employee who contends that the defendant failed to pro- vide ear protectors. The defendant has notes of meetings and discussions with union representatives regarding anoth- er potential unrelated medical condition known as ‘vibration white finger’ arising from failure to issue sufficient anti-vibra- tion gloves. The claimant in the present case has not made any suggestion that they suffer from this condition. Despite the fact that the notes relate to a workplace injury arising 609 DISPUTE RESOLUTION SQE prep from improper equipment, the notes have no relevance NOTES to noise-induced hearing loss. Therefore, the defendant’s solicitors do not have to disclose the documents. 11.2.2 Duties to Client, Court, and Opponent Legal representatives are under a duty to advise clients of their disclosure obligations and also owe duties to the court and their opponent. The legal representative must cease to act for a client who is not prepared to comply, for example, by refusing to disclose documents adverse to their case. If a document is removed or destroyed, the representative is t bere- b quired to inform the court and the other b party of itsl nexistence, o ac together with the reason for itsddestruction. l In this instance, the court is entitled to draw ean s ha from the 9 adverse inference d nd document. se aarelevant 09to preserve fact that a party has failed -2 f our s 11.2.3 When Does c 9 d a Party al c l Have t law Control? a of aodocument 3- A party has ‘control’ d t t righ if they: Have 7 -4 physical r es opy of the document; possession 8 6 e nt by c c6 i d dto possession, a right to inspect, or a right to b e - I Haveaanright te or 7 8 BR take e , c copies; e tl rot. e6 AR s, tiHad 3 e p the document in their possession but no longer have r : 4 1 B ight arit.e rpos t i fie 202 ll r ich pu n a h y I de ht © ns f w r anEXAMPLE s er yrig I ow all o fo U op BR ls, old A company registered in the UK (defendant) is sued by an C AR ria or s American corporation for failings relating to a contract. The B ate ed UK company is part of a wider global group whose head m ar office is in Australia. As part of a company restructure, the sh defendant shipped a bundle of documents relevant to the issues in the case to Australia. Whilst these are no longer in the possession of the UK company, those documents must be disclosed because they have been in the defendant’s possession and, by virtue of the links with the Australian operation, they would still be able to obtain copies and still have control of the documents. 11.2.4 Reasonable and Proportionate Search The court expects each party to make a reasonable and pro- portionate search for documents. What constitutes reason- able and proportionate depends on the nature of the case, 610  DISPUTE RESOLUTION SQE prep its value, and its importance. The court will also bear in mind the ease of retrieval of documents and the costs involved. NOTES When a party signs a disclosure list (as explained later), they are confirming that they have made a reasonable search for relevant documents in compliance with the rules. Exam Tip It is very important to remember that the duty of dis- closure extends not only to documents which support your case, but also to documents which could support the opponent’s case. Remember also that the duty is t be not confined to just documents in the traditional sense. c bb l no a al Electronic documents, file servers, and hard drives aree9d sh caught, and a claimant must make a reasonable and9d d f0 proportionate search for anything that may be relevant. 2 urses an - o c d9 a l l c t law a d 3- t to righ 11.3 ORDERS FOR DISCLOSURE -4 7 r es opy 6 e t ythe 8containedinwithin c The order for disclosure is usually 6 b initial directions order. The court has - cthe powerndto order: d e e 7 8b BRI le, a tect Disclosure on theestandard 3 6 R basis; A , tit pro e. Dispensing with r 1 B htsaltogether; : 4 disclosure re rpos e i g a 02 ll r ich pu tifi on2such Disclosure n a basish as ity directs; or I de ht © ns f w r an r rig oonwanll issue-by-issue seDisclosure o fo basis. y U op BR ls, old I a 11.3.1 C AR ia or sList Disclosure r In fast m ate and B track d re personal injury multi-track cases, the par- a ties are required to file and serve a disclosure list. The list is sh divided into three sections: A list of documents in its control that they do not object to the other party inspecting; A list of documents in its control that they object to the other side inspecting, along with reasons for objecting. (The most common reason for objecting is that the docu- ments are privileged.) (see below); and A list of documents that are no longer in its control, stat- ing when they were last in their control and where they are now. 611 DISPUTE RESOLUTION SQE prep 11.3.2 Disclosure Statement NOTES Each party is required to make a disclosure statement detail- ing the extent of the search made. The statement must certify that the person signing the statement understands the duty to give disclosure and that they have carried out that duty, to the best of their knowledge. They must declare that they believe that the extent of the search made is reasonable and explain why any particular search may not have been carried out. It is the party, not the legal representative, who signs the disclosure statement. Proceedings for contempt of court can arise against anyone who makes a false disclosure statement be without an honest belief in its truth.bb ot d ac a ll n 11.3.3 Time Limits for Disclosure sh de9 d Standard directions usually of the directions order 2 09 allowu28 ffor the parties rsedays to s nfrom the date aserve their lists of 9 - c o w d documents. Thecdirections order l a t isl made when the case is allocated to 3 its-atrack. The o al hwill order also routinely require that dtake placestwithin t ri g inspection 7 e op y seven days, although in practice -4 many6solicitors send e t yr copies c of the documents on which they 6 8 to relyinto propose their b opponent when serving the disclo- -c list. Whilst esure nd teinspection d would normally happen at the of- 8 b R I , a c 7 fices 6 RB titl rot. e of the e other party or their legal representatives, a party e 3 A can s, rask for this e to take place in a more convenient location in r e pposcases. : 4 1 B ightappropriate a t i fie 202 ll r ich pur n a h 11.3.4 y Reasons Not to Disclose I de ht © ns f w r an s er yrig I ow all o fo There must be a very good reason for deciding not to dis- U op BR ls, old close a document. An example would include public interest C AR ria or s immunity, for example, where it is in the public interest for a B ate ed party not to disclose documents because they contain sensi- m ar tive political or state information. sh 11.3.5 Party Not Content with Disclosure If a party is not content with the disclosure provided by an opponent, they can challenge. Examples of grounds for challenges include where documents are missing when logic and common sense would suggest that they should appear in the list, where a party may have claimed privilege when inappropriate, or where the party believes that the other has not carried out an extensive search or where they believe that the list is vague or inadequate. 11.3.6 Options to Obtain Information Options are to apply for specific disclosure, to serve a Notice 612  DISPUTE RESOLUTION SQE prep to Admit Facts, or to apply for an unless order if the opponent continues to disregard their obligations under CPR. A Request NOTES for Information may be an alternative way of obtaining infor- mation that may be missing from a party’s disclosure list. 11.3.7 Automatic Right to Inspection Disclosure of a document provides an automatic right to inspect unless specifically challenged. The grounds for refus- ing inspection would include: Privilege (which is explained below); The document is no longer in the party’s control; and t be b no acb l l It would be disproportionate to allow inspection. e 9d s ha If a party with a right to inspect a document wants to fexer- 0 9d r se and cise that right, they must give notice to the other 9 -2 who cou ws party, must permit inspection within seven days after a d cthe date they all t la received the notice. This will normally be done d - 3 by providing t to righ photocopies. -4 7 r es opy 8 6 e nt by c c 6 i EXAMPLE b e- I a nd ted 8 BR le, tec 7has A company (defendant) 3 6 e ARbeen , titdoing p ro business with a e. ago, the partnership (claimant) 4 for B 10 t s years. Six re rpo s years defen- dant moved fits r : 1 igh function call-handling a to a third party in India, i e i 02 ll r ch pu t 2 along withn four yearsaof records i relating to the defendant’s dealings I dewith t s f whThe ©the nclaimant. a nyclaimant seeks copies of all e r righand documents o welectronic l l r o foinformation related to dealings s py RI , a ld Ubetween the B als s parties since o the inception of their relationship Coargues and R A te o r ai r senior officer of the defendant (based in the UK)Bshould a re make d the search in person. The defendant is happymtohprovide a documents covering the last six years, but sayss it would be unreasonable and disproportionate to obtain documents from the first four years. Unless there is a good reason as to why it is necessary, it is very arguably disproportionate and unreasonable to expect the defendant to make these documents available for personal inspection. 11.3.8 Redaction of Documents Possible Documents may be redacted to blank out irrelevant and confidential information, for example, commercially sensitive information that may appear in a disclosable document. This overcomes the problem that a party must disclose a whole doc- ument, not just the parts which are relevant to the proceedings. 613 DISPUTE RESOLUTION SQE prep 11.3.9 Disclosure in Small Claims Cases NOTES In small claims cases, disclosure is limited to such documents that the court considers necessary and proportionate to resolve the case. 11.4 MULTI-TRACK CASES In a non-personal injury, multi-track claim, the court requires each party to prepare a disclosure report, which must be filed at least 14 days before the first Case Management Confer- ence (‘CMC’) or otherwise with the Directions Questionnaire. t be b The parties are encouraged to try tobagree the scopeoof the n disclosure requirements in the case dac and must also a lldiscuss the 9 use of technology in the management of h electronic s docu- de is similar ments. The disclosure required f 09 r se atondstandard disclo- sure but should include ou s -2 the following: w d9 ll c la A description - ac of documents o a hthat g t may or may not exist which are d 3 relevant t to t y the ri issues in the case and where they4 7 e s p - are located;r o 6 86 i nte by c c b e - I How aany nd electronic te d documents are stored; 6 78 B R iThet o tec cost of providing standard disclosure; le, estimated t 3e BAR t s, How p r e. r 4 : 1 igh are rpthey os would like the court to decide on what disclo- e 2 n tifi 20 all r hich y sure pu is necessary; and r Ide ht ©wns of w r a n Which one of the directions the court may order will be e rig o ll fo sought (see below). Us opy BRI ls, a old C AR ria or s The report must be verified by a statement of truth. B ate ed m ar sh 11.5 SPECIFIC DISCLOSURE The court can make an order for specific disclosure, requir- ing a party to disclose or search for and disclose documents that: It has a reason to believe may contain information which will assist the applicant’s case or damage the respon- dent’s case; or May lead to a train of enquiry which has either of the consequences above. 614  DISPUTE RESOLUTION SQE prep 11.5.1 Application for Specific Disclosure Based NOTES on Inadequate Disclosure An application for specific disclosure also may arise if a party believes that another party’s disclosure is inadequate. The application normally takes place after standard disclosure has taken place. Disclosure may be inadequate if, for ex- ample, documents referred to in the Statement of Case or correspondence have not been disclosed; or the client or a witness might refer to a document or documents which do not appear. t be 11.5.2 Terms of the Order b no acb l l The order may require the respondent to: e 9d s ha Disclose certain documents or classes of documents f 09d r se and specified in the order; 9- 2 c ou ws ac d al t la l Prepare a supplemental list of documents; d 3 - t to righ Carry out a search to the extent specified -4 7 es order; in rthe o py 6 e c and/or c6 8 d int by - Disclose any documents 8 belocated R I by , athe c ted n search. e 67 RB title rote. 11.5.3 Written Request 3 A ts, Documents e ppos e r : 4 1 B ighfor r a ur for the documents A party should t i fiemake 2 02a written ll r chrequest i p in support must in- before issuing e n ©the application. s a h Evidencen y cluder aIdstatement gh t wnof belief o f w that r a disclosure is inadequate. The e request ri o l l fo Us opyshould B RI lscontain: , a old CA A R ria oofr sthe documents and the extent of the description B atesought; search d m are Whysithis reasonable and proportionate for the documents to be disclosed, having regard to the overriding objective; An explanation of how the documents are relevant to the matters in issue; The grounds for believing that the documents are or have been in the other party’s control; and What safeguards can be provided to ensure, for example, that trade secrets or other confidential information is not put at risk. 615 DISPUTE RESOLUTION SQE prep NOTES 11.6 PRE-ACTION DISCLOSURE Prior to issue of proceedings, an application for disclosure is usually available only against a person who is likely to become a party to the proceedings. In certain cases, however, an order to disclose documents may be available against persons who are not parties to the proceedings if the case involves: Freezing Injunctions; Search Orders; Applications for preservation of property; or t be b Requests for further information a cbpursuant. ll no e 9d s ha d 11.7 PRIVILEGE f09 r se and Privilege entitles ad9 -2 party to withhold c ou wevidence s from c l l t l a production—to -aa third party, a o rtheir document7d is3privileged, t tits i gh opponent, existence still or the court. If a must be disclosed, 4 holding y estheopprivilege but the -party r has the right to withhold 86 the6document i te inspection. nfrom y c There are four types of privi- - c plus one d d b e lege n type e of immunity which functions similarly: 7 8b BRI le, a tect t roadvice e6 AR s, tiLegal privilege; 4 3 B t p s e. e po privilege; r: 21 righ arLitigation t i f 20 ll ich pur ie n a h y Common interest privilege; I de ht © ns f w r an s er yrig I ow all o fo Without prejudice privilege; and U op BR ls, old C AR ria or s Public interest immunity. (This is, however, technically not B ate ed a privilege but rather a doctrine that has similar effect as m ar a privilege.) sh The first two types above can be described as ‘legal profes- sional privilege’. Whilst similar, there are some key differenc- es as described below. However, in both, the evidence for which a party claims privilege must be confidential in nature. 11.7.1 Legal Advice Privilege Legal advice privilege relates to communications with a cli- ent. It protects compulsory disclosure of all types of commu- nication between a client and their lawyer in which advice is given (or requested) within a relevant legal context. This privilege protects only the solicitor-client relationship and not documents provided by other professionals, for example, 616  DISPUTE RESOLUTION SQE prep documents provided by accountants. The document must be ‘directly related to the performance by the solicitor of their NOTES professional duties as a legal advisor’. EXAMPLE A solicitor has taken over a breach of contract case on behalf of the defendant. The contract was to provide cater- ing services for corporate events. The claimant contends that specific instructions given for an event were ignored, and, as a result, the event was ruined to the detriment of the claimant. Whilst reviewing the documents to prepare t be the disclosure list, the solicitor finds a note of a meeting c bb l no between the defendant and their previous solicitor in which da al the defendant accepts that there may be some merit in dthe e9 d sh claimant’s allegations that their specific instructions fwere 2 09 urses an unheeded. Whilst disclosure of this document would - surelyco w be adverse to the defendant’s case, it is protected c d9 by legalall t la advice privilege as it is a document prepared - a o righ d 3 as partt tof the solicitor-client relationship when 4 - 7 addressing r ethe o py s claim against the defendant. 8 6 e nt y c c6 d i b - n d 11.7.2 Litigation Privilege 8 be RI , a cte e 67 RB title rote. Litigation privilege relates parties (that is, experts h ts, re p relating 3 BAto communications : 4 1 and barristers) o se with third to preparation i r e 02 l rig litigation. a ur p of pending or i f contemplated 2 al hic y h p There must be a real likelihood e nt litigation; of © s a mere possibility n is insufficient. r Id ht wn of w r a g fo U p yri RI o ,with a. seDocuments all lMultiple d Purposes Not oall documents B l s o prepared s for litigation will be privileged C AR rfrom and exempt ia oinspection. r If a document has multiple pur- B t e d poses,m itawill rbee privileged only if a court decides its dominant purposesisha to prepare for litigation (that is, giving advice or obtaining or gathering evidence). The court will look at the dominant purpose of the document, not its stated purpose. Note that legal advice privilege, above, does not have this requirement. b. Burden on Person Asserting Privilege The bar for claiming litigation privilege is high. The burden of proof rests with the party seeking to assert privilege. c. Privilege Lost If Document to Be Used at Trial If the privilege holder wishes to use the privileged document at trial, it must be exchanged with the other side, at which point the privilege is lost. 617  DISPUTE RESOLUTION SQE prep NOTES EXAMPLE A property developer is suing its architect for the negligent design of an office building. The developer’s solicitor sends a letter of instruction to an expert witness requesting that the expert prepare a report for use in proving the design was faulty. Both the letter of instruction and the report will be protected by litigation privilege. If, however, the devel- oper wishes to use the report at trial, it must be exchanged with the other side, at which point the privilege is lost. t be b Table of Differences Between Legal Advice Privilege and Litigation acb Privilege ll no Legal Advice Privilege Litigation Privilegee9d s ha Applies whether or not litigation is Applies only when f 09d litigation r a nd or contem- seis pending pending or contemplated plated 9- 2 c ou ws d l a Protects against disclosure of commu- Protects - al ht l of communications with ac againsto disclosure nications between a client and their third 7 t t yrigto pending or contemplated d3 partiessrelating lawyer -4litigation re cop 8 6 te y Dominant purpose test does not apply Dominant in bpurpose test applies - c6 n d d Applies as against communications e I Protectste against disclosure of communications between a client and their lawyer 7 R tle, abetween 8b B(not e c t. a lawyer and third parties, for example, third parties) e 6 R ti rfactual o 4 3 BA ts, e p se or expert witness ie r: 21 righ ar rpo h pu Common Interest Privilege tif 20 all hic11.7.3 n ny I de ht © ns f w r aCommon interest privilege may apply when there are mul- e r rig ow ll o fo tiple defendants or group actions. The parties may send Us opy BRI ls, a old documents to each other and claim these documents are C AR ria or s privileged from inspection by other parties because the par- B ate ed ties who exchanged the documents have a common interest, m ar that is, they are parties in the same action with common sh objectives. For the privilege to apply, the common interest must have been present at the time of disclosure between the parties. If subsequently the parties’ relationship breaks down, the right to claim privilege to third parties subsists. The privilege can be waived only if all interested parties agree to waive it. EXAMPLE A group of defendants discuss a case being pursued by an ex-worker suffering from industrial disease. The worker worked for all the defendants and, following agreement to 618  DISPUTE RESOLUTION SQE prep keep matters confidential, correspondence has been pass- ing between the defendants for some time, with a view to NOTES presenting the best case together to quash the claim. This spirit of co-operation breaks down and one of the defen- dants wants now to adduce evidence in the form of a letter from another defendant admitting that they may have some culpability for a period when the claimant worked for them during which they may have had exposure to asbestos. Common interest privilege prevails. The defendant cannot rely on the document in contravention of the prior agree- ment between the parties. t be b no 11.7.4 Without Prejudice Privilege a cb l l During the course of an action, the parties are likely to enter e 9d s ha into discussions regarding potential settlement and may f 0 9dcre- rse and ate documents with a view to achieving this. Often-these 2 are ou ws labelled ‘without prejudice’ to make it clear that d9 the partyaisl l c t la c a thatoit willgh sending the communication on the understanding 3- t ri not be referred to the court in such a way 4 d 7 which rmay est preju- py dice the claim or defence. Such communications 6 - e andc o docu- ments are privileged (under the 68 prejudice cwithout d int bprivilege), y e - n d and the opponent cannot refer 8b BRtoI them , awithin c tethe action. 7 e l t e 3 e6 AR s, tit pro e. EXAMPLE r : 4 1 B ight are rpos e ifi 202 aisll rsuing A property n tdeveloper h pu ichitsy architect for the negligent e ant office designIdof © nsbuilding. w Then architect’s solicitor sends r gh w o f ra a swithout i prejudice e yr I al o lmemo fo to the property developer out- Ulining R a possible l d p B als settlement Coproperty R , of the case. If settlement fails, so may not use the memo under the the r i developer r BA aprejudice’ ‘without te ed o privilege. m ar sh 11.7.5 Public Interest Immunity A party may withhold disclosure of a document on grounds of public interest immunity if disclosure may harm the nation or the administration of justice. The court will balance the risk with the value that disclosure may have for the other party. EXAMPLE An MI6 officer seeks compensation based on a claim that they were unfairly fired from their position. In the course of litigation, the officer seeks disclosure of documents relat- 619 DISPUTE RESOLUTION SQE prep ing to their missions as well as missions of other officers NOTES similarly situated. MI6 could potentially claim public interest immunity if disclosure would harm national security. 11.8 LOSS OF PRIVILEGE The privilege is the client’s and not the solicitor’s and, there- fore, it may be waived by the client. Once a copy of a priv- ileged document is served on the other side, the privilege may be waived. t be b no EXAMPLES acb l l e s ha 9d witness statements 1) The claimant’s solicitor obtains d d from key witnesses of fact in 0 9 a breach s of r sae n contract case. In accor- f dance with directions 9 -2 to exchange c ou w copies of the witness c d statements onawhich he intends l l l a a ht to rely by a certain date, the 3- claimant’sdsolicitor sends to t ythese rig statements to the other side, at which 7 4 point any s 6- te reprivilege c op is lost. 8 by the claimant’s solicitor obtains an addi- in that - c6Suppose 2) n dnow d e tional a cte from a witness on whom they propose not I statement 7 8b BR e , te. his evidence is unhelpful. This statement will e 6 R to trelyi tl because r o 3 A sremain , p privileged. e r : 4 1 B ight are rpos t i fie 202 ll r ich pu n a h 11.8.1 y Mistaken Disclosure I de ht © ns f w r aAnmore challenging situation is where the solicitor waives s er yrig I ow all o fo privilege, for example, by mistakenly sending a privileged U op BR ls, old document to the other side or by indicating the client does C AR ria or s B ate ed not object to inspection. If a party inadvertently allows a priv- m ar ileged document to be inspected, the party who has inspect- s h ed it may use it (or its contents) only with the permission of the court. The court may prevent the use of privileged documents if there has been an ‘obvious mistake’ in making the documents available for inspection. The court will also consider the interests of justice and the overriding objective. Exam Tip Remember that whether a document is privileged has no bearing on whether it should be disclosed. Privileged documents are disclosed with a generic description in the disclosure list, but they may not be inspected. 620  DISPUTE RESOLUTION SQE prep 11.9 ELECTRONIC DISCLOSURE NOTES The CPR contains guidance for ‘e-disclosure’. Relevant documents include emails, electronically stored documents, information in databases, and so on. Deleted electronic doc- uments also are included. 11.9.1 Electronic Disclosure Questionnaire In appropriate cases, the parties must complete the electron- ic disclosure questionnaire at the same time as the disclo- sure list. The purpose of the questionnaire is to enable the parties to investigate, categorise, and agree the nature of t be documents held electronically. b no a cb l l 11.9.2 Parties to Discuss and Agree Extent of e9 d s ha Search f 0 9d r se and 2 u The court expects the parties to discuss and agree d 9- the ll co laws extent of the search and, only if they cannot agree, - ac refer o ato ht the judge at the first Case Management Conference. 7 d 3 s t yrig t This process is now standard in the Technology 4 andeConstruction re cop Court. 8 6- t c6 d in by - n d 8 be RI , a cte Exam Tip 67 RB title rote. e s, rlitigation e Disclosure is a key r 3 BA oftthe : 4 stage 1 h e ppos process and it ie be rig ch ona it.ur is likely youifwill 02examined l e n © s a h ny p t 2 l i FocusIdon: ht r w n of w r a i g e yr I all fo o U1.sThe p difference R , betweenold disclosure and inspection; Co ARB rialsor s 2. The B basiste efor a d claiming privilege; m ar 3. Whenhprivilege is waived; s 4. When it is appropriate to restrict disclosure; 5. The steps a party may take if disclosure is inade- quate; and 6. The fact that disclosure is an ongoing obligation and, therefore, applies if a document comes to light after the party has served its list of documents on the other side. 621 DISPUTE RESOLUTION SQE prep NOTES 12 WITNESS EVIDENCE 12.1 EVIDENCE GENERALLY Generally, a claimant must prove every element of their case. This extends to liability, causation, and quantum. There are two types of evidence: Direct—that is, oral evidence of a witness who perceived the facts; and Circumstantial—that is, evidence that does not direct- be ly establish a fact but that allows the b court to decidet whether a particular fact existed. a no cb This includesll opinion evidence, which is generally e 9d the preservesofhaan expert witness. 9d se nd - 2f0 ou ws r a d9 c ll t la EXAMPLES ac a d 3 - t to righ 1) On a4main 7 streetreins a busy - down o py town centre, a pedestrian is knocked 8 6 n e by t y a c car as they cross near a pelican cross- 6 ing. c Another i d person b (witness) was crossing at the same b e-time I and a nsaw t e d happened. what If the pedestrian commenc- 7 8 BR l e , tec es at negligence claim against the driver in respect of their 3 e6 AR sinjuries, , ti protheewitness’s. account of what happened would be : 4 1 B ight directr e evidence. o s r a p t i fie 202 ll r ich pur n a h yIn the same accident, an engineer is instructed to examine I de ht © ns f w r an2) s er yrig I ow all o fo the the skid marks on the road left by the car as it tried to avoid collision. From this investigation, the engineer suggests U op BR ls, old that the car was travelling at a speed well in excess of the C AR ria or s B ate ed speed limit for the road in question. This is an example of m ar circumstantial evidence. If the court considers it relevant, the s h engineer may only give evidence as an expert witness. 12.2 WITNESSES IN GENERAL 12.2.1 Signed Statement Generally Required to Testify The general rule is that evidence at trial should be from witnesses who have provided a signed statement setting out their evidence. The statement must have been endorsed with a statement of truth and served on the opponent on time in accordance with the court directions order. The witness will then attend court to give evidence and can be questioned by 622  DISPUTE RESOLUTION SQE prep the other side as to the contents of their statement, which is the process known as cross-examination. NOTES 12.2.2 Effect of Failure to Serve Statement If the witness statement is not served, a party cannot call that witness to give evidence unless the court gives permission. However, a defaulting party can apply to adduce the evi- dence despite the failure to serve on time if they can demon- strate a good reason for the failure. 12.2.3 Competency of Witness and Service of Summons t be b no A witness must be competent to give evidence. A witness is a cb l l competent if they can be lawfully called to give evidence (a 9d e s ha person lacking the necessary mental capacity, for example, 9d would be unable to give evidence). A witness may be f 0 com- r se and 2 u s pelled to give evidence by serving a witness summons d 9- on lthe l co law witness. The court will issue a witness summons - ac on request o a ofht a party and serve the summons on the witness 7 d 3 at t yrig least s t seven days before the hearing. The witness-is 6 4 entitledetorea sum t c op of money (known as conduct money) 8 for travel iand n lost time, bytrial. including earnings lost on account - c6 of attending n d dthe e e 7 8b BRI le, a tect EXAMPLE 3 e6 AR s, tit pro e. r : 4 1 B ight are rpos e 02 ll ar road A pedestrian details to n tifiwitnesses one of 2the a driversh h traffic y pu accident and gives icinvolved. Sometime later, the I d e t © ns w an pedestrian is contacted f by rthe solicitor for that driver with a er yrto request s ighprovide I ow alal ostatement fo setting out what the pedes- Utrianopsaw.BThe R lpedestrian , l d s so duly obliges. A few months after C this,Bthe R r i A pedestrian a or receives a witness summons through t e d maadvising the post e of a trial in a few weeks’ time. The sum- ar a conduct money cheque for £40. The mons included s h witness will have to take a day off work to attend. The wit- ness is entitled to contact the solicitors to request that they increase the conduct money offered to cover lost earnings and travel costs to get to court. 12.2.4 Use of Statement by Opponent If a party decides not to call a witness whose statement has been served, the other party can refer to the statement, which the court will treat as hearsay evidence (discussed later below). 623 DISPUTE RESOLUTION SQE prep NOTES 12.3 FORMAT OF WITNESS STATEMENTS The witness statement sets out in detail the evidence the witness will give on oath to the judge in court. The witness statement only needs to address facts in issue. 12.3.1 Statement of Truth The witness statement should include a statement of truth stating “I believe that the facts stated in this witness state- ment are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified bybae t statement of truth without an honest bbbelief in its truth”. no dac all 12.3.2 Relationship to the 9 Party s h 9 de e nd In situations where thefwitness 0 is the rs party’s representative making a statement9-in2 supportcof s a application, ouanwinterim mostly the same - d acrules apply. a h t la llHowever: The firm’s 7 d3 name and s t toaddress y rig should be given, with 6- 4 confirmation te re the that c opmaker is the party’s legal represen- 8 by in conduct - c6tative, nhaving d d of the claim on behalf of that party; e and e 7 8b BRI le, a tect e6 AR s, tiAst thero evidence from this witness is not direct, the maker 4 3 B t p s e. h should r e opreface any reference to facts outside personal ie r: 21 rig a knowledge r p with ‘I am informed...’. tif 20 all hich y p u n r Ide ht ©wns of w r an e rig o ll fo 12.4 EXCHANGE OF WITNESS STATEMENTS Us opy BRI ls, a old Under the standard directions, the parties must by a certain C AR ria or s date exchange witness statements of those witnesses on B ate ed whose evidence they intend to rely at trial. Receiving the m ar s h other side’s witness statements is a key step in evaluating the strength of the other side’s case and planning what ques- tions to ask those witnesses at trial in an attempt to under- mine their evidence. 12.5 WITNESS SUMMARIES If it is not possible to obtain a statement before the date for exchange in the directions order, a party may serve a witness summary. The witness summary should identify the witness and summarise the factual issues that their evidence will cov- er. It is necessary to obtain permission of the court to serve a witness summary. This may be helpful in situations in which a 624  DISPUTE RESOLUTION SQE prep party wants to call a witness who is out of the country or who will not sign a statement. NOTES 12.6 AFFIDAVITS An affidavit is a written statement confirmed by oath or affir- mation, predominantly for use as evidence in court. It contains a verification, meaning that it is under oath. The difference between an affidavit and a normal witness statement is that, whilst a witness statement contains a statement of truth, an affidavit must be ‘sworn’, normally before a solicitor who will endorse to say that the maker had sworn before them that t be the contents were true. In most cases, a witness statement c bb l no will suffice, but certain types of application or process requireda al e9 an affidavit to support, for example, applications for freezing d sh 09 injunctions or search orders must be supported by affidavit. f se r a nd -2 9 c ou ws 12.7 HEARSAY EVIDENCE ac d a l t la l Hearsay evidence is “a statement made7otherwise d3 - t to byrigh than a person while giving oral evidence6in -4proceedings r o py eswhich 8 e t y c is tendered as evidence of matters c6 stated”. d inother In b words, statements made outside ofbcourt. - e I TheaCivil e d n Evidence Act 1995 classes hearsay as7admissible 8 BR leevidence., tect 3 e6 AR s, tit pro e. 12.7.1 May Be :Oral 4 or t re os B inhWriting ie r 1 2 be r i g a urp Hearsay evidence i f can 0 l oral or h in writing, but for evidence nt © 2 s al hic ny p to be hearsay: e r Id ht wn of w r a seIt mustrighaveo been ll madefo out of court; and U opy BRI ls, a old R ria must CItsApurpose r sbe to prove the truth of what is being B ate ed stated. o m ar sh to appreciate that all witness statements are, at It is important the point the witness signs the statement, hearsay. However, if, as is generally the case, the witness comes to court to give evidence, their witness statement (plus their answers to the other side’s cross-examination) is treated as if they had spo- ken it in court and hence ceases to be hearsay. The position is, however, different if the witness is unable to attend court. EXAMPLE An accident occurred in a small-town centre between a car and a cyclist. A person who witnessed the accident told another person at the scene that they saw the driver of the 625 DISPUTE RESOLUTION SQE prep car talking on their mobile phone immediately before the NOTES collision. The witness then left. The person whom the wit- ness spoke to told the cyclist what the witness said. Even if the person who spoke to the cyclist comes to court to testify to what they were told, the witness’s statement would be hearsay, as it conveys what another person said out of court and is relevant to the issue of responsibility for the accident (the truth). 12.7.2 Evidence at Trial and Hearsay a. Claimant’s Case t be The claimant’s witnesses will give their b b evidence first. noEach witness will take the stand and dfirst ac swear an oath l l a affirma- or tion that their evidence is true. e 9 They will then s h be asked by the 9 solicitor or barrister representing d e nd it is their signature on f0 witnessuthe 2the rs claimant s a statement to confirm that and that their - o w statement is correct.c d9 Assuming l a htl c they l a say yes, the statement will then stand 3 -aas their evidence to ig and cease to be hearsay. d This is technically 7 s known t asyrtheir evidence in chief. 4 e p 8 6- i n ter y co b.c6Defendant’s Cross-Examination e - the solicitor Next n d dorbbarrister representingand the Case defendant will e , aopportunity t 7 RI tlthe 8b Bhave e e t.c to ask questions of the witness. This is e 6 R known ti asr ocross-examination, and the witness’s answers are 4 3 BA ts, e p se h r: 21 rig a rpequally r o their evidence. The purpose of cross-examination is ie f 0 l to h pprobeu the evidence. Therefore, it is common for the party enti © 2 s al hicconducting y the cross-examination to suggest that the witness I d ht n f w r aisnmistaken in s e yrig I o all fo Once all of thetheir r w o recollection of the key facts of the case. claimant’s witnesses have been cross-exam- U op BR ls, old ined, the defendant’s witnesses will give their evidence one C AR ria or s B ate ed by one and be cross-examined by the claimant’s legal team. m ar sh Exam Tip Be clear as to the difference between evidence in chief and evidence given in cross-examination. Evidence in chief is actively presented by the party, whereas cross-examination occurs when the party asks his oppo- nent’s witnesses questions. 12.7.3 Evidence of Witnesses Who Do Not Attend Court If a witness is unable to attend but a party wishes the court to consider the signed statement of the witness at the trial, 626  DISPUTE RESOLUTION SQE prep the court will treat this as hearsay evidence. A judge will not place as much weight on hearsay evidence. This is because NOTES the other side will not have the opportunity to question the witness in cross-examination and thereby test the strength of the evidence. In considering the weight to apply, the court must consider: Whether it would have been reasonable or practicable to force the witness to attend; Whether the original statement was made contempora- neously with the event; t be b no Whether the evidence involves multiple hearsay (that is, acb l l hearsay layered within other hearsay); e 9d s ha f 0 9d r se and EXAMPLE 9- 2 c ou ws c d al t la l Same facts as our last example (witness tells-aperson what witness saw; person tells cyclist). We are d 3 in court. now t toTherigh cyclist obtained the person’s witness 47 -statement, r es the but o py 6 e c t y trial. The person who gave the witness statement - c68 died d inbefore b cyclist offers the person’s witness e statement n as e devidence. The statement is multiple/layered7 8b BRI hearsay, l e , a tecast the person who e6 ARissnot t made the witness statement 4 3 t , ti inpcourt ro eand s. the witness statement itself contains B a statement re rmade o by someone else. The court will ie r: 2give likely 1 little r i ghweight a uto pthe witness statement. n tif 20 all hich y p I de ht © ns f w r an s r eWhether y rig there I ow awasl l o anyfomotive to misrepresent the posi- U tion p stated R in,the hearsayold or to conceal facts; Co ARB rialsor s Whether B ate the e d original statement was edited; and m arthere can be any suggestion that the events Whether sh leading to the evidence being presented as hearsay evi- dence constitute an attempt to prevent proper evaluation as to its weight. 12.7.4 Trial Judge Must Indicate the Weight Applied to Hearsay Evidence In making their judgment, the trial judge will indicate the weight that they have attached to any hearsay evidence. 12.7.5 Process for Relying on Hearsay Evidence A party wishing to rely on hearsay evidence must serve a notice on their opponent. If the witness will be attending the 627 DISPUTE RESOLUTION SQE prep trial, service of the witness statement itself constitutes notice. NOTES However, if the witness will not be attending the trial, the party must serve a formal document giving notice. a. Response of Other Party A party served with a hearsay notice may seek to call the wit- ness at trial (if the witness’s whereabouts are known) or seek to attack the witness’s credibility at trial. To do so, the party must act within 14 days of receiving the hearsay notice (that is, make an application to call the witness to court for the trial within 14 days of receiving the hearsay notice or, within 14 days of receiving the hearsay notice, serve a notice of intent t be to attack the credibility of the hearsayb by establishing that the witness is biased, untrustworthy, a cbunreliable). ll no or d a d e9 d sh 12.8 OTHER EVIDENTIAL f09 rISSUES se an 2 u o ws 12.8.1 Hostile Witnessesd 9- c l t la l ac a As we have 3 d - seen above,toit is ipart t r gh of the role of a party’s barrister4to r es opy 7 try, by cross-examining the witness, to undermine 6- that8witness’s n e evidence. t y c For example, a witness may change 6 their i b -c story nduring etheir d dcross-examination. If a witness changes b I story, , 8 BtoRdiscredit a a c te cannot cross-examine and therefore seek party 7 e e