Evidence and disclosure - Disclosure and inspection

Learning Outcomes

After reading this article, you should understand the key principles governing disclosure and inspection in civil litigation under the Civil Procedure Rules (CPR). You will be able to identify the scope of standard disclosure, recognise documents protected by privilege, and understand the procedures for electronic disclosure, specific disclosure, pre-action disclosure, and non-party disclosure. This knowledge will assist you in applying these rules to SQE1 assessment scenarios.

SQE1 Syllabus

For SQE1, you are expected to understand the rules and procedures relating to disclosure and inspection of documents in civil litigation. You should be able to identify the extent of a party's disclosure obligations and the circumstances in which inspection of documents can be withheld. A working knowledge of the different types of privilege is essential.

Remember to focus your revision on:

• The meaning and scope of standard disclosure under CPR Part 31.
• The definition of 'document' and 'control' for disclosure purposes.
• The different types of privilege: legal advice privilege, litigation privilege, and without prejudice privilege.
• The concept of waiver of privilege.
• The basic requirements and challenges of electronic disclosure (e-disclosure).
• The procedures and grounds for specific disclosure, pre-action disclosure, and non-party disclosure.
• The purpose and requirements of disclosure lists and disclosure statements.
• The implications of the Disclosure Pilot Scheme (PD 51U) for relevant cases.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following documents would typically fall under the standard disclosure obligation in CPR 31.6?
   1. A draft witness statement prepared by a solicitor but not yet served.
   2. An internal company report analysing a potential product defect, created before any litigation was contemplated.
   3. An email from the client to their solicitor seeking legal advice on the dispute.
   4. A 'without prejudice' letter offering settlement terms sent between the parties' solicitors.
2. A party claims litigation privilege over an expert's report commissioned after proceedings began. What is the dominant purpose test relevant here?
   1. Was the report created for the sole purpose of obtaining legal advice?
   2. Was the report created for the dominant purpose of conducting the litigation?
   3. Was the report created for the dominant purpose of settling the dispute?
   4. Was the report created for the sole purpose of providing expert opinion to the court?
3. Under CPR Part 31, what constitutes 'control' of a document? (Select all that apply)
   1. Physical possession of the document.
   2. A right to inspect the document held by a third party.
   3. Having previously seen the document but no longer having access.
   4. A right to obtain a copy of the document.
4. When might a party apply for specific disclosure under CPR 31.12?
   1. When they believe the opponent's standard disclosure is inadequate.
   2. Before proceedings have started to assess the merits of a claim.
   3. To obtain documents from a person who is not a party to the proceedings.
   4. Only when the opponent has refused inspection of a disclosed document.

Introduction

Disclosure and inspection are critical stages in civil litigation, ensuring that parties have access to relevant evidence before trial. Governed primarily by CPR Part 31, these processes mandate the identification of relevant documents and allow for their examination by opposing parties, supporting the principle of fairness and enabling informed case assessment and potential settlement. Failure to comply with disclosure obligations can lead to significant sanctions.

Key Term: Disclosure
Stating that a document exists or has existed (CPR 31.2).

Key Term: Inspection
A party's right to examine a document disclosed by another party (CPR 31.3).

Standard Disclosure

Unless the court orders otherwise, parties in fast-track and multi-track claims must give standard disclosure. This is the default position.

Key Term: Standard Disclosure
The duty under CPR 31.6 requiring a party to disclose: (a) the documents on which they rely; and (b) the documents which adversely affect their own case, adversely affect another party's case, or support another party's case; and (c) documents required by a relevant practice direction.

What is a Document?

The definition is broad, encompassing anything in which information is recorded (CPR 31.4). This includes paper documents, electronic documents (emails, databases, word files), audio/video recordings, photographs, and metadata.

Key Term: Document
Anything in which information of any description is recorded (CPR 31.4).

What is Control?

The duty to disclose applies only to documents that are or have been in a party's control (CPR 31.8).

Key Term: Control
A party has or has had control of a document if: (a) it is or was in their physical possession; (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 (CPR 31.8(2)).

The Duty to Search

Parties must conduct a reasonable and proportionate search for documents falling within standard disclosure (CPR 31.7). What is reasonable depends on factors like the number of documents, case complexity, cost of retrieval, and document significance. Parties must state in their disclosure statement if they have limited their search and why (e.g., searching only specific date ranges or locations).

Electronic Disclosure (E-Disclosure)

The prevalence of electronic documents presents specific challenges. PD 31B provides guidance. Parties are expected to cooperate early on to agree on the scope of e-disclosure, including keywords, date ranges, and technology use, to manage the volume and cost effectively.

Key Term: E-disclosure
Disclosure relating to electronic documents, including emails, electronic files, databases, and metadata.

Withholding Inspection: Privilege

While a document may need to be disclosed (its existence stated), a party may have the right to withhold it from inspection if it is privileged. Privilege protects the confidentiality of certain communications.

Key Term: Privilege
A right allowing a party to withhold inspection of a document from another party or the court.

Legal Advice Privilege (LAP)

This protects confidential communications between a lawyer and their client made for the dominant purpose of giving or receiving legal advice. It applies whether or not litigation is contemplated. The communication must be directly related to the lawyer's professional duties.

Key Term: Legal Advice Privilege (LAP)
Protects confidential communications between a lawyer and client made for the dominant purpose of giving or receiving legal advice.

Litigation Privilege (LP)

This protects confidential communications made for the dominant purpose of conducting litigation which is reasonably in prospect or already commenced. It can cover communications between:

• Lawyer and client
• Lawyer and third party (e.g., an expert witness)
• Client and third party (e.g., obtaining potential evidence)

The litigation must be a real likelihood, not just a remote possibility.

Key Term: Litigation Privilege (LP)
Protects confidential communications made after litigation is contemplated or commenced, where the dominant purpose is to conduct that litigation (e.g., obtain information/advice or evidence).

Summary: LAP vs LP

Without Prejudice Privilege

This protects communications (written or oral) made in a genuine attempt to settle a dispute. The aim is to encourage parties to negotiate freely without fear that concessions made will be used against them in court if settlement fails. Documents should ideally be marked "Without Prejudice", but the substance determines if the privilege applies.

Key Term: Without Prejudice Privilege
Protects communications made in a genuine attempt to settle a dispute from being put before the court as evidence of admissions.

Waiver of Privilege

Privilege belongs to the client and can be waived by them, either expressly or impliedly. Serving a privileged document (e.g., a witness statement or expert report) on the opponent usually constitutes waiver. Inadvertent disclosure of a privileged document may sometimes be rectified if it was an obvious mistake and the recipient should have realised this.

Key Term: Waiver
The loss of the right to claim privilege, often by voluntarily disclosing the privileged communication or referring to it in open court or documents.

Disclosure Procedure

The Disclosure List

Parties giving standard disclosure must serve a list of documents (Form N265). The list is divided into three parts:

1. Documents within the party's control which they do not object to inspecting.
2. Documents within the party's control for which they claim a right to withhold inspection (e.g., privileged documents). These are usually described generically.
3. Documents which were previously in the party's control but are no longer. The list must state what happened to these documents.

Key Term: Disclosure List
A formal list (Form N265) served by a party identifying the documents required to be disclosed under a court order.

The Disclosure Statement

The disclosure list must include a disclosure statement, signed by the party (or an appropriate person if a company), certifying:

• The extent of the search conducted.
• That the party understands the duty of disclosure.
• That, to the best of their knowledge, they have carried out that duty. A false statement can lead to contempt of court proceedings.

Key Term: Disclosure Statement
A statement within the Disclosure List confirming the extent of the search undertaken and certifying understanding and compliance with the duty of disclosure.

Inspection

A party receiving a disclosure list has the right to inspect the documents listed in Part 1 (CPR 31.3). They must give written notice of their wish to inspect, and the disclosing party must permit inspection within 7 days (usually by providing copies). Inspection of Part 2 documents (privileged) is withheld. Part 3 documents cannot be inspected as they are no longer in the party's control.

Redaction

Parts of a disclosable document may be redacted (obscured) if those parts are irrelevant to the issues in dispute or are privileged, while the rest of the document is disclosed and inspected.

Key Term: Redaction
The process of obscuring parts of a document before disclosure or inspection, typically because those parts are irrelevant or privileged.

Orders for Disclosure Beyond Standard Disclosure

Specific Disclosure

If a party believes another party's disclosure under an order (e.g., standard disclosure) has been inadequate, they can apply to the court for an order for specific disclosure (CPR 31.12). The application must specify the documents or classes of documents sought or the search required. The court will only make the order if it is satisfied that it is necessary for disposing fairly of the claim or for saving costs.

Key Term: Specific Disclosure
A court order requiring a party to disclose documents beyond those required by standard disclosure, or to carry out a specific search (CPR 31.12).

Pre-Action Disclosure (PAD)

Before proceedings start, a person who appears likely to be a party can apply for disclosure from another likely party (CPR 31.16). The court may order PAD if:

• The respondent and applicant are likely to be parties to subsequent proceedings.
• The requested documents would fall within standard disclosure if proceedings had started.
• Disclosure before proceedings is desirable to:
  • Dispose fairly of the anticipated proceedings.
  • Assist the dispute to be resolved without proceedings.
  • Save costs.

Key Term: Pre-action Disclosure
Disclosure ordered before proceedings have commenced, typically to allow a potential claimant to assess the merits of a claim (CPR 31.16).

Non-Party Disclosure (NPD)

Once proceedings have started, a party can apply for disclosure from a person who is not a party to the proceedings (CPR 31.17). The court may order NPD if:

• The requested documents are likely to support the applicant's case or adversely affect another party's case.
• Disclosure is necessary to dispose fairly of the claim or save costs.

Key Term: Non-party Disclosure
Disclosure ordered against a person who is not a party to the proceedings (CPR 31.17).

Worked Example 1.1

Scenario: Your client, the Claimant, is suing the Defendant for breach of contract regarding allegedly defective goods. The Defendant's disclosure list (Part 1) omits any reference to internal quality control reports for the relevant batch of goods, which your client believes must exist and might support their claim.

Question: What step should your client consider taking?

Answer:
Your client should first write to the Defendant requesting disclosure of the specific quality control reports. If the Defendant refuses or fails to disclose them, your client should consider making an application to the court for an order for specific disclosure under CPR 31.12, providing evidence why these documents are believed to exist, are within the Defendant's control, and are relevant under the standard disclosure test.

Worked Example 1.2

Scenario: Your client is considering suing their former employer for unfair dismissal. Before issuing proceedings, they need access to their personnel file and internal emails relating to their dismissal to fully assess the strength of their potential claim. The employer has refused informal requests.

Question: What type of application might be appropriate?

Answer:
An application for pre-action disclosure under CPR 31.16 might be appropriate. Your client would need to satisfy the court that both parties are likely to be parties to subsequent proceedings, the documents would be subject to standard disclosure, and disclosure now is desirable to potentially resolve the dispute without proceedings or save costs.

Worked Example 1.3

Scenario: During litigation, your client discovers that an essential technical report relevant to the dispute is held by an independent engineering consultancy (who are not a party to the proceedings).

Question: How can your client obtain this report if the consultancy is unwilling to provide it voluntarily?

Answer:
Your client can apply to the court for an order for non-party disclosure against the engineering consultancy under CPR 31.17. They must demonstrate that the report is likely to support their case (or adversely affect the opponent's) and that its disclosure is necessary for fairly disposing of the claim or saving costs.

Disclosure Pilot Scheme (PD 51U)

For cases proceeding in the Business and Property Courts, the Disclosure Pilot Scheme (PD 51U) largely replaces CPR Part 31. It aims to make disclosure more focused and proportionate.

Key Term: Disclosure Pilot Scheme
A mandatory disclosure regime operating in the Business and Property Courts (PD 51U), emphasising focused disclosure based on Issues for Disclosure rather than broad standard disclosure.

Key elements include:

• Initial Disclosure: Parties provide key documents relied upon with their statements of case.
• Issues for Disclosure: Parties must seek to agree the key issues requiring documentary evidence.
• Extended Disclosure: If required, parties agree on one of five disclosure models (Model A to Model E) for specific Issues for Disclosure, ranging from no search-based disclosure to wide-ranging searches. The court orders the appropriate model(s).

Key Term: Initial Disclosure
Under the Disclosure Pilot Scheme, the requirement for parties to provide known adverse documents and key documents relied upon with their statements of case.

Key Term: Extended Disclosure
Under the Disclosure Pilot Scheme, disclosure beyond Initial Disclosure, ordered by the court based on agreed Issues for Disclosure and one of five disclosure models.

Exam Warning

Be aware of which disclosure regime applies. Standard disclosure under CPR 31 remains the default for most County Court and High Court claims outside the Business and Property Courts. The Disclosure Pilot Scheme (PD 51U) has specific requirements and terminology (e.g., Initial Disclosure, Extended Disclosure, Issues for Disclosure, Models A-E) that you must understand if the question scenario indicates the case falls within its scope.

Key Point Checklist

This article has covered the following key knowledge points:

• Disclosure is stating a document exists; inspection is examining it.
• The duty applies to relevant documents within a party's 'control'.
• Standard disclosure covers documents relied on and adverse/supporting documents (CPR 31.6).
• A reasonable and proportionate search is required (CPR 31.7).
• E-disclosure requires specific management due to volume and complexity (PD 31B).
• Privilege allows withholding inspection (LAP, LP, Without Prejudice).
• Privilege can be waived, expressly or impliedly.
• Disclosure lists (Form N265) and disclosure statements are required procedural steps.
• Specific disclosure (CPR 31.12), pre-action disclosure (CPR 31.16), and non-party disclosure (CPR 31.17) are available via court application under specific conditions.
• The Disclosure Pilot Scheme (PD 51U) applies in the Business and Property Courts, focusing on Issues for Disclosure and tailored Extended Disclosure models.

Key Terms and Concepts

• Disclosure
• Inspection
• Document
• Control
• Standard Disclosure
• E-disclosure
• Privilege
• Legal Advice Privilege (LAP)
• Litigation Privilege (LP)
• Without Prejudice Privilege
• Waiver
• Disclosure List
• Disclosure Statement
• Redaction
• Specific Disclosure
• Pre-action Disclosure
• Non-party Disclosure
• Disclosure Pilot Scheme
• Initial Disclosure
• Extended Disclosure