Civil claim procedures - Disclosure and inspection

Learning Outcomes

After reading this article, you will be able to identify and apply the key rules for disclosure and inspection of documents in civil claims. You will understand what must be disclosed, when privilege and inspection apply, how the process works under the Civil Procedure Rules, and how to manage specific issues arising in disclosure disputes. You will be equipped to advise clients and deal with disclosure requirements for SQE2 assessments.

SQE2 Syllabus

For SQE2, you are required to understand the main principles and practical steps concerning disclosure and inspection within civil proceedings. These underpin many litigation scenarios and procedural tasks.

As you review this topic for revision, focus on:

• The scope and requirements of standard disclosure under the Civil Procedure Rules (CPR).
• The definition of a “document” and the duty to search for relevant documents.
• Rules for inspection—when, how, and by whom documents can be inspected.
• The concept and types of privilege (legal advice, litigation, without prejudice).
• The process for challenging inadequate disclosure or claims to privilege.
• Applications for specific disclosure or inspection of documents.

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. What is the test for whether a document must be disclosed as part of standard disclosure in civil proceedings?
2. Name two key types of privilege that may be claimed over documents in the disclosure process.
3. Can a party inspect all documents listed on an opponent’s disclosure list? If not, what are the main exceptions?
4. What procedural step is available if a party believes the other side’s disclosure is inadequate or privilege is wrongly claimed?

Introduction

Disclosure and inspection expose the key evidence and documents that parties must exchange before a civil trial. Correct application of the rules is fundamental for progressing litigation, ensuring fairness, and assisting effective client advice. The Civil Procedure Rules (CPR), especially Part 31, set out clear obligations for parties, failure of which can result in sanctions and adverse inferences.

What is “disclosure”?

Disclosure requires a party to inform other parties about the existence of documents within its control that are relevant to the issues in dispute, whether or not they support the disclosing party’s case.

Key Term: disclosure
The process of informing other parties about the existence of relevant documents within a party’s control in civil proceedings.

Key Term: control (documents)
A party has “control” if they possess, have the right to possess, or have the right to inspect or take copies of a document.

What is “inspection”?

Inspection is the next step: unless an exception applies, the parties may inspect disclosed documents to review their content.

Key Term: inspection
The right of a party to view and take copies of disclosed documents unless inspection is properly withheld.

The scope of standard disclosure

Under CPR 31.6, standard disclosure requires a party to disclose only:

• Documents on which it relies;
• Documents which adversely affect its own case, adversely affect another party’s case, or support another party’s case;
• Documents it is required to disclose by a relevant practice direction.

Reasonable searches for documents

A party must conduct a reasonable and proportionate search for documents that meet the disclosure test. Factors include the number of documents, the complexity of the proceedings, the ease and cost of retrieval, and the significance of the documents likely to be found.

The duty to disclose: practical points

• The duty covers documents within a party’s control, not just those in their possession.
• “Document” means anything on which information is recorded—this includes emails, digital files, drafts, photographs, and more.
• The duty is ongoing: if new documents are found after initial disclosure but before trial, a supplemental list must be served.

Disclosure list and statement

Disclosure is usually given by exchanging a disclosure list (Form N265), identifying disclosed documents. The party making the disclosure must verify it with a statement of truth, certifying that they have complied with the duty to search and disclose.

Inspection of documents

The opponent may request to inspect any document disclosed, unless:

• The document is no longer within the control of the party disclosing it;
• The party has the right or duty to withhold inspection (most often due to privilege);
• The court orders otherwise (e.g., where inspection would be disproportionate).

If inspection is requested, copies of documents must be supplied within seven days of the request, subject to reasonable copying costs.

Privilege: when can a party withhold inspection?

Privilege is an exception to the right of inspection and is essential for protecting confidential legal communications and settlement negotiations.

Key Term: privilege
The right to withhold inspection of a document on grounds of confidentiality recognised by law.

Key Term: legal advice privilege
Confidential communications between a client and their solicitor or barrister for the purpose of giving or obtaining legal advice.

Key Term: litigation privilege
Confidential communications between a client (or their lawyer) and third parties made for the dominant purpose of conducting existing or reasonably contemplated litigation.

Key Term: without prejudice privilege
Communications genuinely made in a settlement context, which cannot be shown to the court about the substance of settlement offers.

If a document is privileged, it must still be listed, but may be described in general terms (e.g., “correspondence with solicitors—privileged”), and the reason must be given for refusing inspection.

Claiming privilege: key considerations

• Privilege attaches to the document, not the information.
• Privilege can be lost by waiver (e.g., if the contents are voluntarily disclosed to the other side).
• If there is a dispute over a claim to privilege, the court may inspect the document to determine whether the claim is valid.

Challenging inadequate disclosure or privilege

If a party believes disclosure is incomplete, or privilege is inappropriately claimed, the following steps are available:

1. Write to the other side, identifying the missing documents or disputing the privilege claim.
2. If still unsatisfied, apply to the court under CPR 31.12 for an order for specific disclosure or inspection.

Key Term: specific disclosure
A court order requiring a party to carry out a further search, or to disclose or permit inspection of specific documents or classes of documents.

Disclosure and inspection: practical sequence

1. Serve disclosure list by the specified court deadline.
2. Opponent reviews and requests inspection of non-privileged documents.
3. Provide requested documents within seven days, charging reasonable copying costs.
4. If any document is claimed to be privileged, list it in the disclosure statement with the claim of privilege.
5. If disputes arise as to adequacy or privilege, seek to resolve by correspondence, and if necessary, apply to the court for specific disclosure or inspection.

Worked Example 1.1

You act for the claimant in a business dispute. Your client’s opponent serves its disclosure list, describing “legal advice from external solicitors—privileged” and refuses inspection. Your client believes the advice relates not to legal advice but routine commercial discussions. What should you do?

Answer:
Raise a prompt written challenge to the claim to privilege, giving reasons. If the issue cannot be resolved, apply for disclosure of that advice or for the court to decide if privilege is valid. The court may review the document to determine if it genuinely attracts legal advice privilege.

Worked Example 1.2

Your client in a negligence claim receives the defendant’s disclosure list. Several emails between the defendant and its insurers are listed as privileged. You need to know whether these are properly withheld under litigation privilege. What questions must you consider?

Answer:
Check if there was litigation in progress or reasonably contemplated when the emails were written, and whether the dominant purpose of the emails was obtaining advice or evidence for that litigation. If not, privilege may not apply and inspection could be required.

Exam Warning

Be careful to distinguish between the duty to disclose (which extends to all relevant documents within control) and the right to withhold inspection (which applies only to privileged documents or as otherwise permitted by the court). Do not withhold disclosable documents just because they are not helpful to your client's case.

Key Point Checklist

This article has covered the following key knowledge points:

• Disclosure requires stating the existence of relevant documents within a party’s control, not just documents they intend to rely on.
• Only documents meeting the CPR’s standard disclosure test must be disclosed.
• Inspection may be withheld if privilege applies or if inspection would be disproportionate.
• The duty to search for documents is to be reasonable and proportionate, and is ongoing until the case is finished.
• Privilege protects legal advice, litigation documents, and settlement negotiations from inspection, but not from being disclosed as existing.
• If inadequate disclosure or improper privilege is suspected, correspondence should be attempted first, then an application for specific disclosure or inspection under CPR 31.12 may be made.

Key Terms and Concepts

• disclosure
• control (documents)
• inspection
• privilege
• legal advice privilege
• litigation privilege
• without prejudice privilege
• specific disclosure