Tactics on Disclosure & Requests for Information

February 28, 2014

Introduction

Standard disclosure

1. CPR Part 31 sets out rules about disclosure and inspection of documents applicable to all claims, except a claim on the small claims track (CPR rule 31.1(2)). However the rules may be modified, eg:

  • CPR Part 63.8 and paragraph 5 of the Part 63 PD in intellectual property proceedings; and
  • paragraph 11.2 of the Technology and Construction Court Guide.

2. CPR rule 31.4 defines a “document” widely as: “anything in which information of any description is recorded” and a “copy” as “in relation to a document, anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.”

3. Under CPR rule 31.6 “standard disclosure” requires a party to disclose only

  • the documents on which he relies
  • the documents which adversely affect his own case
  • the documents which adversely affect another party’s case
  • the documents which support another party’s case
  • the documents which he is required to disclose by a relevant practice direction.

In Abela v Hammond Suddards (a firm), 2.12.08, the defendant solicitors listed 100 boxes of files by file rather than by document. Paul Girolami QC refused an
application that the documents be listed individually “so that the Claimants (who had their own views on the matter) could ascertain what the Defendants considered to be the relevant documents falling within CPR 31.6”. He limited standard disclosure to disclosure by file.

4. Under CPR rule 31.5, the normal order for disclosure is an order for standard disclosure, unless the court directs otherwise. The Court or the parties by written agreement may dispense with or limit standard disclosure. Under CPR rule 31.13, the parties may agree in writing or the Court may direct that disclosure or inspection shall take place in stages (ie where there is a split trial). Paragraph 1.4 of the Practice Direction provides that any written agreement between the parties should be lodged
at Court.

5. A party’s duty to disclose documents is to limited to documents which are or have been in his control (CPR rule 31.8), meaning:

  • is or was in his physical possession
  • has or has had a right to possession of it or
  • has or had had a right to inspect or take copies of it.

6. Under CPR rule 31.7, a party is required to make a reasonable search for adverse documents when giving standard disclosure. The factors relevant in deciding the
reasonableness of a search include:

  • the number of documents involved
  • the nature and complexity of the proceedings
  • the ease and expense of retrieval of any particular document
  • the significance of any document which is likely to be located during the search.

A party that has not searched for a category or class of documents on the grounds that to do so would be unreasonable, must state this in his disclosure statement and
identify the category or class of document. Paragraph 2 of the Practice Direction states that the parties must bear in mind the principle of proportionality and may
decide that it would not be reasonable to search for documents coming into existence before a particular date or to limit the search to a particular place or places or to documents falling into particular categories.

7. In Al Fayed v The Commissioner of Police of the Metropolis [2001] EWCA Civ 780 (2002) 99(3)) LSG 39, at paragraph 46, Clarke LJ said: “Standard disclosure is an important aspect of any action. It is an important part of the duty of any solicitor to put in place a system which ensures that it is carried out properly and with care.” All solicitors will have procedures for standard disclosure both when acting for the disclosing party and when acting for the receiving party. This talk is aimed at the difficult decisions that face a solicitor on disclosure that are not covered by standard procedures and systems, namely:

  • exposing the weaknesses in the other side’s case through requests for specific disclosure/requests for information
  • dealing with documents/information that are borderline to standard disclosure
  • dealing with documents that tend to incriminate or expose to a penalty
  • applying to the Court to withhold inspection of a document
  • preventing confidential information from being disclosed
  • using disclosed documents for other purposes
  • dealing with inadvertently disclosed documents

Continue reading – download the full article: Disclosure