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Topic Notes on Disclosure
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Summary of all the key principles and processes on the BVS syllabus These notes helped me score a distinction on the Civil Litigation module
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Disclosure (Topic 10A) – Part 1Disclosure: a party discloses a document by General principles:
stating that the document exists/has existed • Each party must let ALL other parties have NOT
just those documents which they want to rely on
Purpose of disclosure à To further the overriding BUT those which are relevant to the dispute
objective + ‘cards on the table’ approach • Disclosure is needed as part of the court’s case
1) Ensure every party has relevant docs management powers as not all parties engage in
2) Allow parties to assess strengths of case the pre-action process
3) Ensure court has before it relevant o The risk = no docs exchanged at all
documents o Reason = So parties have a clear idea of
the matters in issue and how to resolve
2 distinct parts to the process: them
o Disclosure – stating a doc exists
o Inspection – other side states which Overriding objective likely to be engaged
docs they wish to inspect o Ensuring parties on equal footing
o Proportionality (must not be too onerous)
The receiving party has a right to inspect that o Appropriate share of court resources
document except where: o Time and costs
• Doc no longer in control of the party who
disclosed it
Does disclosure only extend to ‘documents’?
• Party disclosing the doc has a right/duty to
• Documents is intentionally defined widely to
withhold inspection of it
include anything in which information is
After disclosure, what happens? recorded. Includes:
• Once the existence of the document is known, o Electronic documents
o Deleted items
the other side looks at those documents they
o CCTV
wish to o Other recordings and photographs
• These are made available or provided to them o Anything onto which info recorded in the
usually by sending copies à inspection doc have been copied counts as a ‘copy’
(whether directly/indirectly)
When does the court consider disclosure
BUT if a copy of a doc contains a
issues?
modification/obliteration or other mark/feature à
• After the case has been allocated to a track and treated as a separate document and would have to be
the stage at which case management orders to disclosed (if the test is met)
make looking ahead to trial
• Once a case has bene provisionally allocated to
the MT à court requires a range of docs to be Continuing duty to disclose
• Any duty of disclosure continues UNTIL the
filed (e.g., directions questionnaire, disclosure
proceedings are concluded
reports (MT) • Any disclosable document subsequently coming
• Also likely that cost management applies and so to light must be disclosed immediately – notify
costs budgets and discussion reports = further other party
requirement
Where/how does disclosure take place? NB: there is a view among practitioners that menu
disclosure has not achieved the purpose of
• Disclosure in the list of things the parties MUST improving disclosure but rather has increased
consider when trying to agree directions costs.
• When? • In the Business & Property Courts,
o It takes place AFTER the court orders it alternative disclosure methods are being
(made at allocation stage/ case piloted.
management conference)
o But as part of the pre-action protocols à
parties must give each other sufficient Consequences of failing to comply properly with
info to enable them to understand the disclosure obligations
• Unless order made against party
other party’s case and assess the
• Strikeout
strengths and weaknesses of their own
• Party prevented from relying on it
f
,Test
Parties must disclose documents
o that party relies upon
o which adversely affect his own case/ another party’s case/ which support another party’s case
o as required by any Practice Direction
NOT relevance
WB Commentary/Case law
• parties to bear in mind overriding principle of proportionality
• statements of case = essential reference point (NOT by reference to matters raised elsewhere including in
W/S)
• nothing in CPR restricts concept of ‘adversely affect’/’support’
§ does NOT cover a doc which of itself does NOT adversely affect but which may provide lines of
inquiry leading to other info having a negative effect
• A document casting doubt on the credibility of a party whose own evidence was important could be
seen as one ‘adversely affecting’ that party’s case
• the obligation to disclose adverse material applies even when a D has been debarred from defending a
claim due to non-compliance with an unless order
• Parties probably do not need to give disclosure of documents relating to non-material allegations in
pleadings, i.e. those which even if substantiated would not affect the result
• The confidentiality of a particular document does not of itself justify non-disclosure
• Deletion of relevant parts by way of redaction could give rise to a specific disclosure order and thus care
must be taken
• documents relating purely to XX as to credit and to no other issue in the trial are outside the scope of
standard disclosure
• Shah v HSBC Private Bank [2011] à standard disclosure would NOT cover docs revealing the identity
of a party’s employees, which information at most went to a general testing of a party’s case rather
than to a positive case put by the other party
§ Such material was train of inquiry material subject to discovery under the RSC, but NOT
standard disclosure under the CPR
• If documents are specified in a PD, then they must be disclosed, whether or not they are relied on, or
adversely affect or support any party’s case
Categories of documents
Parties own documents Docs which a party relies upon in support of their contentions in the proceedings
Adverse documents Docs which to a material extent adversely affect a party’s own case/support
another party’s case
Relevant documents Docs which are relevant to the issues in proceedings BUT which do not fall into
categories 1 or 2 bc they do NOT obviously support/undermine either side’s
case. (instead form part of story/background)
• Category includes docs which, though relevant, may NOT be necessary
for the fair disposal of the case
Train of inquiry documents Docs which may lead to a train of inquiry enabling a party to advance their own
case or damage that of their opponent
Disclosure in particular types of cases and circumstances
• Documents relevant to quantum are normally disclosable, at least where quantum is in issue
• Dunn v British Coal Corp [1993] à In an injury claim where quantum in issue, ALL medical records relevant
to loss of future earnings had to be disclosed, not just those relating to the injury, the subject of the litigation
• In split trials, where quantum of damages is only determined if liability is established, there is no need to
disclose documents relevant purely to quantum, and this should ONLY be ordered if and when liability is
determined
• Documents relating to the insurance position of a party are NOT normally relevant and so not disclosable
o However, there in unusual situations where the insurance position of a party is relevant, e.g.
where a party relies on the UCTA 1977 and an issue arises as to the availability of insurance or
the terms on which it was available
• Court has power to order disclosure of an after the event insurance policy on the basis that its disclosure was
necessary to enable the court to exercise its case management function proportionately and efficiently (Re
RBS Rights Issue Litigation) [2017]
o In the general case an after the event insurance policy would not be relevant, but there could be
exceptions:
o E.g. in group litigation where Cs had the benefit of several liability → Legal professional privilege
was unlikely to attach to such policies, other than for the redaction of passages that conveyed the
legal advice which had been given
o the court ordered disclosure of names/addresses of C’s 3P litigation funders
, Standard disclosure Disclosure orders in the court’s armoury
• The normal order order that is made Starting point = disclosure varies btw tracks
• It requires each party to disclose:
o Docs they rely upon Basic position:
o Docs adversely affecting their own case Small claims track Only documents relied
o Docs adversely affecting another’s case upon
o Docs supporting another’s case Fast track Standard disclosure
o Docs required to be disclosed under a PD Personal injury Standard disclosure
claims on FT/MT
Test = whether the documents adversely affect/support Multi-track Menu disclosure
a party’s case (usually)
n NOT relevance! Business and Disclosure pilot scheme
n A relevant document will only fall within the scope if Property Courts
it satisfies the test
n Court will look at the statement of cases as a ‘Train of enquiry’ documents
essential reference point What? Documents which MAY lead to the
discovery of other docs supporting/adversely
Standard disclosure does NOT cover affecting either party
• train of enquiry documents Exception:
• (usually, if irrelevant) insurance documents, • May be potentially appropriate for
o UNLESS the insurance position was an issue in the disclosure where there are allegations
case à then documents e.g., claim form sent to D’s of fraud, dishonesty or
insurers disclosable under standard disclosure misrepresentation
Court HAS a very broad power to make any
What does standard disclosure apply to? direction it considers sensible, if it is in
1) Most fast-track claims unless COO accordance with overriding objective
2) Most personal injury claims on the multi-track
3) Such other multi-track claims in respect of which the However, it would NOT be appropriate to
court decides to make a direction for it order such enhanced disclosure before
Procedure standard disclosure have been completed
1) Disclosure made by exchange of a list of
documents Documents within a party’s control
Standard form to be completed – divided into 3 sections A party’s duty to disclose is limited to those
1st section Contains list of documents the party is documents which are/have been in his ‘control’
prepared to let other side see
2 section
nd Documents protected by privilege which a Definition extends to NOT just documents they
party OBJECTS to the other side actually have but also those they are entitled to
inspecting ask from someone else. This includes
3rd section Documents which the party no longer has documents:
and what happened to the document 1) In his physical possession
Each party MUST make and serve on every other party the 2) If he has/had a right to possession
list of existing documents/docs within control which 3) If he has/had a right to inspect/take
identifies the docs in a convenient order and manner and as copies
concisely as possible (e.g., entitlement to see his/her own GP notes)
^ list must indicate which docs fall in 2nd section and 3rd
section and why
A reasonable and proportionate search
List must include disclosure statement In compiling the list of documents, each party
2) Other side entitled to inspect the documents they MUST carry out a reasonable and
are entitled to see proportionate search
Can take place by personal inspection, requesting • The search may be limited by reference
photocopies or in electronic format to dates, places or categories – but this
• Court can redact irrelevant material first when permitting limit must be set out on the list of
inspection documents
• Test for what is suitable for redaction same as test for
standard disclosure Relevant factors to deciding ‘reasonable and
• Party requesting inspection will need to undertake to proportionate’
pay copying costs • Number of documents
• If a party objects on the ground that it would • Nature and complexity of litigation
disproportionate to allow inspection by the other party of • Ease and expense of retrieval
docs/classes of docs which it must disclose, that • Likely significance of documents
objection must be made clear on the face of the list of • Whether the info is available from other
docs sources
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