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Summary Civil Litigation - Disclosure and Inspection Notes
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Civil Litigation Syllabus Notes on Disclosure and Inspection, used in conjunction with the White Book from BPTC 2019/2020.
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SYLLABUS 12 DISCLOSURE AND INSPECTION OF DOCUMENTS**TO KNOW: Norwich Pharmacal by name and principles**
CPR: Part 31
31.1 rules about the disclosure and inspection of documents, apply to all claims except a
claim on the small claims track.
31.2 Meaning of disclosure
A party discloses a document by stating that the document exists or has existed.
31.3 Right of inspection of a disclosed document
(1) A party to whom a document has been disclosed has a right to inspect it except where—
(a) the document is no longer in the control of the party who disclosed it;
(b) the party disclosing the document has a right or a duty to withhold inspection of it;
(c) para (2) applies; or
(d) r78.26 applies.
(2) Where a party considers it would be disproportionate to the issues in the case to permit
inspection of documents within a category or class of document disclosed under 31.6(b)—
(a) he is not required to permit inspection of documents within that category or class; but
(b) he must state in his disclosure statement that inspection of those documents will not be
permitted on the grounds that to do so would be disproportionate.
31.4 Meaning of document
“Document” = anything in which information of any description is recorded
“Copy” = anything onto which information recorded in the document has been copied, by
whatever means and whether directly or indirectly.
31.5 Disclosure: In all claims to which r.31.5(2) does not apply—
(a) an order to give disclosure is an order to give standard disclosure unless the court
directs otherwise;
(b) the court may dispense with or limit standard disclosure; and
(c) the parties may agree in writing to dispense with or to limit standard disclosure.
Unless the court otherwise orders, (3) to (8) apply to all multi-track claims, other than
those which include a claim for PI (31.5(2)).
SO: for multi-track claims, other than PI:
31.5(3) Not less than 14 days before the first CMC each party must file and serve a report
verified by a statement of truth, which—
(a) describes briefly what documents exist or may exist that are or may be relevant to the
matters in issue in the case;
(b) describes where and with whom those documents are or may be located;
(c) in the case of electronic documents, describes how those documents are stored;
,SYLLABUS 12 DISCLOSURE AND INSPECTION OF DOCUMENTS
(d) estimates the broad range of costs that could be involved in giving standard disclosure
in the case, including the costs of searching for and disclosing any electronically stored
documents; and
(e) states which of the directions under paras (7) or (8) are to be sought.
31.5(4) where the Electronic Documents Questionnaire has been exchanged, the
Questionnaire should be filed with the report required by para (3).
31.5(5) Not less than 7 days before the first CMC, and on any other occasion as the court
may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a
proposal in relation to disclosure that meets the overriding objective.
31.5(6) If— the parties agree proposals for the scope of disclosure; and the court
considers that the proposals are appropriate in all the circumstances, the court may
approve them without a hearing and give directions in the terms proposed.
31.5(7) At the first or any subsequent CMC, the court will decide, having regard to the
OO and the need to limit disclosure to that which is necessary to deal with the case justly,
which of the following orders to make in relation to disclosure—
(a) an order dispensing with disclosure;
(b) an order that a party disclose the documents on which it relies, and at the same time
request any specific disclosure it requires from any other party;
(c) an order that directs, where practicable, the disclosure to be given by each party on an
issue by issue basis;
(d) an order that each party disclose any documents which it is reasonable to suppose may
contain information which enables that party to advance its own case or to damage
that of any other party, or which leads to an enquiry which has either of those
consequences;
(e) an order that a party give standard disclosure;
(f) any other order in relation to disclosure that the court considers appropriate.
31.5(8) The court may at any point give directions to how disclosure is to be given, and-
(a) what searches are to be undertaken, of where, for what, in respect of which time
periods and by whom and the extent of any search for electronically stored documents;
(b) whether lists of documents are required;
(c) how and when the disclosure statement is to be given;
(d) in what format documents are to be disclosed (+ if any identification is required);
(e) what is required in relation to documents that once existed but no longer exist; and
(f) whether disclosure shall take place in stages.
(9) To the extent that the documents to be disclosed are electronic, PD31B—Disclosure of
Electronic Documents will apply in addition to (3) to (8).
31.6 Standard disclosure - requires a party to disclose only the documents which: (a) he
relies (b) adversely affect his own case or another party’s case or support another party’s
case; and (c) he is required to disclose by a relevant PD.
, SYLLABUS 12 DISCLOSURE AND INSPECTION OF DOCUMENTS
31.7 Duty of search
When giving standard disclosure, a party is required to make a reasonable search for
documents which adversely affect own case/another party’s or support another party’s and
those he is required to disclose by a relevant PD.
The factors relevant in deciding the reasonableness of a search include the following—
(a) the number of documents involved;
(b) the nature and complexity of the proceedings;
(c) the ease and expense of retrieval of any particular document; and
(d) the significance of any document which is likely to be located during the search.
Where a party has not searched for a category or class of document on the grounds that to
do so would be unreasonable, he must state this in his disclosure statement and identify
the category or class of document.
31.8 A party’s duty to disclose documents is limited to documents which are or have
been in his control. A party has or has had a document in his control if— it is or was in his
physical possession; he has or has had a right to possession of it; or he has or has had a right
to inspect or take copies of it.
31.9 Disclosure of copies
A party need not disclose more than one copy of a document. A copy of a document that
contains a modification, obliteration or other marking or feature— on which a party
intends to rely; or which adversely affects his own case or another party’s case or supports
another party’s case, shall be treated as a separate document.
31.10 Procedure for standard disclosure
Each party must make and serve on every other party, a list of documents in the
relevant practice form, identifying the documents in a convenient order and manner
and as concisely as possible.
The list must indicate- those documents in respect of which the party claims a right or
duty to withhold inspection; and those documents which are no longer in the party’s
control and what has happened to those documents.
The list must include a disclosure statement= a statement made by the party disclosing
the documents—
(a) setting out the extent of the search made to locate documents which he is required
to disclose;
(b) certifying that he understands the duty to disclose documents; and
(c) certifying that to the best of his knowledge he has carried out that duty.
Where the party making the disclosure statement is a company, firm, association or
other organisation, the statement must also—identify the person making the
statement; and explain why he is considered an appropriate person to make it.
The parties may agree in writing - to disclose documents without making a list and
without the disclosing party making a disclosure statement.
A disclosure statement may be made by a person who is not a party where permitted by
a relevant PD.
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