Disclosure is the process of providing your opponent with a list of documents.
It is not inspection - this is a separate process where your opponent has a right to actually see certain disclosable documents.
You are listing the documents, in your control, that could be relevant to your case – whether to your advantage or not
The other party then has the choice to select which documents they wish to view
Often the list you create will have identical documents the other party has e.g. an exchange of letters between the
parties’ solicitors – they will therefore not ask you to view this documents
Main purpose: of the disclosure and inspection stage is to enable the parties to better evaluate the strengths of their
opponent’s case in advance of the trial
Disclosure report
A disclosure report is essentially a document which summarises the documents to be disclosed in a
particular case, where these are located, and provides estimates of the likely costs involved in giving
standard disclosure.
o It is verified by a statement of truth.
It is made in Form N263 (Appendix A(11))
For Multi-Track cases, CPR 31.5(3) requires all parties to file and serve a disclosure report not less than
14 days before the first Case Management Conference.
Part 31 disclosure does not apply to small claims (CPR 31.1(2))
Definition of disclosure A party discloses a document by stating that the document exists or has existed (CPR 31.2)
Consequences of a Where a party fails to disclose or allow inspection of a document:
failure to disclose Unable to rely on the document:
o You may not rely on that document at trial unless the court permits this.
CPR 31.21 Case may be struck out:
o A party who fails to disclose a document that harms/is adverse to his case in response to an
order for specific disclosure may find that his case is struck out.
Costs Penalties
Subsequent use of Party may only use document disclosed for the purposes of the case in which it has been disclosed unless:
disclosed documents document has been read or referred to during public hearing (e.g. at trial); or
CPR 31.22 court grants permission; or
party who disclosed document and person to whom document belongs consents
Non-party disclosure Once proceedings have commended, a party can apply for disclosure to a non-party to enable them to
resolve issues in the case.
CPR 31.17 This is used where the party has indicated a document is no longer in his possession (part 3 of
list).
If the person who now has the document will not hand it over voluntary, the opposing party
who wants to see it can apply for an order for non-party disclosure under r31.17.
Application for non-party disclosure must be supported by evidence and will only be granted if:
the documents in question are likely to support the applicant’s case or adversely affect
another party’s case; or
disclosure is necessary either to save costs or to dispose fairly of the case
Pre-action disclosure Where party does not know whether or not to issue proceedings without more info – they can apply
against the intended defendant for pre-action disclosure under r31.16.
In the exam, you are expected to analyse documents but ALSO to identify from Statements of Case which
documents should be INCLUDED.
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, DR W9
IS DISCLOSURE NECESSARY? FOLLOW THE STEPS.
STEP 1
Is it a document?
CPR 31.4: A document is anything in/on which information of any kind is recorded. The key question is, does material
contain useful information? If yes, then it will be document.
o PD 31B, para 1: Includes electronic documents. “any document held in electronic form. It includes, for example,
email and other electronic communications such as text messages and voicemail, word-processed documents and
databases, and documents stored on portable devices such as memory sticks and mobile phones”.
STEP 2
Should the document be disclosed?
An order to give disclosure is limited to STANDARD DISCLOSURE (for fast track and multi-track), unless the court directs
otherwise – OR – the parties agree in writing to vary this (r31.5(1))
CPR 31.6: Parties must disclose documents: – RAAS
on which they rely
which adversely affect their own case.
which adversely affect their opponent’s case.
which support their opponent’s case.
NB:
Always bear in mind the case issues (what is in dispute) throughout the disclosure process only disclose those documents that are
necessary under r31.6 i.e. relevant to the issues – most cases: liability, quantum, costs not every document relevant to the case
(e.g. may only be relevant to an admitted point)
When describing the document say HOW/WHY disclosed
o E.g. the client relies on this because it shows there was a contract, shows there was a breach of…
o But, DO NOT USE “RELEVANT” TO THE CASE – use the terminology of r31.6
STEP 3
What are the documents in the party’s control?
CPR 31.8: The duty to disclose is limited to documents which are or have been in the control of the party. A document
was/is in party’s control if:
it was in physical possession;
they had a right to possession of it; and/or
they had a right to inspect it or take copies (e.g. medical report)
STEP 4
Apply to facts
When you apply the information to the facts:
you must identify exactly what issues are in dispute (rather than those where the parties are in agreement), and
state exactly WHY/HOW the document affects the case
EXAMPLES
Statements of Case (including Claim Form): will always satisfy conditions for Standard Disclosure as party will either be
relying on it or it will be adverse to his case.
Documents mentioned in Statements of Case: Will almost ALWAYS satisfy conditions for Standard Disclosure. Why
would parties have included in Statements of Case if not? BUT still apply to facts.
o r31.14 makes it clear that a party may inspect a document mentioned in a Statements of Case – i.e. you cannot
protect it by privilege if you include it.
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