Overview Litigation in England and Wales is conducted with a “cards face up on the table” approach,
whereby each party is required to provide their opponent with documents that are
relevant to the case (even if those documents undermine the party’s claim / defence).
“Disclosure” is the process of providing your opponent with a List of Documents in the
Court Form N265. It is NOT INSPECTION.
“Inspection” is a separate process where copies of the actual documents are provided to
the relevant party. Parties only have a right to see certain disclosable documents.
The Disclosure List (N265) is split into three parts. Documents in every part of the list are
“disclosable”, however only documents in part one of the List may be “inspected”.
In summary:
Most documents will normally be disclosable, and will also be able to be inspected.
Privileged documents are disclosable, but are immune from inspection.
Documents which have been in a party’s control, but have been destroyed or lost
may be disclosable, but will not be able to be inspected for practical reasons.
Disclosure A disclosure report is a document which summarises:
Reports The documents to be disclosed in a particular case
Where these are located, and
Civil Litigation, Provides estimates of the likely costs involved in giving standard disclosure.
11.3.3.1
It is:
Made in Form N2631.
Verified by a statement of truth.
Required to be filed and served not less than 14 days before the first Case
Management Conference in all Multi-Track cases other than claims for
personal injury (CPR 31.5(3)).
Standard Disclosure2
1
A copy of this form is available for reference here.
2
Workshop 8, Task 2
, Civil Litigation, 11.4
“Standard disclosure” is the normal order for disclosure made on Fast-Track and Multi-Track claims
outside of the Business & Property Courts. Disclosure provisions do not apply to the Small Claims Track.
What CPR 31.6: Parties must disclose:
documents Documents on which they Rely.
need to be Documents which Adversely affect their own case.
3
disclosed? Documents which Adversely affect their opponent’s case.
Documents which Support their opponent’s case.
Civil Litigation, R.A.A.S.
11.4; 11.11.6
(Without The duty is limited to documents which are or have been in a parties’ control (CPR
Prejudice 31.8(1)).
Correspondence
) Note that this duty will ordinarily extend to Without Prejudice correspondence (so
documents that are “Without Prejudice” must be included in the List).
What is a Broad definition: “anything in which information of any description is recorded”.
“Document”?
(CPR 31.4) This includes “Electronic Documents” (PD 31B, para 1):
Electronic Documents are defined in PD 31B, para 5 as “any document held in
Civil Litigation, electronic form. It includes, for example, email and other electronic
11.2.2 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”.
The List of CPR 31.10 requires each party to make and serve on every other party a list of
Documents documents in form N265:
4
(N265)
Order of the List This list must identify the documents in a “convenient order”
Civil Litigation, i.e., ideally chronologically (PD 31A, para 3.2).
11.8 (Procedure) Parts of the List The documents list is split into three parts:
5
Part 1 – Documents which are:
Civil Litigation, In your control and
11.12 You have no objection to your opponent
inspecting them.
Part 2 – Documents which are:
In your control BUT
You have an objection to your opponent
inspecting them (e.g., because they are
privileged).
Part 3 – Documents which are no longer in your control.
You must state:
When you last had these documents and
What has happened to them (CPR
, 31.10(4)).
How to describe Documents Documents in Parts 1 and 3 of the list should
documents. in Parts 1 be described specifically.
and 3 of the I.e., the document itself, as opposed the type
List of document. should be described.
E.g., if the Civil Litigation textbook was a
disclosable document in either Part 1 or Part 3
of the list, it would be appropriate to describe
it as “the Civil Litigation Textbook published by
CLP”.
Documents Documents contained in Part 2 of the List,
in Part 2 of which you object to the inspection of, should
the List be described vaguely i.e., only the type of
document should be described.
E.g., you should describe the Civil Litigation
textbook merely as “a textbook”.
A vague description is used to ensure the
existence of the document is disclosed
(ensuring our duty of disclosure is complied
with), whilst ensuring the contents of the
document are not indirectly revealed by
describing them too specifically.
Disclosure The list must include a “disclosure statement” (CPR 31.10(5)).
Statement
This is a statement made by the party which:
Civil Litigation, Sets out the extent of the search which has been made.
11.9 Certifies he understands his duty to disclose.
Certifies that, to the best of his knowledge, he has
carried out that duty.
Proceedings for contempt of court may be brought against a
person if they make, or cause to be made, a false disclosure
statement without an honest belief in its truth.
The solicitor is under a duty per PD 31A, para 4.4 to “endeavour
to ensure that the person making the disclosure statement
understands the duty of disclosure”.
Signature The disclosure statement must be signed by THE CLIENT and
not the solicitor.
Privilege What is “Privilege” is a right to withhold evidence from production to a
“privilege”? third party or the court.
Civil Litigation, Where privilege in a document is established, an absolute right to
11.11 withhold the document in question arises.
One type of privilege is “legal professional privilege”; which covers
certain documents created during the course of the lawyer-client
relationship.
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