Civil Litigation notes - BPP Law School - High Distinction Level notes!
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Pre-action protocols require parties to share info relevant to their dispute
There is NO provision for automatic disclosure of documents
The duty to disclose such documents will arise when if / when the court makes such an order
Disclosure is the stage in the proceedings when the parties must inform each other of documents that
they have which are relevant to the claim, as ordered by the court.
As a general rule, a party must disclose those documents that it has or has had under its control
that it intends to rely on or which adversely affect its own case.
A party discloses these documents by specifically describing them in a prescribed list.
Order for disclosure is given on allocation or at Case management
Also:
pre-action disclosure, CPR 31.16)
or even from someone not a party to the action (non-party disclosure, CPR 31.17),
Disclosure has 2 stages, namely:
disclosure under CPR 31.2; and
inspection under 31.3 (allowing the other side the opportunity to inspect the content of those
documents or to take copies).
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Purpose?-
To help clarify the issues which are in dispute.
To enable parties to evaluate the strength of the claim against them.
--
To encourage settlement-
Disclosure report in Multi-Track Cases-
For Multi-Track - Solicitors are under a mandatory duty to plan and project-manage disclosure from the
start of the case
A Disclosure report must be filed no less than 14 days before the CMC – CPR 31.5(3)
The N263 Form can be used as a starting point for drafting the report
The parties should consider the issues of the case and discuss this to agree to seek a draft disclosure
order, which they will then ask the court to make
, CPR 31.(5): The proposal should meet the overriding objective to conduct litigation at
proportionate cost and to limit disclosure to that which is necessary to deal with the case justly
Discussions should be started as soon as possible. Benefits of parties agreeing to the order for
disclosure:
Court may approve the order for disclosure where the parties have agreed the scope of
disclosure and the court considers the proposals are appropriate in all the circumstances – CPR
31.5(6)
Disclosure costs in the parties’ costs budgets prepared in advance of the case management
conference can be formulated based on the agreed approach to disclosure.
If the parties cannot agree the order for disclosure, then the CMC may be longer persuading the judge as
to the scope of disclosure each of the parties - will involve one of the parties applying to revise its costs
budget to reflect the disclosure order made by the court.
CPR 31.5(7), (8) provides for a ‘menu’ list of orders the court can make in relation to the scope of
disclosure & how it is to be given
The usual order for disclosure in fast track claims (and claims for personal injury in the multi-track) will
be standard disclosure (CPR 31.6).
Standard disclosure was the usual order for disclosure in all fast track and multi-track cases pre-
1 April 2013
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Disclosure-
Meaning of disclosure-
CPR 31.2 - formally stating to the other side that document or classes of documents exist/ have existed
A list of documents in Form N265
o Part 1: I have control of the documents numbered and listed here. I do
not object to you inspecting them/producing copies. - Disclose and
inspect
o Part 2: I have control of the documents numbered and listed here, but I
object to you inspecting them – Disclose but privileged
o Part 3: I have had the documents numbered and listed below, but they
are no longer in my control. Had but no longer have
A party must disclose every document of which it has control and which falls within the scope of the
court’s order for disclosure.
-
, Meaning of document-
31.4 - anything which records information
Electronic Doc-
Document includes electronic documents – CPR 31.4
‘e-disclosure’ - An electronic document includes:
e-mail and other electronic communications (including those on mobile phones or hand-held
devices);
databases;
Documents stored on servers, back-up systems (including documents that have been deleted)
and “clouds”;
Metadata which is data about data for instance embedded information about a document such
as the date and time of creation; and
Content of social media websites such as Facebook and Twitter and messaging services such as
Skype and Whatsapp.
Even deleted files and emails can sometimes be retrieved from a hard drive by specialist companies.
-
Meaning of ‘in a party’s control’-
Control - CPR 31.8. It means:
(a) the document is (or was) in the physical possession of the party; OR
(b) the party has (or has had) a right to possession of the document; OR
(c) the party has (or has had) a right to inspect or take copies of the document.
A right to possession includes, for example, documents that are physically in the hands of an agent of a
party to proceedings, the party has a right to possess those documents and they are therefore within
the party’s control. Such as, documents temporarily sent to the party’s accountants when undertaking
an audit.
A right to inspect or take copies means a legal right to inspect or take copies, based on statute, contract
or a legal relationship between the parties.
e.g: medical records
Meaning of standard disclosure-
Standard disclosure remains the usual order in fast track cases and in multi-track cases for personal
injury. It is also one of the options in the “menu” provided in CPR 31.5(7)(e).
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