Disclosure

Question 1

Disclosure (definition)

Answer 1

31.2

party must disclose every (RELEVANT) document of which it has control and which falls within the scope of the court’s order for disclosure

Question 2

Inspection (definition)

Answer 2

31.3 - allowing otherside to see document

Question 3

if document as a whole is privileged

Answer 3

PART 2 (not inspectable)

if you want to waive any part of it - must waive whole document (Great Atlantic)

Question 4

If document as a whole is NOT privileged

Answer 4

PART 1

if you want to redact any severable part - redacted version goes in PART 1 (unredacted goes in PART 2)

Question 5

5 stage

Answer 5

1. document
2. control
3. standard disclosure?

CONCLUDE: disclosable or no?

4. Inspection?
5. which list

Question 6

1. DOCUMENT?

Answer 6

31.4
State whether it is a document?

31A PD 2A.1 (e-Documents)

Question 7

2. control

Answer 7

31.8
physical possession
right to possession
right to inspect or take copies

Question 8

3. test for standard disclosure satisfied?

Answer 8

31.6

copy out 31.6 word for word

in your mind: read “relies” as “relevant”

ONE - RELIES
TWO - ADVERSELY AFFECTS
THREE - REQUIRED TO DISCLOSE BY PD

REMEMBER to provide full reasons why

Question 9

reasonable search?

Answer 9

31. 7
    - party only needs to make reasonable search considering factors in 31.7

courts consider also: overriding objective, and proportionality

Question 10

4. inspection

Answer 10

31.3 - cannot inspect if (1) no longer have it (2) privilege, (3) disproportionate

The 3 types of privilege:
ONE – legal advice privilege
TWO – litigation privilege
THREE – without prejudice

also: common interest, self-incrimination, public interest

Question 11

waiver

Answer 11

only client can waive privilege by:

• loss of confidentiality
• mention of document in court document
• accidentally
• agreement

CANNOT WAIVE IN PART

Question 12

5. listed in part 1,2, or 3?

Answer 12

PART 1: disclose and other side can inspect

PART 2: disclose but privileged (other side can’t inspect)
- describe generically

PART 3: documents we had but no longer have

Question 13

after list is signed and served to other side

Answer 13

INSPECTION 31.15

Question 14

31.14

Answer 14

party can inspect document mentioned in statement of case/witness statememt

Question 15

redaction

Answer 15

redacting IRRELEVANT or PRIVILEGED parts of a document is fine

redacted version - part 1
non-redacted version - part 2

Question 16

LEGAL ADVICE PRIVILEGE

Answer 16

Document which is
- confidential

• communication

between a lawyer and a client and was

• prepared for the purpose of giving or receiving legal advice

Question 17

Parry v Newsgroup Newspapers

Answer 17

OPEN CORRESPONDANCE IS NOT PRIVILEGED

LEGAL ADVICE PRIVILEGE (communication between lawyer and client)

Question 18

Three Rivers (communication with client)

Answer 18

narrow definition of client - identify your client and always correspond with someone with authority to deal with case and authority to provide instructions

LEGAL ADVICE PRIVILEGE (communication between lawyer and client)

Question 19

Balabel v Air India

Answer 19

“continuum of communication” is privileged (if solicitor retained primarily to provide legal advice, wider communications even if ancillary to purpose will be privileged)

LEGAL ADVICE PRIVILEGE (purpose of giving/receiving legal advice)

Question 20

Three Rivers

Answer 20

“presentational advice” is privileged

LEGAL ADVICE PRIVILEGE (purpose of giving/receiving legal advice)

Question 21

The Good luck

Answer 21

if client repeats internally legal advice provided by his lawyer (e.g. to other personnel in company) the repetition is privileged

LEGAL ADVICE PRIVILEGE (purpose of giving/receiving legal advice)

Question 22

LITIGATION PRIVILEGE

Answer 22

Scope: document which is
- confidential communication which

• passed between lawyer and his client or between one of them and a 3P
• where the dominant purpose in creating the document is to obtain legal advice, evidence, or information
• for use in conduct of litigation which was at the time reasonably prospect

Question 23

Waugh v British Railways Board

Answer 23

if duality of purpose (and both have equal weight) - litigation is NOT dominant purpose

LITIGATION PRIVILEGE (dominant purpose)

Question 24

Re Highgrade Traders

Answer 24

ask the commissioner not the author what dominant purpose was

LITIGATION PRIVILEGE (dominant purpose)

Question 25

USA v Phillip Morris

Answer 25

litigation must be a real likelihood rather than a mere possibility (apprehension insufficient) LITIGATION PRIVILEGE (litigation reasonably in prospect)

Question 26

WITHOUT PREJUDICE

Answer 26

Scope: documents whose purpose is a genuine attempt to settle a dispute

Question 27

Rush and Tomkings v Greater London Council

Answer 27

court looks at substance not form (doesn’t matter if it is just marked with ‘attempt to settle’, it must actually be a genuine attempt to settle)

Question 28

common interest privilege

Answer 28

Confidential communication between party in the action and 3P with whom it has common interest in the subject matter and the action (common categories of relationships: insurers/assured, agent/principal, parties who use same solicitors, company in the same group)

Question 29

privilege against self-incrimination

Answer 29

documents which would tend to incriminate or expose to a subsequent criminal penalty the party disclosing it rare problem in fraud actions

Question 30

Public interest immunity (CPR 31.19)

Answer 30

– if disclosure document would damage the public interest - rare - invoked in actions against police/government departments

Question 31

PROPORTIONALITY (31.3(2))

Answer 31

not a kind of privilege but CPR provides inspection must be proportionate but if document is found and its existence disclosed, after reasonable search there is generally little additional expense in allowing inspection (so this provision is little used in practice)