CIVIL LITIGATION
Chapter 11 – Disclosure and inspection of documents – CPR 1998 part 31
PURPOSE OF DISCLOSURE AND INSPECTION
No obligation on a party to show his opponent the contents of documents, only by court order.
Disclosure stage, is done by each party providing the other with a list of their documents.
The process is intended to promote settlements and therefore a saving in costs.
It ensures that the parties are not taken by surprise at the trial and that the court has all relevant
information in order to do justice between the parties.
Disclosure is governed by Part 31 of CPR 1998, which applies to all claims save small claims track.
DEFINITION OF ‘DISCLOSURE’ (r 31.2)
A party discloses a document by stating that the document exists or has existed.
This is done by preparing and serving a list of documents on every other party.
DEFINITION OF ‘DOCUMENTS’ (r 31.4)
Anything in which information of any description is recorded, include written documents,
audiotapes, videotapes, photographs and electronic documents
Information recorded in a document
It is the information recorded in a document that will determine whether or not it forms part
of standard disclosure.
Procedure has nothing to do with whether or not the document itself is admissible at trial.
It is also irrelevant whether or not a party would wish to rely on the document itself at trial.
STANDARD DISCLOSURE (r 31.6)
When a court makes an order for a party to give disclosure of documents, the order is limited to
standard disclosure unless the court directs otherwise.
Standard disclosure is defined in r 31.6 and requires a party to disclose only:
(a) the documents on which he relies; and
(b) the documents which:
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant Practice Direction. (None).
Identify the issues in dispute
parties should focus on issues in dispute and search for documents dealing with those issues
there is no obligation to disclose documents on matters which record information that
would be used solely in cross-examination as to credit: Favor Easy Management Ltd v Wu
[2010] EWCA Civ 1630 (solely ‘help’ the other party/discredit our own case)
Control of documents
The duty of disclosure is limited to documents which are or have been in a party’s control (r
31.8). This means that:
(a) the document is or was in his physical possession; or
, (b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it.
Documents held by a party’s agent would therefore be within that party’s control.
It is open to the parties to agree in writing to dispense with or limit standard disclosure.
DISCLOSURE OF COPIES (r 31.9)
More than one copy only if copy contains ‘a modification, obliteration or other marking or
feature’ which the party intends to rely, or which supports another party’s case, or which could
adversely affect his own or other party’s case-copy document is treated as a separate document.
THE DUTY TO SEARCH (r 31.7)
A reasonable and proportionate search
A party must make a reasonable and proportionate search for all documents which could
adversely affect his own or another party’s case, or which support another party’s case.
What is reasonable depends on:
(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 the document.
Electronic documents
Practice Direction 31B, provisions for disclosure of electronic documents.
The following general principles are prescribed by para 6:
(1) Electronic Documents should be managed efficiently in order to minimise the cost incurred;
(2) technology should be used in order to ensure that document management activities are
undertaken efficiently and effectively;
(3) disclosure should be given in a manner which gives effect to the overriding objective;
(4) Electronic Documents should generally be made available for inspection in a form which
allows the party receiving the documents the same ability to access, search, review and display the
documents as the party giving disclosure; and
(5) disclosure of Electronic Documents which are of no relevance to the proceedings may place an
excessive burden in time and cost on the party to whom disclosure is given.
Practice Direction includes Electronic Disclosure Questionnaire for parties - not mandatory.
The court will either give written directions or order a separate hearing in relation to
electronic disclosure and may direct the parties to complete and exchange the
Questionnaire if they have not already done so.
Putting limits on a search
If party limited the search for certain documents, must state this in his disclosure statement.
Practice Direction 31A para 2, reasonable to decide not to search for documents coming
into existence before some particular date, or to limit the search to documents in some
particular place or places, or to documents falling into particular categories.
THE RIGHT OF INSPECTION (r 31.3)
Rule 31.3(1) gives a party a right of inspection of a disclosed document, 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; or
Chapter 11 – Disclosure and inspection of documents – CPR 1998 part 31
PURPOSE OF DISCLOSURE AND INSPECTION
No obligation on a party to show his opponent the contents of documents, only by court order.
Disclosure stage, is done by each party providing the other with a list of their documents.
The process is intended to promote settlements and therefore a saving in costs.
It ensures that the parties are not taken by surprise at the trial and that the court has all relevant
information in order to do justice between the parties.
Disclosure is governed by Part 31 of CPR 1998, which applies to all claims save small claims track.
DEFINITION OF ‘DISCLOSURE’ (r 31.2)
A party discloses a document by stating that the document exists or has existed.
This is done by preparing and serving a list of documents on every other party.
DEFINITION OF ‘DOCUMENTS’ (r 31.4)
Anything in which information of any description is recorded, include written documents,
audiotapes, videotapes, photographs and electronic documents
Information recorded in a document
It is the information recorded in a document that will determine whether or not it forms part
of standard disclosure.
Procedure has nothing to do with whether or not the document itself is admissible at trial.
It is also irrelevant whether or not a party would wish to rely on the document itself at trial.
STANDARD DISCLOSURE (r 31.6)
When a court makes an order for a party to give disclosure of documents, the order is limited to
standard disclosure unless the court directs otherwise.
Standard disclosure is defined in r 31.6 and requires a party to disclose only:
(a) the documents on which he relies; and
(b) the documents which:
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant Practice Direction. (None).
Identify the issues in dispute
parties should focus on issues in dispute and search for documents dealing with those issues
there is no obligation to disclose documents on matters which record information that
would be used solely in cross-examination as to credit: Favor Easy Management Ltd v Wu
[2010] EWCA Civ 1630 (solely ‘help’ the other party/discredit our own case)
Control of documents
The duty of disclosure is limited to documents which are or have been in a party’s control (r
31.8). This means that:
(a) the document is or was in his physical possession; or
, (b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it.
Documents held by a party’s agent would therefore be within that party’s control.
It is open to the parties to agree in writing to dispense with or limit standard disclosure.
DISCLOSURE OF COPIES (r 31.9)
More than one copy only if copy contains ‘a modification, obliteration or other marking or
feature’ which the party intends to rely, or which supports another party’s case, or which could
adversely affect his own or other party’s case-copy document is treated as a separate document.
THE DUTY TO SEARCH (r 31.7)
A reasonable and proportionate search
A party must make a reasonable and proportionate search for all documents which could
adversely affect his own or another party’s case, or which support another party’s case.
What is reasonable depends on:
(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 the document.
Electronic documents
Practice Direction 31B, provisions for disclosure of electronic documents.
The following general principles are prescribed by para 6:
(1) Electronic Documents should be managed efficiently in order to minimise the cost incurred;
(2) technology should be used in order to ensure that document management activities are
undertaken efficiently and effectively;
(3) disclosure should be given in a manner which gives effect to the overriding objective;
(4) Electronic Documents should generally be made available for inspection in a form which
allows the party receiving the documents the same ability to access, search, review and display the
documents as the party giving disclosure; and
(5) disclosure of Electronic Documents which are of no relevance to the proceedings may place an
excessive burden in time and cost on the party to whom disclosure is given.
Practice Direction includes Electronic Disclosure Questionnaire for parties - not mandatory.
The court will either give written directions or order a separate hearing in relation to
electronic disclosure and may direct the parties to complete and exchange the
Questionnaire if they have not already done so.
Putting limits on a search
If party limited the search for certain documents, must state this in his disclosure statement.
Practice Direction 31A para 2, reasonable to decide not to search for documents coming
into existence before some particular date, or to limit the search to documents in some
particular place or places, or to documents falling into particular categories.
THE RIGHT OF INSPECTION (r 31.3)
Rule 31.3(1) gives a party a right of inspection of a disclosed document, 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; or
