Intro: The rules for disclosure are found under CPR Part 31.
Is it a document:
Parties will draw up a list of documents and disclose them to the o/s. Thus, firstly the item to be disclosed must be a document.
R31.4 Document: anything in which information of any description is recorded (written document, emails, audiotape,
videotape, and photographs)
APPLY – Is it a document?
Does it need to be disclosed:
Standard disclosure is covered by r31.6 which states that parties only need to disclose:
a) The documents which the party relies on
b) Documents which
a. Adversely affect their case
b. Adversely affect another party’s case, or
c. Supports another party’s case, and
c) Documents which the party is required to disclosure by relevant PD’s (there are none?)
APPLY – Do one by one as need to apply/be specific
Is the party:
o Relying on the document AND
o The document:
Adversely affect the party’s case
Adversely affect another party’s case
Supports another party’s case
APPLY and state how (‘x’ is relying on the document because…and it adversely affects the o/s case because…)
Is it in ‘our’ control?
Under CPR r31.8, parties only need to disclose documents which have passed the r31.6 test which are or have been in the
party’s control. The document will be/have been in the parties control if:
a) The doc is or was in the party’s physical possession, or
b) They have or have had a right to possession of it, or
c) They have or have had a right to inspect or take copies of it.
APPLY – One by one/ be specific
Was the document:
o In/was in the party’s physically possession, or
o Have/did have the right to possess it, or
o Have/have had a right to inspect or take copies of it
APPLY and state how (the doc was in ‘x’ physically possession as it is a copy of their T’s and C’s)
Is the document privileged – right to inspection:
If/as the above tests are satisfied, the document needs to be disclosed. However, the party may be able to prevent the o/s
from inspecting the document under grounds specified under r31.3.
R31.3 gives a party the right to inspection of a disclosed document unless:
a) The doc is no longer in the control of the party who can disclose it
b) The party disclosing it has a right / duty to withhold inspection of it
c) A party considers it disproportionate to permit the inspection and state in the disclosure statement inspection will not
be granted on grounds of disproportionality.
A party can withhold inspection if the document is protected by certain privileges:
1. Legal/Advice privilege regarding communications between client and solicitor
2. Litigation privilege regarding communications between a client and third party
3. Litigation privilege where documents created for the sole or dominant purpose of obtaining legal advice in regards to
existing or contemplated litigation.
APPLY – One by one/ be specific…
Is it advice / lit (sol to client) / lit (sole/dominant purpose) privilege?
Then … explain how it applies…see below…
, Legal/Advice privilege Litigation privilege (third party) Litigation privilege
Written letters/ other comms Communications between a solicitor and a These communications are privileged if
between solicitor acting in a third party are privileged from inspection only the sole / dominant purposes for which
professional capacity and party if: the document was produced was to
whose sole /dominant purpose is a) The communication has come into obtain legal advice, or to enable a solicitor
to obtain legal advice are privileged existence after litigation is to give advice, in respect of existing/
from inspection. reasonably contemplated or reasonably contemplated litigation.
commenced, and The document must have been
b) The communications were made for created when litigation was a
either the sole or dominant purpose reasonable prospect and the
of obtaining or giving advice for sole/dominant purpose of
litigation or for obtaining evidence to obtaining the document was to
be used in litigation. obtain legal advice or to enable a
Example: Expert’s report obtained by a
solicitor to provide advice.
solicitor to advising the client / witness
statement obtained for the purpose of
existing/contemplated litigation.
APPLY – APPLY – APPLY –
1. Is it communication 1. Is it communication between sol and 1. Was the doc created for the sole
between client and third party? or dominant purpose of obtaining
solicitor? 2. Has the comms/doc come into legal advice?
2. Was the doc created for existence post a. Why was the doc
the purpose of obtaining contemplated/commenced litigation created?
legal advice? a. When was the doc created? 2. Was the doc created in respect of
a. When was it
3. Is the sole or dominant purpose of contemplated or existing
created?
the comms/doc for obtaining or litigation?
b. Why was it
created? giving advice or for obtaining a. When was doc
evidence for litigation? created/why?
a. Why was the doc created?
The list of disclosure documents:
Parties must then create a list of the disclosure documents. The list is separated into three parts:
1. Documents which the party has control of and which they do not object to the opponent inspecting.
2. Documents which the party has control of but which the party is claiming privilege over.
3. Documents which are no longer in the party’s control. These documents will be non-privileged.
APPLY – which part of the list does the document belong in and why.
See chart below for application details…
Is it a document:
Parties will draw up a list of documents and disclose them to the o/s. Thus, firstly the item to be disclosed must be a document.
R31.4 Document: anything in which information of any description is recorded (written document, emails, audiotape,
videotape, and photographs)
APPLY – Is it a document?
Does it need to be disclosed:
Standard disclosure is covered by r31.6 which states that parties only need to disclose:
a) The documents which the party relies on
b) Documents which
a. Adversely affect their case
b. Adversely affect another party’s case, or
c. Supports another party’s case, and
c) Documents which the party is required to disclosure by relevant PD’s (there are none?)
APPLY – Do one by one as need to apply/be specific
Is the party:
o Relying on the document AND
o The document:
Adversely affect the party’s case
Adversely affect another party’s case
Supports another party’s case
APPLY and state how (‘x’ is relying on the document because…and it adversely affects the o/s case because…)
Is it in ‘our’ control?
Under CPR r31.8, parties only need to disclose documents which have passed the r31.6 test which are or have been in the
party’s control. The document will be/have been in the parties control if:
a) The doc is or was in the party’s physical possession, or
b) They have or have had a right to possession of it, or
c) They have or have had a right to inspect or take copies of it.
APPLY – One by one/ be specific
Was the document:
o In/was in the party’s physically possession, or
o Have/did have the right to possess it, or
o Have/have had a right to inspect or take copies of it
APPLY and state how (the doc was in ‘x’ physically possession as it is a copy of their T’s and C’s)
Is the document privileged – right to inspection:
If/as the above tests are satisfied, the document needs to be disclosed. However, the party may be able to prevent the o/s
from inspecting the document under grounds specified under r31.3.
R31.3 gives a party the right to inspection of a disclosed document unless:
a) The doc is no longer in the control of the party who can disclose it
b) The party disclosing it has a right / duty to withhold inspection of it
c) A party considers it disproportionate to permit the inspection and state in the disclosure statement inspection will not
be granted on grounds of disproportionality.
A party can withhold inspection if the document is protected by certain privileges:
1. Legal/Advice privilege regarding communications between client and solicitor
2. Litigation privilege regarding communications between a client and third party
3. Litigation privilege where documents created for the sole or dominant purpose of obtaining legal advice in regards to
existing or contemplated litigation.
APPLY – One by one/ be specific…
Is it advice / lit (sol to client) / lit (sole/dominant purpose) privilege?
Then … explain how it applies…see below…
, Legal/Advice privilege Litigation privilege (third party) Litigation privilege
Written letters/ other comms Communications between a solicitor and a These communications are privileged if
between solicitor acting in a third party are privileged from inspection only the sole / dominant purposes for which
professional capacity and party if: the document was produced was to
whose sole /dominant purpose is a) The communication has come into obtain legal advice, or to enable a solicitor
to obtain legal advice are privileged existence after litigation is to give advice, in respect of existing/
from inspection. reasonably contemplated or reasonably contemplated litigation.
commenced, and The document must have been
b) The communications were made for created when litigation was a
either the sole or dominant purpose reasonable prospect and the
of obtaining or giving advice for sole/dominant purpose of
litigation or for obtaining evidence to obtaining the document was to
be used in litigation. obtain legal advice or to enable a
Example: Expert’s report obtained by a
solicitor to provide advice.
solicitor to advising the client / witness
statement obtained for the purpose of
existing/contemplated litigation.
APPLY – APPLY – APPLY –
1. Is it communication 1. Is it communication between sol and 1. Was the doc created for the sole
between client and third party? or dominant purpose of obtaining
solicitor? 2. Has the comms/doc come into legal advice?
2. Was the doc created for existence post a. Why was the doc
the purpose of obtaining contemplated/commenced litigation created?
legal advice? a. When was the doc created? 2. Was the doc created in respect of
a. When was it
3. Is the sole or dominant purpose of contemplated or existing
created?
the comms/doc for obtaining or litigation?
b. Why was it
created? giving advice or for obtaining a. When was doc
evidence for litigation? created/why?
a. Why was the doc created?
The list of disclosure documents:
Parties must then create a list of the disclosure documents. The list is separated into three parts:
1. Documents which the party has control of and which they do not object to the opponent inspecting.
2. Documents which the party has control of but which the party is claiming privilege over.
3. Documents which are no longer in the party’s control. These documents will be non-privileged.
APPLY – which part of the list does the document belong in and why.
See chart below for application details…
