Part 28 – Disclosure and Inspection of Documents

Scope of this Part

28.1

1. This Part sets out rules about the disclosure and inspection of docu­ments.
2. In this Part –
   •  “copy”, in relation to a document, means anything onto which infor­mation recorded in the document has been copied, by whatever means and whether directly or indirectly; and
   • “document” means anything on or in which information of any description is recorded.
3. A party “discloses” a document by revealing that the document exists or has existed.
4. For the purposes of this Part a document is “directly relevant” if –
   1. the party with control of the document intends to rely on it;
   2. it tends to adversely affect that party’s case; or
   3. it tends to support another party’s case; but the rule of law known as “the rule in Peruvian Guano” does not apply.

Duty of disclosure limited to documents which are or have been in party’s control

28.2

1. A party’s duty to disclose documents is limited to documents which are or have been in the control of that party.
2. For this purpose a party has or has had control of a document if –
   1. it is or was in the physical possession of the party;
   2. the party has or has had a right to inspect or take copies of it; or
   3. the party has or has had a right to possession of it.

Disclosure of copies

28.3

1. Except where required by paragraph (2), a party need not disclose more than one copy of a document.
2. A party must however disclose a copy if it contains a modification, obliteration or other marking or feature which is not present in the original or any copy of the document which is being disclosed.

Standard disclosure                                                                            

28.4

1. If a party is required by any direction of the court to give standard disclosure, that party must disclose all documents which are directly relevant to the matters in question in the proceedings.

Specific disclosure

28.5

1. An order for specific disclosure is an order that a party must do one or more of the following things –
   1. disclose documents or classes of documents specified in the order;
   2. carry out a search for documents to the extent stated in the order;
   3. disclose any document located as a result of that search.
2. An order for specific disclosure may be made on or without an appli­cation.
3. An application for specific disclosure may be made without notice at a case management conference.
4. An application for specific disclosure may identify documents –
   1. by describing the class to which they belong; or
   2. in any other manner.
5. An order for specific disclosure may require disclosure only of docu­ments which are directly relevant to one or more matters in issue in the proceedings.

Criteria for ordering specific disclosure

28.6

1. When deciding whether to make an order for specific disclosure, the court must consider whether specific disclosure is necessary in order to dispose fairly of the claim or to save costs.
2. The court must have regard to –
   1. the likely benefits of specific disclosure;
   2. the likely cost of specific disclosure; and
   3. whether it is satisfied that the financial resources of the party against whom the order would be made are likely to be sufficient to enable that party to comply with any such order.
3. If, having regard to paragraph (2) (c), the court would otherwise refuse to make an order for specific disclosure, it may nonetheless make such an order on terms that the party seeking the order must pay the other party’s costs of such disclosure in any event.
4. If the court makes an order under paragraph (3), it must assess the costs to be paid in accordance with rule 65.12.
5. The party in whose favour such order for costs was made may apply to vary the amount of costs so assessed.

Procedure for disclosure

28.7

1. Paragraphs (2) to (5) set out the procedure for disclosure.
2. Each party must make, and serve on every other party, a list of documents in Form 11.
3. The list must identify the documents or categories of documents in a convenient order and manner and as concisely as possible.
4. The list must state –
   1. what documents are no longer in the party’s control;
   2. what has happened to those documents; and
   3. where each such document then is, to the best of the party’s knowledge, information or belief.
5. The list must include documents already disclosed.
6. A list of documents served by a company, firm, association or other organisation must –
   1. state the name and position of the person responsible for identi­fying individuals who might be aware of any document which should be disclosed; and
   2. identify those individuals who have been asked whether they are aware of any such documents and state the position of those individuals.

Duty of legal practitioner

28.8

1. The legal practitioner for a party must –
   1. explain to the maker of the list of documents the –
      1. necessity of making full disclosure in accordance with the terms of the order for disclosure and these Rules; and
      2. possible consequences of failing to do so; and
   2. certify on the list of documents under rule 28.7(2) that the expla­nation required by sub-paragraph (a) has been given.

Requirement for maker to certify understanding of duty of disclosure

28.9

1. The maker of the list of documents must certify in the list of documents that –
   1. the maker understands the duty of disclosure; and
   2. to the best of the knowledge of the maker the duty has been carried out.
2. In the case of a list served on behalf of a company, firm, association or other organisation the certificate referred to in paragraph (1) must be made by the person identified in rule 28.7(6) (a).
3. If it is impracticable for the maker of the list of documents to sign the certificate required by paragraph (1), it may be given by that person’s legal practitioner.
4. A certificate given by the legal practitioner must also certify –
   1. that the certificate is given on the instructions of the maker; and
   2. the reasons why it is impractical for the maker of the list of documents to give the certificate.

Disclosure in stages

28.10

1. The parties may agree in writing or the court may direct that disclosure or inspection or both may take place in stages.

Inspection and copying of listed documents

28.11

1. When a party has served a list of documents on any other party, that party has a right to inspect any document on the list, except documents –
   1. for which a right to withhold from disclosure is claimed; or
   2. which are no longer in the physical possession of the party who served the list.
2. The party wishing to inspect the documents must give the party who served the list written notice of the wish to inspect documents in the list.
3. The party who is to give inspection must permit inspection not more than 7 days after the date on which the notice is received.
4. If the party giving the notice undertakes to pay the reasonable cost of copying, the party who served the list must supply the other with a copy of each document requested not more than 7 days after the date on which the notice was received.

Duty of disclosure continuous during proceedings

28.12

1. The duty of disclosure in accordance with any order for standard or specific disclosure continues until the proceedings are concluded.
2. If documents to which that duty extends come to a party’s notice at any time during the proceedings, that party must immediately notify every other party and serve a supplemental list of those documents.
3. The supplemental list must be served not more than 14 days after the documents to which that duty extends have come to the notice of the party required to serve it.

Consequence of failure to disclose documents under order for disclosure

28.13

1. A party who fails to give disclosure by the date ordered, or to permit inspection, may not rely on or produce at the trial any document not so disclosed or made available for inspection.
2. A party seeking to enforce an order for disclosure may apply to the court for an order that the other party’s statement of case or some part of it be struck out.
3. An application under paragraph (2) relating to an order for specific disclosure may be made without notice but must be supported by evidence on affidavit that the other party has not complied with the order.
4. On an application under paragraph (2) the court may order that unless the party in default complies with the order for disclosure by a specific date that party’s statement of case or some part of it be struck out.
   • Rule 11.16 deals with applications to set aside order made on application without notice.
   • Rule 26.5 deals with judgment without trial after striking out.
   • Rule 26.8 deals with relief from sanctions.

Claim of right to withhold disclosure or inspection of document

28.14

1. A person who claims a right to withhold disclosure or inspection of a document or part of a document must –
   1. make such claim for the document; and
   2. state the grounds on which such a right is claimed; in the list or otherwise in writing to the person wishing to inspect the document.
2. A person may however apply to the court, without notice, for an order permitting that person not to disclose the existence of a document on the ground that disclosure of the existence of the document would damage the public interest.
3. A person who applies under paragraph (2) must –
   1. identify the document, documents or parts thereof for which a right to withhold disclosure is claimed; and
   2. give evidence on affidavit showing –
      1. that the applicant has a right or duty to withhold disclosure; and
      2. the grounds on which the right on duty is claimed.
4. Unless the court orders otherwise, an order of the court under para­graph (2) is not to be –
   1. open for inspection by; nor
   2. served on; any person.
5. person who does not agree with a claim of right to withhold inspection or disclosure of a document may apply to the court for an order that the document be disclosed or made available for inspection.
6. On hearing such an application the court must make an order that the document be disclosed unless it is satisfied that there is a right to withhold disclosure.
7. If a person –
   1. applies for an order permitting that person not to disclose the existence of a document or part of a document; or
   2. claims a right to withhold inspection; the court may require the person to produce that document to the court to enable it to decide whether the claim is justified.
8. On considering any application under this rule, the court may invite any person to make    representations on the question of whether the document ought to be withheld.

Restrictions on use of a privileged document inspection of which has been inadvertently allowed

28.15

1. If a party inadvertently allows a privileged document to be inspected, the party who has inspected it may use it only with the –
   1. agreement of the party disclosing the document; or
   2. permission of the court.

Documents referred to in statements of case, etc.

28.16

1. A party may inspect and copy a document mentioned in –
   1. an affidavit;
   2. an expert’s report;
   3. a statement of case;
   4. a witness statement or summary; or
   5. the claim form.
2. A party who wishes to inspect and copy such a document must give written notice to the party who, or whose witness, mentioned the document.
3. The party to whom the notice is given must comply with the notice not more than 7 days after the date on which the notice is served.

Subsequent use of disclosed documents

28.17

1. A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, unless –
   1. the document has been read to or by the court, or referred to, in open court; or
   2. 1. the party disclosing the document and the person to whom the document belongs; or
      2. the court; gives permission.
2. The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to in open court.
3. An application for such an order may be made by any –
   1. party; or
   2. person to whom the document belongs.

Notice to prove document

28.18

1. A party shall be deemed to admit the authenticity of any document disclosed to that party under this Part unless that party serves notice that the documents must be proved at trial.
2. A notice to prove a document must be served not less than 42 days before the trial.