Answer ... High Court proceedings: Civil Procedure Rule (CPR) Part 31 sets out the rules on disclosure and inspection of documents. The duty to preserve documents arises as soon as a dispute is in contemplation and the duty of disclosure is ongoing until the case has concluded. Privileged documents are exempt from disclosure (see question 5.3).
The scope of disclosure should be agreed between the parties as far as possible and will ultimately be determined and ordered by the court. Once disclosure is ordered by the court, a party is obliged to list and make available to the court and the opponent(s) certain categories of documents. Parties must disclose documents that are harmful to their case as well as those that are helpful to it. There is a duty to actively search for disclosable documents, although searches can be limited to what is reasonable; and the duty extends to all documents which are or have been in the party’s control at any point during the proceedings.
In group litigation orders (GLOs) and group litigation, disclosure will usually be ordered in relation to only a small number of test claimants, although certain disclosure may be ordered against a wider group of claimants in order to assist in the selection of test claimants.
In the Business and Property Courts, PD 57AD requires each party to provide to the other party:
- the key documents on which it relied in support of its claim/defence; and
- the key documents that are necessary to enable the other party to understand the claim/defence it must meet.
These should be provided by way of list (together with copies of the documents) at the same time that the party serves its pleadings.
Competition Appeals Tribunal (CAT): Disclosure in all proceedings before the CAT is not automatic and instead will proceed only on the order or direction of the CAT.
The CAT may give directions on disclosure at any point under CAT Rule 60 and also applies the CAT Disclosure Practice Direction. The CAT has regard to the general principles in CAT Rule 4 to ensure that disclosure is limited to what is proportionate in the circumstances, to minimise costs and deal with the claim justly.
Under the CAT Disclosure Practice Direction, any application for disclosure must include as narrow and precise a description of the evidence sought as possible. If that evidence is held by a competition authority:
- the application must be supported by evidence that no other person is reasonably able to supply the information; and
- a copy of the application must be served on the authority as well as the author of the document sought.
Copies of cartel leniency statements or settlement submissions may not be served on any parties other than the competition authority or the author of any such alleged statement or submission.
Under CAT Rule 61, a party may request disclosure of any document mentioned in:
- a claim form, defence or reply to a defence;
- a witness statement or affidavit; or
- an expert report (except for instructions referred to in an expert’s report, unless ordered to be disclosed by the CAT).
A party need not disclose more than one copy of a document; and the duty to disclose is limited to documents that are or have been in that party’s control. The duty of disclosure continues until the proceedings are concluded.
In collective proceedings before the CAT, the CAT may order disclosure to be given by:
- any party to the collective proceedings to any other party;
- the class representative to any or all represented persons; or
- any represented person to any other represented person (including a person within a different sub-class), the class representative or the defendant.