The Bar Training Course

Full Time 2022-23

College of Business and Law

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CIVIL LITIGATION AND EVIDENCE

SGS 12

Disclosure and Inspection of Documents,

Evidentiary Issues relating to Privilege
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ANSWERS TO MCQ/SBA

TASK 3 - MULTIPLE CHOICE/SINGLE BEST ANSWER QUESTIONS

1. Which of the following statements about privilege in ADR processes is correct?

[A] Negotiations to settle a dispute through a formal mediation process are not
subject to without prejudice privilege as they are not undertaken in contemplation of
litigation.

[B] Communications between a party and an independent third party in an ADR

process (such as the mediator or arbitrator) are subject to legal professional
privilege.

[C] Because of the without prejudice principle, the Court will not look at
communications between the parties related to the settlement of a dispute during
mediation even if there has been very serious improper conduct by a party during
the mediation.

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[D] Communications between a party and an independent third party in an ADR

process (such as the mediator or arbitrator) are likely to be subject to a duty of
confidentiality.

[D] is the correct answer. Such communications are not likely to attract legal
professional privilege so [B] is wrong (See para 5.16 of the Jackson ADR Handbook).
[A] is wrong as the without prejudice principle protects communications made as a
genuine attempt to settle a dispute so will apply in these circumstances. [C] is wrong
as the Court may need to look at such communications where very serious
misconduct, such a bribery or blackmail has taken place (Jackson ADR Handbook
para 5.26).

2. At a case management conference for a fast-track claim, standard disclosure was

ordered. Mark was ordered to serve on Phillip a list of documents within 21 days.
Under CPR 31.10 (5), the list must include a disclosure statement setting out the
extent of the search and the time period of the search. Mark signs the disclosure
statement and serves the List in accordance with the court order [You can see a
copy of the N265 List of Documents on the Justice website, in the Forms section, via
the link in the Additional Resources folder or on the relevant pages of the Crabtree
and Rustic case study].

On inspection, Phillip finds that one of the documents appearing in Mark’s List
mentions a file of correspondence on the issues raised in the claim. The file has not
been disclosed in Mark’s list of documents.

What is the most appropriate advice to give in the circumstances?

[A] Phillip cannot obtain further disclosure of the file of correspondence because
Mark’s disclosure statement is conclusive that he has given full disclosure.

[B] Phillip is restricted to applying for a further disclosure order at a pre-trial

review under CPR Part 29, if one is scheduled, because the parties have a
duty to apply for all other directions at such hearings only and not
separately.

[C] Proceedings for contempt of court should be brought against Mark for signing
a disclosure statement when disclosure is incomplete.

[D] Phillip can apply for an order for specific disclosure under CPR 31.12,
because he has evidence that documents exist which should have been
disclosed.

D is the most appropriate advice to give in the circumstances.

Phillip can apply for an order for specific disclosure under CPR 31.12, because he has
evidence that documents exist which should have been disclosed and are not
included in the list at all. The application for specific disclosure is made in the normal
way, using an application notice with written evidence in support. Specific disclosure
(made after proceedings have commenced) should not be confused with the pre-
action disclosure provisions of CPR 31.16 – a common error by students. Specific
disclosure is used to open up a list of documents and therefore to challenge the time
period or extent of any search, to assert a party has not made complete disclosure

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(as here). Challenges to a ground of privilege are dealt with by an application under
CPR 31.19.

A is wrong as it is possible to challenge the disclosure statement, by making an

application for specific disclosure. B is wrong because Phillip does not have to wait
until the PTR; indeed, it is preferable to make the application for specific disclosure
promptly as, if there is further disclosure it will narrow the issues between the
parties.
C is wrong as, although CPR 31.23 does provide that proceedings for contempt of
court may be brought against a person if he makes, or causes to be made, a false
disclosure statement without an honest belief in its truth, incomplete disclosure is not
uncommon and on these facts, we have no reason to believe that Mark failed to
disclose these documents deliberately and so it is unlikely that an application for
contempt would be made at this stage. Also, contempt proceedings will not achieve
what Philip needs – which is sight of the file of documents!

3. Jed has brought a claim against Evangeline for damages for breach of a contract
dated 1 June 2022. Case management directions were given without a hearing and
included an order for standard disclosure. Jed and Evangeline have had discussions
about the amount of paperwork which that direction will require them to review and
disclose and have agreed that the only documents which really need to be disclosed
are documents which came into existence during 2022 – i.e. documents which came
into existence between six months before and six months after the date of the
contract.

What advice should you give Jed as to whether he can agree with Evangeline to limit
disclosure in that way?

[A] Although they can agree to limit the physical areas where a search will be
undertaken, they cannot exclude an obligation to disclose documents by reference to
the dates when the documents came into existence.

[B] They can make such an agreement as long as they have the prior permission of
the court.

[C] They have a duty to the court to make full and frank disclosure and therefore
they cannot exclude that duty by agreement.

[D] The obligations imposed by an order for standard disclosure may be limited by
written agreement between Jed and Evangeline.

ANSWER

[D] The obligations imposed by an order for standard disclosure may be limited by
written agreement between Jed and Evangeline.

CPR 31APD.1.4. Also see 31APD.2

4. Following a fatal accident at a household waste processing plant, the Health and
Safety executive (HSE) carried out an investigation. The deceased, Samuel Delany
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had been working on the night shift and fallen into a waste compactor which then
operated automatically and crushed him to death. The HSE investigation revealed
faults in the electronic switches that operated the compactor and showed that the
fail-safe switch had been disconnected. The HSE brought a criminal prosecution
against Morley Waste Management and the company was fined £56,000 for breaches
of a variety of safety regulations.

The widow of Mr Delany has commenced proceedings against Morley Waste

management seeking compensation for the death of her husband under the Fatal
Accidents Act 1976. The parties have exchanged lists of documents in compliance
with the directions order made on allocation and liability is denied. The claimant’s
solicitor wants to see the HSE investigation file but the HSE is refusing to release it.
You are asked to advise the claimant whether anything can be done to compel the
HSE to release the file. The defendant does not have the original HSE file.

Please select the answer which reflects the correct advice.

[A] You advise your instructing solicitor to make an application for specific
disclosure against the defendant seeking release of the HSE file.

[B] You advise your instructing solicitor to make an application for specific
disclosure against a person not a party on the basis that the documents
sought come within the standard disclosure test and so the court should
order that they be released.

[C] You advise your instructing solicitor to make an application for disclosure
against a person not a party against the HSE on the basis that the relevant
documents sought are in the HSE’s possession, the documents sought are
likely to support the claimant’s case or adversely affect the defendant’s case
and disclosure is necessary so the claim can be disposed of fairly or save
costs, so the court should order that they be released.

[D] You advise that the HSE need to be added in as a second defendant first and
then an application for specific disclosure of their file can be made.

FEEDBACK – correct answer is C

An application to disclose documents can be made against a non-party under CPR
31.17 provided that it can be established the documents are relevant to the issues in
the main action and will be used when neither party to the litigation has the
document in question. The statutory jurisdiction for this power is found in s 34 of the
Senior Courts Act 1981 and s 53 of the County Court Act 1984. There is a different
test to the test for standard disclosure (although at CPR 31.17(3) uses similar
wording to CPR 31.6). Thus, B is wrong, and it is also wrong as this is not an
application for specific disclosure (used against a party where they have not made
full disclosure as required). A is wrong as an application for specific disclosure will
not achieve the end result that you need because the information makes clear that
defendant does not have the report. D is wrong as there is no basis for joining the
HSE as a defendant here - there is no claim against it. Under the Mitchell case, even
if the factors of relevance and necessity under CPR 31.17(3) are made out, the Court
still has discretion about whether an order should be made.

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5. Guido Manitoni is a lecturer in engineering at Redbrick University. He writes a blog

about the aerospace industry and in his postings last week referred to a merger
between SpaceScience UK and Flybus International both of whom have large
manufacturing sites in Bristol. This attracted a lot of local media interest as it would
be good news for the local economy. At the time of the blog postings, the news of
the merger was confidential and commercially sensitive.

Flybus International want to find out who told Guido about the merger and their
solicitors have written to him demanding this information. He has refused to provide
this information saying that his source must remain confidential. Flybus International
now seek your advice on any possible action they may be able to take to uncover the
identity of Guido’s source, so they can ensure there are no further leaks of
confidential information.

Please select the answer which represents the correct advice.

[A] You advise that an application for pre-action disclosure be made against
Guido under CPR 31.16 to obtain details of the identity of his source.

[B] You advise that an application for disclosure of the source’s identity be made
against Guido under the Norwich Pharmacal jurisdiction.

[C] You advise Flybus International to make a pre-action request for further
information providing the source’s identity.

[D] You advise the Flybus International to seek a pre-action mandatory injunction
compelling Guido to hand over documents showing the identity of the source.

FEEDBACK – correct answer is B

The Norwich Pharmacal jurisdiction provides for disclosure which can be used when
you know what an intermediary has said but it is based on an anonymous source,
and you want to uncover the identity of the source. There is no ultimate claim to be
brought against the intermediary or publisher of the information.

The correct answer is B because the ultimate claim is against Guido’s source and not
him, as Guido is merely the innocent medium. For this reason, the other answers are
wrong as they are tools to be used where the action is brought against a party.
Thus, A is wrong as CPR 31.16 is used to be certain about the prospective parties in
a claim, to narrow the issues and the documents have to be those that would be
subject to standard disclosure in that action – and Guido will not be a party to any
ultimate proceedings. C is wrong as a request for further information under CPR 18
will only arise once a claim has been commenced as the provision under CPR 18.1
allows a party to make a request to clarify a matter in dispute in proceedings.
Therefore, you need a Norwich Pharmacal type order here against the innocent party
to uncover the identity of the wrongdoer. The applicant will have to show that the
Norwich Pharmacal application is not just done to satisfy curiosity here but Flybus
are likely to take disciplinary action against any employee that has leaked
confidential information and so this aspect of the test is met.

6. You are instructed on behalf of the claimant, Asco, in a multi-track claim for
damages under competition law legislation. The court has listed a case management

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conference, at which a split trial is ordered; liability will be decided first, followed by
quantum. Standard disclosure is ordered. The documentation evidencing the
quantum of the claim is vast, as the damages claimed go back over several years.
Your instructing solicitor is concerned about the costs which will be incurred in
ensuring disclosure is complied with, before Asco signs the disclosure statement.

What is the most appropriate advice to give in the circumstances?

[A] It is important that Asco makes a reasonable search for the documents
evidencing the damages suffered, as they are clearly significant to the matters
before the court.

[B] As a split trial has been ordered, Asco does not need to disclose documents
which relate purely to quantum until liability is established.

[C] If Asco fails to disclose all relevant documentation evidencing the quantum of its
claim, it will be at risk of having its claim struck out pursuant to CPR 3.4 on the
ground that it has failed to comply with a rule, practice direction or court order.

[D] The instructing solicitor should sign the disclosure statement on Asco’s behalf as
Asco is a company and so Asco is not at risk of contempt of court proceedings if full
disclosure cannot be given.

B is the most appropriate advice. See paragraph WB 31.6.4 in your reading which
deals with disclosure in particular types of cases and circumstances and explains that
in split trials where quantum is only determined if liability is established, there is no
need to disclose documents purely relevant to quantum and this should only be done
once liability is established (Baldock v Addison).
A is wrong because of the answer in B. Whilst it is correct that the parties have a
duty to carry out a reasonable search, this will be only in relation to issues of liability
and not quantum.
C is not the most appropriate advice on these facts where a split trial has been
ordered, but in any event, even if a court did find that the disclosure of a party had
been incomplete, it would probably make an order for specific disclosure in the first
place and then, if not forthcoming, might make an unless order; but there is nothing
to support this approach on these facts.
D is wrong as a disclosure statement can be signed by a representative of a
company (who would be at risk of contempt of court if the statement is signed
dishonestly) (CPR 31.10(7)) so there is no need for the solicitors to do so. It is more
appropriate for the client to sign wherever possible as they have more knowledge
from which to make the disclosure statement.

7. David is bringing a claim for breach of contract against Helen. During their
meetings when the contract was negotiated David and Helen annotated Helen’s
written version of the contract and David now insists that he has the right to inspect
Helen’s annotated copy. David has requested, in writing, the annotated contract that
Helen did not disclose in her disclosure list. Helen clearly accepts that she has the
document as she has referred to it in her witness statement, which has been served.
David makes an application for inspection of the annotated copy of the contract.

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What approach is the court likely to take in relation to David’s application for
inspection of the document?

The court will

[A] only order inspection of the document if David can prove that inspection is
necessary for the fair disposal of her claim.

[B] only order inspection if David can prove that Helen was at fault in failing to
include the document on her disclosure list.

[C] order inspection as Helen has referred to the document in her witness
statement.

[D] not order inspection, as Helen’s private annotations on the document are
unlikely to adversely affect Helen’s case or support David’s case, and
inspection is not required by a relevant Practice Direction.

C is the correct answer - order inspection as Helen has referred to the document in
her witness statement. CPR 31.14 gives a general right to inspection of documents
referred to in a witness statement.

UNSEEN TO USE IN CLASS

1. Please consider the following statement and then select the one answer which
reflects the correct position.

Communications between the party personally and a third party are privileged if:

[A] Litigation is in existence at the time that the document came into existence.

[B] Litigation is contemplated or underway at the time that the document came
into existence and the dominant purpose for which the document was
prepared was for its submission to a legal adviser in view of the litigation.

[C] Litigation is contemplated or pending at the time that the document came
into existence.

[D] Such documents can never be privileged unless the third party is a legal
adviser.

FEEDBACK – correct answer B

A document which has been disclosed can then be inspected by an opponent unless
a ground of privilege is relied on. Broadly there are two common types of privilege –
legal professional privilege which then subdivides into legal advice privilege, see
note at WB 31.3.6 (there must be a solicitor/client relationship and the element of
giving advice and the communication must be confidential but it is not dependant on
there being actual or contemplated litigation), and litigation privilege, see note
at WB 31.3.8 (not dependant on the solicitor/client relationship and so will cover
confidential communications between a solicitor and third party e.g. witness and also
a client and third party but there must be actual or contemplated litigation). The

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other most common type of privilege is without prejudice communications, see

note at WB 31.3.39 - (where there is a genuine attempt to settle, usually by
suggesting some concessions which can relate to liability or quantum). Thus, B is the
correct answer and A is wrong as it does not allow for contemplated proceedings,
Answer C is wrong as it does not refer to the need for the dominant purpose to be
linked to the litigation, as opposed to e.g. accident prevention. Answer D is wrong as
litigation privilege does not require the third party to be a solicitor.

2. A default judgment was entered against your client Mr Singh and then successfully
set aside. The case has progressed and now your instructing solicitors are drafting
Mr Singh’s list of documents to comply with the case management directions which
ordered standard disclosure. Before they send the defendant’s list to the claimant,
they seek your advice on whether they need to include the witness statement
prepared by Mr Singh in support of his application to set aside the default judgment.

Which one of the following statements is the most appropriate advice to give to your
instructing solicitor?

[A] The statement should be disclosed in Part I of the list as the witness
statement will be relied upon at trial by Mr Singh’s’ case, but privilege has
been waived.

[B] The statement should be disclosed in Part I of the list as the witness
statement contains information that may be adverse to either Mr Singh’s
case, another party’s case or support another party’s case and privilege has
been waived.

[C] There is no need to include this statement in the list as the claimant already
has a copy of it and this keeps costs down and is therefore proportionate.

[D] The statement should be disclosed in Part II of the list as a witness statement
is a privileged document and inspection should be withheld.

FEEDBACK – the most appropriate advice to give to your instructing

solicitor is B.
The earlier feedback has set out the basis of disclosure and privilege which can be
used to refuse inspection of a document. Applying these principles here, the witness
statement must be included in the list as it is a document that will come within the
definition of standard disclosure – as its content adversely affects us/another or
supports the other party’s case. Thus, although Mr Singh will not rely at trial on the
witness statement used to support his application to set aside the default judgment
(he will serve a different witness statement in due course in compliance with the
relevant directions order), the content of the statement meets the remainder of the
definition in CPR 31.6.

The advice in A to disclose the statement in Part 1 of the list because it is relied upon
at trial is not the best advice as you are advising that the wrong part of the CPR 31.6
test for disclosure is the reason (even though the effect is the same). It is listed in
Part I as privilege is waived (given up) when the statement was sent to the opponent
in support of the application to set aside the default judgment.

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The statement must be disclosed irrespective of the fact that the claimant has a copy
(answer C) because its content comes within the test at CPR 31.6(b). Witness
statements are privileged until such privilege is waived on disclosure and so this
statement, which has already been sent to the court and to the claimant, is no longer
privileged (answer D, wrong). Thus, B is the correct answer as it is disclosed in the
List as is not relied upon at trial, but its content could be adverse or supportive to an
opponent’s case or adverse to Mr Singh’s case and it is listed in Part I because it is
no longer privileged.

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