This article is the first of two parts, which will aim to consider the process by which evidence is gathered in litigation under the judicial systems in England and Wales and the USA respectively. The relevant procedures in both England and Wales and the USA are markedly different to the system (or lack thereof) for gathering evidence in France. While our next article will look at the system in the USA, this one will consider the system in England and Wales, currently under Part 31 the Civil Procedure Rules 1998, to make our French readers aware of systems to which they may be subject in foreign litigation.
The Civil Procedure Rules were introduced following Lord Woolf’s Access to Justice report, published in 1996, and replaced the old, complicated rules with a view to making legal proceedings cheaper, more accessible, quicker, and easier for non-lawyers to understand.
The current systems for gathering evidence in England and Wales were introduced with the intention of achieving the Civil Procedure Rules’ so-called ‘overriding objective’. This means that they intended to strike a balance between fact-finding and uncovering the truth on the one hand, and maintaining efficiency in the courts and managing resources on the other. Whether this is truly the case is questionable. It can be said that evidence gathering, namely disclosure and inspection, are processes managed by the court to a certain extent. To that effect, directions as to the extent and methods of disclosure and inspection are usually provided by the judge at the initial Case Management Conference, which takes place early on in the litigation process.
However, it should be noted that the current rules for disclosure are be subject to change following Lord Jackson’s Review of Civil Litigation Costs, published in 2010. This report reviewed the current civil litigation system in England and Wales, including disclosure. Lord Jackson noted, in particular, that disclosure is an expensive procedure and that measures needed to be taken to ensure that the costs associated with disclosure do not become disproportionate. In particular, Lord Jackson has stated that the practical impact of the Civil Procedure Rules was that the parties actually disclosed fewer documents than it would have under the previous rules, but while incurring higher costs. Therefore, it is clear that disclosure as it stands may not be fulfilling the ‘overriding objective’ as intended.
One of Lord Jackson’s recommendations was to introduce a ‘Menu Options’ approach, offering parties in large commercial cases and cases where costs are likely to become disproportionate a variety of different breadths of disclosure to choose from, rather than a generic ‘standard disclosure’ which is currently in place. This was following on from practitioners’ general feeling that disclosure is the phase of litigation that escalates the costs of a case and requires further control. Lord Jackson’s reforms will be brought into law this year under the Civil Procedure (Amendment) Rules 2013, and will give both the parties and particularly the court further discretion and flexibility to control the costs associated with disclosure and ensure that the needs of each case are properly met.
The system as it currently stands is summarised below.
Disclosure is the stage of litigation in which parties each prepare a list of documents that it has (or had) in its possession which are relevant to their or their opponent’s case. The parties then provide their lists for their opponent to view.
There are three procedural ‘tracks’ within the litigation system of England and Wales: small claims, fast track and multi-track. A case’s facts will determine the track to which it is assigned, and the track will determine the scope and extent of disclosure required. On the small claims track, parties generally do not have to provide disclosure unless specifically ordered by the judge. Parties to fast track and multi-track cases are usually required to give ‘standard disclosure’. Although this can be limited, extended or dispensed with by the judge or by agreement between the parties, the basic requirements of standard disclosure are as follows.
As a general rule, standard disclosure requires the parties to include in a list those documents which are or have at any time been in their control:
– On which they rely or which adversely affect their case;
– Which support or adversely affect another party’s case; and
– Which a relevant court rule requires the parties to disclose.
A document is “in a party’s control” if it is in their physical possession or if they have a right to possess it, inspect it or take copies of it. An example of this may be if the document is in the possession of the party’s legal advisors or accountants.
What constitutes as a “document” is particularly broad, including but certainly not limited to: paper documents; information stored on hard drives; video and audio tapes; digitally stored documents; and even ‘deleted’ electronic documents and ‘metadata’.
Corresponding with a meteoric increase in the use of digital and electronic data in recent decades, the rules relating to parties’ responsibilities when disclosing electronic information have recently been extended. Parties must now consider and discuss with their opponent very early on in the litigation process any potential obstacles they may face in the search for and preservation of electronic documents, as well as agree the manner in which they will be disclosed. This could entail providing certain information to the opposing party even before the disclosure stage, such as keyword searches to be used, the types of storage systems and computer systems used and document retention policies in place. Should the parties disagree or find that the burden and cost of disclosing electronic documents is becoming too high, an Electronic Document Questionnaire can be exchanged between the parties to narrow down the search and identify those queries that constitute “fishing expeditions”.
Parties are obliged to carry out a reasonable search for documents. If a category of documents is not searched for because a party deems it unreasonable, then this must be expressly stated in the disclosure statement (see below). In terms of the reasonableness of a search for electronic documents, the Court will take into consideration the following factors:
– The number of documents involved;
– The nature and complexity of the proceedings;
– The ease and expense of retrieval of any particular document (particularly considering accessibility, cost, location, alterations to and the likelihood of retrieving the documents); and
-The significance of any particular document.
Giving disclosure is a duty which continues until the case comes to a final conclusion, that is, the parties’ duties to undertake searches and disclose relevant documents to the other side are ongoing. To that effect, any new documents which come to a party’s attention or are created after the initial disclosure lists have been exchanged must be immediately disclosed to their opponent. All parties’ relevant personnel should be made aware of this duty, to ensure that disclosable documents are preserved and flagged up accordingly.
The rules governing the duties to preserve and disclose documents are particularly strict, as this is the method by which the UK judiciary maintains a stronghold on escalating costs and a fair “all cards on the table” approach to litigation. As such, there is usually an additional requirement that the disclosure list contains a disclosure statement by the person responsible for the exercise, declaring the extent of the search made (including specific details of searches for electronic documents); an understanding of the duty to disclose; that the duty has been carried out to the best of their knowledge; and why that person is the appropriate person to be making the statement.
This statement has legal weight, in that should a person make or cause to be made a false disclosure statement without belief in its truth, that person can be held in contempt of Court. This could result in a fine or even imprisonment.
- Specific disclosure
Should a party feel that their opponent has not disclosed all relevant documents, it can apply for specific disclosure from the judge. This allows the judge to exercise his or her discretion to order that specific documents or categories of documents be disclosed or a particular search carried out.
Disclosure and inspection are two distinct procedures in the litigation process. Disclosure involves searching for and setting out in a list format all relevant documents. Inspection occurs when the party to whom disclosure was made is entitled to actually view the documents themselves. Parties are generally entitled to inspect disclosed documents, unless they are no longer in the party’s control, the disclosing parties considers inspection would be disproportionate, or the disclosing party has a right or duty to withhold inspection. The latter point is explained further below.
A ‘privilege’ entitles a party to withhold evidence from production to a third party or the court. In order for a document to be privileged, its contents must be confidential. There are certain types of document that are subject to such a ‘privilege’, including:
– Documents that tend to incriminate or expose a penalty;
– Documents that are damaging to the public interest;
– ‘Without Prejudice’ correspondence (such correspondence cannot be shown to the judge or referred to at trial insofar as it forms part of negotiations to settle a claim); and
– Documents entitled to “legal professional privilege”.
There are two types of legal professional privilege:
– Legal advice privilege, which protects confidential communication between a client and his lawyer[ , which have come into existence for the purpose of giving or receiving legal advice; and – Litigation privilege, which protects material that is confidential communication between a lawyer and his client or between either the lawyer or the client and third party, for the purpose of litigation, with litigation pending, reasonably contemplated or existing at the time.
The effect of a documents being ‘privileged’ is that, while they must still be disclosed, the other party is not entitled to view or inspect the document itself. If a party withholds inspection of a document on the grounds that it is privileged, their opponent can challenge their grounds for doing so; following this, a judge may specifically order inspection (as above).
Documents that are disclosed and inspected are to be used in the course of proceedings only. If they are used for any other purpose without the judge’s permission, the wronged party can apply for an injunction to prevent the document being used, while the judge may commence proceedings for contempt of court.
Although only a brief summary, it can be concluded that when it comes to gathering evidence in England and Wales, there are strict rules and procedures to follow. The duty of disclosure and carrying out a search, particularly of electronic documents, can be vast, burdensome and expensive. There is some relief available relating to those documents which are ‘privileged’, however there still remains a duty to locate and disclose the existence of those documents in the first place. Disclosure and inspection are useful tools in the judiciary’s arsenal, but as pointed out by Lord Jackson, it is unlikely that the current disclosure process fulfills the overriding objective of the Civil Procedure Rules, and changes were necessary in order for it to become more practically effective and ensure that the related costs don’t spiral out of control. However, the duties relating to disclosure and inspection, both as they stand and following the introduction of reforms, should still be carried out with great care and diligence, and specific legal advice should be sought on a case-by-case basis.
Next month’s article will consider the system in the USA and point out the stark differences between that system and those in both England and Wales and France.
 The underlying purpose of this privilege is to allow free access to a lawyer’s professional skill and judgment. Therefore, the definition of ‘lawyer’ for these purposes includes all members of the legal profession, that is, solicitors, barristers, in-house lawyers and foreign lawyers. It is likely also to cover supervised legal executives. For paralegals and trainees, if they are properly supervised in accordance with Law Society requirements, then their work will be that of the legal department rather than their personal advice, and will therefore attract legal professional privilege. However, there is no precise case law or authority determining whether privilege applies to communications with lawyers who do not hold a current practising certificate.
 In his or her professional capacity.