Disclosure and Inspection

Introduction

**Disclosure and inspection** is the stage of civil litigation at which the parties reveal to one another the documents that have a bearing on the case, so that each side can better evaluate the strength of its opponent's case in advance of trial. Litigation in the courts of England and Wales is conducted **'cards on the table'** (per Sir John Donaldson MR in **Davies v Eli Lilly & Co [1987] 1 WLR 428**). This chapter covers the **procedure** for disclosure, **standard and specific disclosure** under **CPR 31.6**, **pre-action and non-party disclosure**, the grounds for **withholding inspection**, the three principal heads of **privilege** (advice privilege, litigation privilege and without prejudice correspondence) and **waiver of privilege**, together with the separate disclosure regime for the **Business and Property Courts (PD57AD)**.

Assessment focus

For the SQE1 FLK1 assessment you must understand the **purpose and procedure** of disclosure and inspection and be able to **apply** the rules to realistic client scenarios. Key examinable points include the **definition of disclosure (CPR 31.2)**, the scope of **standard disclosure (CPR 31.6)**, when **specific disclosure** may be sought, the distinction between **pre-action and non-party disclosure**, the grounds for **withholding inspection** (loss of control, disproportionality and privilege), and the boundaries of **legal advice privilege, litigation privilege and without prejudice correspondence**. Questions are single best answer questions (SBAQs) set in client-based scenarios — you should expect to apply the privilege rules, for example to a solicitor's time sheet (**R v Manchester Crown Court, ex parte Rogers [1999] 1 WLR 832**), rather than merely recall definitions. This is a closed-book assessment.

Study tips

1) Memorise the **CPR 31.6 standard disclosure test**: documents on which a party relies; documents which **adversely affect** its own case, adversely affect another party's case, or **support** another party's case; and documents required by a relevant practice direction. 2) Learn the **Form N265 three-part list**: (a) documents under control and available for inspection; (b) documents under control but withheld (e.g. privilege); (c) documents once in possession but no longer held. 3) Distinguish **advice privilege** (communications between solicitor and client for the dominant purpose of obtaining legal advice) from **litigation privilege** (communications with **third parties** where litigation was reasonably in prospect and was the dominant purpose). 4) Remember the three grounds for **withholding inspection**: loss of control, disproportionality, privilege. 5) Note that **privilege belongs to the client** and may be **waived**; serving a copy of a privileged document on the other side waives privilege in it.