INTRODUCTION

This chapter concerns two topics: first, the system of documentary disclosure; secondly, the main ‘privileged’ exceptions to the party's obligation to disclose relevant documents, legal advice and litigation privileges.

‘Disclosure’ serves four main functions: (i) it can achieve equality of access to information; (ii) it can facilitate settlement of disputes; (iii) it avoids so-called ‘trial by ambush’, that is, the situation when a party is unable to respond properly to a surprise revelation at the final hearing; and (iv) it assists the court in reaching accurate determinations of fact when entering judgment on the merits.

PRELIMINARY CONSIDERATION AFFECTING PRE-ACTION AND NON-PARTY DISCLOSURE

Pre-action disclosure can encourage and enhance settlement, and it can reduce litigation expenses by advancing the stage at which disputants focus upon the essential matters in dispute. The American Law Institute/UNIDROIT Principles state that potential parties, litigants, and the court should each enjoy appropriate ‘access to information’. However, as a matter of principle, there are three counter-constraints: (i) the problem of ‘fishing’, that is, an applicant's ‘roving’ request for evidence to make out a contemplated claim which is wholly speculative; (ii) non-parties’ reasonable expectations in maintaining confidentiality and privacy (whether in respect of their own private information, or to satisfy duties of confidentiality owed to fourth parties); (iii) the danger that judicially administered orders for pre-action disclosure can increase the expense of resolving disputes.

PRE-ACTION PROTOCOLS

As mentioned at 4.03 ff, the CPR (1998) system introduced a set of ‘preaction protocols’ which prescribe ‘obligations’ which the prospective parties and their legal representatives must satisfy before commencing formal proceedings. Pre-action protocols are intended to promote efficient exchange of information between the prospective parties, including pre-action disclosure of ‘essential’ documents held by each side. All such disclosure is subject to the restriction that the material can only be used for the purpose of the immediate prospective proceedings.

PRE-ACTION JUDICIAL ORDERS FOR DISCLOSURE

CPR 31.166 contains a general power for the court to make a pre-action documentary disclosure order against any type of prospective defendant.

Before this new rule, statute had confined the scope for pre-action documentary disclosure to proceedings for personal injury and death.