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  1. #1
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    Default Disclosure and inspection- what does it actually mean?

    When a claim form is issued it is often said that the first thing you should do is make a request under rule 31.14 of the Civil Procedure rules for copies of documents mentioned in a Claim form or particulars of claim.

    What people often overlook are the actual rules, what they say, what you are entitled to, what you are not entitled to etc.

    Now before we look at the Civil Procedure Rules, it may help to refer to the case of Expandable v. Rubin [2008] EWCA Civ 59 paragraph 24

    ……..The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?


    The above comment is often used in Applications to the Court in support of an application for inspection of documents mentioned in a claim form.

    So to understand the CPR rule 31 it is prudent to look at the meaning of disclosure firstly, it is not actually what you may think, disclosure does not mean acutally being provided with a document, rather it means the following

    Meaning of disclosure

    31.2 A party discloses a document by stating that the document exists or has existed.


    So when a Claimant mentions in his claim form, or witness statement that "the Defendant entered into a credit agreement in writing dated...." he is disclosing the document, ie he is saying the credit agreement existed.

    So, what is the meaning of "Document" within CPR Rule 31? Well rule 31.4 states

    Meaning of document

    31.4 In this Part –
    ‘document’ means anything in which information of any description is recorded; and
    ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
    So, now we know what disclosure means, and what the rules define as a "document".

    So, if a document is disclosed in a statement of case or witness, when are you entitled to inspect it?

    Ok, well refer back to Expandable v Rubin above, and then consider the following.

    Documents referred to in statements of case etc.

    31.14
    (1) A party may inspect a document mentioned in –
    (a) a statement of case;
    (b) a witness statement;
    (c) a witness summary; or
    (d) an affidavit(GL).
    (e) Revoked.
    (2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.
    (Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)
    So, the Claimant dislcoses a credit agreement in his claim form, you are entitled to inspect it in accordance with Rule 31.14(1)(a) above.

    Rule 31.15 sets down the provisions for inspecting a document.

    Inspection and copying of documents

    31.15 Where a party has a right to inspect a document–
    (a) that party must give the party who disclosed the document written notice of his wish to inspect it;
    (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
    (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.
    (Rule 31.3 and 31.14 deal with the right of a party to inspect a document)
    So you receive a claim form, it mentions a credit agreement, you are therefore entitled to ask the Claimant to inspect the document, and the Claimant must allow you to inspect the document within 7 days. Now its important to stop and look at what inspection is, yes it covers being given a copy if you undertake to pay reasonable copying costs, but you can also visit the offices of the solicitor and inspect the original, there is no reason why you cannot arrange a date to visit the offices as long as your request is reasonable and proportionate. Dont forget before photo copiers lawyers did exactly that, visited the other lawyers offices and inspected the documents.

    So one other point to consider, that is CPR rule 31.3 as a party does not have to allow inspection of a document that is no longer in his control. note the words no longer in, this does not mean never has been in his control so where the creditor says sorry guvnor i dont have the credit agreement, it seems he cannot use CPR rule 31.3 to get himself out of trouble. See below.

    Right of inspection of a disclosed document

    31.3
    (1) A party to whom a document has been disclosed has a right to inspect that document except where –
    (a) the document is no longer in the control of the party who disclosed it;
    (b) the party disclosing the document has a right or a duty to withhold inspection of it;
    (c) paragraph (2) applies; or
    (d) rule 78.26 applies.
    (Rule 31.8 sets out when a document is in the control of a party)

    (Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection)
    (Rule 78.26 contains rules in relation to the disclosure and inspection of evidence arising out of mediation of certain cross-border disputes.)
    (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –
    (a) he is not required to permit inspection of documents within that category or class; but
    (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.
    (Rule 31.6 provides for standard disclosure)
    (Rule 31.10 makes provision for a disclosure statement)

    (Rule 31.12 provides for a party to apply for an order for specific inspection of documents)
    Its also worth noting the following provision of CPR rule 31.21

    Consequence of failure to disclose documents or permit inspection

    31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.
    You may also find that a claimant will try and argue that the case is a small claims matter so Rule 31 doesnt apply. The first question is, has the case been allocated to a track? if not then you may be able to counter that argument by saying the Claim is unallocated therefore the Claim is a multi track matter until allocation.

    CPR 31.1 makes clear what the scope of this rule is

    Scope of this Part

    31.1
    (1) This Part sets out rules about the disclosure and inspection of documents.
    (2) This Part applies to all claims except a claim on the small claims track.
    So when a Claimant mentions a document in his claim you can ask to inspect it. What you must remember is that if he does not mention a document you cannot ask to inspect it. But if you are entitled to inspect a document and the Claimant fails or refuses to allow inspection within 7 days of receipt of your letter asking for inspection then you should start considering whether you need to make an application to the Court for an order compelling the Claimant to allow inspection. The same rule applies to defendants too by the way. A document mentioned in a Defence carries the same disclosure obligations.

    If you need to apply then make sure you cite the case of Mitchell v News group newspapers, as the Court of Appeal made it very clear that the rules are there to be followed and not abused.

    I will cover applications in a separate post shortly.

  2. #2
    Join Date
    Oct 2007
    Posts
    3,721
    Mentioned
    217 Post(s)

    Default Disclosure and inspection- what does it actually mean?

    When a claim form is issued it is often said that the first thing you should do is make a request under rule 31.14 of the Civil Procedure rules for copies of documents mentioned in a Claim form or particulars of claim.

    What people often overlook are the actual rules, what they say, what you are entitled to, what you are not entitled to etc.

    Now before we look at the Civil Procedure Rules, it may help to refer to the case of Expandable v. Rubin [2008] EWCA Civ 59 paragraph 24

    ……..The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?


    The above comment is often used in Applications to the Court in support of an application for inspection of documents mentioned in a claim form.

    So to understand the CPR rule 31 it is prudent to look at the meaning of disclosure firstly, it is not actually what you may think, disclosure does not mean acutally being provided with a document, rather it means the following

    Meaning of disclosure

    31.2 A party discloses a document by stating that the document exists or has existed.


    So when a Claimant mentions in his claim form, or witness statement that "the Defendant entered into a credit agreement in writing dated...." he is disclosing the document, ie he is saying the credit agreement existed.

    So, what is the meaning of "Document" within CPR Rule 31? Well rule 31.4 states

    Meaning of document

    31.4 In this Part –
    ‘document’ means anything in which information of any description is recorded; and
    ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
    So, now we know what disclosure means, and what the rules define as a "document".

    So, if a document is disclosed in a statement of case or witness, when are you entitled to inspect it?

    Ok, well refer back to Expandable v Rubin above, and then consider the following.

    Documents referred to in statements of case etc.

    31.14
    (1) A party may inspect a document mentioned in –
    (a) a statement of case;
    (b) a witness statement;
    (c) a witness summary; or
    (d) an affidavit(GL).
    (e) Revoked.
    (2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.
    (Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)
    So, the Claimant dislcoses a credit agreement in his claim form, you are entitled to inspect it in accordance with Rule 31.14(1)(a) above.

    Rule 31.15 sets down the provisions for inspecting a document.

    Inspection and copying of documents

    31.15 Where a party has a right to inspect a document–
    (a) that party must give the party who disclosed the document written notice of his wish to inspect it;
    (b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
    (c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.
    (Rule 31.3 and 31.14 deal with the right of a party to inspect a document)
    So you receive a claim form, it mentions a credit agreement, you are therefore entitled to ask the Claimant to inspect the document, and the Claimant must allow you to inspect the document within 7 days. Now its important to stop and look at what inspection is, yes it covers being given a copy if you undertake to pay reasonable copying costs, but you can also visit the offices of the solicitor and inspect the original, there is no reason why you cannot arrange a date to visit the offices as long as your request is reasonable and proportionate. Dont forget before photo copiers lawyers did exactly that, visited the other lawyers offices and inspected the documents.

    So one other point to consider, that is CPR rule 31.3 as a party does not have to allow inspection of a document that is no longer in his control. note the words no longer in, this does not mean never has been in his control so where the creditor says sorry guvnor i dont have the credit agreement, it seems he cannot use CPR rule 31.3 to get himself out of trouble. See below.

    Right of inspection of a disclosed document

    31.3
    (1) A party to whom a document has been disclosed has a right to inspect that document except where –
    (a) the document is no longer in the control of the party who disclosed it;
    (b) the party disclosing the document has a right or a duty to withhold inspection of it;
    (c) paragraph (2) applies; or
    (d) rule 78.26 applies.
    (Rule 31.8 sets out when a document is in the control of a party)

    (Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection)
    (Rule 78.26 contains rules in relation to the disclosure and inspection of evidence arising out of mediation of certain cross-border disputes.)
    (2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –
    (a) he is not required to permit inspection of documents within that category or class; but
    (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.
    (Rule 31.6 provides for standard disclosure)
    (Rule 31.10 makes provision for a disclosure statement)

    (Rule 31.12 provides for a party to apply for an order for specific inspection of documents)
    Its also worth noting the following provision of CPR rule 31.21

    Consequence of failure to disclose documents or permit inspection

    31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.
    You may also find that a claimant will try and argue that the case is a small claims matter so Rule 31 doesnt apply. The first question is, has the case been allocated to a track? if not then you may be able to counter that argument by saying the Claim is unallocated therefore the Claim is a multi track matter until allocation.

    CPR 31.1 makes clear what the scope of this rule is

    Scope of this Part

    31.1
    (1) This Part sets out rules about the disclosure and inspection of documents.
    (2) This Part applies to all claims except a claim on the small claims track.
    So when a Claimant mentions a document in his claim you can ask to inspect it. What you must remember is that if he does not mention a document you cannot ask to inspect it. But if you are entitled to inspect a document and the Claimant fails or refuses to allow inspection within 7 days of receipt of your letter asking for inspection then you should start considering whether you need to make an application to the Court for an order compelling the Claimant to allow inspection. The same rule applies to defendants too by the way. A document mentioned in a Defence carries the same disclosure obligations.

    If you need to apply then make sure you cite the case of Mitchell v News group newspapers, as the Court of Appeal made it very clear that the rules are there to be followed and not abused.

    I will cover applications in a separate post shortly.

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