K13.3. Disclosure under the CPR
| 410. |
The approach mentioned above has been
implemented in the CPR. While the court retains jurisdiction to order full Peruvian
Guano style discovery in an appropriate case, the usual disclosure obligation is to
make what is called "standard disclosure". This requires a party to disclose
only the documents which are or have been in his control (Note 365) being :- |
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"(a) |
the documents on which
he relies; and |
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(b) |
the documents which - |
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(i) |
adversely affect his
own case; |
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(ii) |
adversely affect
another party's case; or |
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(iii) |
support another party's
case; and |
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(c) |
the documents which he
is required to disclose by a relevant practice direction." (Note 366) |
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| 411. |
Moreover, a party is not required to leave no
stone unturned in searching for disclosable adverse or required documents. He is required
merely to make "a reasonable search", the reasonableness of the search being
judged by :- |
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"(a) |
the number of documents
involved; |
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(b) |
the nature and
complexity of the proceedings; |
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(c) |
the ease and expense of
retrieval of any particular document; and |
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(d) |
the significance of any
document which is likely to be located during the search." (Note 367) |
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| 412.. |
Disclosure is by exchanging lists of documents
accompanied by a "disclosure statement" made by the party giving disclosure :- |
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"(a) |
setting out the extent
of the search that has been made to locate documents which he is required to disclose; |
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(b) |
certifying that he
understands the duty to disclose documents; and |
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(c) |
certifying that to the
best of his knowledge he has carried out that duty." (Note 368) |
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False disclosure is punishable as a contempt.
(Note 369) |
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| 413. |
As with other aspects of the CPR, the court is
to assume a more proactive role and, where necessary, it should case manage the disclosure
process. With the overriding objective in mind, it may be proportionate for example, to
order disclosure to take place in stages or in respect of a key preliminary issue which
may be dispositive of the case before the expense of full-scale disclosure is incurred.
This is expressly catered for by CPR 31.13. |
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| 414. |
The parties are also given a wide scope for
making agreements as to disclosure, including agreements in writing to make disclosure
without a list and without having to make a disclosure statement. (Note 370) In preparing the list, large numbers of documents falling into a particular
category may be disclosed by category without laboriously describing each document.
(Note 371) |
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| 415. |
Two special powers to order disclosure may be
mentioned. |
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| 415.1 |
Where proceedings involving the applicant and
respondent are likely to ensue, the court has power to order disclosure before
commencement of those proceedings of documents which would be disclosable provided that
such disclosure :- |
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"...... is
desirable in order to - |
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(i) |
dispose fairly of the
anticipated proceedings; |
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(ii) |
assist the dispute to
be resolved without proceedings; or |
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(iii) |
save costs." (Note 372) |
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| 415.2 |
There is also a power to order disclosure by a
person who is not a party to the proceedings where :- |
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"(a) |
the documents of which
disclosure is sought are likely to support the case of the applicant or adversely affect
the case of one of the other parties to the proceedings; and |
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(b) |
disclosure is necessary
in order to dispose fairly of the claim or to save costs." (Note 373) |
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This is a significantly wider than the powers
presently limited to personal injury actions by section 41 and 42 of the High Court
Ordinance and O 24 r 7A of the HCR. (Note 374) |
Notes
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