See also Practice Direction
31
Part
31
DISCLOSURE AND INSPECTION OF DOCUMENTS
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Scope of this Part
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31.1 |
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This Part sets out rules about the disclosure and
inspection of documents.
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This Part applies to all claims except a claim on the
small claims track.
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Meaning of disclosure
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31.2 |
A party discloses a document by stating that the
document exists or has existed.
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Right of inspection of a disclosed
document
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31.3 |
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A party to whom a document has been disclosed has a
right to inspect that document except where –
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the document is no longer in the control of the
party who disclosed it;
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the party disclosing the document has a right or
a duty to withhold inspection of it; or
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paragraph (2) applies.
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(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)
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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)
–
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he is not required to permit inspection of
documents within that category or class; but
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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.
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(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)
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| This Rule is referred to in: QB Guide - Chapter 2 (2.1), Expandable Ltd v Rubin [36], [39], [40], Lucas v Barking [25], [25], [25], SmithKline v Generics [27], [29], [29], Three Rivers DC v Bank of England (3) [18]. |
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Meaning of document
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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.
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Disclosure limited to standard
disclosure
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31.5 |
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An order to give disclosure is an order to give
standard disclosure unless the court directs otherwise.
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The court may dispense with or limit standard
disclosure.
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The parties may agree in writing to dispense with or to
limit standard disclosure.
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(The court may make an order requiring standard disclosure
under rule 28.3 which deals with directions in relation to cases on the fast
track and under rule 29.2 which deals with case management in relation to cases
on the multi-track)
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Standard disclosure – what documents are to be
disclosed
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31.6 |
Standard disclosure requires a party to disclose only
–
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the documents on which he relies; and
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the documents which –
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adversely affect his own case;
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adversely affect another party’s
case; or
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support another party’s case;
and
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the documents which he is required to disclose by
a relevant practice direction.
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| This Rule is referred to in: Part 28 (28.3), PDP 31 (1.2), QB Guide - Chapter 3 (3.2), Comm Ct Guide - Pt E (E3.2), Bermuda v KPMG [2], Black v Sumitomo [5], Gillingham v Gillingham [31], Hedrich v Standard Bank London Ltd [14], Nichia Corp v Argos Ltd [71], SmithKline v Generics [28], Three Rivers DC v Bank of England (3) [12], [77]. |
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Duty of search
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31.7 |
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When giving standard disclosure, a party is required to
make a reasonable search for documents falling within rule 31.6(b) or
(c).
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The factors relevant in deciding the reasonableness of
a search include the following –
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the number of documents involved;
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the nature and complexity of the
proceedings;
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the ease and expense of retrieval of any
particular document; and
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the significance of any document which is likely
to be located during the search.
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Where a party has not searched for a category or class
of document on the grounds that to do so would be unreasonable, he must state
this in his disclosure statement and identify the category or class of
document.
(Rule 31.10 makes provision for a disclosure
statement)
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Duty of disclosure limited to documents which are or
have been in a party’s control
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31.8 |
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A party’s duty to disclose documents is limited
to documents which are or have been in his control.
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For this purpose a party has or has had a document in
his control if –
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it is or was in his physical possession;
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he has or has had a right to possession of it;
or
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he has or has had a right to inspect or take
copies of it.
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Disclosure of copies
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31.9 |
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A party need not disclose more than one copy of a
document.
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A copy of a document that contains a modification,
obliteration or other marking or feature –
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on which a party intends to rely; or
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which adversely affects his own case or another
party’s case or supports another party’s case;
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shall be treated as a separate document.
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(Rule 31.4 sets out the meaning of a copy of a
document)
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Procedure for standard disclosure
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31.10 |
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The procedure for standard disclosure is as
follows.
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Each party must make and serve on every other party, a
list of documents in the relevant practice form.
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The list must identify the documents in a convenient
order and manner and as concisely as possible.
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The list must indicate –
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those documents in respect of which the party
claims a right or duty to withhold inspection; and
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those documents which are no longer in the
party’s control; and
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what has happened to those
documents.
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(Rule 31.19 (3) and (4) require a statement in the list
of documents relating to any documents inspection of which a person claims he
has a right or duty to withhold)
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The list must include a disclosure statement.
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A disclosure statement is a statement made by the party
disclosing the documents –
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setting out the extent of the search that has
been made to locate documents which he is required to disclose;
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certifying that he understands the duty to
disclose documents; and
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certifying that to the best of his knowledge he
has carried out that duty.
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Where the party making the disclosure statement is a
company, firm, association or other organisation, the statement must also
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identify the person making the statement;
and
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explain why he is considered an appropriate
person to make the statement.
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The parties may agree in writing –
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to disclose documents without making a list;
and
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to disclose documents without the disclosing
party making a disclosure statement.
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A disclosure statement may be made by a person who is
not a party where this is permitted by a relevant practice direction.
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Duty of disclosure continues during
proceedings
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31.11 |
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Any duty of disclosure continues until the proceedings
are concluded.
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If documents to which that duty extends come to a
party’s notice at any time during the proceedings, he must immediately
notify every other party.
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Specific disclosure or inspection
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31.12 |
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The court may make an order for specific disclosure or
specific inspection.
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An order for specific disclosure is an order that a
party must do one or more of the following things –
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disclose documents or classes of documents
specified in the order;
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carry out a search to the extent stated in the
order;
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disclose any documents located as a result of
that search.
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An order for specific inspection is an order that a
party permit inspection of a document referred to in rule 31.3(2).
(Rule 31.3(2) allows a party to state in his disclosure
statement that he will not permit inspection of a document on the grounds that
it would be disproportionate to do so)
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Disclosure in stages
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31.13 |
The parties may agree in writing, or the court may
direct, that disclosure or inspection or both shall take place in
stages.
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Documents referred to in statements of case
etc.
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31.14 |
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A party may inspect a document mentioned in
–
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a witness summary;
or
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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.
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(Rule 35.10(4) makes provision in relation to instructions
referred to in an expert’s report)
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| This Rule is referred to in: PDP 31 (6.2), Comm Ct Guide - Pt H (H2.21), Expandable Ltd v Rubin [12], [14], [14], [14], [14], [14], [36], [36], [37], [39], [40], Istil Group Inc v Zahoor [66], Lucas v Barking [23], [24], [26], [44], SmithKline v Generics [11], [27], [28], [29], Tajik Aluminium Plant v Hydro Aluminium AS [20]. |
| Rule 31.14 amended w/e from 25 March 2002. |
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Inspection and copying of documents
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31.15 |
Where a party has a right to inspect a document
–
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that party must give the party who disclosed the
document written notice of his wish to inspect it;
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the party who disclosed the document must permit
inspection not more than 7 days after the date on which he received the notice;
and
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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.
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(Rule 31.3 and 31.14 deal with the right of a party to
inspect a document)
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Disclosure before proceedings start
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31.16 |
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This rule applies where an application is made to the
court under any Act for disclosure before proceedings have started1.
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The application must be supported by evidence.
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The court may make an order under this rule only where
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the respondent is likely to be a party to
subsequent proceedings;
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the applicant is also likely to be a party to
those proceedings;
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if proceedings had started, the
respondent’s duty by way of standard disclosure, set out in rule 31.6,
would extend to the documents or classes of documents of which the applicant
seeks disclosure; and
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disclosure before proceedings have started is
desirable in order to –
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dispose fairly of the anticipated
proceedings;
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assist the dispute to be resolved without
proceedings; or
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An order under this rule must –
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specify the documents or the classes of documents
which the respondent must disclose; and
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require him, when making disclosure, to specify
any of those documents –
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which are no longer in his control;
or
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in respect of which he claims a right or
duty to withhold inspection.
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Such an order may –
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require the respondent to indicate what has
happened to any documents which are no longer in his control; and
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specify the time and place for disclosure and
inspection.
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| This Rule is referred to in: Part 25 (25.4), QB Guide - Chapter 3 (3.2), QB Guide - Chapter 6 (6.2), Bermuda v KPMG [1], [43], [43], Black v Sumitomo [78], Expandable Ltd v Rubin [14], Tanna v Tanna [42], [42], Three Rivers DC v Bank of England (3) [77], [83]. |
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Orders for disclosure against a person not a
party
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31.17 |
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This rule applies where an application is made to the
court under any Act for disclosure by a person who is not a party to the
proceedings2.
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The application must be supported by evidence.
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The court may make an order under this rule only where
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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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disclosure is necessary in order to dispose
fairly of the claim or to save costs.
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An order under this rule must –
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specify the documents or the classes of documents
which the respondent must disclose; and
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require the respondent, when making disclosure,
to specify any of those documents –
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which are no longer in his control;
or
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in respect of which he claims a right or
duty to withhold inspection.
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Such an order may –
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require the respondent to indicate what has
happened to any documents which are no longer in his control; and
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specify the time and place for disclosure and
inspection.
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| This Rule is referred to in: Part 25 (25.4), QB Guide - Chapter 7 (7.10), American Home Products v Novartis [32], [36], Expandable Ltd v Rubin [14], SmithKline v Generics [37], [39], [43], Tajik Aluminium Plant v Hydro Aluminium AS [20], [22], [22], [26], Three Rivers DC v Bank of England (3) [59], [59], [77], [78], [80], [81], [87]. |
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Rules not to limit other powers of the court to order
disclosure
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31.18 |
Rules 31.16 and 31.17 do not limit any other power
which the court may have to order –
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disclosure before proceedings have started;
and
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disclosure against a person who is not a party to
proceedings.
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Claim to withhold inspection or disclosure of a
document
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31.19 |
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A person may apply, without notice, for an order
permitting him to withhold disclosure of a document on the ground that
disclosure would damage the public interest.
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Unless the court orders otherwise, an order of the
court under paragraph (1) –
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must not be served on any other person;
and
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must not be open to inspection by any
person.
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A person who wishes to claim that he has a right or a
duty to withhold inspection of a document, or part of a document, must state in
writing –
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that he has such a right or duty; and
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the grounds on which he claims that right or
duty.
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The statement referred to in paragraph (3) must be made
–
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in the list in which the document is disclosed;
or
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if there is no list, to the person wishing to
inspect the document.
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| | (5)
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A party may apply to the court to decide whether a
claim made under paragraph (3) should be upheld.
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For the purpose of deciding an application under
paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to
withhold inspection) the court may –
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require the person seeking to withhold disclosure
or inspection of a document to produce that document to the court; and
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invite any person, whether or not a party, to
make representations.
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| | (7)
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An application under paragraph (1) or paragraph (5)
must be supported by evidence.
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| | (8)
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This Part does not affect any rule of law which permits
or requires a document to be withheld from disclosure or inspection on the
ground that its disclosure or inspection would damage the public
interest.
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Restriction on use of a privileged document inspection
of which has been inadvertently allowed
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31.20 |
Where a party inadvertently allows a
privileged(GL) document to be inspected, the party who has
inspected the document may use it or its contents only with the permission of
the court.
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Consequence of failure to disclose documents or permit
inspection
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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.
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Subsequent use of disclosed documents
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31.22 |
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A party to whom a document has been disclosed may use
the document only for the purpose of the proceedings in which it is disclosed,
except where –
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the document has been read to or by the court, or
referred to, at a hearing which has been held in public;
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the court gives permission; or
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| | (c)
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the party who disclosed the document and the
person to whom the document belongs agree.
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| | (2)
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The court may make an order restricting or prohibiting
the use of a document which has been disclosed, even where the document has
been read to or by the court, or referred to, at a hearing which has been held
in public.
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| | (3)
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An application for such an order may be made
–
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by any person to whom the document
belongs.
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| This Rule is referred to in: Allan v Clibbery [66], British Sky Broadcasting Group Plc v Virgin Media Communications Ltd [21], [3], Dendron v University of California [41], [41], Expandable Ltd v Rubin [40], Lilly Icos Ltd v Pfitzer Ltd [24], [26], [28], SmithKline v Generics [28], [29], [37], [43], [43]. |
| Amendments to Rule 31.22 w/e from 2 May 2000. |
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False disclosure statements
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31.23 |
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Proceedings for contempt of court may be brought
against a person if he makes, or causes to be made, a false disclosure
statement, without an honest belief in its truth.
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| | (2)
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Proceedings under this rule may be brought only
–
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by the Attorney General; or
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with the permission of the court.
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