Part 31 DISCLOSURE AND INSPECTION OF DOCUMENTS

Contents of this Part
Title	Number
Scope of this Part	Rule 31.1
Meaning of disclosure	Rule 31.2
Right of inspection of a disclosed document	Rule 31.3
Meaning of document	Rule 31.4
Disclosure limited to standard disclosure	Rule 31.5
Standard disclosure – what documents are to be disclosed	Rule 31.6
Duty of search	Rule 31.7
Duty of disclosure limited to documents which are or have been in a party’s control	Rule 31.8
Disclosure of copies	Rule 31.9
Procedure for standard disclosure	Rule 31.10
Duty of disclosure continues during proceedings	Rule 31.11
Specific disclosure or inspection	Rule 31.12
Disclosure in stages	Rule 31.13
Documents referred to in statements of case etc.	Rule 31.14
Inspection and copying of documents	Rule 31.15
Disclosure before proceedings start	Rule 31.16
Orders for disclosure against a person not a party	Rule 31.17
Rules not to limit other powers of the court to order disclosure	Rule 31.18
Claim to withhold inspection or disclosure of a document	Rule 31.19
Restriction on use of a privileged document inspection of which has been inadvertently allowed	Rule 31.20
Consequence of failure to disclose documents or permit inspection	Rule 31.21
Subsequent use of disclosed documents	Rule 31.22
False disclosure statements	Rule 31.23

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.

Meaning of disclosure

31.2

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

This Rule is referred to in: SmithKline v Generics [29].

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; or


(c)	paragraph (2) 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)

(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)

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].

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.

This Rule is referred to in: PDP 31 (2A.1), Comm Ct Guide - Pt E (E3.11).

Disclosure limited to standard disclosure

31.5


(1)	An order to give disclosure is an order to give standard disclosure unless the court directs otherwise.


(2)	The court may dispense with or limit standard disclosure.


(3)	The parties may agree in writing to dispense with or to limit standard disclosure.

(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)

This Rule is referred to in: PDP 28 (4.5), PDP 29 (6.5), Comm Ct Guide - Pt E (E2), (E2), Nichia Corp v Argos Ltd [71], [71], SmithKline v Generics [28].

Standard disclosure – what documents are to be disclosed

31.6

Standard disclosure requires a party to disclose only –


(a)	the documents on which he relies; and

(b)

the documents which –


(i)	adversely affect his own case;


(ii)	adversely affect another party’s case; or


(iii)	support another party’s case; and


(c)	the documents which he is required to disclose by a relevant practice direction.

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].

Duty of search

31.7


(1)	When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

(2)

The factors relevant in deciding the reasonableness of a search include the following –


(a)	the number of documents involved;


(b)	the nature and complexity of the proceedings;


(c)	the ease and expense of retrieval of any particular document; and


(d)	the significance of any document which is likely to be located during the search.


(3)	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)

This Rule is referred to in: PDP 31 (2A.4), Comm Ct Guide - Pt E (E3.11), (E3.6), American Home Products v Novartis [20], Hedrich v Standard Bank London Ltd [14], Nichia Corp v Argos Ltd [46], [71].

Duty of disclosure limited to documents which are or have been in a party’s control

31.8


(1)	A party’s duty to disclose documents is limited to documents which are or have been in his control.

(2)

For this purpose a party has or has had a document in his control if –


(a)	it is or was in his physical possession;


(b)	he has or has had a right to possession of it; or


(c)	he has or has had a right to inspect or take copies of it.

This Rule is referred to in: PDP 31 (1.3), Three Rivers DC v Bank of England (3) [18], [51].

Disclosure of copies

31.9


(1)	A party need not disclose more than one copy of a document.

(2)

A copy of a document that contains a modification, obliteration or other marking or feature –


(a)	on which a party intends to rely; or


(b)	which adversely affects his own case or another party’s case or supports another party’s case;

shall be treated as a separate document.

(Rule 31.4 sets out the meaning of a copy of a document)

Procedure for standard disclosure

31.10


(1)	The procedure for standard disclosure is as follows.


(2)	Each party must make and serve on every other party, a list of documents in the relevant practice form.


(3)	The list must identify the documents in a convenient order and manner and as concisely as possible.

(4)

The list must indicate –


(a)	those documents in respect of which the party claims a right or duty to withhold inspection; and

(b)


(i)	those documents which are no longer in the party’s control; and


(ii)	what has happened to those documents.

(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)


(5)	The list must include a disclosure statement.

(6)

A disclosure statement is a statement made by the party disclosing the documents –


(a)	setting out the extent of the search that has been made to locate documents which he is required to disclose;


(b)	certifying that he understands the duty to disclose documents; and


(c)	certifying that to the best of his knowledge he has carried out that duty.

(7)

Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also –


(a)	identify the person making the statement; and


(b)	explain why he is considered an appropriate person to make the statement.

(8)

The parties may agree in writing –


(a)	to disclose documents without making a list; and


(b)	to disclose documents without the disclosing party making a disclosure statement.


(9)	A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.

This Rule is referred to in: PDP 28 (4.5), PDP 29 (6.5), PDP 31 (4.1), (4.7), Comm Ct Guide - Pt E (E3.6).

Duty of disclosure continues during proceedings

31.11


(1)	Any duty of disclosure continues until the proceedings are concluded.


(2)	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.

Specific disclosure or inspection

31.12


(1)	The court may make an order for specific disclosure or specific inspection.

(2)

An order for specific disclosure is an order that a party must do one or more of the following things –


(a)	disclose documents or classes of documents specified in the order;


(b)	carry out a search to the extent stated in the order;


(c)	disclose any documents located as a result of that search.


(3)	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)

This Rule is referred to in: Part 58 (58.14), PDP 31 (5.2), Comm Ct Guide - Pt E (E2), (E4.2), Three Rivers DC v Bank of England (3) [10], [10].

This Rule is referred to in the following SIs: Civil Procedure (Amendment No. 5) Rules 2001 (43).

Disclosure in stages

31.13

The parties may agree in writing, or the court may direct, that disclosure or inspection or both shall take place in stages.

This Rule is referred to in: PDP 28 (4.5), PDP 29 (6.5).

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)

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].

This Rule is referred to in the following SIs: Civil Procedure (Amendment No. 5) Rules 2001 (20).

Rule 31.14 amended w/e from 25 March 2002.

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)

This Rule is referred to in: Expandable Ltd v Rubin [36], [37], [37], [39], Lucas v Barking [25], [25].

Disclosure before proceedings start

31.16


(1)	This rule applies where an application is made to the court under any Act for disclosure before proceedings have started¹.


(2)	The application must be supported by evidence.

(3)

The court may make an order under this rule only where –


(a)	the respondent is likely to be a party to subsequent proceedings;


(b)	the applicant is also likely to be a party to those proceedings;


(c)	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

(d)

disclosure before proceedings have started is desirable in order to –


(i)	dispose fairly of the anticipated proceedings;


(ii)	assist the dispute to be resolved without proceedings; or


(iii)	save costs.

(4)

An order under this rule must –


(a)	specify the documents or the classes of documents which the respondent must disclose; and

(b)

require him, when making disclosure, to specify any of those documents –


(i)	which are no longer in his control; or


(ii)	in respect of which he claims a right or duty to withhold inspection.

(5)

Such an order may –


(a)	require the respondent to indicate what has happened to any documents which are no longer in his control; and


(b)	specify the time and place for disclosure and inspection.

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].

Orders for disclosure against a person not a party

31.17


(1)	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.


(2)	The application must be supported by evidence.

(3)

The court may make an order under this rule only where –


(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


(b)	disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4)

An order under this rule must –


(a)	specify the documents or the classes of documents which the respondent must disclose; and

(b)

require the respondent, when making disclosure, to specify any of those documents –


(i)	which are no longer in his control; or


(ii)	in respect of which he claims a right or duty to withhold inspection.

(5)

Such an order may –


(a)	require the respondent to indicate what has happened to any documents which are no longer in his control; and


(b)	specify the time and place for disclosure and inspection.

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].

Rules not to limit other powers of the court to order disclosure

31.18

Rules 31.16 and 31.17 do not limit any other power which the court may have to order –


(a)	disclosure before proceedings have started; and


(b)	disclosure against a person who is not a party to proceedings.

Claim to withhold inspection or disclosure of a document

31.19


(1)	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.

(2)

Unless the court orders otherwise, an order of the court under paragraph (1) –


(a)	must not be served on any other person; and


(b)	must not be open to inspection by any person.

(3)

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 –


(a)	that he has such a right or duty; and


(b)	the grounds on which he claims that right or duty.

(4)

The statement referred to in paragraph (3) must be made –


(a)	in the list in which the document is disclosed; or


(b)	if there is no list, to the person wishing to inspect the document.


(5)	A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.

(6)

For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may –


(a)	require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and


(b)	invite any person, whether or not a party, to make representations.


(7)	An application under paragraph (1) or paragraph (5) must be supported by evidence.


(8)	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.

This Rule is referred to in: PDP 31 (6.2), Expandable Ltd v Rubin [14], [36], [39], [39].

Restriction on use of a privileged document inspection of which has been inadvertently allowed

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.

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.

This Rule is referred to in: Lucas v Barking [24].

Subsequent use of disclosed documents

31.22

(1)

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 –


(a)	the document has been read to or by the court, or referred to, at a hearing which has been held in public;


(b)	the court gives permission; or


(c)	the party who disclosed the document and the person to whom the document belongs agree.


(2)	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.

(3)

An application for such an order may be made –


(a)	by a party; or


(b)	by any person to whom the document belongs.

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].

This Rule is referred to in the following SIs: Civil Procedure (Amendment) Rules 2000 (16).

Amendments to Rule 31.22 w/e from 2 May 2000.

False disclosure statements

31.23


(1)	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.

(2)

Proceedings under this rule may be brought only –


(a)	by the Attorney General; or


(b)	with the permission of the court.

This Rule is referred to in: PDP 31 (8).

Footnotes

1. An application for disclosure before proceedings have started is permitted under section 33 of the Supreme Court Act 1981^Acts (c.54) or section 52 of the County Courts Act 1984^Acts (c.28).

2. An application for disclosure against a person who is not a party to proceedings is permitted under section 34 of the Supreme Court Act 1981^Acts (c.54) or section 53 of the County Courts Act 1984^Acts (c.28).