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DOCUMENTARY EVIDENCE CURRENT ISSUES

DOCUMENTARY EVIDENCE CURRENT ISSUES. Charles Hollander QC. PRE ACTION DISCLOSURE: CPR o31 r16 . Do not focus on whether the claim is arguable; strength of case is part of the discretion: Smith v. Secretary of State for Energy and Climate Change [2013] EWCA Civ. 1585.

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DOCUMENTARY EVIDENCE CURRENT ISSUES

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  1. DOCUMENTARY EVIDENCECURRENT ISSUES Charles Hollander QC brickcourt.co.uk +44 (0)20 7379 3550

  2. PRE ACTION DISCLOSURE: CPR o31 r16 • Do not focus on whether the claim is arguable; strength of case is part of the discretion: Smith v. Secretary of State for Energy and Climate Change [2013] EWCA Civ. 1585. • Hurdles in the way of pre-action disclosure: • Duty by way of standard disclosure must extend to each document: Hutchinson 3G UK Ltd v O2 (UK) Ltd 2008 [EWHC) 55 (Comm) • Application must be outside “the usual run”Trouw UK Ltd v. Mitsui (UK) 2006 EWHC 863 (Comm) • Costs issues: SES Contracting Ltd v. UK Coal Plc 2007 EWCA Civ 791 brickcourt.co.uk +44 (0)20 7379 3550

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  4. NON-PARTY DISCLOSURE: CPR o31 r17 Each document must be likely to come within the standard disclosure test: Three Rivers DC v Bank of England (No 4) 2002 4 All ER 881 But there must be no exercise of judgment by the non-party: Constantin Medien AG v. Ecclestone 2013 EWHC 2674 (Ch) brickcourt.co.uk +44 (0)20 7379 3550

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  6. NORWICH PHARMACAL • Has left behind the restrictions of its historic roots • Phone hacking: widening of “facilitators”: Various Claimants v. New Group Newspapers 2013 EWHC 2119 (CG) brickcourt.co.uk +44 (0)20 7379 3550

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  8. ELECTRONIC DISCLOSURE • Social Media: service by Facebook? • o31 r5: disclosure menus-what dishes to order? • Need to work out costings before CMC • Inappropriate documents appearing on keyword searches • Electronic Documents Questionnaire • Predictive coding brickcourt.co.uk +44 (0)20 7379 3550

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  10. LEGAL ADVICE PRIVILEGE Limited to documents passing between client and lawyer seeking or giving legal advice Problems in definition of “the client” since Three Rivers Three Rivers ditched in Hong Kong in favour of dominant purpose test: Citic Pacific Ltd v. Secretary of Justice 29 June 2015 Investigation reports Economist reports Dominant purpose in legal advice privilege? brickcourt.co.uk +44 (0)20 7379 3550

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  12. CLAIMING PRIVILEGE • Claiming privilege in doubtful documents • Rawlinson & Hunter Trustees v Akers 2014 EwCACiv 36 • Funding issues • Litigation updates to client and others • Property Alliance Group Ltd v. RBS 2015 EwHC 1557 (Ch) • Adversarial proceedings: Tesco v OFT 2012 CAT 6 brickcourt.co.uk +44 (0)20 7379 3550

  13. LIMITED WAIVER • Waiver of privilege: cherry-picking principle • Limited waiver: privileged documents handed over for limited purpose • Express limited waiver: B v Auckland District Law Society 2003 2AC 736 • Implied limited waiver: Berezovsky v Hine 2011 EWCA Civ 1089 • Extended in Citic Pacific v Secretary for Justice 2012 HKCA 153 brickcourt.co.uk +44 (0)20 7379 3550

  14. brickcourt.co.uk +44 (0)20 7379 3550

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