The Civil Procedure Rules 1998 (CPR) require the parties to give advance notice to their opponents of all the material documentation in their control. This is done in two stages. At the first stage the parties send each other lists of documents, a process called ‘disclosure’. The second stage is ‘inspection’, which is the process by which the other side can request copies of documents appearing in the list of documents, typically with photocopies being provided by the disclosing party. This chapter discusses these processes. It covers lawyers’ and clients’ responsibilities; the stage when disclosure takes place; disclosure orders; standard disclosure; menu option disclosure; duty to search; list of documents; privilege; inspection; orders in support of disclosure; documents referred to in statements of case, etc.; admission of authenticity; and collateral use.
Chapter
31. Disclosure
Chapter
31. Disclosure
The Civil Procedure Rules 1998 (CPR) require the parties to give advance notice to their opponents of all the material documentation in their control. This is done in two stages. At the first stage the parties send each other lists of documents, a process called ‘disclosure’. The second stage is ‘inspection’, which is the process by which the other side can request copies of documents appearing in the list of documents, typically with photocopies being provided by the disclosing party. This chapter discusses these processes. It covers lawyers’ and clients’ responsibilities; the stage when disclosure takes place; disclosure orders; standard disclosure; menu option disclosure; duty to search; list of documents; privilege; inspection; orders in support of disclosure; documents referred to in statements of case, etc.; admission of authenticity; and collateral use.
Chapter
14. Hearsay admissible at common law
This chapter considers the following categories of hearsay: statements in public documents; works of reference; evidence of birth, age, and death; evidence of reputation; statements forming part of the res gestae; and statements which are admissions made by an agent of a defendant. All of these categories were established at common law as exceptions to the rule against hearsay, and all of them have been preserved by statute. The categories relating to age and res gestae have been preserved in criminal but not civil proceedings. All of the other categories have been preserved in both criminal and civil proceedings.
Chapter
X. Public policy
This chapter argues that relevant evidence must be excluded on the ground of public policy on certain conditions. It explores two of these conditions: when the evidence concerns certain matters of public interest considered to be more important than the full disclosure of facts to the court, and when it relates to miscellaneous matters connected with litigation. The chapter also discusses evidence that has been illegally obtained, though this topic is not usually covered under the umbrella of public policy. Although there is no comparably strict general exclusionary rule, it is increasingly the case that the courts recognize the existence of an exclusionary discretion. This is governed in part by weighing the public interest in the conviction of guilty criminals against the public interest in the preservation of basic civil liberties.
Chapter
Schmidt v Rosewood Trust [2003] UKPC 26, Privy Council
Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Schmidt v Rosewood Trust [2003] UKPC 26, Privy Council. The document also includes supporting commentary from author Derek Whayman.
Chapter
14. Hearsay admissible at common law
This chapter considers the following categories of hearsay: statements in public documents, works of reference, evidence of birth, age, and death, evidence of reputation, statements forming part of the res gestae, and statements which are admissions made by an agent of a defendant. All of these categories were established at common law as exceptions to the rule against hearsay, and all of them have been preserved by statute. The categories relating to age and res gestae have been preserved in criminal but not civil proceedings. All of the other categories have been preserved in both criminal and civil proceedings.
Chapter
10. Public interest immunity
This chapter first explains exclusion of evidence on the grounds of the public interest immunity (PII) doctrine in relation to the public interest in non-disclosure of documents. The chapter examines areas of public interest that are covered by possible PII claims. These include national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies. The difference between PII and closed material procedures (CMPs) is outlined. The chapter, concentrating on civil cases, lists the landmarks in the evolution of the common law doctrine. It considers the extent which it has been influenced by the Strasbourg jurisprudence. Attention is given to the role of national security matters in the evolution of the law.
Chapter
19. Evidence and Disclosure
Collecting and analysing evidence is often one of the most expensive elements of litigation. The approach to dealing with disclosure of evidence has been modified as part of the reforms introduced following the review carried out by Lord Justice Sir Rupert Jackson. The norm of standard disclosure has been replaced by options for the level of disclosure designed to ensure that disclosure is proportionate, which presents opportunities for saving costs and opens up some tactical considerations as regards the level of disclosure to seek and to offer. This chapter focuses on general principles and approaches that are most likely to be effective in preparing a case. It discusses the key rules of admissibility; questions of weight and reliability on the evidence presented; identifying what needs to be proved in a case; types of evidence; collecting evidence; disclosure of evidence; electronic disclosure of evidence; and reviewing and advising on evidence.
Chapter
31. Preparing and presenting a case
This chapter provides practical guidance to aid in the preparation and presentation of a case before an employment tribunal. Although it is primarily written from the point of view of the advocate at such a hearing, the material is also relevant to advisors, witnesses and the parties to a case. The text guides the parties to a tribunal case through the whole tribunal procedure from the very beginning. It covers fact management, understanding the law, starting the process—filling in claim and response forms, preparing a schedule of loss, negotiating a settlement, drafting witness statements, disclosure, preparing bundles and advocacy.
Chapter
18. Informed shareholders and stakeholders—disclosure and the limited company
Most disclosure comes in the form of company accounts and reports focusing on the financial position and the activities of the company. Increasingly, mandated disclosures for public companies extend widely beyond the financial statements to a narrative account of the company’s activities, business strategy, and risks. Considerable emphasis is now placed, for public companies, on addressing environmental, social, and governance (ESG) concerns. The chapter discusses the statutory provisions governing company accounts and considers the obligations of the directors with respect to preparing, circulating, and filing accounts. The chapter also addresses the regulatory framework for audit, the need in larger companies for an auditors’ report, and considers the extent of the auditor’s duty of care as well as the potential auditor liabilities arising from a negligent audit report.
Chapter
12. Duty to avoid a conflict of interest
This chapter discusses the director’s duty to avoid a situation in which he has, or can have, a personal interest conflicting, or which possibly may conflict, with the interests of those whom he is bound to protect (the no-conflict rule); and the equally inflexible rule that, without consent, a person in a fiduciary position is not entitled to profit from that position (the no-profit rule or, more accurately no secret profit rule). These key obligations are discussed in detail, exploring the extent of the strict duty to avoid a conflict and the judicial attitude to breaches of duty. The need for disclosure and authorisation is discussed. Benefits from third parties and conflicts from proposed transactions with the company are also addressed.
Chapter
20. Experts and opinion evidence
This chapter discusses the law on experts and opinion evidence. As a general rule, opinion evidence is inadmissible: a witness may only speak of facts that he personally perceived, not of inferences drawn from those facts. However, there are two exceptions to this general rule: (i) an appropriately qualified expert may state his opinion on a matter calling for the expertise that he possesses; and (ii) a non-expert witness may state his opinion on a matter not calling for any particular expertise as a way of conveying the facts that he personally perceived. Experts may also give evidence of fact based on their expertise. The chapter covers the duties of experts and the rules which apply where parties propose to call expert evidence.
Chapter
21. Public policy
The public interest in efficient and fair trials may be seen as underlying the rules of disclosure in civil litigation, whereby a litigant is obliged to make pre-trial disclosure of the documents on which he relies and the documents that adversely affect his own case or adversely affect, or support, another party’s case, even though such documents may not be admissible evidence at the trial. There is also a public interest in enabling material to be withheld where its production would harm the nation or the public service. Where these two kinds of public interest clash and the latter prevails over the former, relevant and otherwise admissible evidence is excluded at trial. Such material is said to be withheld by reason of ‘public interest immunity’. This chapter discusses the development of the modern law on public interest immunity; the scope of exclusion on grounds of public policy; and related procedural issues in civil and criminal cases.
Chapter
20. Experts and opinion evidence
This chapter discusses the law on experts and opinion evidence. As a general rule, opinion evidence is inadmissible: a witness may only speak of facts that he personally perceived, not of inferences drawn from those facts. However, there are two exceptions to this general rule: (i) an appropriately qualified expert may state his opinion on a matter calling for the expertise that he possesses; and (ii) a non-expert witness may state his opinion on a matter not calling for any particular expertise as a way of conveying the facts that he personally perceived. Experts may also give evidence of fact based on their expertise. The chapter covers the duties of experts and the rules which apply where parties propose to call expert evidence.
Chapter
21. Public policy
The public interest in efficient and fair trials may be seen as underlying the rules of disclosure in civil litigation, whereby a litigant is obliged to make pre-trial disclosure of the documents on which he relies and the documents that adversely affect his own case or adversely affect, or support, another party’s case, even though such documents may not be admissible evidence at the trial. There is also a public interest in enabling material to be withheld where its production would harm the nation or the public service. Where these two kinds of public interest clash and the latter prevails over the former, relevant and otherwise admissible evidence is excluded at trial. Such material is said to be withheld by reason of ‘public interest immunity’. This chapter discusses the development of the modern law on public interest immunity; the scope of exclusion on grounds of public policy; and related procedural issues in civil and criminal cases.
Chapter
12. The criminal process: Pre-trial and trial
This chapter explains what happens once a person has been charged with a criminal offence. Whether a case remains in the magistrates’ court or is sent to the Crown Court depends on whether the offence is ‘summary only’, ‘indictable only’, or ‘triable either way’. Summary trial takes place before a district judge or bench of lay justices in the magistrates’ court. Trial on indictment takes place before a jury in the Crown Court. Criminal proceedings are governed by the Criminal Procedure Rules (CrimPR). The overriding objective is to deal with cases justly, including acquitting the innocent and convicting the guilty. The chapter considers those parts of the CrimPR that set out the steps to be taken before a trial in both the magistrates’ court and the Crown Court. It explores key evidential and procedural rules that apply at trial, such as the rule that the prosecution must prove a defendant’s guilt beyond reasonable doubt.
Chapter
12. The criminal process: pre-trial and trial
This chapter explains what happens once a person has been charged with a criminal offence. Whether a case remains in the magistrates’ court or is sent to the Crown Court depends on whether the offence is ‘summary only’, ‘indictable only’, or ‘triable either way’. Summary trial takes place before a district judge or bench of lay justices in the magistrates’ court. Trial on indictment takes place before a jury in the Crown Court. Criminal proceedings are governed by the Criminal Procedure Rules (CrimPR). The overriding objective is to deal with cases justly, including acquitting the innocent and convicting the guilty. The chapter considers those parts of the CrimPR that set out the steps to be taken before a trial in both the magistrates’ court and the Crown Court. It explores key evidential and procedural rules that apply at trial, such as the rule that the prosecution must prove a defendant’s guilt beyond reasonable doubt.
Chapter
5. Majority and Minority Shareholders
Where a company has a controlling or a small group of controlling shareholders, the non-controlling shareholders are at risk that the controllers will extract private benefits of control at the expense of the non-controllers. UK company law contains a wide range of techniques for addressing this issue, some more effective than others. This chapter begins by examining the various ways in which well-advised investors can contract for protection before they enter the company and how the law protects the agreements reached. The second part discusses rights to exit the company upon the occurrence of certain events. The third part discusses disclosure rights, designed to bring self-dealing transactions into the open. The fourth focuses on ways of structuring the board or shareholder body when the decision before it carries a high risk of self-dealing. The final part considers cases where the courts review the substantive fairness of the controllers’ conduct, notably, but not only, the provisions on ‘unfair prejudice.
