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Documentary Evidence 15th ed

ISBN13: 9780414120198
Previous Edition ISBN: 9780414092020
Published: June 2024
Publisher: Sweet & Maxwell Ltd
Country of Publication: UK
Format: Hardback
Price: £275.00

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Now in its 15th edition, Documentary Evidence prides itself on being up to date. In the fast-moving world of civil procedure, and the vast amount of caselaw on disclosure and privilege, it is rewritten on a three-year cycle.

The book is a comprehensive guide to the legal obligations of disclosure. Logically presented and lucidly written, it provides detailed analysis and sensible practical advice. Following a chronological structure, it shows when and how a practitioner should take action in relation to the obligation to disclose. It is a standard work that is often cited in court judgments.

Under the Civil Procedure Rules the parties to an action are encouraged to adopt a “cards-on-the-table” approach toward the exchange of information, not just once litigation has commenced but before as well. It is likely in the early stages that a few documents will be identified as being relevant or key to the matter at hand. These will be used to provide advice as to the merit or not of proceeding with the dispute. If the decision is taken to proceed, the law imposes a requirement to make full and proper disclosure, which is the process whereby the parties to an action disclose to each other all documents in their possession, custody or power relating to matters in question in the action. This title deals with the nature and scope of the obligation to disclose.

Key Features:

  • Provides a comprehensive guide to the principles, obligations and protections of disclosure, legal professional privilege and other aspects of evidence in the form of documents
  • Authored by a renowned KC, provides detailed analysis, practical advice and robust views often derived from cases in which he has been personally involved
  • Is regularly cited in court, most recently in Al Sadeq v Dechert LLP [2024] EWCA Civ 28, JSC Commercial Bank Privatbank v Kolomoisky [2022] EWHC 868 (Ch), and Recovery Partners GP Ltd v Rukhadze [2021] EWHC 1621 (Comm)
  • Discusses in depth the key principles and problem areas of disclosure, and how to raise, or combat, the available defences against it
  • Is logically structured by following in chronological order the steps taken in conducting a case, showing the practitioner when and how to take action at each stage
  • Advises on how to obtain, assess and manage the documents needed and how to identify the key issues
  • Discusses how practices have changed consequent to the fact that most disclosure is now electronic disclosure and the challenges and opportunities presented by this
  • Analyses the extent of the powers of regulatory or public bodies to obtain or disclose documents
  • Discusses how the Civil Procedure Rules have affected the position on disclosure in important respects – from pre-action protocols and powers, to objections to disclosure and inspection, to the practicalities and problem areas of CPR disclosure, to the failure and abuse of disclosure obligations
  • Sets out the rights of access to documents, including those held by companies, trusts, partners, receivers and agents, as well as access to court documents, and the means by which data can be accessed
  • Explains fully the multi-faceted nature of legal professional privilege – what rights different types of privilege provide, their breadth and limits, when and how to claim or waive them
  • Explains the court’s power to exclude documentary evidence
  • Describes the issues and obligations of confidentiality, including the development of the “collateral undertaking”, or proscriptions against the misuse of information obtained through disclosure, both prior to and under the CPR
  • Discusses how to deal with international elements of a case, such as witnesses out of the jurisdiction, evidence in the jurisdiction for foreign proceedings, discovery proceedings abroad, documentary orders against foreign entities, the powers of and principles applied to by the English court, the application of foreign law, etc.
  • Includes individual chapters on Witness statements and other written evidence; Expert reports; The Civil Evidence Act 1995; and Powers of Investigation

What’s new for the 15th edition:

  • New jurisdictional gateway available for Norwich Pharmacal applications from 1 October 2022 and new Norwich Pharmacal caselaw on multi-jurisdictional applications: Green v CT Group Holdings Ltd 2023 EWHC 3168 (Com)
  • Applications out of the jurisdiction for non-party disclosure: Gorbachev v Guriev 2023 2WLR 1
  • Iniquity exception and implied waiver: Candey v Bosheh 2022 4WLR 84.
  • Standard of proof for iniquity exception and litigation privilege for non-parties: Al Sadeq v Dechert 2024 EWCA Civ 28
  • Scope of litigation privilege: Loreley Financing v Credit Suisse Securities (Europe) 2022 EWCA Civ 1484
  • Disclosure regimes: separate chapters on PD57AD (successor to the disclosure pilot), CPR 31, and new chapter on other forms of disclosure
  • Latest authority on “practical control” for disclosure purposes
  • Disclosure and devices of ex-employees: Various Airfinance Leasing Comaines v Saudi Arabian Airlines Corp 2022 1 WLR 1027, Republic of Mozambique v Credit Suisse International 2022 EWHC 3054 (Comm)
  • New authorities on shareholder privilege: Various Claimants v G4S plc 2023 EWHC 2863 (Ch)
  • Document destruction: EDF Man V Come Harvest 2022 EWHC 229 (Comm), Giddens v Frost 2022 EWHC 1022 (Comm)
  • Latest authority on PD57AC (witness statements): MAD Atelier International BV v Manes 2021 EWHC 1899 (Comm), Mansion Place Ltd v Fox Industrial Services Ltd 2021 EWHC 2747 (TCC)
  • Creation of Hollander Orders concerning redactions following JSC Commercial Bank Privatbank v Kolomoisky [2022] EWHC 868 (Ch) and Recovery Partners GP Ltd v Rukhadze [2021] EWHC 1621 (Comm)

1. Pre-action Disclosure from the Opposing Party
2. Early Disclosure
3. Disclosure from Non-Parties and Witnesses
4. Norwich Pharmacal
5. Other Rights of Access to Documents
6. Access to Court Documents
7. Disclosure: Principles
8. PD 57AD
9. Disclosure under CPR 31
10. Other Forms Of Disclosure
11. Confidentiality and Redaction
12. Failure and Abuse of Disclosure Obligations
13. Privilege: A Fundamental Right
14. Privilege: General Principles
15. Claiming Privilege
16. Privilege: Problem Areas
17. Legal Advice Privilege
18. Litigation Privilege
19. Privilege Deriving from Joint and Common Interests
20. Without Prejudice Privilege
21. Privilege against Self-incrimination
22. Public Interest Immunity
23. Waiver of Privilege
24. Limited and Implied Waiver
25. Loss of Privilege through Inadvertence and Fraud
26. Funding: Disclosure and Privilege
27. Exclusion of Documentary Evidence
28. The Collateral Undertaking
29. The International Element
30. Witness Statements
31. Expert Reports
32. The Civil Evidence Act 1995
33. Powers of Investigation