Privilege and without prejudice communications—overview

This Practice Note examines the redaction of information or data in disclosure within civil proceedings. It covers the grounds for redacting documents—maintaining confidentiality/privilege and excluding irrelevance—the categories of material capable of redaction, the courts’ stance on redactions, and practicalities. Redaction is the act of obscuring or masking parts of a document’s text, data, or graphics (here, ‘information’ is used to capture all of these). It can be used to preserve confidentiality, most often by concealing a name—of an individual, entity, process, and so on. Redacted documents may feature in any litigation. Disclosure scheme in the Business and Property Courts Consider whether the proceedings fall under the disclosure scheme operating in the Business and Property Courts. For guidance, see: Disclosure Scheme (Business & Property Courts)—overview; and, for provisions on redaction within that scheme, see Practice Note: Disclosure Scheme—how to comply with disclosure orders and obligations. What information can be redacted? A party may redact information it needs to protect on grounds of confidentiality, provided the material is not germane to the issues...

The purpose of pre-action disclosure An applicant may invite the court to compel a would‑be defendant in civil proceedings to hand over, before any claim is issued and before proceedings have begun, documents probably within that party’s control which would, in due course, fall to be produced as part of standard disclosure in the action. It is, therefore, a mandatory, front‑loaded form of disclosure. The court’s authority to grant such relief derives from section 33(2) of the Senior Courts Act 1981 and CPR 31.16. The court must first be satisfied it has jurisdiction (the threshold conditions being met) and then determine, as a matter of discretion, whether to grant the order. In practice, a potential defendant can apply against a potential claimant, though that route is uncommon. While the prospective claim must be “more than a merely speculative punt” (Moore‑Bick LJ in Jet Airways (India) Ltd v Barloworld Handling Ltd), applicants may, in some instances, seek disclosure to reinforce the prospects of their intended claim. They will be seeking material not yet seen so they can assess the potential defendant’s anticipated lines of defence, test those positions, and evaluate the strength and merits of them...

This Practice Note sets out advice on CPR 31.16 pre-action disclosure applications, where the applicant and respondent are expected to be parties to any likely later proceedings. It explains how to pursue such a request for disclosure before a claim has begun, including the application notice, evidence supporting the pre-action bid, and the draft order, in sequence. It also addresses the respondent’s stance when resisting the application, and typical objections. The costs implications of seeking pre-action disclosure are reviewed in outline. For detailed guidance on when it may be suitable to seek pre-action disclosure, the approach the courts adopt in deciding whether to allow such requests, and targeted discussion of pre-action disclosure in varying contexts, see Practice Note: Pre-action disclosure—requirements and the courts' approach. For further guidance on the principal aspects of the court’s jurisdiction under CPR 31.16, see in particular Practice Note: Pre-action disclosure—key considerations and cases. Making an application for pre-action disclosure An application for pre-action disclosure is a request for a court order—the core procedure is therefore prescribed by CPR 23 and CPR PD 23A in full. Guidance on making a CPR-compliant application is available in Practice Note: How to make an application for a court order...

This Practice Note sets out what it means when a defendant submits there is no case to answer. It is only in the most exceptional instances that a defendant advancing such a submission will not be put to its election—the election being that it may proceed, but only on the footing that, if the submission fails, it cannot adduce any evidence of its own. The evidential tests that apply, whether or not the defendant is put to its election, are identified. A submission of ‘no case’ to answer At trial, a defendant may opt to submit ‘no case’ once the claimant confirms its case is closed, and before the defendant calls any evidence. This point is sometimes termed the ‘halfway stage’ of the trial. Such a course is taken only where the defendant is highly confident the claimant has not placed before the court sufficient material to establish an ostensible case that calls for an answer. Where the defendant makes a ‘no evidence’ election, the court will then determine, on the balance of probabilities, whether to dismiss the claim...