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DISCLOSURE AND INSPECTION OF DOCUMENTS: PHONES 4U v EE [2021] (B1+/B2)

In the spring and summer 2021, we will begin a practical series on civil litigation, with a particular focus on commercial litigation. As we will see, civil litigation requires a deep understanding of both rules of civil procedure and evidence, as well as the law.


One very important procedural aspect of civil and commercial litigation is the process known as ‘disclosure and inspection’ of documents. For reasons we will discover, documents are highly important in civil proceedings. But what does ‘disclosure’ mean?


Civil procedure in England & Wales is primarily set out in, and governed by, the Civil Procedure Rules (CPR) 1998. The CPR is divided into ‘Parts’ and ‘Practice Directions’. CPR Part 31 deals with the matter of ‘Disclosure and Inspection’ of documents. Part 31 states:


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


In other words, once litigation has been started, there comes a time when the parties must tell each other what documents (basically, documents relevant to the issues in the case) they have (or had) in their possession. Of course, documents are not just pieces of paper which may be held in a physical ‘file’, but include things like emails, and other electronic communications, as well as USB sticks, and so on.


The English Court of Appeal (Civil Division) has recently (2nd February 2021) handed down a decision in an interesting ‘disclosure’ case, Phones 4U Limited v EE Ltd & Others [2021] [1].


The claimant, Phones 4U, was a mobile phone retailer in the United Kingdom. In 2018, Phones 4U began legal proceedings against a number of mobile network operators, alleging that they had colluded, unlawfully, in a way which amounted to anti-competitive conduct.

At a case management conference [2] in 2019, the claimant (Phones 4U) sought an order from the court for the disclosure of documents which were held on the personal devices (mobile phones, etc) of senior executives of the defendant companies. The judge ordered the defendants to write to some of its senior executives to ask them to give the defendants’ independent IT consultants access to their personal mobile phones, personal email accounts, etc, in order to search for ‘relevant documents’ in the case.


The defendants, perhaps unsurprisingly, appealed against the judge’s order, mainly on the grounds:


· that the court did not have jurisdiction to do this, and

· that it was a breach of privacy and, therefore, disproportionate.


The Court of Appeal – including the Master of the Rolls, Sir Geoffrey Vos [3] – dismissed the appeal. It held that it had jurisdiction to make such an order and that it was a reasonable and proportionate order in the context of the claim.


Of course, given that the Covid-19 situation means that far more people are working from home and using personal devices to do so, it is very possible that this kind of request for an order for disclosure of documents on personal devices will become more frequent.


Notes:


[1] [2021] EWCA Civ 116 – the full judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2021/116.pdf


[2] A case management conference is basically a meeting between a judge and the parties involved in litigation in order to try to discuss the case and to enable it to be properly prepared for trial.


[3] The ‘Master of the Rolls’ is the title of the person who is the President of the Court of Appeal of England & Wales, Civil Division, and Head of Civil Justice.




EXERCISE


The following sentences have gaps. Can you find the correct word or phrase to fill in each gap? [If you need help, underneath the Exercise, we give you three options for each of the sentences.] The Answer Key is at the end.


1. We are going to ……………………. an order from the court for the discovery of documents held on the personal devices of some your senior executives.

2. We believe that you have failed to ………………………. a number of important documents which are relevant to the case.

3. In support of our application for disclosure, we are going to rely on the authority of Phones4U v EE Limited, which was recently ………………….. …………… by the Court of Appeal.

4. We are not prepared to ask our senior executives to hand over their personal devices for inspection, as we say it would be a ……………………. of privacy and, therefore, unlawful.

5. As you know, the disclosure and inspection of documents is …………………….. by Part 31 of the Civil Procedure Rules.




Here are the three options for the Exercise, if you need them.

1. ask/claim/seek

2. show/disclose/reveal

3. given out/handed down/handed out

4. breach/break/claim

5. said/disclosed/governed






ANSWER KEY

1. seek

2. disclose

3. handed down

4. breach

5. governed


[Note: The contents of this post are for study and educational purposes only. They are not, and not intended to be, legal advice. If you need legal advice, you should consult an appropriate lawyer or legal advisor.]


© Cambridge Legal English Academy 2021

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