Statutory Instruments 1998 No. 3132 (L. 17)
The Civil Procedure Rules 1998
- continued

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Meaning of document
     31.4 In this Part - 

Disclosure limited to standard disclosure
    
31.5  - (1) An order to give disclosure is an order to give standard disclosure unless the court directs otherwise.

    (2) The court may dispense with or limit standard disclosure.

    (3) The parties may agree in writing to dispense with or to limit standard disclosure.

(The court may make an order requiring standard disclosure under rule 28.3 which deals with directions in relation to cases on the fast track and under rule 29.2 which deals with case management in relation to cases on the multi-track)

Standard disclosure - what documents are to be disclosed
    
31.6 Standard disclosure requires a party to disclose only - 

Duty of search
    
31.7  - (1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

    (2) The factors relevant in deciding the reasonableness of a search include the following - 

    (3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.

(Rule 31.10 makes provision for a disclosure statement)

Duty of disclosure limited to documents which are or have been in party's control
    
31.8  - (1) A party's duty to disclose documents is limited to documents which are or have been in his control.

    (2) For this purpose a party has or has had a document in his control if - 

Disclosure of copies
    
31.9  - (1) A party need not disclose more than one copy of a document.

    (2) A copy of a document that contains a modification, obliteration or other marking or feature - 

shall be treated as a separate document.

(Rule 31.4 sets out the meaning of a copy of a document)

Procedure for standard disclosure
    
31.10  - (1) The procedure for standard disclosure is as follows.

    (2) Each party must make and serve on every other party, a list of documents in the relevant practice form.

    (3) The list must identify the documents in a convenient order and manner and as concisely as possible.

    (4) The list must indicate - 

(Rule 31.19 (3) and (4) require a statement in the list of documents relating to any documents inspection of which a person claims he has a right or duty to withhold)

    (5) The list must include a disclosure statement.

    (6) A disclosure statement is a statement made by the party disclosing the documents - 

    (7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also - 

    (8) The parties may agree in writing - 

    (9) A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.

Duty of disclosure continues during proceedings
    
31.11  - (1) Any duty of disclosure continues until the proceedings are concluded.

    (2) If documents to which that duty extends come to a party's notice at any time during the proceedings, he must immediately notify every other party.

Specific disclosure or inspection
    
31.12  - (1) The court may make an order for specific disclosure or specific inspection.

    (2) An order for specific disclosure is an order that a party must do one or more of the following things - 

    (3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).

(Rule 31.3(2) allows a party to state in his disclosure statement that he will not permit inspection of a document on the grounds that it would be disproportionate to do so)

Disclosure in stages
    
31.13 The parties may agree in writing, or the court may direct, that disclosure or inspection or both shall take place in stages.

Documents referred to in statements of case etc.
    
31.14 A party may inspect a document mentioned in - 

(Rule 35.10(4) makes provision in relation to instructions referred to in an expert's report)

Inspection and copying of documents
    
31.15 Where a party has a right to inspect a document - 

(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)

Disclosure before proceedings start
    
31.16  - (1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started[37].

    (2) The application must be supported by evidence.

    (3) The court may make an order under this rule only where - 

    (a) the respondent is likely to be a party to subsequent proceedings;

    (b) the applicant is also likely to be a party to those proceedings;

    (c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

    (d) disclosure before proceedings have started is desirable in order to - 

      (i) dispose fairly of the anticipated proceedings;

      (ii) assist the dispute to be resolved without proceedings; or

      (iii) save costs.

    (4) An order under this rule must - 

    (a) specify the documents or the classes of documents which the respondent must disclose; and

    (b) require him, when making disclosure, to specify any of those documents - 

      (i) which are no longer in his control; or

      (ii) in respect of which he claims a right or duty to withhold inspection.

    (5) Such an order may - 

    (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

    (b) specify the time and place for disclosure and inspection.

Orders for disclosure against a person not a party
     31.17  - (1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings[38].

    (2) The application must be supported by evidence.

    (3) The court may make an order under this rule only where - 

    (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

    (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.

    (4) An order under this rule must - 

    (a) specify the documents or the classes of documents which the respondent must disclose; and

    (b) require the respondent, when making disclosure, to specify any of those documents - 

      (i) which are no longer in his control; or

      (ii) in respect of which he claims a right or duty to withhold inspection.

    (5) Such an order may - 

    (a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

    (b) specify the time and place for disclosure and inspection.

Rules not to limit other powers of the court to order disclosure
     31.18 Rules 31.16 and 31.17 do not limit any other power which the court may have to order - 

Claim to withhold inspection or disclosure of a document
    
31.19  - (1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest.

    (2) Unless the court orders otherwise, an order of the court under paragraph (1) - 

    (3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing - 

    (4) The statement referred to in paragraph (3) must be made - 

    (5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.

    (6) For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may - 

    (7) An application under paragraph (1) or paragraph (5) must be supported by evidence.

    (8) This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest.

Restriction on use of a privileged document inspection of which has been inadvertently allowed
    
31.20 Where a party inadvertently allows a privileged(GL) document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

Consequence of failure to disclose documents or permit inspection
    
31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

Subsequent use of disclosed documents
    
31.22  - (1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where - 

    (2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

    (3) An application for such an order may be made - 



PART 32

EVIDENCE




Contents of this Part
Power of court to control evidence Rule 32.1
Evidence of witnesses - general rule Rule 32.2
Evidence by video link or other means Rule 32.3
Requirement to serve witness statements for use at trial Rule 32.4
Use at trial of witness statements which have been served Rule 32.5
Evidence in proceedings other than at trial Rule 32.6
Order for cross-examination Rule 32.7
Form of witness statement Rule 32.8
Witness summaries Rule 32.9
Consequence of failure to serve witness statement or summary Rule 32.10
Cross-examination on a witness statement Rule 32.11
Use of witness statements for other purposes Rule 32.12
Availability of witness statements for inspection Rule 32.13
False statements Rule 32.14
Affidavit evidence Rule 32.15
Form of affidavit Rule 32.16
Affidavit made outside the jurisdiction Rule 32.17
Notice to admit facts Rule 32.18
Notice to admit or produce documents Rule 32.19

Power of court to control evidence
    
32.1  - (1) The court may control the evidence by giving directions as to - 

    (a) the issues on which it requires evidence;

    (b) the nature of the evidence which it requires to decide those issues; and

    (c) the way in which the evidence is to be placed before the court.

    (2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.

    (3) The court may limit cross-examination(GL).

Evidence of witnesses - general rule
    
32.2  - (1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved - 

    (2) This is subject - 

Evidence by video link or other means
    
32.3 The court may allow a witness to give evidence through a video link or by other means.

Requirement to serve witness statements for use at trial
    
32.4  - (1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally.

    (2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.

    (3) The court may give directions as to - 

Use at trial of witness statements which have been served
    
32.5  - (1) If - 

he must call the witness to give oral evidence unless the court orders otherwise or he puts the statement in as hearsay evidence.

(Part 33 contains provisions about hearsay evidence)

    (2) Where a witness is called to give oral evidence under paragraph (1), his witness statement shall stand as his evidence in chief (GL) unless the court orders otherwise.

    (3) A witness giving oral evidence at trial may with the permission of the court - 

    (4) The court will give permission under paragraph (3) only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

    (5) If a party who has served a witness statement does not - 

any other party may put the witness statement in as hearsay evidence.

Evidence in proceedings other than at trial
    
32.6  - (1) Subject to paragraph (2), the general rule is that evidence at hearings other than the trial is to be by witness statement unless the court, a practice direction or any other enactment requires otherwise.

    (2) At hearings other than the trial, a party may, in support of his application, rely on the matters set out in - 

if the statement of case or application notice is verified by a statement of truth.

Order for cross-examination
    
32.7  - (1) Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the court for permission to cross-examine the person giving the evidence.

    (2) If the court gives permission under paragraph (1) but the person in question does not attend as required by the order, his evidence may not be used unless the court gives permission.

Form of witness statement
    
32.8 A witness statement must comply with the requirements set out in the relevant practice direction.

(Part 22 requires a witness statement to be verified by a statement of truth)

Witness summaries
    
32.9  - (1) A party who - 

may apply, without notice, for permission to serve a witness summary instead.

    (2) A witness summary is a summary of - 

    (3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.

    (4) Unless the court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.

    (5) Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary.

Consequence of failure to serve witness statement or summary
    
32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

Cross-examination on a witness statement
    
32.11 Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement whether or not the statement or any part of it was referred to during the witness's evidence in chief(GL).

Use of witness statements for other purposes
    
32.12  - (1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.

    (2) Paragraph (1) does not apply if and to the extent that - 

Availability of witness statements for inspection
    
32.13  - (1) A witness statement which stands as evidence in chief(GL) is open to inspection unless the court otherwise directs during the course of the trial.

    (2) Any person may ask for a direction that a witness statement is not open to inspection.

    (3) The court will not make a direction under paragraph (2) unless it is satisfied that a witness statement should not be open to inspection because of - 

    (4) The court may exclude from inspection words or passages in the statement.

False statements
    
32.14  - (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

(Part 22 makes provision for a statement of truth)

    (2) Proceedings under this rule may be brought only - 

Affidavit evidence
    
32.15  - (1) Evidence must be given by affidavit(GL) instead of or in addition to a witness statement if this is required by the court, a provision contained in any other rule, a practice direction or any other enactment.

    (2) Nothing in these Rules prevents a witness giving evidence by affidavit(GL) at a hearing other than the trial if he chooses to do so in a case where paragraph (1) does not apply, but the party putting forward the affidavit(GL) may not recover the additional cost of making it from any other party unless the court orders otherwise.

Form of affidavits
    
32.16 An affidavit(GL) must comply with the requirements set out in the relevant practice direction.

Affidavit made outside the jurisdiction
    
32.17 A person may make an affidavit(GL) outside the jurisdiction in accordance with - 

Notice to admit facts
    
32.18  - (1) A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.

    (2) A notice to admit facts must be served no later than 21 days before the trial.

    (3) Where the other party makes any admission in response to the notice, the admission may be used against him only - 

    (4) The court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.

Notice to admit or produce documents
    
32.19  - (1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

    (2) A notice to prove a document must be served - 

whichever is later.






Notes


[37] An application for disclosure before proceedings have started is permitted under section 33 of the Supreme Court Act 1981(c.54) or section 52 of the County Courts Act 1984 (c.28).back

[38] An application for disclosure against a person who is not a party to proceedings is permitted under section 34 of the Supreme Court Act 1981(c.54) or section 53 of the County Courts Act 1984 (c.28).back



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