ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Christy Conlon and Nathan Barrow, Slaughter and May
directions from the court. Litigants are expected to work together to ensure that disclosure is kept within sensible limits; failure to do so may result in adverse cost consequences. Where there are disputes about the adequacy or scope of disclosure, litigants can apply to the court for directions. 5.2 Discovery and Third Parties It is possible to apply to the court to obtain disclosure from a non-party. The applicant must demonstrate that such disclosure is necessary to fairly resolve the case or reduce costs. In certain circumstances, litigants can apply to the court for a “Norwich Pharmacal” order, which compels a third party who has become mixed up in a wrong- doing and is in possession of relevant information to disclose specific documents or information. It is often used before formal proceedings are commenced, in situations where a litigant needs to identify appropri- ate defendants, obtain evidence or trace assets, and cannot proceed without the information held by the third party. A witness summons can also be used to require an individual to produce documents to the court. 5.3 Discovery in This Jurisdiction As set out in 5.1 Discovery and Civil Cases , there are detailed rules governing disclosure. The exact scope of disclosure will vary from case to case and will depend on the directions given by the court. In terms of key principles, the starting point is that each litigant must disclose documents within their control that are relevant to the case, even if those doc- uments are adverse to their position. However, rea- sonableness and proportionality are key (and the latter is given particular emphasis in the regime governing disclosure in the Business and Property Courts). The need for co-operation between litigants has also been repeatedly emphasised by the courts. It is important to note that documents disclosed dur- ing proceedings may not be used subsequently by the other litigant for any purpose other than the proceed- ings themselves, unless the document has been read or referred to in open court or a public hearing, the
court grants permission, or the litigant who disclosed the document agrees to such use. 5.4 Alternatives to Discovery Mechanisms This is not applicable, as disclosure mechanisms apply in England and Wales (see 5.1 Discovery and Civil Cases , 5.2 Discovery and Third Parties and 5.3 Discovery in This Jurisdiction ). 5.5 Legal Privilege There are two types of legal professional privilege: • legal advice privilege applies to confidential com- munications between a lawyer and their client that have come into existence for the dominant pur- pose of giving or receiving legal advice; and • litigation privilege applies to confidential com- munications between a lawyer and their client, or between either of them and a third party, for the dominant purpose of preparing for existing or rea- sonably contemplated litigation. For the purpose of legal professional privilege, in- house lawyers are not treated differently from lawyers in private practice, provided their communications are made for a privileged purpose. 5.6 Rules Disallowing Disclosure of a Document The most common basis for withholding a document from inspection by the other side is legal privilege (see 5.5 Legal Privilege ). In addition, documents may be withheld from inspection on the basis of public inter- est immunity or, in certain circumstances, on the basis of proportionality. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Injunctions require litigants to perform a specified act (mandatory injunctions) or refrain from performing a specified act (prohibitory injunctions). Injunctions can be temporary orders made with the purpose of regulating the position between litigants pending trial (interim injunctions) or final orders usually made at trial, which continue with no limitation of time (per- petual injunctions).
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