UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
• penalties for interference with evidence, including a party not being able to rely on certain documentary evidence and/or witness evidence; • satellite litigation regarding affected docu - ments, including orders for specific disclo - sure; • costs sanctions; • striking out the whole or part of a party’s par - ticulars of claim or defence; and • in the absence of any proper explanation as to why certain documents were not properly preserved, the drawing of adverse inferences as to the likely contents of those documents. 2.7 Rules for Disclosure of Documents in Product Liability Cases There are extensive rules relating to disclosure of documents and other evidence in product liabil - ity claims. Those rules are set out in the Civil Procedure Rules (CPR) Part 31. Contrary to its ordinary meaning, “disclosure” of a document does not mean sending the docu - ment to the other party, but rather stating that a document exists or has existed. Under CPR Rule 31.3, a party to whom a document has been disclosed has a right to inspect that document, except where: • the document is no longer in the control of the party who disclosed it (eg, because it has been lost or destroyed); • the party disclosing the document has a right or duty to withhold inspection of it (eg, because it is privileged), or; • where it would be disproportionate to the issues in the case to permit inspection. Under CPR Rule 31.6, “standard disclosure” describes what documents are to be disclosed, as follows:
• the documents on which a party relies; • the documents that adversely affect their own case, or another party’s case; • the documents that support another party’s case; and • the documents that they are required to dis - close by any relevant practice direction. Any duty of disclosure continues until the pro - ceedings are concluded, meaning that if docu - ments come to a party’s notice at any time, they must immediately notify the other party. Given the prevalence of electronic documents and sources in modern litigation, specific rules apply to electronic documents, including in rela - tion to product liability claims. CPR Rule 31 and Practice Directions 31A and 31B relate to disclo - sure of electronic documents – ie, any document held in electronic form. These Practice Directions automatically apply only to proceedings that are or are likely to be allocated to the multi-track (higher value claims and/or more complex claims), and only apply to proceedings started on or after 1 October 2010. The purpose of these Practice Directions is to encourage and assist the parties to reach agree - ment in relation to the disclosure of electronic documents in a proportionate and effective manner. By way of example, a party requesting specific disclosure of certain electronic docu - ments that are not reasonably accessible must demonstrate their relevance in order to justify retrieving them. 2.8 Rules for Expert Evidence in Product Liability Cases The rules relating to expert evidence in product liability cases are set out in the following:
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