ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Lawal Ijaodola and Eleanor Higginson, Slaughter and May
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 documents are adverse to their position. However, reasonableness and propor- tionality 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 during proceedings may not be used subse- quently by the other litigant 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 Par- ties and 5.3 Discovery in This Jurisdiction ). 5.5 Legal Privilege There are two types of legal professional privi- lege: legal advice privilege and litigation privi- lege.
Legal advice privilege applies to confidential communications between a lawyer and their cli- ent that have come into existence for the domi- nant purpose of giving or receiving legal advice. 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 reasonably contemplated litigation. For the purpose of legal professional privilege, in-house lawyers are not treated differently from lawyers in private practice, provided their com- munications are made for a privileged purpose. 5.6 Rules Disallowing Disclosure of a Document The most common basis for withholding a docu- ment 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 interest immunity. In certain circumstances, documents may also be withheld from inspection 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 per- forming 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 (perpetual injunctions). There are various types of injunctions, including:
419 CHAMBERS.COM
Powered by FlippingBook