Civil Proceedings

September 2007 

47.7 Meaning of disclosure 

In a civil litigation context disclosure is the process by which the parties: 

  1. inform each other of the existence of relevant material, and
  2. arrange inspection of any relevant material held by the other, and by anyone else, or
  3. claim some right or duty to withhold inspection.

The objective of disclosure is to place the parties on an equal footing, and treat them fairly, so far as is practicable.

The process was previously known as discovery.

The term ‘document ‘ in this context has the widest possible meaning and includes anything in which information of any description is recorded. The term ‘copy’, in relation to a document has a similarly wide meaning, and covers anything onto which information recorded on the document has been copied, by whatever means, whether directly or indirectly, and includes computer hard disks, floppy disks, audio tape, video tape and e-mails.

Notes: [CPR 1998, rule 31.2 and 31.3]


47.8 Disclosure in the civil court

The rules relating to disclosure and inspection of documents are to be found in Part 31 of the Civil Procedure Rules 1998, (CPR). Part 31 applies to all cases except those on the small claims track. When ordered by the court to do so, a party must disclose documents as required by the order.


47.9 The disclosure regime

The CPR sets out a two stage disclosure regime. Most cases will only involve the first stage, or standard disclosure, described at paragraph 47.11. The court may order the second stage, or specific disclosure/inspection, if necessary.

Notes: [CPR 1998, rule 31.1]


47.10 Extent of disclosure

Disclosure is not automatic, and in its case management role the court controls the extent of disclosure. The parties are free to disclose without an order, to vary or limit the extent of disclosure, or to dispense with the process altogether. However, parties disclosing without an order, or in excess of standard disclosure, run the risk of not recovering related costs.

Notes: [CPR 1998, part 31]


47.11 Standard disclosure

A party is not required to give more than standard disclosure unless the court otherwise orders. Standard disclosure requires a party to disclose: 

1. all documents on which he relies; and

2. all documents which could:

  1. adversely affect his own case;
  2. adversely affect another party’s case; or
  3. support another party’s case; and

3.  the documents which he is required to disclose by a relevant practice direction.

The above does not prevent a party claiming a right or duty to withhold disclosure /inspection.

Standard disclosure may be dispensed with or limited by the court or by written agreement (lodged with the court) between the parties.

Notes: [CPR 1998, rules 31.5 and 31.6] 


47.12 Duty of standard disclosure during proceedings

The duty of disclosure continues until the proceedings are concluded.

The duty to disclose is a continuing one. 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.

Notes: [CPR 1998, rule 31.11]


47.13 Orders for disclosure against a person not a party

Where a party to proceedings applies for disclosure by a person who is not a party, the court may order disclosure if: 

  1. the documents of which disclosure is sought are likely to support the case of one of the parties to the proceedings or adversely affect another party's case; and
  2. the disclosure is necessary in order to dispose fairly of the claim or to save costs.

This is sometimes called third party or non party disclosure.

Notes: [CPR 1998, rule 31.17]


47.14 Restriction on use of a privileged document which a party has inadvertently allowed to be inspected

Where one party inadvertently allows a privileged document to be inspected, the other party, who has inspected the document, may use it or its contents only with the permission of the court.

Notes: [CPR 1998, rule 31.20]


47.15 Subsequent use of disclosed documents

A party to whom a document has been disclosed may only use the document for the purposes of the proceedings in which they are disclosed., except where; 

  1. the document has been read to or by the court, or referred to, at a hearing which has been held in public;
  2. the court gives permission; or
  3. the party who disclosed the document and the person to whom the document belongs agree.

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.

Notes: [CPR 1998, rule 31.22]


47.16 Consequences of failure to disclose

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 permits.

Notes: [CPR 1998, rule 31.21]


47.17 Disclosure of non confidential information to third parties

The disclosure of information to third parties was considered in Re ACLI Metals ( London) Limited (1989) 5BCC 749. It was held that a liquidator was not precluded from disclosing non privileged and non confidential documents to a third party (in litigation not involving the company) provided that he/she did so at no cost to the estate. Therefore, if the official receiver is requested by a third party to disclose non privileged and non confidential information, he/she may disclose the information provided the third party agrees to: 

  1. pay all costs involved, including legal fees for any advice the liquidator considers necessary, and
  2. to raise no objection to similar facilities being made available to other parties in the proceedings.

(See also paragraphs 47.19, 47.20 and 47.35 regarding disclosure of information to the Investors Compensation Scheme).


47.18 Disclosure of information contained in the official receiver’s files

The official receiver may receive a request for inspection of his/her file in the course of civil proceedings. There is no statutory basis for an application to court for disclosure of the official receiver’s files unless there are proceedings in court. Where there are no ongoing proceedings, the official receiver can refuse to disclose information unless he/she considers that voluntary disclosure of some information may be beneficial. Where this occurs, there is no need for the official receiver to justify or otherwise explain the reasons for withholding certain documents. In such a situation, the official receiver should have regard to paragraph 47.19.

Where a party requests inspection of the official receiver's files during the course of civil proceedings, he/she should discourage 'fishing expeditions', and ask the party to identify any specific documents that they wish to see.


47.19 Disclosure of confidential information held on the official receiver’s file

The papers in the official receiver’s file can be divided into those relating to his/her statutory functions, and those relating to the administration of the case, to which access can more readily be provided. If there are any papers on the file which had been provided to the official receiver in confidence, then the consent of the person providing the information should be sought prior to disclosure. If this consent is not forthcoming, then the information should not be disclosed without a court order.


47.20 Other considerations

Any request for information or material should be considered in the light of any guidance issued by The Service, and: 

  1. the Freedom of Information Act 2000 and associated legislation (see also Chapter 81 - Freedom of Information and Environmental Information) The provisions of the Freedom of Information Act 2000 do not apply where the official receiver is acting as statutory office holder and he/she is holding the information requested solely in that capacity. Where the official receiver is holding information whilst he/she is acting in other capacities the provisions of that Act will apply. Further details are given in paragraphs 81.19 and 81.20;
  2. the Data Protection Act 1998 (see also Chapter 81A: Data Protection);
  3. the Human Rights Act 1998.


47.21 Disclosure of information contained in official receiver’s file relating to a criminal investigation

Disclosure in civil proceedings of information contained in the official receiver’s file, needs particular care where it includes material relating or referring to a criminal investigation of an insolvent’s affairs. Any requests for disclosure in these circumstances of all or part of the official receiver’s file should be referred to Authorisations Team.

Documents relating to a criminal investigation may be divided into 4 categories: 

  1. Documents originating or received from the officers of an insolvent company or, in the case of bankruptcy, from the bankrupt himself/herself, of which he/she already has knowledge (including third party documents forwarded to the official receiver by the bankrupt).
    Most of this category of documents should be disclosable without difficulty.
  2. Documents originating or received from third parties of which the insolvent is not aware. Disclosure of third party material may expose the source of the information to some liability or penalty. Additionally, disclosure of this information may set a precedent for disclosing such information which would act as a disincentive to people who otherwise might provide information to the official receiver. In the absence of any strong reason to disclose, such as a court order, the information should be withheld unless the source of the material consents to disclosure.
  3. Documents originating from the official receiver’s office relating to the possibility of criminal proceedings against the insolvent and to the seeking and giving of legal advice.
    These documents are subject to legal professional privilege which should not normally be waived without legal advice (see Chapter 64: Legal Professional Privilege).
  4. Documents originating from the official receiver’s office other than those falling into category c above.

These documents are usually disclosable, subject to any duty of confidentiality, or sensitivity.

Guidance on the disclosure of information relating to criminal proceedings is provided on the intranet in the Enforcement Investigation Guide.


47.22 Summons of official receiver

A witness summons is prepared by a party to legal proceedings and endorsed by the court with jurisdiction over those proceedings. The purpose of a witness summons is to compel the production of admissible evidence.

There are two basic types of witness summons: 

  1. a witness summons which orders someone to attend at the court and give evidence in the proceedings; and
  2. one which orders the person named in it not only to attend the proceedings and give evidence, but also to produce documents specified in the summons at that hearing.

A witness summons cannot be used as a general disclosure exercise, and must specify particular documents required. From time to time the official receiver and his/her staff may receive a witness summons where a party to civil proceedings believes that the official receiver has relevant information (see paragraph 47.23). The official receiver should request that the party specify the documents of which they seek production. Failure to do so may mean that the official receiver has good grounds to have the witness summons set aside.


47.23 Summons of official receiver’s file

It is possible that the official receiver may be summonsed to produce his/her file during the course of civil proceedings. The official receiver should attend court to produce the file and explain his/her position with regard to information and documents on the file. Where the official receiver has been summonsed and withholds documentation on the grounds of confidentiality, the court will decide whether the documentation should be disclosed.

Where the official receiver holds confidential information and has any doubt as to whether the document/information should be disclosed, he/she should withhold the document/information and draw his/her concerns to the attention of the court who will decide on disclosure. (See also paragraph 47.22).


47.24 Setting aside a witness summons

In civil proceedings the official receiver will usually be faced with a witness summons which requires him/her to attend, give evidence, and to produce specified documents. The summons may be set aside where: 

  1. it is oppressive, i.e. it would be burdensome or harsh for the official receiver to comply with;
  2. it represents a "fishing expedition", i.e. the litigant is requesting information simply in the general hope that something will turn up to assist his/her case;
  3. it fails to give adequate details of the documents required;
  4. the documents are privileged from production (for example, production of documents from the official receiver’s file might be resisted); or
  5. the documents are not in the official receiver’s possession or control.


47.25 Notification to Technical Section

As soon as the official receiver is served with any witness summons, he/she must forward a copy to Technical Section with details as to which of the documents specified are in his/her possession, and to what extent he/she believes that the documents might be relevant to the civil proceedings. Technical Section may then seek legal advice as to whether or not an application to set aside the witness summons should be made.


47.26 Costs in complying with witness summons

The party issuing the witness summons should be responsible for the reasonable costs of the official receiver to attend court and produce the documents required. This is particularly applicable in a civil case which has no direct bearing on the administration of the liquidation or bankruptcy. In J. H. Shannon v Country Casuals Holdings Plc The Times [16 June 1997] it was held that a summonsed witness was entitled to his/her costs incurred in complying with the summons, and that was not limited to receiving conduct money only. Such costs could cover the taking of legal advice, where it was reasonable to have done so. Such costs, if recovered by the official receiver, should generally be paid into the estate account with the expenses being drawn there from. Any departure from this should be discussed with Technical Section.


47.27 Witness summons of insolvency practitioner

An insolvency practitioner may be served with a witness summons to produce documents in his/her possession relating to an insolvency where the official receiver has been a prior office holder. This may include documents where a copy of the original has been passed to him/her by the official receiver. Where the insolvency practitioner receives a witness summons and tenders to the court the secondary evidence (i.e. a photocopy), it may be necessary to account for the absence of the original. The insolvency practitioner would need to inform the court that the official receiver had the original documents, and in that situation, it may then be appropriate for the official receiver to be served with a witness summons to produce the originals. If the official receiver is a party to the action in question, he/she will simply be served with a notice to produce the originals as part of the disclosure process.


47.28 Evidence (Proceedings in Other Jurisdictions) Act 1975

Where the official receiver receives a request for disclosure of information in civil proceedings under the Evidence (Proceedings in Other Jurisdictions) Act 1975, which provides for the High Court to assist in obtaining evidence and securing the attendance of witnesses for proceedings in other jurisdictions, he/she must, before making any disclosure whatsoever, consult Technical Section.


47.29 Third party proceedings

The official receiver will normally resist a third party request or application for production of the preliminary examination and narrative statements in civil proceedings not connected with the liquidation or bankruptcy. The official receiver may claim a right or duty to withhold disclosure/inspection on the grounds of privilege and/or confidentiality as the case may be. He/she may consult Technical Section in that process.

Where a bankrupt requests these documents in civil proceedings not involving the official receiver, copies should be provided. Similarly, if a company officer requests a copy of any statement or preliminary information questionnaire that he/she has completed the official receiver should provide a copy. Any narrative statement or preliminary examination completed by another company officer may not be released in such proceedings without that officer's consent (see also paragraph 47.49). A practical approach should be applied to such situations, especially where appropriate consents can be obtained, rather than to seek to resist disclosure leading to the possibility of court action.


47.30 Third Parties (Rights Against Insurers) Act 1930

The official receiver may be required to disclose information to a party bringing proceedings under section 2 of the Third Parties (Rights Against Insurers) Act 1930. Provision of information to third parties under this Act is covered in Chapter 79: Third Parties (Rights Against Insurers) Act 1930.


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