LEGAL REPRESENTATIVE SIGNING THE DISCLOSURE STATEMENT II: SEE WHAT THE COMMERCIAL COURTS GUIDE SAYS: BUT…

November 15, 2016 · by · in Civil evidence, Civil Procedure, Disclosure, Statements of Truth, Uncategorized

The post on legal representatives signing the disclosure statement written earlier in the week had a lot of response. My attention has been drawn to the Admiralty & Commercial Courts Guide  which suggests (in certain undefined circumstances) a legal representative may be an appropriate person to

WHAT THE GUIDE SAYS

At E3.8

“(a) For the purposes of PD41 § 4.3 the court will normally regard as an appropriate person any person who is in a position responsibly and authoritatively to search for the documents required to be disclosed by that party and to make the statements contained in the disclosure statement concerning the documents which must be disclosed by that party.
(b) A legal representative may in certain cases be an appropriate person.
(c) An explanation why the person is considered an appropriate person must still be given in the disclosure statement.
(d) A person holding an office or position in the disclosing party but who is not in a position responsibly and authoritatively to make the statements contained in the disclosure statement will not be regarded as an appropriate person to make the disclosure statement of the party.
(e) The court may of its own initiative or on application require that a disclosure statement also be signed by another appropriate person.”

WHAT THE GUIDE DOES NOT SAY

The Guide does not state what the “certain cases” are.  If they exist they must be extremely limited.  Further it does not state the rule, or Practice Direction, which allows a legal representative to sign.

WHAT THE RULES SAY

Practice Direction 31 states:-

“(5) The list must include a disclosure statement.
(6) A disclosure statement is a statement made by the party disclosing the documents –
(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;
(b) certifying that he understands the duty to disclose documents; and
(c) certifying that to the best of his knowledge he has carried out that duty.
(7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also–
(a) identify the person making the statement; and
(b) explain why he is considered an appropriate person to make the statement.
(8) The parties may agree in writing –
(a) to disclose documents without making a list; and
(b) to disclose documents without the disclosing party making a disclosure statement.
(9) A disclosure statement may be made by a person who is not a party where this is permitted by a relevant practice direction.”

IS THERE A “RELEVANT PRACTICE DIRECTION” THAT ALLOWS A LEGAL REPRESENTATIVE TO SIGN

Part 22 of the Civil Procedure Rules allows the legal representative to sign the statement of truth, however this is only in relation to “a statement of case, a response or an application”.  There is no indication that this extends to a disclosure statement.

PRACTICE DIRECTION 31A

Practice Direction 31A has a section on the disclosure statement.  There is nothing in that Practice Direction that indicates that a legal representative can sign. In fact the Practice Direction indicates the opposite. Rule 4.4. indicates that where a party has a legal representative acting for them  “the legal representative must endeavour to ensure that the person making the disclosure statement … understands the duty of disclosure under Part 31.”

CPR 31

CPR 31.10.7 may appear to give a wider range of signatories,

(7) Where the party making the disclosure statement is a company, firm, association or other organisation, the statement must also–
(a) identify the person making the statement; and
(b) explain why he is considered an appropriate person to make the statement.

However CPR 31.10.6 states that a disclosure statement is made by “the party disclosing the documents”.

IDENTIFYING THE RULE

A Practice Direction that gives the legal representative a power to sign the disclosure document is not easy to identify.

FINALLY REMEMBER – CPR 31.23

If any legal representative remains tempted to sign a disclosure statement it is prudent to read CPR 31.23:

(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth.
(Section 6 of Part 81 contains provisions in relation to committal for making a false disclosure statement.)

Given the express duty placed on a legal representative to explain the scope and duties on disclosure it may be difficult for that representative to argue ignorance if contempt proceedings are brought due to a failure to disclosure.

Disclosure statement (PD 31A)

4.1  A list of documents must (unless rule 31.10(8)(b) applies) contain a disclosure statement complying with rule 31.10. The form of disclosure statement is set out in the Annex to this practice direction.
4.2  The disclosure statement should:
(1) expressly state that the disclosing party believes the extent of the search to have been reasonable in all the circumstances, and
(2) in setting out the extent of the search (see rule 31.10(6)) draw attention to any particular limitations on the extent of the search which were adopted for proportionality reasons and give the reasons why the limitations were adopted, e.g. the difficulty or expense that a search not subject to those limitations would have entailed or the marginal relevance of categories of documents omitted from the search.
4.3  Where rule 31.10(7) applies, the details given in the disclosure statement about the person making the statement must include his name and address and the office or position he holds in the disclosing party or the basis upon which he makes the statement on behalf of the party.
4.4  If the disclosing party has a legal representative acting for him, the legal representative must endeavour to ensure that the person making the disclosure statement (whether the disclosing party or, in a case to which rule 31.10(7) applies, some other person) understands the duty of disclosure under Part 31.
4.5  If the disclosing party wishes to claim that he has a right or duty to withhold a document, or part of a document, in his list of documents from inspection (see rule 31.19(3)), he must state in writing:
(1) that he has such a right or duty, and
(2) the grounds on which he claims that right or duty.
4.6  The statement referred to in paragraph 4.5 above should normally be included in the disclosure statement and must indicate the document, or part of a document, to which the claim relates.
4.7  An insurer or the Motor Insurers’ Bureau may sign a disclosure statement on behalf of a party where the insurer or the Motor Insurers’ Bureau has a financial interest in the result of proceedings brought wholly or partially by or against that party. Rule 31.10(7) and paragraph 4.3 above shall apply to the insurer or the Motor Insurers’ Bureau making such a statement

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