To disclose or not to disclose

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To disclose or not to disclose

Published 2 November 2016

Disclosure is an arduous and tricky process. CPR 1998 Part 31.6 requires Disclosure by a party of documents that:

(i) adversely affect his own case;

(ii) adversely affect another party's case; or

(iii) support another party's case.

This article looks at the possible repercussions when Defendant solicitors failed to disclose a document which the Claimants deemed to be pivotal to their case and attaches the recent Law Society guidance on legal professional privilege.

Daniel Alfredo Condori Vilca & 21 others v Xstrata Limited and Compania Minera Antapaccay SA

The case concerns 22 Peruvian miners who are seeking compensation from mining company, Xstrata, over the violent suppression of a protest at a copper mine in 2012. The civil action is taking place in England. Leigh Day act for the Claimants and Linklaters for the Defendants. The trial is due to take place in 2017.

The Claimants made an application to the court requesting a "re-review" of the Defendant's disclosure by a third party following the discovery that Linklaters had withheld what the Claimants deemed to be a significant internal email from one of the Defendant's most powerful and senior figures. In this April 2012 email, Mr Sartain of the Defendant spoke about taking a "direct, proactive and strong approach" to protesters who were referred to as "sons of whores".

Disclosure was conducted in tranches. Linklaters found this April email in tranche 7 and, after "a view was taken at a high level" did not disclose this document and only decided to disclose the email when they found a reply to it, in tranche 8. The delay in furnishing the Claimants with the April email was 14 days.

Judge Foskett, in his ruling, stated that whilst such an order for a third party review was "unprecedented" it was an order that was open to him. However, whilst he found the April email clearly fell under the scope of 31.6(b) and the reasons outlined by Linklaters for the non-disclosure to be ill- founded, he accepted that the error was made in good faith and had been corrected quickly by Linklaters. As such, the Claimants' application for a complete review of the e-disclosure by independent solicitors or counsel was refused as the erroneous decision was not a sufficient ground to make such a costly and time consuming exercise.

This case illustrates the difficulties that can arise on Disclosure and the need to ensure that full Disclosure is provided. Whilst it may be argued that a 14 day delay in disclosure did not merit such a disproportional response by Leigh Day and its clients, the case makes clear that an order for a third party review of Disclosure is open to the Court should the circumstances warrant it.

Any such interim application is not without risk, however, and is likely to:-

i) cause animosity between already contentious parties;

ii) hold-up proceedings;

iii) derail any settlement negotiations in the pipeline; and

iv) add significantly to costs with the losing party having to pay the other side's costs in addition.

Legal Professional Privilege

The Law Society of England and Wales has produced a draft practice note on legal professional privilege (LPP). The note can be found here. The guide seeks to clarify the usage of LPP particularly in today's climate when the use of LPP has come under attack by some parts of the government and regulatory bodies.


Suzanne Wharton

Suzanne Wharton


+44 (0)113 251 4775

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Phil Murrin

Phil Murrin

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