PART 28

Production of documents

Meaning of document

28.1     

In this Part –

(1)     ‘document’ means anything in which information of any description is recorded; and

(2)     ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

28.2     

The definition of a document extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been ‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata.

28.3     

The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to the Tribunal for directions at the earliest practical date, if possible at the first Case Management Conference.

28.4     

The parties should co-operate at an early stage as to the format in which electronic copy documents are to be provided on production of documents. In the case of difficulty or disagreement, the matter should be referred to the Tribunal for directions at the earliest practical date, if possible at the first Case Management Conference.

28.5     

If the physical structure of a file may be of evidential value legal representatives should make one complete copy of the file in the form in which they received it before any documents are removed for the purpose of producing documents.

Standard production of documents

28.6     

Within the time ordered by the Tribunal, each party shall submit to the other parties:

(1)     all documents available to it on which it relies, including public documents and those in the public domain, except for any documents that have already been submitted by another party; and

(2)     the documents which he is required to produce by any law, Rule or Practice Direction.

Production of copies

28.7     

A party need not produce more than one copy of a document.

28.8   

A copy of a document that contains a modification, obliteration or other marking or feature shall be treated as a separate document.

Documents referred to in statements of case etc.

28.9     

A party may inspect a document mentioned in –

(1)     a statement of case;

(2)     a witness statement;

(3)     a witness summary; or

(4)     an affidavit.

28.10     

If a party wishes to inspect documents referred to in the expert report of another party, before issuing an application he should request inspection of the documents informally, and inspection should be provided by agreement unless the request is unreasonable.

28.11     

Subject to Rule 31.53, a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been produced in the proceedings.

28.12     

Where an expert report refers to a large number or volume of documents and it would be burdensome to copy or collate them, the Tribunal will only order inspection of such documents if it is satisfied that it is necessary for the just disposal of the proceedings and the party cannot reasonably obtain the documents from another source.

Request to produce

28.13     

Within the time ordered by the Tribunal, any party may submit to the Tribunal a Request to Produce.

28.14     

A Request to Produce shall contain:

(1)     a description of a requested document sufficient to identify it; or

(2)     a description in sufficient detail (including subject matter) of a narrow and specific requested category of documents that are reasonably believed to exist;

(3)     a description of how the documents requested are relevant and material to the outcome of the case; and

(4)     a statement that the documents requested are not in the possession, custody or control of the requesting party, and of the reason why that party assumes the documents requested to be in the possession, custody or control of the other party.

Production of documents as to which no objection is made

28.15     

Within the time ordered by the Tribunal, the party to whom the Request to Produce is addressed shall produce to the other parties all the documents requested in his possession, custody or control as to which no objection is made.

Objection to Request to Produce

28.16     

If the party to whom the Request to Produce is addressed has objections to the production of some or all of the documents requested, he shall state them in writing to the Tribunal within the time ordered by the Tribunal. The reasons for such objections shall be any of those set out in Rule 28.42.

28.17     

If the propriety of an objection can only be determined by review of the document, the Tribunal may refer the objection to the Registrar, a member of a different judicial panel or, if a judicial panel has been appointed to determine the claim, to a Tribunal Member to review any such document and determine the objection. To the extent that the objection is upheld, the Registrar, judicial panel member or the Tribunal Member (as the case may be) will not disclose to the other parties the contents of the document reviewed and will take no further part in the case, either for the purpose of the hearing of applications or at trial, unless the parties agree otherwise.

28.18     

The party from whom production of documents is sought should provide to the applicant and to the Tribunal information as to the factors listed in Rule 28.19 and his document retention policy, to the extent such information is relevant to the application. At the hearing of the application, the Tribunal may take into account the factors listed in Rule 28.19 as well as the extent of the request and the conduct of the parties.

28.19     

The factors that may be relevant in deciding the reasonableness of a search for electronic documents include (but are not limited to) the following—

(1)     the number of documents involved;

(2)     the nature and complexity of the proceedings;

(3)     the ease and expense of retrieval of any particular document. This includes:

(a)     the accessibility of electronic documents or data including email communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the producing party and/or available to enable access to such documents;

(b)     the location of relevant electronic documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;

(c)     the likelihood of locating relevant data;

(d)     the cost of recovering any electronic documents;

(e)     the cost of producing any relevant electronic documents;

(f)     the likelihood that electronic documents will be materially altered in the course of recovery, or production;

(4)    the significance of any document which is likely to be located during the search. It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.

Disclosure Order

28.20     

The Tribunal may order the party to whom a Request to Produce is addressed to disclose to the other parties those requested documents in its possession, custody or control (a “Disclosure Order”).

28.21   

 A Disclosure Order will direct that a party must do one or more of the following things –

(1)     disclose documents or classes of documents specified in the order;

(2)     carry out a search to the extent stated in the order;

(3)     disclose any documents located as a result of that search.

28.22     

Compliance with a Disclosure Order must be verified by a Disclosure Statement in the form set out in the Schedule to this Part.

28.23   

 A Disclosure Statement is a statement made by the party disclosing the documents –

(1)     setting out the extent of the search that has been made to locate documents which he is required to disclose;

(2)     certifying that he understands the duty to disclose documents; and

(3)     certifying that to the best of his knowledge he has carried out that duty.

28.24     

Where the party making the Disclosure Statement is a company, firm, association or other organisation, the statement must also –

(1)     identify the person making the statement; and

(2)     explain why he is considered an appropriate person to make the statement.

28.25     

Where a party considers that it would be disproportionate to the issues in the case to produce documents within a category or class of document disclosed under such an order –

(1)     he is not required to produce documents within that category or class; but

(2)     he must state in his Disclosure Statement those documents will not be produced on the grounds that to do so would be disproportionate.

28.26     

A party may apply to the Tribunal to decide whether a claim made under Rule 28.25 should be upheld.

Production of documents in stages

28.27     

The parties may agree in writing, or the Tribunal may direct, that production of documents shall take place in stages.

Production of documents before proceedings start

28.28     

An application for production of documents before proceedings have started under these Rules must be made in accordance with Part 8 and supported by evidence.

28.29     

The Tribunal may only make an order where –

(1)     the respondent is likely to be a party to subsequent proceedings;

(2)     the applicant is also likely to be a party to those proceedings;

(3)     if proceedings had started, the respondent’s duty by way of standard production of documents, set out in Rule 28.6, would extend to the documents or classes of documents of which the applicant seeks production; and

(4)    production before proceedings have started is desirable in order to –

(a)     dispose fairly of the anticipated proceedings;

(b)     assist the dispute to be resolved without proceedings; or

(c)     save costs.

28.30     

An order under Rule 28.29 must –

(1)     specify the documents or the classes of documents which the respondent must produce; and

(2)     require him, when producing the documents, to specify any of those documents –

(a)     which are no longer in his control; or

(b)     in respect of which he claims a right or duty to withhold production.

28.31     

Such an order may –

(1)     require the respondent to indicate what has happened to any documents which are no longer in his control; and

(2)     specify the time and place for production.

Orders for production of documents against a person not a party

28.32     

An application for production of documents by a person who is not a party to the proceedings must under these Rules be supported by evidence.

28.33     

The Tribunal may make an order under this rule only where –

(1)     the documents of which production is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(2)     production is necessary in order to dispose fairly of the claim or to save costs.

28.34     

An order under Rule 28.33 must –

(1)     specify the documents or the classes of documents which the respondent must produce; and

(2)    require the respondent, when producing the documents, to specify any of the documents which the Tribunal has ordered should be produced –

(a)     which are no longer in his control; or

(b)     in respect of which he claims a right or duty to withhold production.

28.35     

Such an order may –

(1)     require the respondent to indicate what has happened to any documents which are no longer in his control; and

(2)     specify the time and place for production.

Rules not to limit other powers of the Tribunal to order production of documents

28.36     

Rules 28.28 to 28.35 do not limit any other power which the Tribunal may have to order –

(1)     production of documents before proceedings have started; and

(2)     production of documents against a person who is not a party to proceedings.

Request to produce documents by the Tribunal on its own initiative

28.37   

The Tribunal may at any time request a party to produce to the Tribunal and to the other parties any documents that it considers to be relevant and material to the outcome of the case.

28.38     

A party may object to such a request based on any of the reasons set out in Rule 28.42.

28.39     

If a party raises such an objection, the Tribunal shall decide whether to order the production of such documents based upon the considerations set out in Rules 28.18 and 28.19 and, if the Tribunal considers it appropriate, through the use of the procedures set out in Rule 28.17.

Additional documents

28.40     

Within the time ordered by the Tribunal, the parties may produce to the other parties any additional documents which they believe have become relevant and material as a consequence of the issues raised in statements of case, documents, witness statements or expert reports submitted or produced by another party or in other submissions of the parties.

Copies of documents

28.41     

If copies are submitted or produced, they must conform fully to the originals. At the request of the Tribunal, any original must be presented for inspection.

Grounds for excluding documents from production

28.42     

The Tribunal may, at the request of a party or on its own initiative, exclude from production any document for any of the following reasons:

(1)     lack of sufficient relevance or materiality;

(2)     legal impediment or privilege under the legal or ethical rules determined by the Tribunal to be applicable;

(3)     unreasonable burden to produce the requested evidence;

(4)     loss or destruction of the document that has been reasonably shown to have occurred;

(5)     grounds of commercial or technical confidentiality that the Tribunal determines to be compelling;

(6)     grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Tribunal determines to be compelling; or

(7)     considerations of fairness or equality of the parties that the Tribunal determines to be compelling.

Claim to withhold production of a document

28.43     

A person may apply, without notice, for an order permitting him to withhold production of a document on the ground that production would damage the public interest.

28.44    

Unless the Tribunal orders otherwise, an order of the Tribunal under Rule 28.43

(1)    must not be served on any other person; and

(2)     must not be open to inspection by any person.

28.45     

A person who wishes to claim that he has a right or a duty to withhold production of a document, or part of a document, 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.

28.46     

The statement referred to in Rule 28.45 must be made to the person wishing to inspect the document.

28.47     

A party may apply to the Tribunal to decide whether a claim made under Rule 28.45 should be upheld.

28.48     

For the purpose of deciding an application under Rule 28.43 (application to withhold production) or Rule 28.45 (claim to withhold inspection) the Tribunal may –

(1)     require the person seeking to withhold production of a document to produce that document to the Tribunal; and

(2)     invite any person, whether or not a party, to make representations.

28.49     

An application under Rules 28.43 or 28.45 must be supported by evidence.

28.50     

This Part does not affect any rule of law which permits or requires a document to be withheld from production on the ground that its production would damage the public interest.

Restriction on use of a privileged document inspection of which has been inadvertently allowed

28.51     

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

Consequence of failure to produce documents

28.52     

A party may not rely on any document which he fails to produce unless the Tribunal gives permission.

28.53     

If a party fails without satisfactory explanation to produce any document requested in a Request to Produce to which he has not objected in due time or fails to produce any document ordered to be produced by the Tribunal, the Tribunal may infer that such document would be adverse to the interests of that party.

False Document Production Statements

28.54     

Proceedings for contempt may be brought against a person if he makes, or causes to be made, a false Document Production Statement, without an honest belief in its truth.

28.55     

Proceedings under Rule 28.54 may be brought only with the permission of the Tribunal.

Subsequent use of produced documents

28.56     

A party to whom a document has been produced may use the document only for the purpose of the proceedings in which it is produced, except where –

(1)     the document has been read to or by the Tribunal, or referred to, at a hearing which has been held in public;

(2)     the Tribunal gives permission; or

(3)    the party who produced the document and the person to whom the document belongs agree.

28.57     

The Tribunal may make an order restricting or prohibiting the use of a document which has been produced, even where the document has been read to or by the Tribunal, or referred to, at a hearing which has been held in public.

28.58     

An application for such an order may be made –

(1)     by a party; or

(2)     by any person to whom the document belongs.

Schedule to Part 28