The Competition Appeal Tribunal Rules 2015

DISCLOSURE

Disclosure by parties to the proceedings

60.—(1) In this rule, and in rules 61 to 65—

(a) a party discloses a document by stating that the document exists or has existed;

(b) a “disclosure report” means a report verified by a statement of truth, which—

(i) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

(ii) describes where and with whom those documents are or may be located;

(iii) in the case of electronic documents, describes how those documents are stored;

(iv) estimates the broad range of costs that could be involved in giving disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

(v) states which directions are to be sought regarding disclosure;

(c) an “Electronic Documents Questionnaire” means a questionnaire in the form of the questionnaire in the Schedule to Practice Direction 31B of the CPR.

(2) Subject to paragraph (3) and unless the Tribunal otherwise thinks fit—

(a) at the first case management conference, the Tribunal shall decide whether and when the disclosure report and a completed Electronic Documents Questionnaire should be filed; and

(b) at a subsequent case management conference, the Tribunal shall decide, having regard to the governing principles and the need to limit disclosure to that which is necessary to deal with the case justly, what orders to make in relation to disclosure.

(3) The Tribunal may at any point give directions as to how disclosure is to be given, and in particular—

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

(b) whether lists of documents are required;

(c) in what format documents are to be disclosed (and whether any identification is required);

(d) what is required in relation to documents that once existed but no longer exist; and

(e) whether disclosure is to take place in stages.

(4) A party’s duty to disclose documents is limited to documents which are or have been in its control; and for this purpose, a party has or has had a document in its control if—

(a) the document is or was in its physical possession;

(b) it has or has had a right to possession of the document; or

(c) it has or has had a right to inspect or take copies of the document.

(5) A party need not disclose more than one copy of a document, and for that purpose a copy of a document that contains a modification, obliteration or other marking or feature is to be treated as a separate document.

(6) Any duty of disclosure continues until the proceedings are concluded.

(7) If documents to which such a duty extends come to a party’s notice at any time during the proceedings, it shall immediately notify every other party.

Documents referred to in statements of case etc.

61.  A party may request disclosure of any document mentioned in—

(a) a claim form, defence, or reply to a defence;

(b) a witness statement or affidavit; or

(c) an expert report, except that any instructions referred to in an expert’s report shall not (unless the party serving the report consents) be disclosed without an order of the Tribunal.

Disclosure before proceedings start

62.—(1) This rule applies where an application is made to the Tribunal for disclosure before proceedings have started.

(2) The application shall be supported by evidence.

(3) The Tribunal may make an order under this rule only where—

(a) the respondent, or an associated body corporate (as defined in section 256 of the Companies Act 2006(1)), is likely to be a party to subsequent proceedings;

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

(c) disclosure before proceedings have started is desirable in order to—

(i) dispose fairly of the anticipated proceedings;

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

(iii) save costs; and

(d) the Tribunal would, if proceedings had started, have ordered disclosure under rule 60.

(4) An order under this rule shall—

(a) specify the documents or the classes of documents which the respondent shall disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in its control; or

(ii) in respect of which it claims a right or duty to withhold disclosure.

(5) Such an order may—

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

(b) specify the time and place for disclosure.

Orders for disclosure against a person not a party

63.—(1) This rule applies where an application is made to the Tribunal by a party for disclosure by a person who is not a party to the proceedings.

(2) The application shall be supported by evidence.

(3) The Tribunal may make an order under this rule only where—

(a) the documents of which disclosure 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

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

(4) An order under this rule shall—

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require the respondent, when making disclosure, to specify any of those documents—

(i) which are no longer in its control; or

(ii) in respect of which it claims a right or duty to withhold inspection.

(5) Such an order may—

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

(b) specify the time and place for disclosure.

Claim to withhold inspection or disclosure of a document

64.—(1) A person may apply, without notice, for an order permitting that person to withhold disclosure of a document on the ground that disclosure would damage the public interest.

(2) Unless the Tribunal orders otherwise, an order of the Tribunal under paragraph (1)—

(a) shall not be served on any other person; and

(b) shall not be open to inspection by any person.

(3) A person who wishes to claim a right or a duty to withhold inspection of a document, or part of a document, shall state in writing—

(a) that that person is claiming such a right or duty; and

(b) the grounds on which that person claims that right or duty.

(4) The statement referred to in paragraph (3) shall be made—

(a) in the list in which the document is disclosed; or

(b) if there is no list, to the person wishing to inspect the document.

(5) A party may apply to the Tribunal to decide whether a claim made under paragraph (3) should be upheld.

(6) For the purpose of deciding an application under paragraph (1) or paragraph (5) the Tribunal may—

(a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the Tribunal;

(b) invite any person, whether or not a party, to make representations; and

(c) give any directions it considers appropriate.

(7) An application under paragraph (1) or paragraph (5) shall be supported by evidence.

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

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

65.  Where a party inadvertently discloses a privileged document, the party who has seen the document may use it or its contents only with the permission of the Tribunal.

(1)

2006 c.46.