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03 November 2017 / Claire Darwin
Issue: 7768 / Categories: Features , E-disclosure , Procedure & practice , Budgeting
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Disclosure: justice & propriety

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Claire Darwin identifies familiar themes running through the judicial approach to disclosure failings

  • The consequences of non-compliance with the duty of disclosure.

Whether a case concerns civil, criminal, family or regulatory proceedings, disclosure failings may constitute a fatal blow to the fairness of proceedings leading to a stay or strike out or other adverse consequences.

In criminal proceedings, it is well-established that a stay for abuse of process may arise either because it is no longer possible to have a fair trial (limb one); or because it offends the court’s sense of justice and propriety to try the accused in the particular circumstances of the case (limb two), see R v Maxwell [2010] UKSC 48, [2011] 4 All ER 941, per Lord Dyson SCJ at [13]. In limb one cases, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises.

The court’s inherent power to protect the integrity of judicial proceedings constitutes the core of limb two. In Maxwell Lord Dyson explained

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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