Is any type of compulsory purchase order (under the Planning Act, Electricity Act etc.) subject to disclosure rules in terms of evidence? Should document exchanges between parties be marked “without prejudice” or is there no need for this?

First published by LexisNexis

United Kingdom Publication June 2020

Disclosure “rules” vary by legal jurisdiction. In relation to compulsory purchase orders, the principal jurisdictions will be the Planning Inspectorate (inquiries and examinations into proposed orders), the Upper Tribunal (Lands Chamber) (UTLC) (references in relation to compulsory purchase compensation claims), and the Planning Court (statutory challenges to a Secretary of State’s decision on an order).

The Compulsory Purchase (Inquiries Procedure) Rules 2007/3617 (as amended) include rules on disclosure. Rule 7(2) requires acquiring authorities (AAs) to send objectors their statement of case and, unless provided to objectors, to advise objectors where a copy may be inspected of every document which the acquiring authority intends to refer to or put in evidence at the inquiry. Rule 7(5) also provides that, where any person has submitted a statement of case, they can be required: “to provide such further information about the matters contained in the statement as the authorising authority or inspector may specify”. Rule 15 contains similar provisions in relation to evidence submitted to the inquiry and supporting documents. The Planning Inspector’s Training Manual (18 November 2019) provides that where an Inspector considers that they may not have all the evidence or information necessary to reach a soundly reasoned decision, they can ask the parties to provide the evidence and, if necessary, give the opportunity for comment.

The UTLC has broad case management powers, including powers to require disclosure. Rule 5(2) (d) of the Upper Tribunal (Lands Chamber) Rules (March 2020) provides that the Tribunal may give a direction to: “permit or require a party or another person to provide documents, information, evidence or submissions to the Tribunal or a party”.

The CPR Part 31 concerns “Disclosure and Inspection of Documents”, which is supplemented by Practice Direction 31a entitled “Disclosure and Inspection”.

The without prejudice rule is part of the law of privilege. The rule enables parties to a dispute to communicate freely and effectively to seek to reach settlement, without risk of their correspondence being disclosed and used against them in any subsequent legal proceedings.

Where any AA proposes to exercise powers of compulsion there is a requirement on the AA to seek to obtain the land or rights sought by voluntary agreement. In almost every case there will therefore be financial negotiations undertaken by the AA with offers to settle made to those whose land or rights are affected (owners). It is usual for such correspondence to be marked “without prejudice and subject to contract”. This correspondence may include the exchange of documents such as assessments of value or lists of comparables. If agreement cannot be reached, compulsory powers are exercised, and any disputed compensation is referred to the UTLC, those earlier without prejudice exchanges between the parties will not be disclosable. Any earlier documents exchanged, whilst also not disclosable, may well be the basis of evidence submitted to the UTLC. The totality of the communications between the parties will be protected by the without prejudice rule; the UTLC will not dissect correspondence to determine which parts may, or may not, be privileged.

There will undoubtedly be other correspondence and documentary exchanges between the AA and owners as part of the compulsory purchase process including requests for information, statutory notices, notices to treat, notices of entry or GVDs. If an owner is appearing at an inquiry or examination in public, there are also likely to be exchanges of evidence in some form. It is unnecessary to mark such exchanges “without prejudice”. Such documents will largely be documents in the public domain or publicly discoverable. Any such correspondence or documents marked “without prejudice” are unlikely to attract protection under the without prejudice rule in any event. It is only if there is a bona fide attempt to resolve a dispute that the without prejudice rule is engaged.

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