11. Disclosure and Inspections Flashcards

1
Q

What does disclosure mean?

A

Clearly identify and inform the other side of the existence of a document

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2
Q

For how long does the duty to disclose run and when does it terminate?

A

Continues through the whole case and concludes when the case is over

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3
Q

What types of documents must be disclosed?

A

Documents on which you will rely and documents which are adverse to the case

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4
Q

What is the requirement for relevance in disclosure?

A

A party need disclose only documents which are relevant to the issues in question

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5
Q

How far does the obligation to disclose go? Does a party need to have possession?

A

A party’s obligation to disclose extends to any document within the party’s control

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6
Q

What must a solicitor do if the client makes it clear they will not comply with the disclosure requirements?

A

Cease to act

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7
Q

What is the obligation when a document is unavailable or has been destroyed?

A

Notify the court and other party of its existence, and provide reasons

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8
Q

Can the court draw an adverse inference when a party fails to provide a relevant document?

A

Yes

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9
Q

What three criteria, one of which is enough, will determine if a party has control of a document?

A
  1. Physical possession
  2. Right to take possession, inspect or take copies, or
  3. Had the document in their possession but no longer
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10
Q

What is standard that the court will expect a search for documents to meet?

A

The search must be reasonable and proportionate, depending on the nature of the case, its value, and its importance

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11
Q

On what tracks is each party requires to file and serve a disclosure list?

A

Fast track and personal injury in the multi-track

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12
Q

What are the three sections of the disclosure list?

A
  1. Documents a party controls that they do not object to the other party inspecting
  2. Documents a party controls that they do object to the other party inspecting
  3. Documents that are no longer in a party’s control
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13
Q

Who signs the disclosure statement detailing the extent of the search made?

A

The party, not their solicitor

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14
Q

The Directions Order is made when the case is allocated to a track. Under standard directions, within what time limit from that point must the disclosure lists be served?

A

28 days

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15
Q

Unless challenged, what does disclosure of a document provide?

A

An automatic right to inspect it

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16
Q

What are the three grounds for refusing inspection of a disclosed document?

A
  1. Privilege
  2. Document no longer in party’s control
  3. Disproportionate to allow inspection
17
Q

If a party with a right to inspect a document wishes to do so, what must they do to the other party, and from that point, within what time limit must the other party make the document available?

A

Notify them. 7 days.

18
Q

Instead of a disclosure list, what must be filed in non-personal injury cases on the multi-track, and within what time limit of what event must this be filed?

A

Disclosure report.

At least 14 days before the first Case Management Conference, or otherwise with the Directions Questionnaire.

19
Q

What are the two criteria for an order for specific disclosure, either one of which is sufficient, that the court must be satisfied of to grant one?

A

Court believes the party has documents that may:

  1. Contain information that would assist the applicant’s case or damage the respondent’s case
  2. Lead to a train of enquiry which has either of those consequences
20
Q

What should a party do before making an application for specific disclosure?

A

Make a written request for the documents

21
Q

A case must involve one of what two things before the court will depart from the general rule that pre-action disclosure is only available against parties to the case?

A
  1. Preservation order, e.g. freezing injunction, search order
  2. Requests for further information
22
Q

Must a document which is privileged still be disclosed?

A

Yes, but it can be withheld from inspection

23
Q

What are the four types of privilege and the one immunity which functions like a privilege?

A
  1. Legal advice privilege
  2. Litigation privilege
  3. Common interest privilege
  4. Without prejudice privilege
  5. Public interest immunity
24
Q

What does legal advice privilege protect?

A

Communication between a lawyer and a client in which advice is given or requested within a legal context

25
Q

What does litigation privilege protect?

A

Communication with third parties (e.g. barristers, experts) relating to preparation of pending or contemplated litigation

26
Q

If a document has multiple purposes one of which is preparation for litigation, is it still protected by litigation privilege?

A

Only if the court decides the dominant purpose is to prepare for litigation

27
Q

Who bears the burden of proving litigation privilege?

A

The party seeking to assert it

28
Q

What is the one requirement of the common interest for common interest privilege to apply?

A

The common interest must have been present at the time of disclosure between the parties

29
Q

If the common interest was present at the time of disclosure, does the privilege subsist if there is a subsequent breakdown in the parties’ relationship?

A

Yes

30
Q

Who can waive privilege?

A

The client only