11. Disclosure and Inspections

Question 1

What does disclosure mean?

Answer 1

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

Question 2

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

Answer 2

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

Question 3

What types of documents must be disclosed?

Answer 3

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

Question 4

What is the requirement for relevance in disclosure?

Answer 4

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

Question 5

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

Answer 5

A party’s obligation to disclose extends to any document within the party’s control. Further, it extends to documents that were within the party’s control but are no longer.

Question 6

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

Answer 6

Cease to act

Question 7

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

Answer 7

Notify the court and other party of its existence, and provide reasons for destruction or unavailability.

Question 8

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

Answer 8

Yes

Question 9

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

Answer 9

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

Question 10

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

Answer 10

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

Question 11

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

Answer 11

Fast track and personal injury in the multi-track

Question 12

What are the three sections of the disclosure list?

Answer 12

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

Question 13

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

Answer 13

The party, not their solicitor

Question 14

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?

Answer 14

28 days

Question 15

Unless challenged, what does disclosure of a document provide?

Answer 15

An automatic right to inspect it

Question 16

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

Answer 16

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

Question 17

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?

Answer 17

Notify them. 7 days.

Question 18

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?

Answer 18

Disclosure report.

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

Question 19

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?

Answer 19

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

Question 20

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

Answer 20

Make a written request for the documents to the other side.

Question 21

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?

Answer 21

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

Question 22

Must a document which is privileged still be disclosed?

Answer 22

Yes, but it can be withheld from inspection

Question 23

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

Answer 23

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

Question 24

What does legal advice privilege protect?

Answer 24

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

Question 25

What does litigation privilege protect?

Answer 25

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

Question 26

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

Answer 26

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

Question 27

Who bears the burden of proving litigation privilege?

Answer 27

The party seeking to assert it

Question 28

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

Answer 28

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

Question 29

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?

Answer 29

Yes

Question 30

Who can waive privilege?

Answer 30

The client only

Question 31

Overview regarding differences between litigation privilege & legal advise privilege.

Answer 31