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 is the requirement for relevance in disclosure?

Answer 3

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

Question 4

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

Answer 4

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

• listed in disclosure list as document “no longer in party’s control” in third section.

Question 5

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

Answer 5

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

Question 6

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

Answer 6

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

• How difficult and expensive is it to retrieve the document?
• How significant is the infomraiton contained in the document?
• How complex are the proceedings?
• How many documents need to be searched for?

Question 7

When must parties exchange a disclosure list?

Answer 7

Where standard dislosure applies

Question 8

What are the three sections of the disclosure list?

Answer 8

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 9

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

Answer 9

The party, not their solicitor

Question 10

Unless challenged, what does disclosure of a document provide?

Answer 10

An automatic right to inspect it.

*Important to beware of this where the document contains privileged information.

Question 11

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

Answer 11

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

Question 12

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 12

Notify them. 7 days.

Question 13

What must parties in the multi-track file ahead of a CMC?

Answer 13

Disclosure report and draft disclosure order (attempt to agree between parties on extent/scope of disclosure).

Question 14

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 14

Court believes the party has documents that may:

1. Contain information that would assist the applicant’s case or damage the respondent’s case; or
2. Lead to a train of enquiry which has either of those consequences; or
3. Respodent failed to adequately comply with its disclosure obligations.

Question 15

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

Answer 15

Make a written request for the documents

Question 16

Must a document which is privileged still be disclosed?

Answer 16

Yes, but it can be withheld from inspection

Question 17

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

Answer 17

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

Question 18

What does legal advice privilege protect?

Answer 18

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

Question 19

What does litigation privilege protect?

Answer 19

Communication where the dominant purpose in creating the document is to obtain legal advice, evidence, and information for use in the conduct of litigation which was reasonably in prospect at the time.

Question 20

Who bears the burden of proving litigation privilege?

Answer 20

The party seeking to assert it

Question 21

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

Answer 21

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

• privilege subsists even if parties’ relationship breakdown.

Question 22

Why might a party request their opponent to prove a particular document at trial?

Answer 22

Without such request, a party is ‘deemed to admit the authenticity of a document disclosed to him’ (CPR 32.19(1))

Question 23

What should the defendant do to require the claimant to prove the authenticity of the document?

Answer 23

Serve notice within seven days of disclosure or exchange of witness statements, whichever is later, that the claimant requires the document to be proved at trial.
- otherwise, risks being deemed to admit its authenticity.

Question 24

Where a party inadvertently allows a privileged document to be inspected, can the opposing party rely on it?

Answer 24

Yes - may use its contents, but only with the court’s permission (CPR 31.20)

Question 25

What is the correct test for pre-action disclosure?

Answer 25

Whether disclosure is desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings or save costs.

• provided documents would be subject to standard disclosure if proceedings were live.

Question 26

How are disclosure orders made in the Fast and Intermediate Track?

Answer 26

• Consider overriding objective in making its order
• Common for the court to make directions on allocation without the need for CMC (although in the intermediate track, CMC can also be convened).
• Disclosure will be limited to what is necessary to deal with the case justly.
• No need to file a disclosure report (as in multi-track).

CPR 28.2

Question 27

How are disclosure orders made in the small claims track?

Answer 27

Directions are given on allocation.

• parties are required to exchange copies of documents they intend to rely on at least 14 days before the final hearing is fixed.

CPR 27.4(1)

Question 28

What information is contained in a disclosure report?

Answer 28

Contents of the report:

a) What documents exist or may exist.
b) where and with whom they are
c) How any electronic documents are stored
d) Estimate broad range of costs that could be involved in giving standard disclosure in the case.
e) State which of the disclosure directions are sought (alternatives to standard disclosure, CPR 31.5(7) and (8)).

Question 29

What is the court’s discretion in relation to disclosure orders in the multi-track?

Answer 29

Upon considering parties’ respective disclosure reports, the court can make any order concerning disclosure that it finds to be most appropriate.

There is no usual order for disclosure - the main purpose of the multi-track is for the disclosure process to be flexible and tailor-made to specifics of case.

Question 30

What is the exception to the disclosure process in the multi-track?

Answer 30

Personal injury cases - multi-track disclosure regime does not apply.
*standard disclosure order applies automatically.