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

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

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 standard does the court 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 required 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

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

Answer 15

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

Question 16

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 16

Notify them. 7 days.

Question 17

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 17

Disclosure report.

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

Question 18

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 18

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 19

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

Answer 19

Make a written request for the documents

Question 20

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 20

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

Question 21

Must a document which is privileged still be disclosed?

Answer 21

Yes, but it can be withheld from inspection

Question 22

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

Answer 22

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

Question 23

What does legal advice privilege protect?

Answer 23

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

Question 24

What does litigation privilege protect?

Answer 24

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

Question 25

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

Answer 25

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

Question 26

Who bears the burden of proving litigation privilege?

Answer 26

The party seeking to assert it

Question 27

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

Answer 27

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

Question 28

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 28

Yes

Question 29

Who can waive privilege?

Answer 29

The client only

Question 30

What is the difference between disclosure and inspection

Answer 30

Disclosure = telling the other side about the existence of the doc in a list

inspection = the party to whom the doc has been disclosed looking at it, or more often, a copy of it

Question 31

what might the court order other than standard disclosure

Answer 31

• specific disclosure & inspection
• Non-party disclosure
• Norwich Pharmacal orders
• pre-action disclosure

Question 32

what is the approach for standard disclosure

Answer 32

1. is it a document
2. is it in the party’s control
3. does it fall within standard disclosure

Question 33

what is the test for standard disclosure?

Answer 33

Docs which they rely on; docs which adversely (affect own case; affect other case;) support others case or practice direction

(only need one of these to be satisfied)

Question 34

would a draft document be disclosed

Answer 34

yes, as it might be adverse in comparison to the final document

Question 35

what happens when you serve a document to the other side which you have a draft document of

Answer 35

by serving the final document you are waiving priviledge to the draft document

Question 36

what should you do if your client does not want to disclose a document

Answer 36

discharge your duty (by advising them that they need to disclose it)
if they still refuse to then you need to withdraw from the case

Question 37

what should you advise if there is a truly damming document on a clients side that they need to disclose

Answer 37

tell them to settle