11. Disclosure and Inspections Flashcards
What does disclosure mean?
Clearly identify and inform the other side of the existence of a document
For how long does the duty to disclose run and when does it terminate?
Continues through the whole case and concludes when the case is over
What types of documents must be disclosed?
Documents on which you will rely and documents which are adverse to the case
What is the requirement for relevance in disclosure?
A party need disclose only documents which are relevant to the issues in question
How far does the obligation to disclose go? Does a party need to have possession?
A party’s obligation to disclose extends to any document within the party’s control
What must a solicitor do if the client makes it clear they will not comply with the disclosure requirements?
Cease to act
What is the obligation when a document is unavailable or has been destroyed?
Notify the court and other party of its existence, and provide reasons
Can the court draw an adverse inference when a party fails to provide a relevant document?
Yes
What three criteria, one of which is enough, will determine if a party has control of a document?
- Physical possession
- Right to take possession, inspect or take copies, or
- Had the document in their possession but no longer
What standard does the court expect a search for documents to meet?
The search must be reasonable and proportionate, depending on the nature of the case, its value, and its importance
On what tracks is each party required to file and serve a disclosure list?
Fast track and personal injury in the multi-track
What are the three sections of the disclosure list?
- Documents a party controls that they do not object to the other party inspecting
- Documents a party controls that they do object to the other party inspecting
- Documents that are no longer in a party’s control
Who signs the disclosure statement detailing the extent of the search made?
The party, not their solicitor
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?
28 days
What are the three grounds for refusing inspection of a disclosed document?
- Privilege
- Document no longer in party’s control
- Disproportionate to allow inspection
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?
Notify them. 7 days.
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?
Disclosure report.
At least 14 days before the first Case Management Conference, or otherwise with the Directions Questionnaire.
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?
Court believes the party has documents that may:
- Contain information that would assist the applicant’s case or damage the respondent’s case
- Lead to a train of enquiry which has either of those consequences
What should a party do before making an application for specific disclosure?
Make a written request for the documents
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?
- Preservation order, e.g. freezing injunction, search order
- Requests for further information
Must a document which is privileged still be disclosed?
Yes, but it can be withheld from inspection
What are the four types of privilege and the one immunity which functions like a privilege?
- Legal advice privilege
- Litigation privilege
- Common interest privilege
- Without prejudice privilege
- Public interest immunity
What does legal advice privilege protect?
Communication between a lawyer and a client in which advice is given or requested within a legal context
What does litigation privilege protect?
Communication with third parties (e.g. barristers, experts) relating to preparation of pending or contemplated litigation
If a document has multiple purposes one of which is preparation for litigation, is it still protected by litigation privilege?
Only if the court decides the dominant purpose is to prepare for litigation
Who bears the burden of proving litigation privilege?
The party seeking to assert it
What is the one requirement of the common interest for common interest privilege to apply?
The common interest must have been present at the time of disclosure between the parties
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?
Yes
Who can waive privilege?
The client only
What is the difference between disclosure and inspection
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
what might the court order other than standard disclosure
- specific disclosure & inspection
- Non-party disclosure
- Norwich Pharmacal orders
- pre-action disclosure
what is the approach for standard disclosure
- is it a document
- is it in the party’s control
- does it fall within standard disclosure
what is the test for standard disclosure?
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)
would a draft document be disclosed
yes, as it might be adverse in comparison to the final document
what happens when you serve a document to the other side which you have a draft document of
by serving the final document you are waiving priviledge to the draft document
what should you do if your client does not want to disclose a document
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
what should you advise if there is a truly damming document on a clients side that they need to disclose
tell them to settle
