15: Disclosure

Question 1

What does ‘disclosure’ mean?

Answer 1

Disclosure means revealing the present or past existence of documents. It does not mean making a document available for another party to see, which is covered by inspection.

Question 2

What is a ‘document’ as defined in r31.4?

Answer 2

A document is anything in which information of any description is recorded, including contracts, papers, hard copy correspondence, faxes, memoranda, reports, photographs, plans, maps, diaries, and objects.

Question 3

What does ‘inspection’ mean?

Answer 3

Inspection means seeing or being supplied with a copy of a document.

Question 4

What is the purpose of disclosure?

Answer 4

The purpose of disclosure is to do justice between the parties by placing obligations on them equally and encouraging a ‘cards on the table’ approach to resolving disputes.

Question 5

What are the costs of disclosure and inspection?

Answer 5

Expensive. The process of disclosure can be one of the costliest parts of resolving a dispute due to the time and effort involved in searching, identifying, disclosing, and supplying relevant documents.

Question 6

What are the possible routes to being supplied with a document before proceedings are started?

Answer 6

1. A statutory right to be supplied with a document who isn’t a party
2. An expectation that other proposed parties will supply documents
3. A non-statutory right to be supplied with a document
4. A right to apply to the court for an order for pre-action disclosure/inspection from a proposed party.

Question 7

What is the formal rule for exchanging documents on the small claims track?

Answer 7

The formal disclosure and inspection rules do not apply to the small claims track, but the court will usually order parties to exchange documents they intend to rely on at the hearing 14 days before the hearing.

Question 8

What is ‘standard disclosure’?

Answer 8

Standard disclosure is required when a case is allocated to the fast track or is a personal injury claim on the multi-track, and involves disclosing documents before witness statements are exchanged.

Question 9

What does standard disclosure require a party to disclose?

Answer 9

It requires disclosing documents on which they rely, adversely affect their case, adversely affect another party’s case, or support another party’s case.

Question 10

What are the 3 main points of disclosure and inspection?

Answer 10

1. Determine if the document is in the client’s control (physically possessed, used to possess, or right to inspect).
2. Check if the document falls within the definition of standard disclosure (intends to reply, supports another’s case, adversely affects own or another’s case).
3. Determine if the document is privileged (advice privilege, litigation privilege). If not privileged, other parties may inspect specific documents.

Question 11

What should clients be advised about regarding standard disclosure?

Answer 11

Scope of the definition of documents.
Disclosure includes current and past documents.
Scope of standard disclosure.
Obligation to search for documents.
Meaning of ‘control’ for disclosure. Extent of search for documents.

Question 12

What qualifies the duty to search for documents?

Answer 12

Limited to documents in the party’s control. Limited to what is reasonable.

Question 13

What is ‘control’ in the context of disclosure?

Answer 13

Control includes:
documents in the party’s physical possession,
documents they have a right to possess, and
documents they have a right to inspect.

Question 14

What must a disclosure statement include?

Answer 14

It must set out the extent of the search, certify understanding of the duty to disclose, and confirm that the duty has been carried out.

Question 15

What must parties do if they haven’t searched for certain documents?

Answer 15

They must state the category or class of document not searched for and explain why a search was not reasonable.

Question 16

What are examples of documents under control but no longer in possession?

Answer 16

Sent letters and deliberately destroyed documents.

Question 17

What should a List of Documents identify?

Answer 17

The documents in a convenient order and manner as concisely as possible.

Question 18

What form should be used for the List of Documents?

Answer 18

Form N265 List of documents: standard disclosure.

Question 19

What are the components of a List of Documents?

Answer 19

The Disclosure Statement (setting out extent of search)
1. Documents which the party has control
2. Documents which the party does not presently have control
3. Documents for which the party does not object to the other party inspecting or having copies
4. Documents for which the party objects to the other party inspecting or having copies

Question 20

What details are required in the disclosure statement as per Form N265?

Answer 20

Date of creation of any document searched for.
Location of documents searched for.
Category of documents searched for.
Form of documents searched for, including electronic documents.
Authors of any electronic documents searched for.
Whether documents searched were created by the claimant or defendant.
Particular devices on which documents were searched for.
File formats of any electronic documents searched for.
Keywords or concepts used as search parameters.

Question 21

Who typically signs the disclosure statement?

Answer 21

The client or an authorised employee of the client, not usually the legal representative.

Question 22

How should documents be listed if the party no longer has control?

Answer 22

List and number the documents, include the date when last in control, and state where it is now.

Question 23

What is the process for redacting documents that are hybrids?

Answer 23

Material protected from inspection can be blanked out and the document’s description should indicate it has been redacted.

Question 24

What assumption is made about originals or copies of documents?

Answer 24

Unless listed as copies, it is assumed the document is available in its original form and not amended.

Question 25

Under what grounds can disclosure of a document be withheld?

Answer 25

Public interest immunity or if disclosing would be disproportionate.

Question 26

What must be stated in the disclosure statement if a document is withheld?

Answer 26

The reason why it was not disclosed due to being disproportionate.

Question 27

What is the standard disclosure and inspection process?

Answer 27

Each party serves on the other party a List of Documents
Each party considers the List of Documents and advises their client
Each party sends List to client for instructions to be given
The parties deal with inspection.

Question 28

What is not the norm for disclosure in multi-track cases other than personal injury cases?

Answer 28

Standard disclosure is not the norm.

Question 29

What must parties file and serve in multi-track cases?

Answer 29

A disclosure report by the date/time ordered by the court, usually 14 days before the first CMC. Then the court sets disclosure directions at the CMC.

Question 30

What form is used for the disclosure report in multi-track cases?

Answer 30

Form N263 Disclosure report.

Question 31

What is the purpose of the disclosure report in multi-track cases?

Answer 31

The disclosure report (N263), different to the List of Documents, enables the court to deal properly with case management directions for disclosure and inspection.

Question 32

What does Part 31 provide in multi-track cases?

Answer 32

A list or menu of possible disclosure orders.

Question 33

What form can be used for exchanging information about electronic documents?

Answer 33

Form N264 Electronic documents questionnaire.

Question 34

What are the two stages of disclosure introduced by the Business and Property Courts pilot scheme?

Answer 34

Initial Disclosure and Extended Disclosure.

Question 35

What is Initial Disclosure?

Answer 35

Disclosure of key documents within the parties’ statements of case.

Question 36

How many documents or pages should typically be included in Initial Disclosure?

Answer 36

No more than 200 documents or 1,000 pages.

Question 37

What has been replaced by Model D in the disclosure pilot?

Answer 37

Automatic entitlement to standard disclosure.

Question 38

What must parties do after the closure of statements of case in certain cases?

Answer 38

Meet, discuss, and complete a joint Form Disclosure Review Document (DRD).

Question 39

What are the five Extended Disclosure models?

Answer 39

Model A: Disclosure confined to known adverse documents.
Model B: Limited disclosure.
Model C: Request-led search-based disclosure.
Model D: Narrow search-based disclosure, with or without narrative documents.
Model E: Wide search-based disclosure.

Question 40

What can parties apply for if there is a dispute about disclosure and inspection before the CMC?

Answer 40

A Disclosure Guidance Hearing.

Question 41

What must a party do if they become aware of additional documents after initial compliance?

Answer 41

Notify the other party, be prepared to allow inspection, and consider any necessary variation of the timetable.

Question 42

What is inspection in legal terms?

Answer 42

The term used to describe seeing or being supplied with a copy of a document.

Question 43

What is the process of inspection usually like?

Answer 43

The process of inspection is often a paper exercise, each party requesting certain documents from the opponent’s list and agreeing to pay reasonable photocopying charges.

Question 44

What are the exceptions to the right to inspect a disclosed document?

Answer 44

1. The party who disclosed the document no longer controls it.
2. The objecting party believes inspection is disproportionate to the case issues.
3. The document contains evidence from cross-border dispute mediation.
4. The disclosing party has a right or duty to withhold inspection.

Question 45

What happens if a document is no longer in the control of the disclosing party?

Answer 45

If the disclosing party no longer has control of a document, they are unable to allow inspection of the document.

Question 46

When might it be disproportionate to allow inspection of documents?

Answer 46

When there are large numbers of documents, perhaps held abroad, and it would do little to assist the court’s ability to deal with the issues of the case fairly, justly, or expeditiously.

Question 47

What is privilege in the context of withholding inspection of documents?

Answer 47

Privilege is a right which entitles a party to withhold inspection of a document to a third party, an opponent in proceedings, or the court.

Question 48

What should be done with privileged documents?

Answer 48

Privileged documents should still be disclosed, revealing the past or present existence of a document, and should be contained within the List of Documents (Form N265), but described generically without identifying the precise details the particular documents contain.

Question 49

Can privilege attach to communications between opposing parties?

Answer 49

No, privilege cannot attach to communications between opposing parties unless they are subject to without prejudice privilege.

Question 50

What are examples of situations where there can be no privilege?

Answer 50

• Transcripts of proceedings in chambers, in open court, or before arbitrators.
• Attendance notes at meetings at which both parties were present
• Telephone attendance notes of conversations between legal representatives of both sides.

Question 51

What is an exception to the rule that there can be no privilege in certain situations?

Answer 51

If the notes contain additional notes by one party’s legal representative that details strategy, advice, or the merits of a party’s case.

Question 52

What is the purpose of legal professional privilege?

Answer 52

To allow parties access to legal advice and to the lawyer’s professional skill and judgment without compromising their position with the opponent.

Question 53

What are the two distinct types of legal professional privilege?

Answer 53

• Legal advice privilege
• Litigation privilege

Question 54

Does legal advice privilege extend to communications between a client and a third party?

Answer 54

No, legal advice privilege only protects communications between a client and their lawyer.

Question 55

What is the distinction between legal advice privilege and litigation privilege?

Answer 55

Legal advice can only be between a client and their lawyer, whereas litigation can be between a third party too.

Legal advice can be for both non-contentious and contentious contexts, but litigation is only for contentious.

Legal advice can be at any time, litigation is only after the claim is contemplated.

Question 56

What is without prejudice privilege?

Answer 56

Without prejudice privilege means that any genuine attempt to settle proceedings will be regarded as without prejudice, and parties may not make any reference to those offers or concessions made in the action.

Question 57

Can documents obtained illegally be used to assert privilege?

Answer 57

No, a party who has come into possession of illegally obtained documents is not allowed to assert privilege over them. They should be disclosed under the relevant disclosure framework.

Question 58

What must a legal representative do if a client instructs not to disclose a relevant document?

Answer 58

The legal representative must advise the client that the document must be disclosed in the list of documents and that if the client does not have a right or duty to withhold inspection, the opponent must be allowed to see it. If the client still insists, the legal representative has a duty to withdraw from acting for that client.

Question 59

What options are available if a party is dissatisfied with the opponent’s compliance with their disclosure obligations?

Answer 59

1. Apply to the court for a different sanction to be imposed on the opponent.
2. Initiate proceedings against the opponent for contempt of court.
3. Apply to the court to determine whether an opponent’s claim to withhold disclosure or inspection should be upheld.
4. Apply to the court for an order for specific disclosure and/or inspection from the opponent.

Question 60

What can the court order for specific disclosure?

Answer 60

Where there is evidence that a party is in breach of its disclosure obligations.

Question 61

What should a party seeking specific disclosure do before making an application to the court?

Answer 61

Make a written request to the opponent explaining what is wanted and why, and seek full particulars of the search that has been made.

Question 62

What should the written request for specific disclosure include?

Answer 62

• Explanation of what is wanted and why
• Full particulars of the search that has been made
• Imposing a deadline for the opponent’s response

Question 63

What must the evidence in support of an application for specific disclosure include?

Answer 63

A statement of belief that the disclosure of documents by the disclosing party is inadequate.

Question 64

What is an order for specific inspection?

Answer 64

An order for specific inspection removes an exception to the right to inspect a disclosed document. It forces the party who used that exception in their disclosure statement to allow inspection of the document.