20 Disclosure and inspection (including privledge) during proceedings

Question 1

Document =

Answer 1

Anything recorded

Question 2

Disclose =

Answer 2

Setting out that these documents do or did exist

Question 3

One copy is all that needs to be disclosed even if modified versions UNLESS

Answer 3

Party wishes to rely on a modified version

Question 4

If a document has been disclosed to a party they have the right to inspect it unless:

Answer 4

1. To do so would be disproportionate
2. Right or duty to withhold from inspection
3. No longer in party’s control (CPR?)

Question 5

A person may inspect a document that is referred to in a statement of case, such as…

Answer 5

• a witness statement
• a witness summary
• an affidavit

Question 6

What is the procedure for when a party wishes to withhold disclosure?

Answer 6

Apply to the court, without notice, for an order permitting him to withhold disclosure on the grounds it would damage public interest

Question 7

What is the consequence of the court granting an order for an applications wish to withhold disclosure?

Answer 7

That document must not be disclosed or inspected

Question 8

What is the procedure for when a person wishes to withhold inspection of a document?

Answer 8

Where an applicant wishes to withhold inspection they must state that:
a) A has a right or duty to withhold and
b) the grounds on which they have that right or duty

A statement of such must be made in the disclosure list. If no list has been made this statement must be made orally to person seeking to inspect

Court may ask A to disclose to them

Question 9

In summary what is the non PI multitrack disclosure procedure?

Answer 9

Stage 1= disclose and happy for inspection

Stage 2 = discussion to agree disclosure proposal

Stage 3 = CMC disclosure order will be made

Question 10

Stage 1 of the non PI multitrack procedure is…

Answer 10

• not less than 14 days before CMC, parties describe what documents exist or are relevant, who they are with, where they are stored
• estimate COSTS of standard disclosure
• which type of disclosure sought

Question 11

What is stage 2 of the non PI small claims track?

Answer 11

Not less than 7 days (meet or telephone):
• agree disclosure proposal and file with court
• if court find proposal “appropriate”, it will approve without a hearing. If not go onto stage 3

Question 12

Stage 3 of the non PI multitrack disclosure procedure

Answer 12

At the first CMC the court will decide off the menu:
• dispense with disclosure all together
• documents relied on and specific disclosure
• disclosure issue by issue
• disclose any documents which it is reasonable to suppose may advance own case or adversely effect other
• standard disclosure
• any order thinks appropriate

Question 13

A party shall be deemed to admit a document exists if…

Answer 13

Within 7 days of the disclosure or document s or the latest date for serving witness statement, he does not serve a notice to prove

Question 14

Court may make an order on disclosure at any time such as: (6)

Answer 14

1. Searches (where for what and by who and what time frame)
2. The need for lists documents
3. The form or need for disclosure statement
4. The format of documents disclosed
5. Documents which no longer exist
6. Disclosure in stages

Question 15

Parties have a duty to do a reasonable search. What is it reasonable in respect of? (4)

Answer 15

1. The number of documents
2. The nature and complexity of the proceedings
3. How easy it will be to retrieve documents and given
4. The significance of the document

Question 16

What does standard disclosure under CPR 31.6 consist of?

Answer 16

That parties must disclose:
• document which they rely on;
• documents which adversely affect their or opposing party case
• documents which a PD states must be disclosed under SD

court or parties can dispense of SD

Question 17

What is the test for deciding if the court will grant an order of disclosure against a non party?

Answer 17

proceedings MUST have started

An order will only be made if:
• documents are likely to support A’s case or adversely affect other party’s case AND
• it is necessary to dispose fairly of the proceedings or save costs

Question 18

Why may a court refuse an application against a non party for disclosure?

Answer 18

If it would likely be injuries to public interest

Question 19

In PI or death cases, what powers do the courts have in relation to disclose and inspection?

Answer 19

Can order party to allow:
• disclosure
• inspection
• photographing of documents
• preserving
• custody and detention of it

Question 20

What action should a party take if they believe there is a document that should be on a party’s disclosure list and is not?

Answer 20

Apply to the court under Part 23 application. Orders can consist of:
a) document or classes of documents to be disclosed
b) a search to be carried out
c) any documents located as a result of the search to be disclosed

Question 21

What are the four considerations the courts rely on in decide whether to grant an order to specific inspection?

Answer 21

1. All the circumstances in the case
2. The overriding objective
3. Relevance by looking at statements of case
4. If the documents are or were within parties control by looking at statements of case

Question 22

What are the three types of privilege?

Answer 22

i) legal professional privilege
ii) without prejudice communications
iii) privilege against self incrimination

Question 23

What are the requirements for legal professional privilege?

Answer 23

This type of privilege covers two types of communications
1. Legal advise privilege: any legal advice between client and lawyer
2. Litigation privilege: for use in pending or current litigation for which is the DOMINANT purpose

Question 24

Are instructions to an expert subject to legal professional privilege?

Answer 24

No, but a court would not grant an order for specific disclosure regarding instructions

Question 25

What are the requirements for “without prejudice communications” privilege? (3)

Answer 25

1. Only if proceedings were in contemplation or had already been started
2. Genuine attempts to settle

just by writing w/o prejudice on the top of a doc does not make it so, likewise with failing to write it, does not mean it’s not privileged

Question 26

Can privilege be waived?

Answer 26

Yes, but for comms between parties needs both consent

Question 27

What is privilege against self incrimination?

Answer 27

• covers self and spouse
• does not cover IP, children cases, fraud and care of children

Question 28

What are the rules regarding secondary facts?

Answer 28

If a document for which is privileged but is accidentally of provided for inspection, inspecting party must obtain courts permission before relying on it at trial