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Civil litigation and evidence > 3 Disclosure and inspection before a claim commences > Flashcards

3 Disclosure and inspection before a claim commences Flashcards

1
Q

Why and when does pre action disclosure occur?

A

When a potential claimant need to look at documents relating to a potential defendant to decide if a claim is viable

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2
Q

What are the requirements of pre action disclosure? CPR 31.16

A

a) the application (potential claimant) and the respondent (potential defendant) MUST BE A LIKELY PARTY
b) paper must have been / likely be in the POSSESSION, CUSTODY or POWER of the potential defendant & MUST BE RELEVANT TO AN ISSUE LIKELY TO ARISE
c) must be desirable to see now, so that proceedings can be AVOIDED / DEALT WITH FAIRLY and or COSTS CAN BE SAVED
d) the documents the application is requesting, must be documentation that would need to be disclosed under Standard Disclosure (CPR 31.6)

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3
Q

What documents must be disclosed under Standard Disclosure? CPR 31.6

A

a) the documents which he relies on
b) the documents which:
i) adversely effect his own case
ii) adversely effect any other party’s
case
iii) support another party’s case
c) the documents which he is required to disclose by a relevant PD

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4
Q

What type of order may the court make with regard to disclose?

A

At an application the court may make an order to DISCLOSE and they may also make an order for the:
• inspection
• photographing
• preservation
• custody and
• detention of property

Court may also order samples or investigations to be carried out

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5
Q

Why may a Court order samples or an investigation to take place with regard to disclosure?

A

If it appears to the court that property may become the subject matter of proceedings or any questions may arise

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6
Q

When will the court NOT make an order for pre action disclosure?

A

The court will not make an order pre action disclosure is likely to be injurious to the general public

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7
Q

What is meant by adversely effect, in reference to disclosure?

A

There is no set definition but it is to effect negatively

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8
Q

How are the rules on disclosure different regarding PI or death claims? (Senior Courts Act 1981 section 34 and County Courts Act 1984 section 53)

A

The courts have the power to order disclosure of a document by a person who is not likely to be a party in the proceedings AND who appears to be likely in their POSSESSION CUSTODY or POWER any documents that are relevant to an issue arising out of a claim

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9
Q

What are the 3 words that are considered for what documents can be requested from a respondent?

A

POSSESSION, CUSTODY AND POWER

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10
Q

When is it “desirable” that documents be disclosed now?

A
  1. So that proceedings can be avoided
  2. Any proceedings can be dealt with fairly
  3. So costs can be saved
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11
Q

What type of interim application is a pre action disclosure?

A

A with notice application (as it can’t be a hurry because a claim has not begun yet)

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12
Q

What must be served in an application for pre action disclosure? Part 23

A

a) an application notice
b) evidence
c) a draft of the requested order

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13
Q

When may an application for pre action disclosure be granted?

A

If it is desirable to do so in the interests of justice

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14
Q

Where can an application for pre action disclosure be served?

A

May be in the CC unless PD states otherwise

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15
Q

If a claim has already began, where must an application notice be served?

A

In the CC where the claim started

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16
Q

What are the required contents of an application for pre action disclosure?

A
  1. Order sought and why
  2. Claim information (title, ref number, full name of A - is this only if A is not a party?, address for service, including post code, request for hearing or not (and if this telephone or not)
  3. It must be signed
  4. If A wishes to rely on the contents of the application as evidence as evidence, it must be verified by a statement of truth
17
Q

What is the procedure for A filing a pre action disclosure application with the court?

A

A will complete the notice (notice, evidence, draft order) and file it with the court that proceedings are likely to begin in

18
Q

When is an application notice not required?

A

If a rule or PD allows an application to be made without notice or court dispense of the need for it

19
Q

What action will the court take upon receiving an application for pre action disclosure?

A

After it being FILED, the court inserts a date for the hearing which must be at least 28 days after the notice (must be within 28 days or must be over the 28 days?)

20
Q

What must A do once the court has inserted a hearing for pre action disclosure?

A

A must then serve the notice and other documentation on all R’s as soon as practicable unless the court orders not to. A must give R at least 3 days notice before the hearing (5 days if telephone hearing)

21
Q

When will it be decided if an application for pre action disclosure will be granted?

A

At the hearing

22
Q

What will happen if A does not give sufficient notice to R of the hearing?

A

The court may still allow hearing to take place

23
Q

Must A serve notice on R?

A

No the court may, if so A needs to file a copy of any written evidence as well

24
Q

When may an application be dealt with without a hearing?

A

• if parties agree to no hearing and the terms sought in the order; or
• the court does not consider a hearing to be appropriate

25
Q

What must the “evidence” in the interim application consist of?

A
  1. Must include all material facts
  2. Verified by statement of truth
  3. Can be in a statement of case
  4. Is often in a witness statement that is verified by a statement of truth
26
Q

What does 28 days notice not include?

A

The days of the notice and the day of the hearing

27
Q

What does the case of O’Farrel set out about giving notice, even on an informal basis?

A

That the modern use of mobile phones means there’s little excuse for not providing notice, even informally

28
Q

What must A do regarding the service of a draft order?

A

• attach it to a notice
• take a digital copy to hearing
• the order must set out:
i) what R must do and must not do
ii) must include any undertaking that A will pay any damages sustained by R unless the court orders otherwise

29
Q

Will a court proceed in a party’s absence of a hearing for pre action disclosure?

A

Court may proceed in their absence or they may relist the hearing. However, relisting is unlikely if it won’t change the order

30
Q

What must the court do if it dismisses an application / finds totally without merit?

A

The order must record this fact and the court must consider making civil restraint order

31
Q

What is an Norwhich Pharmacal Order (NPO) order and can A apply for one as pre action order?

A

A NPO is a type of order that allows the court to compel a non party, in order to identify a wrong doer. The compelled party must be a facilitator of the wrong doing and not a mere wittiness (car rental example)

A potential claimant, A can apply for an NPO in order to identify a potential defendant

32
Q

When should a NPO be used?

A

In circumstances where a facilitator of wrong doing, has previously refused to identity potential defendant

33
Q

What type of NPO should be used if proceedings have not been issued?

A

This should be done in the form of a Part 8 claim (not Part 23)

34
Q

Can an NPO be made without notice?

A

Yes, if secrecy is required (i.e. in cases of fraud). If no fraud, then full and frank disclosure is required (14 days)

35
Q

An NPO must not be relied upon as a …

A

Fishing expedition (Ramilos)

36
Q

When courts have power of a disclosure an NPO is

A

Unnecessary

37
Q

For an NPO, what does A need to prove?

A

Only that there is a reasonable basis for wrong doing - does not need to prove the wrongdoing has been committed

38
Q

What is the three limb test set out in Mistui regarding an NPO?

A
  1. Wrong doing carried out by wrong doer
  2. There must a need for an order to be brought against a wrong doer
  3. The person against whom the order is sought must be facilitator & be able to or likely able to provide the information necessary
39
Q

For what reasons may an NPO be dismissed?

A

• if C already has sufficient information
• if A hasn’t provided reasonable basis of wrong doing
• R is merely a witness
• if contempt of court is more suitable

Civil litigation and evidence (28 decks)

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