3. Disclosure II Flashcards
Right to an inspection of a disclosed document
Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b)— (a) he is not required to permit inspection of documents within that category or class; but (b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.
Claim to withhold disclosure of a document
A person may apply without notice for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest. This must be supported by evidence. Unless court orders otherwise - an order of the court based on the above must not be served or open to inspection by any other party.
Restriction on use of a privileged document inspection of which has been inadvertently allowed
Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only WITH the permission of the court.
Claims to withhold inspection of a document
Claim to withhold inspection of a document that has been disclosed in a list of documents does not require an application to the court. Where such a claim has been made, a party who wishes to challenge it must apply to the court. Person wishing to claim that they have right to withhold inspection of document must state in writing They have this right or duty AND Grounds for this right or duty.
Legal professional privilege
Common law right. Client can withhold privileged documents from inspection. They must still be disclosed - so opposing party will know that the document exist, but they will not be allowed to view them.
Legal advice privilege
Covers letters and communications passing between a party and its legal advisors for the purpose of obtaining legal advice or assistance. This privilege exists where the communication is made confidentially for the dominant purpose of obtaining legal advice. The privilege includes advice as to what should or should not be prudently and sensibly done in a “relevant legal context” and is not confined to advice concerning legal rights and obligations. Privilege also extends to information which the legal advisors receives in a professional capacity from a TP which they convey to their client for the purposes of conveying legal advice.
Litigation privilege
Covers documents of which the dominant purpose must have been, at the time of the creation of the documents, their use in pending or contemplated litigation. Wider scope than legal advice privilege. Covers not just communication between client and legal advisor, but also between client and TP. Litigation privilege covers communications between a legal advisor and a non-professional third party which came into existence after litigation was contemplated or commenced. Sometimes, during litigation, a solicitor may have to ask for pre-existing documents from a third party for the purposes of the litigation. These documents may not have previously been subject to privilege; however, in this context, they may become privileged. This is because the fact of the solicitor or barrister requesting them may highlight the areas on which legal advice is being sought.
Waiver of privilege
Waiver is the loss of privilege. It may be intentional or unintentional, express or implicit. If privilege is waived then the other party will be able to inspect a document which they would have otherwise not been entitled to see.
Ways in which party may waive their privilege against inspection
Waiver by referring to whole or part of document in court. waiving privilege to part of a document and thereby the whole. inadvertent waiver. waiver of a class of documents. waiver in professional negligence proceedings against a solicitor. waiver in ADR.
Waiver where party refers to part of a document in court
The court is likely to order that the entire document be subject to inspection. This is not an absolute rule - The court will consider whether it is likely to be misled by only having part of the picture. Where the part of the document not referred to deals with entirely different subject matter, privilege may well not be waived in respect of that subject matter.
Waiver where part of document is disclosed
where part of a letter or report is disclosed. Privilege will be waived for the whole document unless the remaining part refers to an entirely different matter. The court will consider whether it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party having a partial, potentially misleading understanding of the material.
Party has had opportunity to view document by mistake
The party the may use the document if it would not have been obvious to a reasonable solicitor that the document has been viewed in error. Where the receiving party has been permitted to see the document only by reason of an obvious mistake, or where the inspection has been procured by fraud, the court should usually intervene to restrict the document’s use.
Where an application is made for an inspection of a class of document from which one (of the class) has been voluntarily disclosed
The court said that the process to be followed in such an application was 1) identify the transaction or issue in respect of which disclosure or inspection had occurred 2) the issue might be identifiable simply from the disclosure or inspection made 3) it might be apparent that the issue or transaction was wider than was immediately apparent, in which case, the whole of the wider transaction needed to be disclosed or inspection allowed 4) further disclosure or inspection would be required if necessary in order to avoid unfairness or misunderstanding of what had been disclosed.
Without prejudice rule
Without prejudice privilege exists so that parties can say things to each other frankly when they are trying to resolve the dispute between them without the risk that what is said will be used against them at trial. Again, these communications must be disclosed by list to the other party, but will not be subject to inspection or viewed by the court, except in certain limited circumstances.
Waiver of without prejudice rule
In some situations w/o prejudice privilege may be waived. These circumstances usually include A disagreement about whether a settlement had been reached, or where satellite litigation has arisen in relation to a concluded settlement.
Types of without privilege
Two types - without prejudice and without prejudice save as to costs. “without prejudice” is exempt from being shown to the court in nearly all circumstances. “without prejudice save as to costs” may not be seen by the court until the trial is finished; however, the parties may show it to the court when they are arguing about which party should pay costs, and how much those costs should be.
Limitation of without privilege rule
Not an absolute rule and might be waived in the interests of justice. Examples of some exceptions: To establish whether agreement was reached; When court is being asked to set agreement aside on grounds of fraud, misrep or undue influence; To interpret the terms of a negotiated settlement; In a without notice application as part of the duty of full and frank disclosure; Without prejudice ‘save as to costs’ - where one party expressly preserved the right to refer to the communication when the court is considering costs.
Legal professional privilege and ADR
Extends to cover legal advice relating to possible use of ADR options.
