4. Discolsure and Inspection Flashcards
What 3 questions must be considered to establish if a document needs discolsuing?
- What are the parties obliged to discolse?
- Is the document within the parties control?
- Does the party have the ability to prevent another party from inspecting the document?
What are parties required to disclouse in standard discolosure?
Any documents on which they intend to rely that adversely affect their own case, adversely affect another parties case, support another parties case, or are required to be disclosed by a practice direction must be disclosed.
When must disoclsure take place by for small claims track and fast track?
SC - Atleast 14 days before final hearing by serving the documents to all parties.
FT - Within 4 weeks of the parties filing the directions questionare.
When is the Court most likley to depeart from Standard Discolsure, and why?
What are the alternative discolsure orders?
Multi Track
The Court is most likely to depart from the standard disclosure because claims tend to be higher value and more complex, and therefore the volume of documents need to be considered to ensure the court only considers those that are relevant to the dispute. The Court can make the following alternative disclosure orders:
- Dispense with Disclosure
- Parties disclosure only what they rely upon, and request any specific disclosure from other parties
- An order to direct disclosure on an issue by issue basis
- Any other order the court considers appropriate.
What is the diffrence between discolsure and inspection?
Discolsure is where the parties make the other parties aware of the exsitence of a document.
Inspection is where the otherside recieves a copy of the document to inspect.
What are the 3 rules to deem if the document is within the parties control, and so must be discolsued in standard discolsure.
It is in the parties control if:
- If it is, or was, in the physical posession of the party
- The party had or had had the right to inspect the document
- The party has or has had the right to inspect or take a copy of the document.
If the document is no longer in the parties possession, the document will still need to be disclosed with a detailed explanation of how the document was lost.
NB DISCOLSURE IS JUST LETTING THEM KNOW OF THE DOCUMENT, AND INSPECTION IS WHERE THEY RECEIVE A COPY.
When can a party prevent inpsection?
If the document is privileged, then even though the opposing party will be aware of the existence of the document (and so disclosed) they are prevented from inspecting it.
There are three types of privilege:
- Legal Advice Privilege
- Litigation Privilege
- Without prejudice privilege
What is legal advice privilege?
This allows for confidental communications between legal representatives and their client not to be inspected. This does not include communications with third parties.
The communication must be seeking and receiving legal advice. This means general advice will not be privileged, but a letter specifically advising a client on the merits of their claim would be.
What is without prejudice privilege?
This allows for documents to be discolsued but not inspected.
This applies to documents that are written in the course of negioations to settle with another party, such as where an offer is made during the course of litigation.
The communication is usually marked ‘without prejudice’ but this is not a requirement.
To establish whether it is , the question is asked - Is it a genuine offer to settle on sensible terms by a party open to settlement.
What is litigation Privilege?
This allows for documents to be discolsued but not inspected.
This can only apply to documents created for the sole or main purpose of obtaining information in connection with the litigation itself, which either existed or was reasonably contemplated at the time the document was created.
It protects confidential communications between a legal representative and a client and a third party, or between a client and third party directly. This can include communication with expert witnesses.
What is the prodcure of discolsure and inspection? 4 steps.
- After a reasonable search has been carried out, the party will prepare a number list of those documents in a N265 form.
- This list must contain a disclosure statement, signed by the party, confirming the extend of the search made to locate documents and certifying that they understand their duty of disclosure.
- The N265 Form must then be served on the other parties by the deadlines set in the directions order.
4.Upon receipt of the N265 Form, the opposition must give written notice of the documents they wish to inspect from that list. The party must allow inspection within 7 days of receiving that notice.
What are the 3 discolsure orders a court can make?
Specific Disclosure
Pre-Action Disclosure
Non-Party Disclosure
What is specific disoclsure and how can it be applied for?
If one of the parties does not feel that disclosure has been done sufficiently, they must first write to the party with the reasons they feel the search has not been caried out effectively, and what they would like to be done.
If this does not rectify the matter, the party can apply to the court using a n244 and accompanying witness statement for specific disclosure.
The Court can then order:
○ Disclosure of specific documents or classes of documents (where the applicant has identified specific documents.)
○ Cary out an additional search
○ Disclose any documents as a result of that search
This must be done within the relevant timescale set out in that order.
What is Pre-Action Discolsure order and how is it applied for?
This is an order requiring a party to disclose a particular document or class of documents before proceedings are issued.
Normally, this is because a party feels a document that could have a material impact on the chances of the matter being settled outside of court, or whether the claim is suitable to be issued at all, is being withheld.
To make an application a N244 form must be completed along with a witness statement that outlines:
- The parties are likely to be in proceedings
- The document or class of documents that are requested
- That the disclosure prior to proceedings is desirable as it will save costs, assist with the disputes resolution, or is likely to enable the parties to dispose fairly of the anticipated proceedings (thus the document must be capable of assisting the parties in avoiding court.)
What is a non-party discolsure order and how can this be applied for?
This is where disclosure has taken place and a party has said they do not have the documents in their possession, but know a third party has the documents.
An application is made with a N244 form and a accompanying witness statement that explains:
- The documents are likely to support the case of the applicant or adversely affect the case of another party.
- Disclosure is necessary in order to dispose fairly of the claim or to save costs.
