5 Disclosure

Question 1

How must documents be presented?

Answer 1

PRESCRIBED FORM N265
Part 1 - list documents in date order
Part 2 - privileged
Part 3 - no longer in control

Question 2

What must every list include?

Answer 2

Disclosure Statement (DS):

1. set out extent of search made (reasonable & proportionate?)
2. certifies party’s understanding of duct to disclose
3. certifies that, to best of parties knowledge, it has carried out that duty

Question 3

Disclosure exam technique

Answer 3

1. Document?
2. Control?
3. Does it fall within disclosure order (SD)?
4. Privileged? Waived?
5. What part of list?

Question 4

What should you discuss in relation to SD?

Answer 4

provide full reasons! Identify whether doc is adverse to a case or supports a case & explain why

Question 5

In what part would ORIGINALS of letters be found in?

Answer 5

Part 3

Question 6

In what part of list would file copies of letters be sent int?

Answer 6

Part 1 if open; part 2 if privileged

Question 7

When would the other party not be entitled to inspect a disclosure document (5 instances)

Answer 7

1. if doc n longer in disclosing party’s control
2. disclosing party has right/duty to withhold inspection
   - legal advice privilege
   - litigation privilege
   - w.o prejudice communications
3. if allowing would be disproportionate - 31.32(2)

Question 8

General rule as to privilege

Answer 8

Once privileged, always privileged

THE AEGIS BLAZE

Question 9

Legal advice privilege - test

Answer 9

1. confidential
2. communication
3. for purposes of giving/receiving legal advice

Question 10

‘Confidential’

Answer 10

“this X is not open to other parties, therefore it is confidential”

Question 11

LAP - communication between lawyer & client - CASE LAW

Answer 11

• Parry v Newsgroup Newspapers: no confidentiality in open correspondence
• 3 RIVERS DISTRICT COUNCIL - narrow definition of client

Question 12

LAP - for purpose of giving/receiving legal advice - CASE LAW

Answer 12

• BALABEL V AIR INDIA - P if within continuum of communication
• 3 RIVERS DISTRICT COUNCIL - lawyers giving advice through legal spectacles
• BANK OF NOVA SCOTIA - internally repeated legal advice has benefit of P

Question 13

Litigation privilege - test

Answer 13

1. confidential
   2 communication between lawyer & client, or one of those parties and a third party
2. where dominant purpose in creating doc is to obtain legal advice
3. for use in conduct of litigation which was at the time reasonably in prospect

Question 14

LP - communication between lawyer & client

Answer 14

AS FOR LAP:

• Parry v Newsgroup Newspapers: no confidentiality in open correspondence
• 3 RIVERS DISTRICT COUNCIL - narrow definition of client

Question 15

LP - communication between client & 3rd party - take care as to…

Answer 15

More important here to look at DP of communication

- obtain evidence/advice for litigation in reasonable contemplation

Question 16

LP - dominant purpose - CASE LAW

Answer 16

• WAUGH V BRB - litigation has to be DP - if purposes are equal, doc won’t be privileged
• RE HIGHGRADE TRADERS - commissioner of doc should be consulted, NOT author of doc (if separate people

Question 17

LP - litigation reasonably in prospect

Answer 17

USA v PHILIP MORRIS– litigation must be “a real likelihood rather than a mere possibility”

Question 18

WP communications - test

Answer 18

document where bona fide purpose is an attempt to settle the dispute

Question 19

WP communications - case law

Answer 19

Rush & Tompkins v Greater London Council - Court will look at substance rather than form

Question 20

how should WOP communications be listed?

Answer 20

Part 2: disclose as a class - Letters between solicitors from X date until Y date

Question 21

procedure for inspection?

Answer 21

1. party must send written notice to other side

2. inspection must be allowed within 7d 31.15(a)-(b)

Question 22

how can privilege be waived?

Answer 22

a. by agreement (e.g. of WOP documents)
b. loss of confidentiality against other side in litigation
c. mentioning doc in SoC, affidavit or witness statement
CPR 31.14: any docs referred to may be deemed to have waived privilege
d. service of doc on other side
e. party allows privileged doc to be inspected by mistake
party who has inspected will need court’s permission to use it

Question 23

waiving of privilege - CASE

Answer 23

Great Atlantic Insurance v Home Insurance – waving privilege in part of a doc ⇾ waived over whole

Question 24

waiving of privilege - if privilege waived in part of doc?

Answer 24

Great Atlantic Insurance v Home Insurance – waving privilege in part of a doc ⇾ waived over whole

Question 25

waiving of privilege - if privilege waived in 1 doc of a group?

Answer 25

waving of privilege to one doc ⇾ privilege may be waved over others dealing w. the same issues

Question 26

When may info be redacted

Answer 26

if

a. irrelevant
b. privileged

Question 27

can commercially sensitive material be redacted?

Answer 27

only be redacted if it fits the privilege or irrelevance test

Question 28

When is redaction relevant?

Answer 28

when a document is severable (e.g. Board Minutes) – privileged, irrelevant & non-privileged sections ⇾ redact the irrelevant & non-privileged

Question 29

PCR - if client refuses to allow inspection of doc?

Answer 29

1. 31.11 - disclosure is continuing obligation
2. duty to ensure client understands nature of disclosure 31A PD 4.4
3. if client insists on refusing -:
   - breach of DS - contempt of court 31.23
   - breach of duty O(5.1) / O(5.2)
   - O(5.5) must inform court w. client’s consent
   - if no consent IB(5.4)