5 Disclosure Flashcards
How must documents be presented?
PRESCRIBED FORM N265
Part 1 - list documents in date order
Part 2 - privileged
Part 3 - no longer in control
What must every list include?
Disclosure Statement (DS):
- set out extent of search made (reasonable & proportionate?)
- certifies party’s understanding of duct to disclose
- certifies that, to best of parties knowledge, it has carried out that duty
Disclosure exam technique
- Document?
- Control?
- Does it fall within disclosure order (SD)?
- Privileged? Waived?
- What part of list?
What should you discuss in relation to SD?
provide full reasons! Identify whether doc is adverse to a case or supports a case & explain why
In what part would ORIGINALS of letters be found in?
Part 3
In what part of list would file copies of letters be sent int?
Part 1 if open; part 2 if privileged
When would the other party not be entitled to inspect a disclosure document (5 instances)
- if doc n longer in disclosing party’s control
- disclosing party has right/duty to withhold inspection
- legal advice privilege
- litigation privilege
- w.o prejudice communications - if allowing would be disproportionate - 31.32(2)
General rule as to privilege
Once privileged, always privileged
THE AEGIS BLAZE
Legal advice privilege - test
- confidential
- communication
- for purposes of giving/receiving legal advice
‘Confidential’
“this X is not open to other parties, therefore it is confidential”
LAP - communication between lawyer & client - CASE LAW
- Parry v Newsgroup Newspapers: no confidentiality in open correspondence
- 3 RIVERS DISTRICT COUNCIL - narrow definition of client
LAP - for purpose of giving/receiving legal advice - CASE LAW
- 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
Litigation privilege - test
- confidential
2 communication between lawyer & client, or one of those parties and a third party - where dominant purpose in creating doc is to obtain legal advice
- for use in conduct of litigation which was at the time reasonably in prospect
LP - communication between lawyer & client
AS FOR LAP:
- Parry v Newsgroup Newspapers: no confidentiality in open correspondence
- 3 RIVERS DISTRICT COUNCIL - narrow definition of client
LP - communication between client & 3rd party - take care as to…
More important here to look at DP of communication
- obtain evidence/advice for litigation in reasonable contemplation
LP - dominant purpose - CASE LAW
- 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
LP - litigation reasonably in prospect
USA v PHILIP MORRIS– litigation must be “a real likelihood rather than a mere possibility”
WP communications - test
document where bona fide purpose is an attempt to settle the dispute
WP communications - case law
Rush & Tompkins v Greater London Council - Court will look at substance rather than form
how should WOP communications be listed?
Part 2: disclose as a class - Letters between solicitors from X date until Y date
procedure for inspection?
- party must send written notice to other side
2. inspection must be allowed within 7d 31.15(a)-(b)
how can privilege be waived?
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
waiving of privilege - CASE
Great Atlantic Insurance v Home Insurance – waving privilege in part of a doc ⇾ waived over whole
waiving of privilege - if privilege waived in part of doc?
Great Atlantic Insurance v Home Insurance – waving privilege in part of a doc ⇾ waived over whole
waiving of privilege - if privilege waived in 1 doc of a group?
waving of privilege to one doc ⇾ privilege may be waved over others dealing w. the same issues
When may info be redacted
if
a. irrelevant
b. privileged
can commercially sensitive material be redacted?
only be redacted if it fits the privilege or irrelevance test
When is redaction relevant?
when a document is severable (e.g. Board Minutes) – privileged, irrelevant & non-privileged sections ⇾ redact the irrelevant & non-privileged
PCR - if client refuses to allow inspection of doc?
- 31.11 - disclosure is continuing obligation
- duty to ensure client understands nature of disclosure 31A PD 4.4
- 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)
