6. Disclosure and Inspection

Question 1

At what point in proceedings can a disclosure order be made?

Answer 1

On allocation; at the first CMC; or later on application

Question 2

Difference between disclosure and inspection

Answer 2

Disclosure is telling the other side a document exists, inspection is letting them look at it

Question 3

What is the continuing duty of disclosure?

Answer 3

Parties may have to disclose documents found or created after original disclosure

Question 4

In multitrack claims, when must parties file and serve a disclosure report?

Answer 4

14 days before CMC

Question 5

In multitrack claims, when must parties try to agree a draft disclosure order?

Answer 5

7 days before CMC

Question 6

Disclosure Report Form Number

Answer 6

N263

Question 7

Electronic Documents Questionnaire Form Number

Answer 7

N264

Question 8

What is detailed in the disclosure report?

Answer 8

Explains what documents exist

Where / with whom they are

How electronic documents are stored

Estimates costs in complying with standard disclosure order

Specifies which alternate disclosure order is sought, if necessary

Question 9

Are disclosure reports necessary for non-multitrack claims?

Answer 9

No

Question 10

What is the standard disclosure order for the small claims track?

Answer 10

Parties should file and serve docs they wish to rely on 14 days before hearing

Question 11

When is the disclosure order given in small claims and fast track?

Answer 11

Included in directions given on allocation

Question 12

When will a copy of a document be a separate document for disclosure purposes?

Answer 12

Where it has a modification, marking or feature

Question 13

Other than the copy having markings, when will a party be required to disclose a copy?

Answer 13

Where they don’t have the original in its control

Question 14

In which three situations can the disclosee use a document outside proceedings?

Answer 14

(a) the document has been read or referred to in a public hearing
(b) court gives permission
(c) the document owner and disclosing party consent

Question 15

What is the definition of document?

Answer 15

Anything which records information

Question 16

What three things count as control?

Answer 16

1. Documents now or previously in the party’s physical possession
2. Documents the party now or previously has a right to possession of
3. Documents the party now or previously has a right to inspect or take copies of

Question 17

Which documents does standard disclosure compel disclosure of?

Answer 17

1. Documents the party relies on
2. Documents adversely affecting that party, or another party’s, case
3. Documents supporting another party’s case
4. If indicated by PD

Question 18

List the factors affecting what a reasonable search is

Answer 18

1. Number of docs involved
2. How difficult / expensive retrieval is
3. Significance of any doc likely to be found
4. Nature & complexity of proceedings

Question 19

In the disclosure list, what three types of documents will the parties detail?

Answer 19

Documents the party has control of and consents to inspection;

Those the party has control of but asserts privilege over;

Those the party no longer has control over

Question 20

What is the position in relation to docs the parties do not disclose or allow inspection of

Answer 20

They can’t rely on those docs without the court’s permission

Question 21

What is the solicitor’s duty in relation to the party’s disclosure obligations

Answer 21

The solicitor must endeavour to ensure the person making the disclosure understands the duty of disclosure from the outset

Question 22

How is the disclosure statement enforceable?

Answer 22

Party signs to certify they understand and have carried out their disclosure duties to the best of their knowledge: contempt proceedings.

Question 23

In which three situations does a party not have a right to inspect disclosed docs?

Answer 23

a. Doc is not in other party’s control

b. Allowing inspection would be disproportionate

c. Disclosing party asserts a right, like privilege

Question 24

When can the disclosing party not refuse inspection on the grounds of disproportionality?

Answer 24

When they wish to rely on the document, or a PD required disclosure.

Question 25

What happens if you have a privileged doc and try to waive privilege over part of it?

Answer 25

You waive privilege over all of it, unless the rest deals with an entirely different subject matter

Question 26

Which information can you redact in a document?

Answer 26

Privileged and irrelevant.

Question 27

What goes on the disclosure list if you redact a document?

Answer 27

Both the redacted and unredacted docs, but under different headings (inspection granted / inspection refused)

Question 28

Who has the burden of proof in establishing privilege?

Answer 28

Party claiming privilege

Question 29

What does ‘once privileged, always privileged’ mean?

Answer 29

Once a doc is established as privileged, it remains so across all proceedings forever (subject to waivers)

Question 30

Which docs, not listed in the disclosure list, can the other side inspect?

Answer 30

Docs referred to in the statements, witness statement and summary, affidavits, and expert’s reports

Question 31

What should a party wishing to inspect a doc do?

Answer 31

Send written notice; they have 7 days from receipt of notice to supply the doc. Or ask for a photocopy and undertake to may reasonable photocopying expenses.

Question 32

What is legal advice privilege?

Answer 32

Confidential communication between lawyer and client for the dominant purpose of giving or receiving legal advice

Question 33

What is litigation privilege?

Answer 33

Document which is a confidential communication passed between lawyer and client, or either and 3RP, where the dominant purpose is to obtain legal advice, evidence, or information for litigation at the time reasonably in prospect

Question 34

What is a without prejudice communication

Answer 34

Document produced as a genuine attempt to settle

Question 35

When might the court order disclosure against a non-party post-commencement?

Answer 35

Docs sought are likely to support applicant, or adversely affect another party, and

disclosure necessary to dispose fairly of the claim or save costs

Question 36

What is the procedure for applying for disclosure against a non-party?

Answer 36

Application notice specifying order and schedule of docs sought, supporting evidence

Question 37

Who usually pays costs in non-party disclosure and Norwich Pharmacal orders?

Answer 37

Applicant pays respondent’s costs

Question 38

If a Norwich Pharmacal Order is sought before the issue of the main claim, how should the applicant proceed?

Answer 38

Serve an N1 under the Part 8 procedure

Question 39

If a Norwich Pharmacal Order is sought after the issue of the main claim, how should the applicant proceed?

Answer 39

Treat it as an ordinary interim application

Question 40

What are the three conditions for issuing a Norwich Pharmacal order?

Answer 40

(a) Wrong carried out by some other ultimate wrongdoer

(b) Order is necessary to enable action against the ultimate wrongdoer - information can’t be obtained any other way

(c) The target of the order is more than a mere witness, and are likely able to provide the necessary information