6. Disclosure and Inspection Flashcards
At what point in proceedings can a disclosure order be made?
On allocation; at the first CMC; or later on application
Difference between disclosure and inspection
Disclosure is telling the other side a document exists, inspection is letting them look at it
What is the continuing duty of disclosure?
Parties may have to disclose documents found or created after original disclosure
In multitrack claims, when must parties file and serve a disclosure report?
14 days before CMC
In multitrack claims, when must parties try to agree a draft disclosure order?
7 days before CMC
Disclosure Report Form Number
N263
Electronic Documents Questionnaire Form Number
N264
What is detailed in the disclosure report?
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
Are disclosure reports necessary for non-multitrack claims?
No
What is the standard disclosure order for the small claims track?
Parties should file and serve docs they wish to rely on 14 days before hearing
When is the disclosure order given in small claims and fast track?
Included in directions given on allocation
When will a copy of a document be a separate document for disclosure purposes?
Where it has a modification, marking or feature
Other than the copy having markings, when will a party be required to disclose a copy?
Where they don’t have the original in its control
In which three situations can the disclosee use a document outside proceedings?
(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
What is the definition of document?
Anything which records information
What three things count as control?
- Documents now or previously in the party’s physical possession
- Documents the party now or previously has a right to possession of
- Documents the party now or previously has a right to inspect or take copies of
Which documents does standard disclosure compel disclosure of?
- Documents the party relies on
- Documents adversely affecting that party, or another party’s, case
- Documents supporting another party’s case
- If indicated by PD
List the factors affecting what a reasonable search is
- Number of docs involved
- How difficult / expensive retrieval is
- Significance of any doc likely to be found
- Nature & complexity of proceedings
In the disclosure list, what three types of documents will the parties detail?
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
What is the position in relation to docs the parties do not disclose or allow inspection of
They can’t rely on those docs without the court’s permission
What is the solicitor’s duty in relation to the party’s disclosure obligations
The solicitor must endeavour to ensure the person making the disclosure understands the duty of disclosure from the outset
How is the disclosure statement enforceable?
Party signs to certify they understand and have carried out their disclosure duties to the best of their knowledge: contempt proceedings.
In which three situations does a party not have a right to inspect disclosed docs?
a. Doc is not in other party’s control
b. Allowing inspection would be disproportionate
c. Disclosing party asserts a right, like privilege
When can the disclosing party not refuse inspection on the grounds of disproportionality?
When they wish to rely on the document, or a PD required disclosure.
What happens if you have a privileged doc and try to waive privilege over part of it?
You waive privilege over all of it, unless the rest deals with an entirely different subject matter
Which information can you redact in a document?
Privileged and irrelevant.
What goes on the disclosure list if you redact a document?
Both the redacted and unredacted docs, but under different headings (inspection granted / inspection refused)
Who has the burden of proof in establishing privilege?
Party claiming privilege
What does ‘once privileged, always privileged’ mean?
Once a doc is established as privileged, it remains so across all proceedings forever (subject to waivers)
Which docs, not listed in the disclosure list, can the other side inspect?
Docs referred to in the statements, witness statement and summary, affidavits, and expert’s reports
What should a party wishing to inspect a doc do?
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.
What is legal advice privilege?
Confidential communication between lawyer and client for the dominant purpose of giving or receiving legal advice
What is litigation privilege?
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
What is a without prejudice communication
Document produced as a genuine attempt to settle
When might the court order disclosure against a non-party post-commencement?
Docs sought are likely to support applicant, or adversely affect another party, and
disclosure necessary to dispose fairly of the claim or save costs
What is the procedure for applying for disclosure against a non-party?
Application notice specifying order and schedule of docs sought, supporting evidence
Who usually pays costs in non-party disclosure and Norwich Pharmacal orders?
Applicant pays respondent’s costs
If a Norwich Pharmacal Order is sought before the issue of the main claim, how should the applicant proceed?
Serve an N1 under the Part 8 procedure
If a Norwich Pharmacal Order is sought after the issue of the main claim, how should the applicant proceed?
Treat it as an ordinary interim application
What are the three conditions for issuing a Norwich Pharmacal order?
(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
