8. Disclosure

Question 1

Definition of ‘documents’

Answer 1

(a) Digital recordings
(b) Emails
(c) Photographs
(d) Text messages
(e) Voicemails
(f) Metadata (data about data eg the time of creation or modification of a file, or its author)

Question 2

Standard Disclosure: What is a party required to disclose

Answer 2

(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.

Question 3

Documents which are / have been ‘within a party’s control’: How is control defined?

Answer 3

(a) The document is (or was) in the physical possession of the party; or
(b) The party has (or has had) a right to possession of the document (eg documents held by party’s agent, such as documents a party sent to its own accountant); or
(c) The party has (or has had) a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records).

Question 4

What is included on the disclosure list

Answer 4

Documents are listed as they fall into three parts
1. Documents in party’s control and they do not object to inspection
2. Documents in party’s control where inspection is objected (ie. due to privilege)
3. Documents which were once in the party’s control but are NO LONGER

Question 5

Consequence for a party making a false statement on a disclosure list

Answer 5

Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth

Question 6

What documents on the disclosure list does a party have the RIGHT to inspect

Answer 6

ALL EXCEPT:
1. those not in the party’s control
2. where allowing inspection is disproportionate
3. where party is allowed to withhold inspection (ie. due to privilege)

Question 7

If a party wants to inspect a document on the disclosure list, what must they do?

Answer 7

A party wishing to inspect documents must send a written notice of its wish to do so to the other side and the other side must allow inspection within seven days of receipt of the notice

Question 8

Process for disclosure / timeline for the multitrack

Answer 8

1. Disclosure report filed and served no less than 14 days before CMC (Unless PI claim)
2. Conversation between parties no less than 7 days before CMC
3. At CMC, court makes disclosure order

Question 9

Order for specific disclosure

Answer 9

is an order that a party must do one or more of the following things (CPR 31.12(2)):
(a) Disclose documents / classes of documents specified in the order;
(b) Carry out a search to the extent stated in the order;
(c) Disclose any documents located as a result of that search.

Question 10

When can the court make an order for specific disclosure / inspection

Answer 10

At any time after the proceedings have been issued

Question 11

When might an individual apply for specific disclosure

Answer 11

1. Opponent not complying with disclosure obligations
2. Applicants wants documents sooner than current directions provide for
3. Applicant wants disclosure above and beyond what current directions provide for

Question 12

Order for specific inspection

Answer 12

Specific inspection is an order that a party permit inspection of a document which has been disclosed, but the disclosing party alleges it would be disproportionate to allow inspection (CPR 31.12(3)).

Question 13

When would pre-action disclosure be ordered?

Answer 13

(a) The respondent is likely to be a party to subsequent proceedings; and
(b) The applicant is also likely to be a party to those proceedings; and
(c) If proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks (so The scope of a pre-action disclosure order cannot be wider than that of an ordinary standard disclosure order); and
(d) Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

Question 14

What must applications for specific disclosure, pre-action disclosure, or non-party disclosure include?

Answer 14

1. Specify order sought including specific documents
2. be supported by evidence

Question 15

Pre-Action Disclosure Application: Who will bear the costs of the application / complying with it?

Answer 15

1. The party AGAINST WHOM the order is sought will be awarded costs of application and compliance (eg. applicant pays respondent’s costs)

Question 16

Orders for Non-Party Disclosure: When are they used

Answer 16

If disclosure is needed from an individual who is not party to the proceedings

Question 17

Non-Party Disclosure: Who must the application notice be served on

Answer 17

1. the non-party from whom disclosure is sought
2. any other party to the proceedings

Question 18

Norwich Pharmacal order

Answer 18

This type of order provides a solution where court proceedings cannot be commenced because the identity of the defendant is unknown – it orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant.

Question 18

Non-Party Order: Who pays the costs?

Answer 18

Generally, applicant will pay respondent’s costs (unless respondent has acted unreasonably in opposing application / previous disclosure requests)

Question 19

Conditions to impose a Norwich Pharmacal Order:

Answer 19

(a) a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer (for example, a tort, breach of contract or crime);
(b) there must be the need for an order to enable action to be brought against the ultimate wrongdoer (so it is unlikely an order will be obtained if the information can be obtained another way)
(c) the person against whom the order is sought must (i) be more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and (ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued.

Question 20

When can information on disclosed documents be redacted?

Answer 20

1. If part of document attracts privilege but rest does not, privileged part can be redacted
2. if part of the document is totally irrelevant (but confidential / commercially sensitive)

Question 21

If there is a dispute about whether a document is subject to privilege - where does the burden of proof lie?

Answer 21

The burden of proof is on the party claiming that privilege exists

Question 22

Legal Advice Privilege

Answer 22

A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving or receiving legal advice

Question 23

When can communications with in-house lawyers be subject to legal advice privilege?

Answer 23

If conversation is had about advice given in a legal capacity rather than a commercial / executive capacity

Question 24

Litigation Privilege: What does it cover

Answer 24

document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect

Question 25

Without prejudice communication

Answer 25

A document whose purpose is a genuine attempt to settle a dispute.
- both parties have already seen this but the court will not
- if marked ‘without privilege save as to costs’ court will look at it when determining costs of action / issue

Question 26

Can you ‘waive privilege’ to only part of a privileged document

Answer 26

Yes, but only if the rest of the document deals with ENTIRELY DIFFERENT SUBJECT MATTER