8. Disclosure Flashcards
Definition of ‘documents’
(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)
Standard Disclosure: What is a party required to disclose
(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.
Documents which are / have been ‘within a party’s control’: How is control defined?
(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).
What is included on the disclosure list
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
Consequence for a party making a false statement on a disclosure list
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
What documents on the disclosure list does a party have the RIGHT to inspect
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)
If a party wants to inspect a document on the disclosure list, what must they do?
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
Process for disclosure / timeline for the multitrack
- Disclosure report filed and served no less than 14 days before CMC (Unless PI claim)
- Conversation between parties no less than 7 days before CMC
- At CMC, court makes disclosure order
Order for specific disclosure
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.
When can the court make an order for specific disclosure / inspection
At any time after the proceedings have been issued
When might an individual apply for specific disclosure
- Opponent not complying with disclosure obligations
- Applicants wants documents sooner than current directions provide for
- Applicant wants disclosure above and beyond what current directions provide for
Order for specific inspection
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)).
When would pre-action disclosure be ordered?
(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.
What must applications for specific disclosure, pre-action disclosure, or non-party disclosure include?
- Specify order sought including specific documents
- be supported by evidence
Pre-Action Disclosure Application: Who will bear the costs of the application / complying with it?
- The party AGAINST WHOM the order is sought will be awarded costs of application and compliance (eg. applicant pays respondent’s costs)
Orders for Non-Party Disclosure: When are they used
If disclosure is needed from an individual who is not party to the proceedings
Non-Party Disclosure: Who must the application notice be served on
- the non-party from whom disclosure is sought
- any other party to the proceedings
Norwich Pharmacal order
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.
Non-Party Order: Who pays the costs?
Generally, applicant will pay respondent’s costs (unless respondent has acted unreasonably in opposing application / previous disclosure requests)
Conditions to impose a Norwich Pharmacal Order:
(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.
When can information on disclosed documents be redacted?
- If part of document attracts privilege but rest does not, privileged part can be redacted
- if part of the document is totally irrelevant (but confidential / commercially sensitive)
If there is a dispute about whether a document is subject to privilege - where does the burden of proof lie?
The burden of proof is on the party claiming that privilege exists
Legal Advice Privilege
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
When can communications with in-house lawyers be subject to legal advice privilege?
If conversation is had about advice given in a legal capacity rather than a commercial / executive capacity
Litigation Privilege: What does it cover
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
Without prejudice communication
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
Can you ‘waive privilege’ to only part of a privileged document
Yes, but only if the rest of the document deals with ENTIRELY DIFFERENT SUBJECT MATTER