8. Disclosure Flashcards
Purpose of disclosure?
Evaluate own + other side’s case and whether to settle
Generally what type of documents should be disclosed?
Anything that has a bearing on the case
Deadline to disclose docs intend to rely on small claims track?
14 days before hearing
Which track has standard disclosure
Fast, intermediate and multi (can tailor)
Disclosure on multi track?
- complete disclosure report no less than 14 days before CMC
- Discuss with other party to agree no less than 7 days before CMC
Standard Disclosure
Disclose all relevant docs you intend to rely which :
b. adversely affect own/other parties case or
c. support other party case
What documents are subject to standard disclosure?
a. in or were in physical possession
b. right to possess or
c. right to inspect
Part 1 Documents?
In their control + other side can inspect
Part 2 Documents?
In our control but cannot inspect (privilige)
Part 3 Documents?
No longer in our control + state what happened to them
Effect of not disclosing document?
Cannot rely on it at trial
Legal Advice privilige?
Sole or dominant purpose of the communication is to seek or to give legal advice
Litigation privilige?
must be a communication:
(a) passing between the client /lawyer and a third party;
(b) came into existence when litigation was contemplated or ongoing; and
(c)produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or to get evidence to be used in the litigation.
Without prejudice correspondence
record party’s genuine attempt to settle a case and trial judge is unaware of the content
After you recieve docs but not happy with them?
Write to other side + ask for docs
if not - file N244 + witness statement to court + other side
Specific disclosure
Disclosure is inadequate so ask other party to:
- more detailed search
- disclose any more docs
- any specific docs
What is in the application asking for specific disclosure?
- State document you want
- how you know it exists
+ witness statement
Pre-action disclosure
Before claim form issued, other party may be asked to disclose
- unsure about strenght of other party + decide whether to start proceedings*
What do courts assess in pre-action disclosure?
- applicant and respondant likely to be part of proceedings
- docs sought would be part of standard disclosure
- disclosure is desirable to svae costs of going to litigation
Non-party disclosure
apply for disclosure against a non-party
Conditions for non party disclosure?
(a) the documents in question are likely to support the applicant’s case or adversely affect another party case; and
(b) disclosure is necessary to dispose fairly of the case or to save costs.
