9) Disclosure and Inspection

Question 1

Disclosure - Small Claims Track

Answer 1

Each party shall at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents on which they intend to rely at that hearing

Question 2

Disclosure - Fast Track claims

Answer 2

Standard disclosure is an option, but the court may direct a more limited approach such as that no disclosure takes place, or specify the documents or classes of documents which the parties must disclose.

Question 3

Disclosure of documents - Intermediate Track

Answer 3

Court may pick one of the following:
- to dispense with disclosure;
- disclosure of documents on which a party relies and, at the same time, a request for any specific disclosure it requires from any other party;
- disclosure on an issue-by-issue basis;
- disclosure of documents which it is reasonable to suppose may contain information which enables a party to advance its own case or to damage that of another party or which leads to an enquiry which has these consequences;
- standard disclosure.
- any other disclosure order considered appropriate.

Question 4

Disclosure of documents - Multi-track

Answer 4

Although standard disclosure is usually ordered the court may tailor the order to the requirement of the particular case taking account of the importance of the issues and the complexity of the matter. Parties must compile a disclosure report and they must serve it no less than 14 days before the first CMC. Not less than 7 days before the first CMC the parties must discuss and seek to agree a proposal for disclosure that meets the overriding objective. Any agreed proposal must
be filed at court.

Question 5

Standard Disclosure

Answer 5

Requires a party to disclose (rule 31.6 documents):
- The documents on which they rely
- The documents which: adversely affect their own case, adversely affect another party’s case or support another party’s case.
Basically any documents which help or hinder the party.

Question 6

Standard Disclosure - Control of documents

Answer 6

The duty to disclose is limited to documents in the party’s control:
(a) either are or were in their physical possession;
(b) they have a right to possess; or
(c) they have a right to inspect.

Question 7

The duty to search

Answer 7

A party is required to make a reasonable and proportionate search for all documents that:
(a) adversely affect their own case;
(b) adversely affect another party’s case; or
(c) support another party’s case.

Question 8

How is disclosure made?

Answer 8

Once the party has gathered together the documents they are disclosed by way of a list and this is achieved by the completion of Form N265.

Question 9

Form N265 - Content - Formalities

Answer 9

The court, the claim number and the parties are set out in the top right hand
corner.

Question 10

Form N265 - Content - Disclosure Statement

Answer 10

The party must sign to confirm the extent of the search made to locate any documents. They must also certify that they understand their duty of disclosure and that, to the best of their knowledge, the duty has been carried out. A party may decide not to permit inspection of a category or class of documents because they consider it would be disproportionate to the issues in the case. If so, they must explain their reasons on the disclosure statement. if, after signing the statement and at any time before the proceedings are concluded, the party becomes aware of additional documents, they must prepare and serve a supplemental list of documents.

Question 11

Form N265 - Content - The List - Part 1

Answer 11

Documents that are within the party’s control and which they do not object to the other party inspecting. These are usually numbered and listed in date order with a concise description.

Question 12

Form N265 - Content - The List - Part 2

Answer 12

Documents which are in the party’s control but where there is an objection to inspection, usually because they are privileged

Question 13

Form N265 - Content - The List - Part 3

Answer 13

Documents that are not privileged from inspection but are no longer in the party’s control. The list must state what happened to the documents.

Question 14

Legal professional privilege - Definition

Answer 14

Withholding of documents. The other parties can’t inspect them and they are described generically. The effect is that particular documents are disclosed but otherwise concealed under an umbrella description. Only those documents that satisfy the legal tests for legal professional privilege qualify.

Question 15

Legal professional privilege - Different types

Answer 15

1) Legal advice privilege
2) Litigation privilege

Question 16

Legal advice privilege

Answer 16

Only legal advisors can fall under this. Advice privilege only applies where the sole or dominant purpose of the communication is to seek or to give legal advice. If a document has a dual purpose the dominant purpose must be established. Only if the dominant purpose is for legal advice will it fall under.

Question 17

Litigation privilege

Answer 17

3 distinct aspects.
The document must be a communication:
a) passing between the client or lawyer and a third party
b) which came into existence when litigation was contemplated or ongoing; and
c) was made for the sole or dominant purpose of obtaining legal advice or for using as evidence in the litigation
e.g a report from an expert obtained by a solicitor in order to advise their client on existing or contemplated proceedings, or witness statements obtained by a Legal executive for the purpose of using as evidence

Question 18

Waiving Privilege

Answer 18

Privilege is the right of the client not the lawyer. The client can give up or waive the privilege. This will often occur during litigation as it is the only way to advance proceedings. E.g while a party’s solicitors are drafting statements of case and witness statements, they are privileged from inspection; but once these are served on the other side, the privilege is waived.

Question 19

Without prejudice correspondence

Answer 19

Will record information as part of a party’s genuine attempt to settle a case. Marking it as ‘without prejudice’ means that the trial judge is unaware of the content.

Question 20

The right of inspection

Answer 20

Having received the opponent’s list, the party is entitled to inspect documents contained in Part 1. They cannot inspect documents in Part 2 because they are covered by legal professional privilege and those in Part 3 are no longer in the party’s control. The request to inspect must be made in writing and granted within 7 days.

Question 21

Orders for disclosure - Specific disclosure

Answer 21

If the disclosure appears inadequate an application and witness statement (should explain why the applicant believes the document exists) can be made for specific disclosure. This could request an order that the party:
- carry out a more extensive search
- disclose any further documents located as a result of that search or
- disclose specific documents that the party would have expected to see

Question 22

Pre-action disclosure - Why

Answer 22

Prior to a claim form being issued, the parties may to a large extent select those documents they wish to show and keep all the others hidden. To overcome this, a party may issue an application for pre-action disclosure.

Question 23

Pre-action Disclosure - When it’s used

Answer 23

Normally used where a party is unsure as to the strength of their case, so they can then make an informed decision as to whether to issue proceedings against
the intended defendant.

Question 24

Non-party disclosure

Answer 24

Where a party indicates in their list of documents that they no longer have a document in their possession, but that X does. The other party may then write to X asking for a copy of the document. If X refuses an application may be made for non-party disclosure against X. The application must be supported by evidence and disclosure will only be ordered if:
(a) the documents in question are likely to support the applicant’s case or adversely affect the case of another party; and
(b) disclosure is necessary to dispose fairly of the case or to save costs.