Advanced Disclosure

Question 1

If there is a dispute as to whether a party has complied with their disclosure obligations, what should the party disputing apply for?

Answer 1

SPECIFIC DISCLOSURE

Question 2

An order for specific disclosure is an order that a party must do one or more of the following things:

(3)

Answer 2

(A) disclose documents specified in the order

(B) carry out a search to the extend stated in the order

(C) Disclose any documents located as a result of that search

Question 3

What can undermine a claim for specific disclosure?

What is the most appropriate time to apply for specific disclosure:
In the fast track?
In the multi-track?

Answer 3

Lateness of the application, may undermine the claim that the documents are NECESSARY for the proceedings

Fast track = Allocation to track/filing Questionnaires

Multi-track = Usually dealt with at case management conferences

Question 4

Application for specific disclosure can be made at ______

What will the court consider when making an order for specific disclosure?

Answer 4

Any time

All of the circumstances, particularly the overriding objective
But needs to be satisfied of the relevant of the documents sought and they are in the parties control

Will help if parties can state what issues the documents are likely to address, parties should not just be going on fishing expeditions

Question 5

Is an application for specific disclosure limited to documents which have been in the party’s control

Answer 5

Yes

Disclosure on such an application is limited to documents which have been in the party’s control.

Question 6

What can be done to parts of a document which are irrelevant to the issues?

Answer 6

Can be redacted

But only if irrelevant to proceedings

Question 7

What if there material within documents - which are not privileged- that is sensitive?

I.e Technical secrets or confidential communications

Answer 7

Court can still give a measure of protection

Either by imposing a controlled measure of disclosure or by allowing disclosure to legal advisors only

Question 8

What protect is given to documents which have been disclosed?

What is the exceptions to this?

What if the document is referred to in a public hearing but the disclosing party is concerned?

Answer 8

Documents may only be used for the purpose of the proceedings

Unless:

• Referred to in a hearing held in public
• Court gives permission
• Disclosing party agrees

Even if referred to in a public hearing, Court can make an order restricting or prohibiting use of the document — following application by a party or the person to whom the document belongs

Question 9

What can be done if a party inadvertently disclosures/allows inspection of a privileged document?

Answer 9

The party who has inspected the document can only use it or its contents WITH the PERMISSION of the Court

Party who inadvertently disclosed may be able to get an injunction against the lawyer who has inspected the document to prevent them from disclosing the information to their client - But might be too late, so party would then be able to get an injunction against the other party to prevent them using the information in the document

Question 10

PRE-ACTION DISCLOSURE

Joe is the Victim of a wrong carried out by X.
Joe is unable to identify X, but he finds out that Bert has information which would allow him to identify X.

What can Joe apply for in order to get the information he needs? What are the conditions on the application of this?

Answer 10

Joe can seek a NORWICH PHARMACEUTICAL ORDER

As long as Bert is mixed up in the tort himself, i.e a facilitator, so more than a mere witness and Bert is able or likely to be able to provide information to identify X

Joe will be able to get a NP order agaisnt Bert requiring Bert to provide the FULL NAME and ADDRESS of X

Question 11

For a Norwich Pharmaceutical order to be made does the applicant have to later bring court proceedings?

Will such an order be made if the applicant could obtain the information else where?

Answer 11

No, not a requirement that the applicant will be bringing court proceedings

No, Norwich Pharmaceutical order is an order of LAST RESORT

Question 12

In most cases discoloured will occur under the Protocol or PD-PAC so will not be necessary to make …..

Answer 12

A formal application for pre-action disclosure

Question 13

When making an application for pre-action disclosure, who can you get an order against?

Where does the court’s jurisdiction to make an order for pre-action disclosure come from?

Answer 13

ONLY against a prospective party

From = S.33 Senior Courts Act 1981

Question 14

An application for pre-action disclosure must be ….

Curt will make an order, only where …. (TEST)

Answer 14

… supported by evidence

Respondent and applicant are likely to be party to subsequent proceedings

If the proceedings had been started the respondent’s duty of standard disclosure would extend to the documents that the C seeks disclosure of

Disclosure is desirable in order to

• fairly dispose of claim
• assist dispute to be resolved without proceedings
• save costs

Question 15

Application can be made in relation to documents which are …

Answer 15

… in a party’s possession, custody or power (under s.33(2) SCA)

Question 16

How can a party get disclosure from a non-party after the proceedings have began?

Application must be …

Answer 16

Under s.34 SCA

• Proceedings must have already been begun and party not a party in proceedings (any type of case)

The non-party must have relevant documents

… supported by evidence

Question 17

When will the court make an order for non-party disclosure?

What can a non-party be order to set out?

Answer 17

Only where—

Document sought is likely to support the case of the applicant or adversely affect the case of another party and

Disclosure is necessary in order to dispose fairly of the claim or to save costs

Non-party can be ordered to set out what they do and do not have in their control

Question 18

When a question arises as to if a waiver of privilege has occurred, what will the court be looking for?

Answer 18

A deliberate act which changes the nature of the document

Question 19

In normal circumstances what act if an action of waiver?

Waiver can also occur if the document is referred to within an ________ if it has not already been disclosed

Answer 19

Disclosure

Because WS or Expert’s report ect is privileged until it is disclosed

Experts report

Question 20

If the document is quarter but not mentioned, does the right to inspect arise?

Answer 20

NO

Question 21

Can a party waive privilege in relation to a part of a single document?

What are the exceptions to this rule?

Answer 21

General rule: No cannot only disclose part, either waive privilege to all of the document or none of it

Exceptions:
If part of document relates to an entirely different subject or the part is so distinct as to amount to a different document

Question 22

If there is a series of documents and a party has waived privilege to document 1 but not documents 3/4/5/6.

Can this be done?

Answer 22

Starting point is that privilege is waived for the WHOLE SERIES of documents but only so far as the series all relates to ONE TRANSACTION

NB. Courts will try to devein area of waiver restric

Question 23

What if the client has stolen a document from the other parties computer or filing cabinet and then showed that too their lawyer

Answer 23

1. Lawyers must immediately return the documents to the other side’s solicitors
2. Injunction may be granted on the basis of breach of confidentiality

Question 25

If Party A is during his former solicitors (B) for negligence and waives privilege to some documents, does this waiver constitute an implied waiver extending to other transactions between A and B?

Answer 25

Yes — IF the other documents are evidence of what action A took/would have done in the case

the instigation of proceedings against the solicitor by the
clients constitutes an implied waiver of professional privilege in relation to all relevant documents