Civil Procedure - Disclosure Flashcards
What is the nature of disclosure?
Rule 210
Disclosure is the delivery or production of documents in accordance with this division.
Which rules deal with Disclosure/Discovery ?
UCPR Rules 209-227
FCR Part 20
What does a party have a duty to disclose?
Rule 211(1) - each document
a) in the possession or control of the first party; and
b) directly relevant to an allegation in the pleadings; and
c) if no pleadings - directly relevant to a matter in issue in the proceedings.
How long does the duty of disclosure last?
Rule 211(2)
Until the proceeding is decided.
How long will an allegation remain in issue?
Rule 211(3)
Until it is admitted, withdrawn, struck-out or otherwise disposed of.
Are there any documents to which disclosure does not apply?
Rule 212(1)
a) where valid claim to privilege from disclosure
b) if relevant only to credit
c) duplicate of document already disclosed. (Provided no changes on duplicate)
Is a statement or report of an expert privileged from disclosure?
Rule 212(2)
No.
What is the rule that deals with Privilege Claim?
Rule 213
- Party claims privilege.
- Other party challenges claim.
IF challenged the claiming party must file affidavit within 7 DAYS stating claim.
Explain discovery?
Purpose - limit issues in dispute and ensure DFT is aware of case to be met and neither party is taken by surprise at trial.
Facilitates just and expeditious resolution of proceedings.
State UCPR 209-240
Federal FCR Part 20
How does a party inform another of what documents they intend to disclose?
Rule 214
Provide a list of documents.
If a party requests a document mentioned in the list of documents, when must it be delivered?
Rule 214(3)
Within 14 days. Unless privileged.
When must a ‘list of documents’ be provided?
Rule 214(2)
- remember 28 days from each critical point/order etc.
Can a party request inspection of original documents?
Rule 215
Yes
Which rule deals with inspection of documents?
Rule 216
If size, quantity or volume requires.
What is the procedure for producing documents for inspection?
Rule 217
The basic premise is to make them ordered and easily accessible for the other party. Have someone available to explain how they are arranged and assist in locating particular documents etc.
Provide a list of any documents subject to privilege.
What is the rule for Costs regarding disclosure?
Rule 219
If given notice to inspect under rule 216 and don’t do so then the party wanting to inspect later on must pay costs for further opportunity to inspect UNLESS the court otherwise orders.
Deferral of disclosure
Rule 220
Disclosure of document relating only to damages
Rule 221
Can be provided if requested.
Inspection of documents referred to in pleadings or affidavits
Rule 222
What rule gives the court the power to order a party to disclose documents?
Rule 223
Can a party be relieved from a duty to disclose?
Rule 224
1) all or some of the duty
2) in making this decision the court can consider:
a. time, cost and inconvenience vs amount involved in the proceeding
b. how important is the question to which the documents relate?
c. what is the probable outcome of the proceeding if the documents are not disclosed
d. other relevant considerations
What are the consequences of non-disclosure?
Rule 225 (1)
a) party must not tender the document, adduce evidence of its contents at the trial without leave of the court.
b) party is liable to contempt of court for not disclosing
c) party may be ordered to pay costs or part of the costs of the proceeding.
If a party has not been disclosed documents, what can that party do?
Rule 225(2)
a) apply for an order staying/ dismissing all or part of the proceeding
b) apply for judgment against the party required to disclose
c) apply for an order that the document be disclosed in the way and within the time stated in the order.
What is a certificate by solicitor?
Rule 226
Basically a certificate explaining requirements have been explained to party and to whom it was explained (if corporation).
