Civil Procedure - Disclosure

Question 1

What is the nature of disclosure?

Answer 1

Rule 210

Disclosure is the delivery or production of documents in accordance with this division.

Question 2

Which rules deal with Disclosure/Discovery ?

Answer 2

UCPR Rules 209-227
FCR Part 20

Question 3

What does a party have a duty to disclose?

Answer 3

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.

Question 4

How long does the duty of disclosure last?

Answer 4

Rule 211(2)

Until the proceeding is decided.

Question 5

How long will an allegation remain in issue?

Answer 5

Rule 211(3)

Until it is admitted, withdrawn, struck-out or otherwise disposed of.

Question 6

Are there any documents to which disclosure does not apply?

Answer 6

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)

Question 7

Is a statement or report of an expert privileged from disclosure?

Answer 7

Rule 212(2)

No.

Question 8

What is the rule that deals with Privilege Claim?

Answer 8

Rule 213

• Party claims privilege.
• Other party challenges claim.

IF challenged the claiming party must file affidavit within 7 DAYS stating claim.

Question 9

Explain discovery?

Answer 9

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

Question 10

How does a party inform another of what documents they intend to disclose?

Answer 10

Rule 214

Provide a list of documents.

Question 11

If a party requests a document mentioned in the list of documents, when must it be delivered?

Answer 11

Rule 214(3)

Within 14 days. Unless privileged.

Question 12

When must a ‘list of documents’ be provided?

Answer 12

Rule 214(2)

• remember 28 days from each critical point/order etc.

Question 13

Can a party request inspection of original documents?

Answer 13

Rule 215

Yes

Question 14

Which rule deals with inspection of documents?

Answer 14

Rule 216

If size, quantity or volume requires.

Question 15

What is the procedure for producing documents for inspection?

Answer 15

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.

Question 16

What is the rule for Costs regarding disclosure?

Answer 16

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.

Question 17

Deferral of disclosure

Answer 17

Rule 220

Question 18

Disclosure of document relating only to damages

Answer 18

Rule 221

Can be provided if requested.

Question 19

Inspection of documents referred to in pleadings or affidavits

Answer 19

Rule 222

Question 20

What rule gives the court the power to order a party to disclose documents?

Answer 20

Rule 223

Question 21

Can a party be relieved from a duty to disclose?

Answer 21

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

Question 22

What are the consequences of non-disclosure?

Answer 22

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.

Question 23

If a party has not been disclosed documents, what can that party do?

Answer 23

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.

Question 24

What is a certificate by solicitor?

Answer 24

Rule 226

Basically a certificate explaining requirements have been explained to party and to whom it was explained (if corporation).

Question 25

Do documents need to be produced at trial?

Answer 25

Rule 227

Yes if asked for.