Disclosure Flashcards
Which Part of the CPR deals with disclosure?
Part 31
Except it doesn’t apply to Small Claims (Part 27)
What is the meaning of disclosure?
Under rule 31.2 disclosure means that
“a party discloses a document by stating that it exists or has existed”
Under rule 31.3, what right does a party have to inspection of a disclosed document?
Where a document is disclosed, a party has a right of inspection except where:
- the party no longer has control of the document.
- the disclosing party has a right or duty to withhold it.
- the disclosing party considers it is disproportionate to the issues to disclose the document
Where a party states it is disproportionate to disclose a document, where do they state this?
Under rule 31.6, the party must state in their disclosure statement that it would be disproportionate to disclose the document.
What is Standard disclosure?
Rule 31.6
Rule 31.6
- A party must disclose the documents he intends to rely upon.
- they must also disclose documents that
a) adversely affect its own case.
b) adversely affect another party’s case.
c) support another party’s case.
And
Any other documents required by a practice direction.
What are the disclosure requirements in Multi Track Claims?
The court has full discretion as to what to order, ranging from:
- no disclosure
- limited disclosure
- standard disclosure
Business and property Courts disclosure pilot - Models A to E - different requirements for each.
What is the Duty of Search under rule 31.7 re: standard disclosure?
A party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).
The factors relevant in deciding the reasonableness of a search include the following –
a) the number of documents involved;
b) the nature and complexity of the proceedings;
c) the ease and expense of retrieval of any particular document; and
d) the significance of any document which is likely to be located during the search.
Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable…
he must state this in his disclosure statement and identify the category or class of document.
Part 31.8 - Limit of Disclosure
A party’s duty to disclose documents is limited to documents which are or have been in his control
This means:
a) documents that are in his physical possession.
b) he has a right to possession of it.
c) he has a right to inspect or take copies of it.
Rule 31.10
Each party must make and serve on every other party, a list of documents in the relevant practice form.
The list must identify the documents in a convenient order and manner and as concisely as possible.
The list must indicate –
those documents in respect of which the party claims a right or duty to withhold inspection; and
those documents which are no longer in the party’s control;
and
what has happened to those documents.
The list must include a disclosure statement.
Disclosure Statement (form N265)
A disclosure statement is a statement made by the party disclosing the documents –
a) setting out the extent of the search that has been made to locate documents which he is required to disclose;
b) certifying that he understands the duty to disclose documents; and
c) certifying that to the best of his knowledge he has carried out that duty.
Rule 31.11
Continuing duty of disclosure
Under rule 31.11, a party has a continuing duty of disclosure which continues until proceedings are concluded.
Rule 31.12
Specific Disclosure
What is Specific Disclosure?
Under rule 31.12, the court may order that a party provide specific disclosure.
An order for specific disclosure is an order that a party must do one or more of the following things –
- disclose documents or classes of documents specified in the order;
- carry out a search to the extent stated in the order;
- disclose any documents located as a result of that search.
Rule 31.14
Documents referred to in a Statement of Case
Under rule 31.14, a party may inspect a document mentioned in –
a statement of case;
a witness statement;
a witness summary; or
an affidavit.
unless a party claims to have a right to withhold disclosure under rule 31.3.
Rule 31.15
Where a party has a right to inspect a document–
a) that party must give the party who disclosed the document written notice of his wish to inspect it;
b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.
