Disclosure Flashcards
What is the duty of disclosure?
Parties are under a duty to make a reasonable search and the duty to disclosure is limited to those that are under their control.
What is a party obliged to disclose?
A party must disclose documents which:
- adversely affect their own case;
- adversely affect another party’s case;
- support another party’s case; or
- are required to be disclosed by a Practice Direction
What is the court’s approach to disclosure on the small claims track?
Standard direction is that each party shall at least 14 days before the date of the final hearing, file and serve copies of documents on every party in which they intend to rely on.
What is the court’s approach to disclosure on the fast track?
Take place on the standard basis in line with the suggested track timetable.
What is the court’s approach to disclosure on the multi-track?
Courts tend to depart from standard disclosure as they are more complex and can make the following alternative disclosure orders:
- dispensing with disclosure
- an order that a party disclose the docs in which it intends to rely and at the same time request any specific disclosure from the other party
- an order that the disclosure is given by each party on an issue by issue basis
- any other order in relation to disclosure that the court considers appropriate
When is a document considered to be “under a party’s control”?
- it is or was in the physical possession of the party
- the party has or had the right to inspect the document or take a copy of it
What is legal advice privilege?
Communications between a legal rep and their client but not third parties where the dominant purpose of the communication is the seeking and receiving legal advice.
What is litigation privilege?
Communications between a legal rep and a client and a third party or between a client and third party directly which was created for the sole or dominant purpose of obtaining information or advice in connection to the litigation itself which either existed or reasonably contemplated at the time the document was created.
What is without prejudice privilege?
Documents typically written in the course of negotiations making a genuine offer to settle
What is the procedure for disclosure?
The party will prepare a numbered list of documents using an N265
The list must also contain a disclosure statement signed by the party confining the extent of the search made and certifying they understand their duty to disclosure
- upon receipt of the other party’s N265 the opposition must prepare a written notice informing the other party of the documents they wish to inspect from the list. The party must allow inspection within 7 days of receiving that notice
What orders can the court make on disclosure?
Order for specific disclosure (e.g where a party has not conducted a search as extensively as their duty requires)
Pre-action disclosure - parties are required to share information but there is no fixed duty
Non- party disclosure
Can electronic documents be disclosed?
Yes although court can make an order to limit the volume
