Disclosure

Question 1

Obligation

Answer 1

No automatic obligation - comes from court order usually given at allocation or cmc

Question 2

Stages of disclosure

Answer 2

Disclosure - state docs exist
Inspection - party reviews doc

Question 3

Copies

Answer 3

Only one needs to be disclosed unless contains modification, obliteration material to dispute

Question 4

Continuing obligation

Answer 4

Duty continues until proceedings are concluded

Party must disclose documents which come within control or were created after date originally gave disclosure

Question 5

Subsequent use of disclosed documentd

Answer 5

Can only use for purpose of proceedings, unless

• doc referrer to in court at public hearing
• court gives permission
• party who disclosed agrees

Court can be asked to make order restricting or prohibiting use of doc resd or referred to at public hearing

Question 6

Disclosure directions

Answer 6

Small claims - file and serve on every party copies of all docs in which intend to rely 14 days before trial

Fast track - usual order is standard disclosure within 4 weeks of notice of allocation

Multi track - disclosure report filed and served no less than 14 days before cmc and discussions to agree draft disclosure order no less than 7 days before cmc

Question 7

Standard disclosure test

Answer 7

1) is it a document

2) is/was it in party’s control?
- physical possession
- right to physical possession or inspect/take fopies

3) a party must disclose
- doc intend to rely on
- doc adversely affecting own case or another party’s case
- doc which might support another party’s case

Question 8

Reasonable search

Answer 8

Party must make reasonable search depending on
- no of docs involver
- nature and complexity of proceedings
- how difficult or expensive to retrieve
- significance of doc likely to be found

Question 9

Disclosure list

Answer 9

Made and served on other party simultaneously.

Contains 3 parts
- disclose and allow inspection
- disclose but privileged
- had but no longer have

Question 10

Disclosure statement

Answer 10

Every disclosure list must include this in prescribed form

Set out extent of search - reasonable and proportionate

Understand duty to disclose and carrier out duty

Details of docs the inspection of which the party considers disproportionate

Signed by party

Question 11

Ensuring compliance with disclosure obligations

Answer 11

Cannot rely on doc if failed to disclose/permit inspection

Contempt of court for false disclosure statement

Supplemental list can be served if further docs come to light

Solicitor will breach ccs for misleading court if knowingly allow party to withhold

Question 12

Inspection

Answer 12

Following disclosure, any party has right to inspect doc which has been disclosed except
- doc no longer in control
- allowing disclosure would be disproportionate
- disclosing party has a right/duty to withhold inspection, eg privileged

Question 13

Redaction

Answer 13

Party may wish to redact parts of doc to be inspected if they contain confidential or commercially sensitive info

Not generally permitted

Question 14

When can redact

Answer 14

Party privileged - privileged part redacted to avoid waiving

Irrelevant - eg personal detail

Question 15

Docs referred to in specified docs

Answer 15

Party can inspect a doc referred to in
- statement of case
- witness summary
- expert report
- witness statement
- affidavit

Subject to usual rules on privilege - privilege not lost because referred to but can amount to waiver depending on circd

Question 16

Procedure for inspection

Answer 16

Send written notice of intention

Other party must allow within 7 days of notice

Court can vary these limits

Can ask for copies if give undertaking to pay

Question 17

Privilege

Answer 17

Once privileged always privileged

Burden of proof on person seeking to establish privilege exists

Question 18

Legal advice privilege

Answer 18

Confidential communication between lawyer and client prepared for DOMINANT PURPOSE of giving / receiving advice

(Not necessary that litigation is contemplated)

Question 19

Communication with in house lawyers (legal advice priv)

Answer 19

As long as given in legal capacity, eg not in capacity as director if not legal director

Not if not employed in legal role

Question 20

Dominant purpose (legal advice priv)

Answer 20

Where solicitor retained to provide legal advice, wider communications will be covered as falls in continuum of communication

Question 21

Litigation privilege

Answer 21

Confidential communication between lawyer and client, or with 3p, where DOMINANT PURPOSE in creating the doc is to legal advice for LITIGATION WHICH AT TIME WAS REASONABLY IN PROSPECT

Real likelihood - general apprehension not sufficient

Question 22

Specific disclosure

Answer 22

Order that party must do one or more of
- disclose specified docs
- carry out specific search
- disclose docs related as a result of that search

Question 23

Procedure for specific disclosure

Answer 23

Submit to court:

Application notice
Draft order - specify order sought with list of docs in schedule
Supporting evidence - witness statement

Question 24

Specific inspection

Answer 24

Order that party permit inspection of doc which has been disclosed but party alleged would be disproportionate to allow inspection

Question 25

Non party disclosure

Answer 25

Court has discretion to order a person who is non-party to give disclosure of docs where - likely to support applicant’s case or adversely affect other - necessary to dispose fairly of claim

Question 26

Procedure for non party disclosure

Answer 26

Application must Specify order sought inc list of docs Supporting evidence Require respondent to specify docs no longer under their control Serve on respondent

Question 27

Costs and non party disclosure

Answer 27

Presumption that court will order applicant to pay respondent’s costs

Question 28

Pre action disclosure against likely party to proceedingd

Answer 28

Can make such order where - respondent likely to be party to proceedings - applicant also likely to be a party - if proceedings had started, respondent’s duty by way of standard disclosure would extend to docs applicant requests

Question 29

Procedure for pre action disclosure

Answer 29

Application must specify order sought inc list of docs with supporting evidence Require respondent to specify focs no longer under his control or which he has a right to withhold from inspection

Question 30

Costs in pre action disclosure

Answer 30

Applicant generally pays respondent’s costs Court may make diff order

Question 31

Alternative disclosure - norwich pharmacal order

Answer 31

Provide solution where proceedings cannot be commenced because identity of defendant is unknown Orders respondent to disclose info allowing c to sue c Eg on hmrc

Question 32

Conditions for successful norwich pharmacal order

Answer 32

Wrong carried out by ultimate wrongddoer Neeed for order to enable action to be brought against ultimate wrongdorer Person against whom order is sought must: - be more than a mere witness - be able to provide necessary info to enable D to be sued Necessary and proportionate

Question 33

Costs in norwich pharmacal order

Answer 33

Usually successful applicant pays costs Could possibly recover from wrongdoer when identified