Disclosure

Question 1

If a party fails to disclose a document, can they rely on it at trial?

Answer 1

No (unless court permits)

If such a document turns out to be harmful to their claim/defence, their case could even be struck out

Question 2

What is disclosure likely to be in the small claims track?

Answer 2

Each party serves on the other parties copies of all documents they intend to rely on at least 14 days before final hearing

Question 3

What is disclosure in the fast-track?

Answer 3

Standard disclosure

Question 4

What is the procedure for disclosure in the multi-track?

Answer 4

Parties file & serve disclosure report no later than 14 days before CMC
↓
Parties must discuss & seek to agree disclosure proposal no later than 7 days before CMC
↓
Court will make order for disclosure at CMC (usually standard but can be any other order court considers appropriate)

Question 5

What is the duty to search?

Answer 5

All parties are subject to a duty to make a reasonable & proportionate search for all documents

Can limit extent of search if justifiable (eg. by date, category, location) - must state so in list

Question 6

What are the documents which fall within standard disclosure?

Answer 6

Must disclose documents which:

I. The party relies upon

II. Adversely affect their own or another party’s case

III. Support another party’s case

Question 7

When will a party be considered to have ‘control’ of a document?

Answer 7

If they have or used to have:

• Physical possession
• The right to possess
• The right to inspect

Question 8

What is the effect on disclosure if a document is privileged?

Answer 8

Described generically in Part 2 of the disclosure list

Other party cannot inspect unless privilege waived by client

Question 9

What is the difference between advice privilege & litigation privilege?

Answer 9

Advice privilege
1. Between lawyer & client
2. Sole/dominant purpose of obtaining legal advice

Litigation privilege
A communication
a) Between layer & client or third party
b) When litigation was contemplated or ongoing
c) Produced for the sole/dominant purpose of litigation (obtaining advice or evidence)

Question 10

Should without prejudice correspondence (information re attempts to settle) be withheld from disclosure?

Answer 10

No

Without prejudice correspondence should be disclosed & no privilege from inspection claimed

Question 11

When will a document come under litigation privilege?

Answer 11

A communication
a) Between layer & client or third party
b) When litigation was contemplated or ongoing
c) Produced for the sole/dominant purpose of litigation (obtaining advice or evidence)

Question 12

When will a document come under advice privilege?

Answer 12

A communication

1. Between lawyer & client
2. With the sole / dominant purpose of obtaining legal advice

Question 13

How is disclosure made?

Answer 13

List using Form N265

Front page disclosure statement (must be signed by client)

Part 1: Documents in party’s control which they do no object to other party inspecting

Part 2: Documents in party’s control but there is an objection to inspection

Part 3: Documents no longer in party’s control (must state why)

Question 14

What is the right to inspect?

Answer 14

Once have received opponent’s list, a party has the right to inspect documents in Part 1 of the disclosure list

Request must be in writing & granted within 7 days

Question 15

How is electronic disclosure handled?

Answer 15

Parties must discuss & (if possible) agree pre-CMC categories of electronic docs to be disclosed + format for disclosure & inspection

At CMC, court will either give directions on electronic disclosure or order separate hearing to deal with this aspect

Question 16

If a party is dissatisfied with their opponent’s disclosure, what should they do?

Answer 16

First write to other side

If this fails, form N244 + witness statement filed at court & served on opponent
(eg. applying for order for specific disclosure or disputing privilege)

Question 17

What is an order for specific disclosure?

Answer 17

Made where disclosure inadequate - order party to:

• Carry out more extensive search; or
• Disclose specific docs party would have expected to see

Question 18

How can a party compel pre-action disclsoure?

Answer 18

By applying to the court (application must be supported by witness statement)

Court must be satisfied that:
1. Both applicant & respondent likely to be a party to subsequent proceedings
2. Documents sought would come within standard disclosure
3. Disclosure desirable to dispose fairly of anticipated proceedings, assist dispute being resolved without proceedings or to save costs

Question 19

Can a legal representative sign the disclosure statement on behalf of their client?

Answer 19

No

Question 20

When can a party apply for non-party disclosure?

Answer 20

If it would help resolve an issue in the case

Will only be ordered if:
1) Docs are likely to support applicant’s case or adversely effect another party’s case; and
2) Disclosure is necessary to dispose fairly of the case or to save costs