Disclosure Flashcards
What are documents defined as in respect of disclosure?
Anything in which information of any description is recorded. This consists of written documents, videotapes, audiotapes and photographs etc.
When should disclosure be completed in the small claims track?
Documents which are being relied upon should be served at least 14 days prior to the hearing (standard disclosure).
What type of disclosure is undertaken in fast track cases?
Standard disclosure is an option, but the courts may direct a more limited approach or specify the classes of documents which the parties must disclose.
What type of disclosure is undertaken in intermediate track cases?
The court may order one of the following:
- To dispense with disclosure
- Disclosure of documents which a party relies on
- Disclosure on an issue by issue basis
- Standard disclosure
What type of disclosure is undertaken in multi-track cases?
Standard disclosure is normal but they may tailor the order to the requirements of the particular case.
How is disclosure decided in a multi-track case?
The parties should notify the court of their requirements by compiling a disclosure report - this should be filed not less than 14 days before the first CMC.
Not less than 7 days before the first CMC, the parties must discuss and seek to agree on a proposal for disclosure. If agreed, this must be filed at court.
What is a party required to disclose under standard disclosure?
Any documents on which they rely
Any documents which adversely affect their own case
Any documents that adversely affect another party’s case
Any documents which support another party’s case
In consideration of the control of documents, what documents does the duty to disclose apply to?
The duty applies to documents which:
- Either are or were in their physical possession;
- They have a right to possess; or
- They have a right to inspect
When does a party have a duty to search for documents?
A party is required to make a reasonable and proportionate search for all documents that:
- adversely affect their own case;
- adversely affect another party’s case; or
- support another party’s case.
What is considered a ‘reasonable and proportionate’ search?
It will depend on:
- Number of documents
- Nature and complexity
- Significance of the documents
How can limitations be placed on a search for documents?
By specifying a limit of dates, locations or categories.
Such limitations need to be justified and specifically stated in the list of documents.
What rules apply to electronic documents in terms of the duty to search?
Electronic documents also include those stored on servers and back-up systems.
The parties should discuss how electronic documents will be exchanged, the format for inspection and any limitations.
An electronic disclosure questionnaire can be used for this.
How is disclosure made?
What does the form contain?
Form N265
It contains:
- Administrative details such as the court, claim number and parties.
- Disclosure statement
- The list of documents set out in three parts
What does the disclosure agreement contain?
A party must sign to confirm the extent of the search to locate any documents and that they understand their duty of disclosure.
They must state their reasons why they may not permit inspection of a category of documents.
Who can sign a disclosure agreement?
The party disclosing must sign. This cannot be their legal representative.
Where a party is a company, partnership or LLP - an individual overseeing the disclosure should sign. Name, address, position of the party and the basis upon which they have made the statement should be included.
What if a new document becomes available after initial disclosure?
They must prepare and serve a supplemental list of documents.
If they wish to rely on it, they must obtain the other party’s approval. If they disagree, they must refer to the court for permission.
What are the three categories of documents?
Part 1 - documents within the party’s control which they do not object to inspection.
Part 2 - documents which are in the party’s control but there is an objection to inspection e.g. they contain privileged documents
Part 3 - documents that are not privileged from inspection but are no longer in the parties control e.g. lost or destroyed
What happens if a party fails to disclose a document?
The party cannot rely on it at trial unless the court permits. If such a document is harmful to their case, the court may choose to strike it out.
What are the two types of privilege which negate the right to inspect the documents?
Legal advice
Litigation privilege
What is legal advice privilege?
Communications between a client and their lawyer prepared for the sole or dominant purpose of giving or receiving legal advice.
What are examples of legal advice privilege?
Attendance notes, letters or emails giving advice between a solicitor and client, instructions to counsel.
What is litigation privilege?
Communications passing between the client or the lawyer and a third party
Provided they came into existence after litigation was contemplated or commenced
and were made for the sole or dominant purpose of obtaining advice or for using as evidence in the litigation.
What are examples of litigation privilege?
Expert report
Appointment to discuss proceedings
Letter to a witness/expert.
How can a right to inspect a privileged document be indirectly waived?
Where a statement of case or witness statement is served on the other party
What if a document is mistakenly served on the other side?
The solicitor should return the document, point out the error and confirm they have not read it.
They should not inform their client of any contents.
What is without prejudice correspondence?
Records information as part of a party’s genuine attempt to settle a case.
Documents marked without prejudice should be disclosed and no privilege from inspection claimed.
When should a right to inspect a document be exercised?
Within seven days.
A longer period can be negotiated between the parties.
What should a party do if they are dissatisfied with their opponent’s effort of disclosure?
The party should write to the other side first.
If this fails an application notice (Form N244) must be filed at court with an accompanying witness statement to justify the application.
This should be served on the opponent.
If disclosure is considered inadequate, what may a court order?
More expensive search
Disclose further documents
Disclose specific documents which the other party may have expected to see
How can a privileged document be disputed?
By an application to the court.
The court may require the party claiming privilege to produce the document, invite any person to make representations and determine whether it has been correctly categorised.
Can disclosure be ordered during the ADR/Mediation phase?
Yes, if a pre-action disclosure application is made to the court.
The application should contain a witness statement.
What must a court be satisifed with to grant pre-action disclosure?
Both the applicant and respondent are likely to be parties in subsequent proceedings
The documents sought would come within standard disclosure
Disclosure is desirable to dispose of the anticipated proceedings, assist the dispute or save costs.
What is non-party disclosure?
Where a party indicates in their list of documents that they no longer have a document, but X does. But where X refuses, an application can be made against X.
When will an application for non-party disclosure be granted?
The documents in question are likely to support the applicant’s case or adversely affect the case of another party; and
Disclosure is necessary to dispose fairly of the case or to save costs.
