Disclosure Flashcards
What are the procedural steps need to be taken by each party prior to Case Managment conference in relation to standard disclosure for IT and MT?
CPR 31.5(3)-(6)
In IT and MT (Other than those which include a PI claim) there are flexible rules for disclosure
31.5(3)
Not less then “14 days” before CMC each party must file and serve a report verified by a statement of truth :
a) describe existence of doc
b) describe where located
c) State whether electronic doc
d) Broad range cost for searching doc
Other than procedural steps, do the parties have to contact each other and if so why?
CPR 31.5(5), yes they have to contact each other no less than 7 days before the CMC the parties “must” meet or by telephone discuss and agree a proposal in relation to disclosure that meets the OO
Remember where don’t agree, the judge may in his discretion give direction without hearing ( but where it involves imp like expert evidence then have to have CMC and there judge have to hear parties reason not agree and make his own discretion- case management)
If Parties agree on SD and court agree proposal without hearing, what other order court can make in relation to disclosure?
CPR 31.5(7)
Court decide, having regard OO the need to limit disclosure to that which is necessary to deal with case justly. The order the judge can make in relation to disclosure are:
a) order dispensing with disclosure
b) order hta party disclose doc on which it relies but same time req specific disc
c) order that directs that disclosure given by all parties
d) order that each party disclose that reasonable to contain info that help or damage their case
e) order to give standard disclosure
f) any other order consider app to disclosure
IF a doc related to discpuute must it be disclosed?
Yes if doc related to dispute need to disclose
Which part of SD test would it satisfy?:
The test CPR 31.6
a) doc on which parties rely on
b) doc which
1) adversely effect his own case
2) adversely effect another party case or
3) support another party case
c) doc which he is req to disclose by a relevant PD
After knowing if the Document needs to be disclosed next need to ask is it privileged? (This to prevent inspection)
-> Withold inspection can be on ground of legal professional privilege ( have to see who is the communication with, when doc came into existence and dominant purpose)
For legal professional privilege ( if its not between party and legal advisers IT IS NOT PROTECTED BY LEGAL ADVICE PRIVILLEGE)
For Litigation privilege ( need to see document came into existence for PURPOSE OF EXISTING OR CONTEMPLATING LITGATION)
If the document contained commercially sensitive info can that be reason to:
a) decline to disclose
b) decline to give inspection
a) This is not a reason to decline to disclose as if it fulfills the disclosure test then must be disclosed
b) If commercially sensitive ( secrecy, trade secrets) the court shld order a CONTROLLED MEASURE OF DISCLOSURE to ensure that there would not be disclosure of confidential info that prejudice other party to its trade secrets )
So court likely allow inspection with deletion/ where of irrelevant matters.
What are the type of Privilleges to withhold inspection
Legal Advice Privillege- Communication between the C and its legal advisers for purpose of obtain legal advice or assistance (If its internal email no privilege)
Litigation Privillege: Comm between solicitor and C which came into existence when litigation is contemplated or commenced and for the sole or dominant purpose of obtaining or giving advice in regards to it or for obtaining evidence to be used in it.
Rmbr that when withold inspection (COURT WILL CONSIDER THE “DOMINANT PURPOSE” Of the Document - what was the reason for the report
If the report was made for principally for insurers but also indicated may be used in ligation ?
In Waugh held that dominant purpose of doc, is to obtain legal advice or to aid in conduct of litigation which is anticipated at time of its production, the document as such was privileged and excluded from inspection.
THIS “DOMINANT PURPOSE TEST” applies to both litigation privilege and legal advice privilege.
IF the party’s solicitor tells not to disclose the document in the list of document. What will happen even thought the doc is privilleged?
Doc though privilleged must be disclosed (CPR 31.6). The party has obligation to disclose the doc which adversely affects its case or support the C case.
Thus the party must sign the disclosure statement (CPR 31. 10(5)
There is also a duty by the other party to conduct reasonable search for the document.
The disclosure statement must set out the extent of the search that has been made and that the person signing on behalf of D understand his duty to disclose doc and has done so best of their knowledge.
Ex: You are advising first D, it has doc subject to advice priv but you are view that document helpful for trial. You advice that docu shld be disclosed and privileged be waived.
The first D managing director agree doc can be included within the disclosure list but refuses to waive privilege. He says that only first D can agree to the waiver of privilege, is that correct?
Yes he is correct. PRIVILLEGE ONLY BELONG TO THE CLIENT NOT THE SOLICITOR OR LEGAL ADVISER and can only be waived by the client.
Take note privilege is not waived by reason of the doc being put to the D in examination or being put before a judge in private hearing. Its not waived either when referred in SOC or in an affidavit.
IF part of document is put in evidence or read in court, privilege will be waived for the whole document
Volunteer disclosure of doc of priv document may result in waiver of priv in other matter but not necessary all doc in same category
Rmbr where doc missing in a list, there is clear indication that there is correspondence between the party and the D.What shld the C do?
The C could make an applciation for specific disclosure against the first D for disclosure of those parts of the files relating to the incident for inspection of the doc
What are the factor court consider when granting specific disclosure (rmbr specific disclosure only comes after standard disclosure)
What will the court consider when determining whether a document must be disclosed and whether it can be inspected?
The Dominant purpose of the Report was at the time that the document was commissioned
IF the dominant purpose of the report was for litigation the document will be held to be privilleged
Take note an instigation agaisnt the solicitor by the solicitor by the clients constitute an “implied waiver” of privilege in relation to all relevant document
rmbr only the client can waive privillege
Rmbr that a party must make an application to court to inspect a document within..
Expert Report
Otherwise party may refer without application to court for:
- SOC
-Witness summary
-Witness Report
There is only “specific disclosure” no such thing as “ specific inspection”
The party who make an application for specific disclosure must specify what document or classes of document they seek disclosure of. Disclosure only limited to documents which have been in party control.
