Disclosure Flashcards
what can a party do if it wants more information from the other side before issuing?
A party can make an application (along with w/s) for pre-action disclosure
when might a party apply for pre-action disclosure?
o A party might do this is they aren’t sure about the strength of their case
what must accompany an application for pre-action disclosure?
a witness statement
what must be satisfied for the court to make a pre-action disclosure order?
o Both the applicant and respondent are likely to be parties to proceedings;
o The documents sought come within standard disclosure; and
o Disclosure is desirable to dispose fairly of the anticipated proceedings; assist the dispute being resolved without proceedings or save costs.
what disclosure takes place on the small claims track?
- No formal disclosure but parties are usually directed to disclose any documents they intend to rely on at least 14 days before the hearing
what disclosure takes place on the fast track?
- Disclosure is limited to what is necessary to deal with the case justly and at a proportionate cost, but there is no specific ‘menu’ for the court to choose from as with intermediate and fast track.
- So whilst standard disclosure is still an option, it is anticipated disclosure will be more limited.
- The court would consider the OO when giving direction, but it could order anything i.e. no disclosure, disclosure of classes of documents
what disclosure takes place on the multi-track?
NB: this does not apply to PI claims
Unless the court orders otherwise, each party must file a disclosure report not less than 14 days before the CMC
re: multi-track
what is included in the disclosure report?
o What documents exist / maybe relevant;
o With whom / where these documents are stored;
o An estimate of costs for standard disclosure
o The party’s proposals for disclosure
re: multi-track
what must parties endeavour to do?
agree a proposal for disclosure
re: multi-track
what should parties do before the CMC?
Not less than 7 days before the CMC, parties should endeavour to file an agreed a proposal for disclosure
re: multi-track
what will the court do if it agrees with the agreed disclosure proposals?
If these are agreed and appropriate, the court will approve them without a hearing
what order can the court make when dealing with disclosure on the intermediate and fast-track?
Having regard to the OO and the need to limit disclosure to deal with the case justly, the court can make any of the following orders:
o Standard disclosure
o Dispensing with disclosure
o An order that a party discloses only the documents on which is relies and requests specific documents or categories or which leads to an enquiry of either of these consequences
o For specific disclosure
o On an issue-by-issue basis
o Any other order the court considers appropriate
re: multi-track
when might an order ‘dispensing with disclosure’ be made
Rare. Only really used where pre-action disclosure was adequate.
re: multi-track
when might ‘an order that a party discloses only the documents on which is relies and requests specific documents or categories or which leads to an enquiry of either of these consequences’ be made?
this has a wide scope so it limited to exceptional cases where the expense is justified i.e. fraud
re: multi-track
what direction can the court give as to how disclosure is to be given?
The court can give direction as to how disclosure is to be given, i.e.:
o What searches are to be undertaken, where, by whom, for what and in what periods of time
o Whether a list is required
o How and when the disclosure statement is to be given
o The format of documents
o Whether disclosure will take place in stages
what does the practice direction on electronic disclosure apply to?
- This applies to multi-track cases unless the court orders otherwise
re: multi-track
what is the purpose of PD on e-disclosure?
- The purpose is to ensure e-disclosure is dealt with in a proportionate and cost-effective manner, utilise technology and in accordance with the OO
re: multi-track - PD on e-disclosure
what must clients be informed of?
- Clients must be informed to preserve disclosable documents as soon as litigation is contemplated
re: multi-track - PD on e-disclosure
what should parties discuss?
- Before the CMC (or even before the case is issued), parties should discuss:
o Categories of e-disclosure
o Scope for reasonable search
o How data will be exchanged
o Technology to be used and the burden and costs
o Format
o Any limitations (i.e. what key words will be used) - Parties can use the e-disclosure questionnaire for this
what is the most common disclosure?
standard disclosure
re: standard disclosure
what do parties need to disclose?
Parties only need to disclose (called Rule 31.6 Documents):
o Documents they intend to rely on
o Documents which adversely affect their own case
o Documents which adversely affect another party’s case
o Support another party’s case
Only documents which relate to the matters in the SOC that are in dispute (i.e. not agreed matters) need to be disclosed
re: standard disclosure
can standard disclosure be limited?
- The court or parties (by written agreement) can limit standard disclosure
re: standard disclosure
what duties are under standard disclosure?
duty to disclose
duty of search
re: standard disclosure
what is the duty to disclose?
A party’s duty to disclose is limited to documents which:
o Are / were in their physical possession
o Has / had the right to possession (i.e. documents held by third parties)
o Has / had right to inspect (i.e. medical records)
re: standard disclosure
what is the duty of search?
- Parties must conduct a reasonable search for documents
re: standard disclosure
what will the reasonableness of the search depend on?
Reasonableness will depend upon:
o The number of documents
o The nature and complexity of proceedings
o Ease and expense of retrieval
o The significance of a document
re: standard disclosure
what must a party do if they have not undertaken a search on the grounds of reasonableness?
If a party has not searched for a category / class of document on the grounds it is unreasonable, they must provide reasons in the disclosure statement, i.e.:
It may be justified not to search for documents that came into existence before a specific date, limiting categories or search areas
re: standard disclosure
when will the court accept a limited search on the grounds of reasonableness?
- The court will accept limitations if it will not affect the proper investigation into the merits of the claim
re: standard disclosure
what form must parties complete?
Each party must complete Form N265
re: standard disclosure
what does the disclosure form include?
disclosure statement and disclosure list
re: standard disclosure
what information is included on the disclosure statement?
The party must set out details of their search and sign to confirm this and that they understand the disclosure duty.
The party must state any documents it does not permit disclosure of because it would be disproportionate (i.e. difficulty or expense of obtaining)
re: standard disclosure
who signs the disclosure statement?
- This must be signed by the client, not the legal rep. Where they client is not an individual, it is signed on behalf of the person overseeing the process
re: standard disclosure
what happens if a false disclosure statement is made?
Contempt of court proceedings may be brought against anyone who makes a false disclosure statement without an honest belief in its truth
re: standard disclosure
what effect does signing the disclosure statement have?
Signing is a commitment to the ongoing duty of disclosure until conclusion of the proceedings. If a party becomes aware of additional documents, they must prepare a supplemental list.
re: standard disclosure
what happens if a later document is uncovered?
the party must disclose this, and:
o If the party wants to rely on a document and the other party doesn’t agree, they will need the court’s permission
o If it is harmful to their claim or defence the case may be struck out
re: standard disclosure
what is the format of the disclosure list?
This is broken down into three sections:
1. Documents in the party’s control where there is no objection.
2. Documents where there is an objection (i.e. must be privileged)
3. Documents that are not privilege but are no longer in the party’s control
re: standard disclosure
elaborate on Part 1 of the disclosure list
- Documents in the party’s control where there is no objection.
* These are listed in date order with a brief description
* The other party has a right to inspect these. Requests must be made within 7 days (unless otherwise agreed between parties)
* Rather than personal inspection, a party can ask for copies if they agree to pay reasonable costs
re: standard disclosure
elaborate on Part 2 of the disclosure list
- Documents where there is an objection (i.e. must be privileged)
* Would have general description to protect privilege i.e. ‘correspondence, attendance notes, instructions to counsel)
re: standard disclosure
elaborate on Part 3 of the disclosure list
- Documents that are not privilege but are no longer in the party’s control
* Must state what happened to the document (i.e. copy of a letter under Part 1 and Part 3 might state ‘original letter was last in control on day it was posted’
what should a party do if they are dissatisfied with disclosure?
- If a party is dissatisfied with disclosure, they should first write to the other side
- If that fails, they can make an application (inc. a w/s) to the court for either specific disclosure or to dispute privilege
what must a party do if it is making an application for specific disclosure?
include a w/s which sets out they believe the document exists and why it is important
re: specific disclosure
what will the court consider when deciding whether to grant the order?
- The court considers all the circumstances of the case and the OO
re: specific disclosure
what can the court order?
The court can order:
* Disclosure of further documents;
* Carry out a further search to the extent stated in the order;
* Disclosure of documents located as a result of that search
re: disputing privilege
what can the court require?
The court may:
o Require the party claiming privilege to produce the document
o Invite any person (whether party or not) to make representations
The court will determine whether it has been correctly categorised or not
If it hasn’t, the court will order the document is revealed to the opponent
what should a party do if they want information from a non-party?
- A party should first write and ask for the document
- If this fails, they can make an application (must be supported by evidence)
re: non-party disclosure
when is this commonly done?
o Commonly be used if a party no longer has a document in their possession but someone else does
re: non-party disclosure
when will this be ordered?
Disclosure will only be ordered if:
o The documents in question are likely to support the applicant’s case or adversely affect the case of another party; and
o Disclosure is necessary to dispose fairly of the case or to save costs
re: non-party disclosure
what must the order specify?
The order must specify exactly which documents are to be produced and require the non-party to state which documents are privilege / no longer in their control
