Disclosure

Question 1

what can a party do if it wants more information from the other side before issuing?

Answer 1

A party can make an application (along with w/s) for pre-action disclosure

Question 1

when might a party apply for pre-action disclosure?

Answer 1

o A party might do this is they aren’t sure about the strength of their case

Question 2

what must accompany an application for pre-action disclosure?

Answer 2

a witness statement

Question 3

what must be satisfied for the court to make a pre-action disclosure order?

Answer 3

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.

Question 4

what disclosure takes place on the small claims track?

Answer 4

• No formal disclosure but parties are usually directed to disclose any documents they intend to rely on at least 14 days before the hearing

Question 5

what disclosure takes place on the fast track?

Answer 5

• 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

Question 6

what disclosure takes place on the multi-track?

Answer 6

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

Question 7

re: multi-track

what is included in the disclosure report?

Answer 7

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

Question 8

re: multi-track

what must parties endeavour to do?

Answer 8

agree a proposal for disclosure

Question 9

re: multi-track

what should parties do before the CMC?

Answer 9

Not less than 7 days before the CMC, parties should endeavour to file an agreed a proposal for disclosure

Question 10

re: multi-track

what will the court do if it agrees with the agreed disclosure proposals?

Answer 10

If these are agreed and appropriate, the court will approve them without a hearing

Question 11

what order can the court make when dealing with disclosure on the intermediate and fast-track?

Answer 11

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

Question 12

re: multi-track

when might an order ‘dispensing with disclosure’ be made

Answer 12

Rare. Only really used where pre-action disclosure was adequate.

Question 13

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?

Answer 13

this has a wide scope so it limited to exceptional cases where the expense is justified i.e. fraud

Question 14

re: multi-track

what direction can the court give as to how disclosure is to be given?

Answer 14

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

Question 15

what does the practice direction on electronic disclosure apply to?

Answer 15

• This applies to multi-track cases unless the court orders otherwise

Question 16

re: multi-track

what is the purpose of PD on e-disclosure?

Answer 16

• 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

Question 17

re: multi-track - PD on e-disclosure

what must clients be informed of?

Answer 17

• Clients must be informed to preserve disclosable documents as soon as litigation is contemplated

Question 18

re: multi-track - PD on e-disclosure

what should parties discuss?

Answer 18

• 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

Question 19

what is the most common disclosure?

Answer 19

standard disclosure

Question 20

re: standard disclosure

what do parties need to disclose?

Answer 20

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

Question 21

re: standard disclosure

can standard disclosure be limited?

Answer 21

• The court or parties (by written agreement) can limit standard disclosure

Question 22

re: standard disclosure

what duties are under standard disclosure?

Answer 22

duty to disclose
duty of search

Question 23

re: standard disclosure

what is the duty to disclose?

Answer 23

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)

Question 24

re: standard disclosure

what is the duty of search?

Answer 24

• Parties must conduct a reasonable search for documents

Question 25

re: standard disclosure

what will the reasonableness of the search depend on?

Answer 25

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

Question 26

re: standard disclosure

what must a party do if they have not undertaken a search on the grounds of reasonableness?

Answer 26

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

Question 27

re: standard disclosure

when will the court accept a limited search on the grounds of reasonableness?

Answer 27

• The court will accept limitations if it will not affect the proper investigation into the merits of the claim

Question 28

re: standard disclosure

what form must parties complete?

Answer 28

Each party must complete Form N265

Question 29

re: standard disclosure

what does the disclosure form include?

Answer 29

disclosure statement and disclosure list

Question 30

re: standard disclosure

what information is included on the disclosure statement?

Answer 30

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)

Question 31

re: standard disclosure

who signs the disclosure statement?

Answer 31

• 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

Question 32

re: standard disclosure

what happens if a false disclosure statement is made?

Answer 32

Contempt of court proceedings may be brought against anyone who makes a false disclosure statement without an honest belief in its truth

Question 33

re: standard disclosure

what effect does signing the disclosure statement have?

Answer 33

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.

Question 34

re: standard disclosure

what happens if a later document is uncovered?

Answer 34

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

Question 35

re: standard disclosure

what is the format of the disclosure list?

Answer 35

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

Question 36

re: standard disclosure

elaborate on Part 1 of the disclosure list

Answer 36

1. 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

Question 37

re: standard disclosure

elaborate on Part 2 of the disclosure list

Answer 37

2. 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)

Question 38

re: standard disclosure

elaborate on Part 3 of the disclosure list

Answer 38

3. 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’

Question 39

what should a party do if they are dissatisfied with disclosure?

Answer 39

• 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

Question 40

what must a party do if it is making an application for specific disclosure?

Answer 40

include a w/s which sets out they believe the document exists and why it is important

Question 41

re: specific disclosure

what will the court consider when deciding whether to grant the order?

Answer 41

• The court considers all the circumstances of the case and the OO

Question 42

re: specific disclosure

what can the court order?

Answer 42

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

Question 43

re: disputing privilege

what can the court require?

Answer 43

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

Question 44

what should a party do if they want information from a non-party?

Answer 44

• A party should first write and ask for the document
• If this fails, they can make an application (must be supported by evidence)

Question 45

re: non-party disclosure

when is this commonly done?

Answer 45

o Commonly be used if a party no longer has a document in their possession but someone else does

Question 46

re: non-party disclosure

when will this be ordered?

Answer 46

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

Question 47

re: non-party disclosure

what must the order specify?

Answer 47

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