Disclosure Flashcards
How is an order for disclosure typically issued?
An order for disclosure is usually given on allocation or at a case management conference.
Describe the types of disclosure orders the court can consider.
The court can consider standard disclosure or alternative disclosure orders, or no order at all.
what is standard disclosure ?
Parties inspect disclosed documents unless there is a reason not to allow inspection.
What are the reasons a party may not be allowed to inspect certain documents?
A party may not be allowed to inspect documents due to lack of control, disproportionate inspection, or if the documents are subject to privilege.
Identify the three types of privilege mentioned in the context of disclosure.
The three types of privilege are not specified in the content, but they generally refer to legal protections that prevent certain information from being disclosed.
Describe the usual order for filing documents they intend to rely on before a final hearing in Small Claims Track.
At least 14 days before the date fixed for the final hearing, each party must file and serve copies of all documents on which they intend to rely at the hearing.
Explain the role of a Case Management Conference (CMC) in the context of Fast Track cases.
In Fast Track cases, the court may either give directions on allocation or list the case for a Case Management Conference (CMC) to discuss the management of the case.
How does the court handle claims that include personal injury in terms of disclosure orders?
In claims that include personal injury, unless the court orders otherwise, the order will typically be for standard disclosure.
What must parties do before the first case management conference in multi-track cases?
Parties must complete a disclosure report to be filed and served not less than 14 days before the first case management conference.
How many days before the first case management conference should parties discuss a draft disclosure order?
Parties should consider the issues and enter discussions to agree on a draft disclosure order not less than seven days before the first case management conference.
What does the court consider at the case management conference (CMC) in multi-track cases?
At the CMC, the court carefully considers what form of disclosure order is most appropriate for the case.
What is the purpose of entering discussions for a draft disclosure order?
The purpose is to seek agreement on the disclosure order that aligns with the overriding objective of conducting litigation efficiently and justly.
Identify the rule that governs the disclosure report timeline in multi-track cases.
The rule governing the disclosure report timeline is CPR 31.5(3).
Define the key components that the disclosure report must cover.
The key components include: a) existence of relevant documents, b) their location, c) storage methods for electronic documents, d) cost estimates for standard disclosure, and e) disclosure directions to be sought.
Identify the form used for electronic documents information.
The form used for providing information about electronic documents is the Electronic Documents Questionnaire (EDQ - Form N264).
How does the disclosure process differ between small claims track and multi-track cases?
In small claims track cases, the disclosure order is included in the directions given on allocation, while in multi-track cases, the process may involve more complex considerations and directions.
How should a party handle copies of documents that contain markings or features?
Such copies need to be separately considered for privilege and must be disclosed if they satisfy the test for standard disclosure.
What should a party do if they no longer have the original document in their control?
If a party no longer has the original document in their control, they must disclose any copies of that document.
Explain the significance of privilege in the context of document disclosure.
Privilege refers to the legal right to withhold certain documents from disclosure, and copies of documents with modifications or markings must be separately considered for privilege.
Describe the duty of disclosure in legal proceedings.
The duty of disclosure continues until proceedings are concluded, requiring a party to disclose documents within its control or created after the original disclosure date if they fall within disclosure obligations (CPR 31.11).
How does the continuing obligation affect the use of disclosed documents?
A party may only use disclosed documents for the purposes of the proceedings in which they were disclosed, not for any collateral or ulterior purpose (CPR 31.22(1)).
What can a party do if they want to restrict the use of a document read at a public hearing?
The court can be asked to make an order restricting or prohibiting the use of a document that has been read or referred to at a public hearing.
Explain the circumstances under which parties may not be allowed to inspect disclosed documents.
Parties may not be allowed to inspect disclosed documents if there is a lack of control over the documents, if inspection is deemed disproportionate, or if the documents are subject to privilege.
What are the key components of standard disclosure according to CPR 31.6?
The key components of standard disclosure include disclosing documents on which a party relies, documents that adversely affect their own case or another party’s case, and documents required by a relevant practice direction.
Explain the limitation of a party’s duty to disclose documents according to CPR 31.8.
A party’s duty to disclose documents is limited to those documents which are or have been in their control, as stated in CPR 31.8.
Describe the three key concepts related to document disclosure in legal proceedings.
The three key concepts are: 1) Is it a document (CPR 31.4)? 2) Is/was it in the party’s control (CPR 31.8)? 3) Does it fall within standard disclosure (CPR 31.6)?
Define a document in the context of information recording.
A document is anything that records information, which can include digital recordings, emails, photographs, text messages, voicemails, and metadata.
Explain the significance of metadata in documents.
Metadata is data about data, such as the time of creation or modification of a file, or its author, and is considered part of what constitutes a document.
Describe what is meant by ‘a party’s control’ regarding documents.
A party’s control refers to documents that are in physical possession, documents the party has a right to possess, or documents the party has a right to inspect or copy.
Identify the three conditions under which a document is considered to be in a party’s control.
(a) The document is in physical possession, (b) The party has a right to possession, (c) The party has a right to inspect or take copies.
How does the concept of control apply to documents held by an agent?
Documents held by a party’s agent are included in the party’s control if the party has a right to possess them.
Describe the requirements for a reasonable search for documents in standard disclosure.
A party must conduct a reasonable search for documents falling into categories (b) to (e) as outlined in CPR 31.6(b) and (c), considering factors such as the number of documents, the nature and complexity of the proceedings, the difficulty and expense of retrieval, and the significance of the documents.
Define the principle of proportionality in the context of a reasonable search.
The principle of proportionality ensures that the extent of the search is appropriate to the significance of the documents and the nature of the claim, balancing the need for thoroughness with the costs and difficulties involved.
What is the significance of the categories outlined in CPR 31.6(b) and (c)?
These categories define the types of documents that must be searched for during standard disclosure, guiding parties in their obligations to disclose relevant information.
How should documents be listed when withholding inspection due to privilege?
When withholding inspection due to privilege, it is not necessary to list each document individually. Instead, documents can be described generically, such as ‘correspondence between the defendant and its solicitor for the purpose of giving legal advice’.
What can a recipient do if they disagree with a party’s assertion of privilege?
If a recipient disagrees with a party’s assertion of privilege, they can apply to court to challenge the alleged privilege as per CPR 31.19(5).
Define the term ‘privilege’ in the context of document inspection.
In the context of document inspection, ‘privilege’ refers to the legal right to withhold certain documents from inspection, typically because they contain confidential communications or information protected by law.
Explain the significance of the document control list in legal proceedings.
The document control list is significant in legal proceedings as it outlines which documents are available for inspection, which are withheld due to privilege, and which are no longer in control, thereby clarifying the parties’ positions regarding document disclosure.
Describe the purpose of a disclosure statement in legal documents.
The disclosure statement sets out the extent of the search made for documents, certifies the party’s understanding of their duty to disclose, and confirms that the duty has been carried out to the best of the party’s knowledge.
What must a party certify in the disclosure statement regarding their duty to disclose documents?
The party must certify that they understand their duty to disclose the documents and that they have carried out that duty to the best of their knowledge.
Explain the implications of a party wishing to rely on a document in terms of inspection rights.
If a party wishes to rely on a document, inspection cannot be refused on the grounds of disproportionality.
List the most important types of privilege.
The most important types of privilege are: (a) Legal advice privilege, (b) Litigation privilege, (c) Without prejudice communications.
What is the significance of the term ‘without prejudice communications’ in legal privilege?
‘Without prejudice communications’ is one of the key types of privilege that protects certain discussions or negotiations from being disclosed in court.
Do privileged documents need to be produced in court?
Privileged documents do not need to be produced in court, but their existence must be disclosed.
Explain the significance of waiving privilege in document handling.
Waiving privilege occurs when a party discloses privileged information, which can lead to the loss of that privilege for the entire document or communication.
What should be done if a document contains both privileged and non-privileged information?
The privileged parts should be redacted to maintain the privilege while allowing access to the non-privileged portions of the document.
Describe the circumstances under which information can be redacted in a legal dispute.
Information that is totally irrelevant to the dispute, as well as confidential or commercially sensitive information, can be redacted.
How does partial waiver of privilege affect a wholly-privileged document?
Partial waiver of privilege in a wholly-privileged document results in the waiver of privilege over the entire document unless the parts deal with entirely different subject matters.
Explain the implications of waiving privilege in one document on other documents.
Waiving privilege in one document can lead to the loss of privilege in other related documents if it would be unfair to withhold them, especially if they address the same subject matter.
How does case law affect the right to inspect documents in legal proceedings?
Case law suggests that the right to inspect documents is subject to the usual rules on privilege, meaning privilege is not lost simply by referencing a document in a statement of case or witness statement.
Define the implications of referencing a document in a statement of case or witness statement.
Referencing a document in a statement of case or witness statement could potentially amount to a waiver of privilege, depending on the circumstances.
What discretion does the court have regarding the inspection of documents?
The court has a general discretion to refuse inspection of documents, even if they are referenced in statements of case or witness statements.
Describe the process a party must follow to inspect documents according to CPR 31.15.
A party wishing to inspect documents must send a written notice to the other side, who must allow inspection within seven days of receipt of the notice. The court may vary these time limits.
How can a party request copies of documents instead of inspecting them?
A party can request copies of documents with an undertaking to pay reasonable photocopying charges, and copies must be provided within seven days of the request.
What happens if a party fails to permit inspection of a document?
A party may not rely on any document for which they fail to permit inspection unless the court gives permission.
Describe the significance of the case Bank of Nova Scotia v Hellenic Mutual War Risks Association regarding legal advice privilege.
The case establishes that if a client internally repeats legal advice from their lawyer to others in the company, that repetition retains the benefit of legal advice privilege.
How does the court handle ‘without prejudice’ documents in general?
Generally, ‘without prejudice’ documents will not be seen by the court unless the privilege is expressly waived.
Explain the implications of a document marked ‘without prejudice save as to costs’.
A document marked ‘without prejudice save as to costs’ means that its contents will not be disclosed to the court unless the court is considering the costs of the action or a specific issue related to costs.
Define a ‘without prejudice’ document.
A ‘without prejudice’ document is a document whose purpose is a genuine attempt to settle a dispute, and it does not need to be explicitly marked as such for the privilege to apply.
Explain the significance of the dominant purpose in creating a document for litigation privilege.
The dominant purpose in creating a document for litigation privilege must be to obtain legal advice, evidence, or information for use in litigation that is reasonably in prospect; otherwise, the document may not be protected.
Do documents created for dual purposes always qualify for litigation privilege?
No, documents created for dual purposes do not automatically qualify for litigation privilege; the dominant purpose must be to obtain legal advice or information for litigation.
Define litigation privilege in the context of legal communication.
Litigation privilege refers to a confidential communication between a lawyer and their client, or between one of them and a third party (eg witness), created with the dominant purpose of obtaining legal advice, evidence, or information for use in litigation that was reasonably in prospect.
What types of documents are covered under litigation privilege?
Documents such as memoranda between lawyers in a firm regarding a case or drafts of statements of case are covered under litigation privilege.
How does litigation privilege apply to communications between a lawyer and a third party?
Litigation privilege applies to communications between a lawyer and a third party when the dominant purpose of the communication is to obtain legal advice or information relevant to ongoing or anticipated litigation.
Explain the limitations of legal advice privilege concerning communications with non-legal role lawyers.
Privilege is unlikely to apply to communications with individuals who are qualified lawyers but not employed in a legal role, even if they provide legal advice.
Explain litigation privilege.
Litigation privilege protects communications made in the course of or for the purpose of legal proceedings, ensuring that parties can communicate freely without fear of disclosure.
In the context of legal advice privilege, what does ‘presentational advice’ refer to?
‘Presentational advice’ refers to advice on the most appropriate way to present information in a legal context, which is protected under legal advice privilege.
How does the concept of ‘continuum of communication’ apply to legal advice privilege?
Wider communications between solicitor and client, even if ancillary to the primary purpose of providing legal advice, will be privileged as they fall within the ‘continuum of communication’.
In the case of Parry v Newsgroup Newspapers, what was determined about attendance notes?
The court held that attendance notes are not privileged since there is no confidentiality in notes of matters where both sides are present.
How does legal advice privilege relate to non-lawyers providing advice?
Legal advice privilege does not apply to advice of a legal or quasi-legal nature given by non-lawyers, such as tax advice from accountants.
What is required for a document to be considered under legal advice privilege?
The document must be a confidential communication between a lawyer and a client, prepared for the dominant purpose of giving or receiving legal advice.
How does privilege against self-incrimination function?
Privilege against self-incrimination protects individuals from being compelled to provide evidence that could incriminate themselves in legal proceedings.
Define public interest immunity.
Public interest immunity is a legal principle that protects certain information from disclosure in legal proceedings if revealing it would harm the public interest.
What are without prejudice communications?
Without prejudice communications are discussions or negotiations that cannot be used as evidence in court, aimed at encouraging settlement.
Explain the difference between specific disclosure and pre-action disclosure.
Specific disclosure is used after proceedings have started to obtain information from the opponent, while pre-action disclosure is used before proceedings have started to gather information.
How does the timing of an application for specific disclosure work?
An application for specific disclosure can be made at any time after proceedings have been issued, typically after standard disclosure has occurred.
What is the typical context for making an application for specific disclosure?
An application for specific disclosure is generally made when the applicant believes that further disclosure is necessary after standard disclosure has taken place.
How can an applicant utilize an application for specific disclosure when seeking documents?
An applicant can use it to request documents earlier than the current directions provide for, but this is applicable only after proceedings have been issued.
Describe the conditions under which a court will usually order an opponent to disclose documents.
A court will usually order an opponent to disclose documents if it can be shown that the court has made an order for standard disclosure and that, upon proper consideration of the applicable disclosure rules, the documents should have already been disclosed by the opponent.
Describe the requirements for an application regarding specific disclosure.
The application must specify the order sought, including a detailed list of the documents in a schedule. It must also be supported by evidence, typically in the form of a witness statement from the party or their solicitor.
What components are typically included in an application for specific disclosure?
An application for specific disclosure typically includes an application notice, a draft order, and supporting evidence. - LIKE INTERIM APPLICATIONS
Define specific inspection in the context of document disclosure.
Specific inspection is an order that allows a party to inspect a disclosed document, despite the disclosing party claiming that it would be disproportionate to allow such inspection.
Describe the circumstances under which specific inspection is typically used.
Specific inspection is used relatively rarely because it is uncommon for a party to disclose the existence of a document and then claim that allowing inspection would be disproportionate.
Define the conditions under which the court may order pre-action disclosure.
The court may order pre-action disclosure if the respondent is likely to be a party to subsequent proceedings, the applicant is also likely to be a party, the documents sought would be subject to standard disclosure if proceedings had started, and it is desirable for fair disposal, resolution without proceedings, or cost-saving.
How does a pre-action disclosure order differ from a specific disclosure application?
A pre-action disclosure order may require the respondent to specify documents that are no longer under its control or that it has a right to withhold from inspection, in addition to disclosing specific documents.
Who typically bears the costs in a pre-action disclosure application?
Typically, the applicant for pre-action disclosure will have to pay the respondent’s costs.
How does CPR 31 facilitate obtaining information from non-parties?
CPR 31 allows for applications for disclosure from someone not a party to the proceedings, specifically under CPR 31.17.
Define Norwich Pharmacal Orders in the context of CPR 31.
Norwich Pharmacal Orders, referenced in CPR 31.18, are used to obtain information from a non-party that may assist in identifying a wrongdoer, although it may require issuing a claim form.
Describe the power of the court regarding non-party disclosure of documents.
The court can order a person who is not a party to the proceedings to disclose documents if certain requirements are met, specifically if the documents are likely to support the applicant’s case or adversely affect another party’s case, and if disclosure is necessary to fairly dispose of the claim or save costs.
Define the conditions under which the court may order non-party disclosure.
The court may order non-party disclosure if the documents are likely to support the applicant’s case or adversely affect another party’s case, and if disclosure is necessary to dispose fairly of the claim or to save costs.
What must occur before a court can consider non-party disclosure?
Proceedings must have actually started before the court can consider making an order for non-party disclosure.
How does non-party disclosure relate to standard disclosure?
The test for non-party disclosure is similar to that for standard disclosure, as it also considers whether the documents are likely to support the applicant’s case or adversely affect another party’s case.
Define the role of the applicant in relation to costs in court applications.
The applicant is typically responsible for paying the costs incurred by the respondent in dealing with the application and complying with any court orders.
Describe the purpose of a Norwich Pharmacal order.
A Norwich Pharmacal order provides a solution when court proceedings cannot be initiated due to the unknown identity of the defendant, requiring a respondent who is not the defendant to disclose information that allows the claimant to sue the correct defendant.
What is the relationship between Norwich Pharmacal orders and the identity of defendants?
Norwich Pharmacal orders are specifically designed to assist claimants in identifying defendants when their identities are unknown, allowing for legal action to be taken against the correct party.
Describe the procedure for seeking a Norwich Pharmacal Order before substantive proceedings are issued.
The applicant typically issues a claim form against the respondent third party who possesses the relevant information, using the alternative issue procedure in CPR 8.
How is a Norwich Pharmacal Order sought after substantive proceedings have been initiated?
It is sought as an interim application within those proceedings pursuant to CPR 23.
What are the three conditions that must be satisfied for the court to exercise the power to order Norwich Pharmacal relief.
- a wrong must have been carried out (or arguably carried out) by an ultimate wrongdoer (for example, a tort, breach of contract or crime);
- there must be the need for an order to enable action to be brought against the ultimate wrongdoer (so it is unlikely an order will be obtained if the information can be obtained another way)
- the person against whom the order is sought must
(i) be more than a mere witness / bystander (they must have some greater involvement, but not necessarily any fault); and
(ii) be able to (or likely be able to) provide the information necessary to enable the ultimate wrongdoer to be sued.
