Disclosure Flashcards
What is disclosure as defined in r31.2
A party discloses a document by stating that the document exists or has existed
What is a document r31.4
Anything in which information of any description is recorded
What kind of disclosure must be made in small claims track
inapplicable to small claims track
Fast & intermediate tracks
Norm is for the parties to give standard disclosure
Menu of options is available
Multi-track
Norm is to give standard disclosure for those with personal injuries
Disclosure for multi track that is not PI
Disclosure report to be filed and served no less than 14 days before the first case management conference
What must a disclosure report be verified with
statement of truth
What must happen 7 days before first case management conference
parties must (by meeting or telephone) discuss and seek to agree a proposition relating to disclosure that meets the overriding objective.
Which documents must be provided when giving standard disclosure
The documents on which he relies; and
The documents which
Adversely affects his own case
Adversely affects another party’s case; or
Support another party’s case; and
The documents which he is required to disclose by a relevant practice direction
To what extent should the parties search for docs
docs dealing with those issues and which affect the case to a material extent
How is the scope of SD limited
Disclosure limited to docs that are/have been in a party’s control (r31.8)
The document is or was in their physical possession; or
They have or have had a right to possession of it; or
They have or have had a right to inspect or take copies of it
Does a party need to disclose a copy?
Party does not need to disclose more than one copy of a doc unless the copy contains ‘a modification, obliteration or other marking or feature on which the party intends to rely, or which supports another party’s case, or which could adversely affect their own or another party’s case
Copy doc is treated as a separate doc
E.g. a letter is modified with writing admitting to a claim. This is adverse to the defendants, as the note admits to the claim. The modified letter will then be treated as a separate doc according to r31.6
What does it mean by making a reasonable search
‘Reasonable’ depends on
Number of docs involved
Nature & complexity of proceedings
Ease and expense of retrieval of any particular doc
The significance of the document
When can a party be withheld right to inspect docs
Doc is no longer in the control of the party who disclosed it
Party disclosing the doc has a right/duty to withhold inspection of it
Party considers it disproportionate to the issues in the case to permit inspection of documents within a category & states in their disclosure statement that inspection of those docs will not be permitted on the grounds that to do so would be disproportionate
Form for standard disclosure
form n265
What is a disclosure statement
A statement made by the party disclosing the docs setting out the extent of the search made to locate the docs
certifying they understand the duty to disclose
certifying that to the best of their knowledge they carried out that duty
what happens if a person lies on disclosure statement
they are in contempt of the court
Reasons to withhold the right to inspect
docs are protected by legal prof privilege
docs tending to incriminate producing party
docs privileged on public policy grounds
when are communications between solicitor and third party privileged
1) come into existence after litigation has commenced or is contemplated
2) made with a view to litigation, for the sole or dominant purpose of obtaining or giving legal advice to it
how to determine if a doc is privileged between cl and third party
look to dominant purpose when it came into existence
what if privileged docs went to the other party by mistake
if obvious to the solicitor, they should be returned
if not obvious, the receiving party can use it, however it is possible to seek an injunction against this
part 1 of the disclosure list
actual docs are identified and the party does not object to them being inspected
part 2 of the disclosure list
party should disclose the type of docs they are claiming privilege from inspection - existence is disclosed but legitimate ground must be claimed
part 3 disclosure list
doc is no longer in control of the party
state when it was last in partys control and where it is now
what happens where a party fails to disclose
financially penalised
when will specific disclosure be applicable
a party is dissatisfied with disclosure provided
notice to specify court order they would like and grounds for the application + supporting evidence
what would an order for specific disclosure require a party to do
disclose specified doc or class of doc
carry out a search and disclose docs located as a result
when will pre-action disclosure be made
where party is unsure they have a good case
can a party to proceedings apply for disclosure against a non party
yes
where party is not in the control of the disputed party, and they indicate whom has possession, they can write to X asking for a copy . if X refuses, they can apply for an order
what must an order for non party disclosure contain
specify the docs/class of docs to be disclosed
require non party to specify which docs are no longer in their control/privileged
can order be made where docs are within jurisdiction, but the non party is outside
yes- gorbachev v guriev
para 1.4 SRA- what must the solciitor never do
mislead the court - they must promptly disclose a doc where they become aware during the course of a case which should have been disclosed
when can a court order non party disclosure
docs in question likely to support applicants case or adversely affect another party
disclosure is necessary to dispose fairly of the case/save costs
what should a solicitor do if a client insists on giving imperfect disclosure
withdraw from the case
