Disclosure

Question 1

What is disclosure as defined in r31.2

Answer 1

A party discloses a document by stating that the document exists or has existed

Question 2

What is a document r31.4

Answer 2

Anything in which information of any description is recorded

Question 3

What kind of disclosure must be made in small claims track

Answer 3

inapplicable to small claims track

Question 4

Fast & intermediate tracks

Answer 4

Norm is for the parties to give standard disclosure
Menu of options is available

Question 5

Multi-track

Answer 5

Norm is to give standard disclosure for those with personal injuries

Question 6

Disclosure for multi track that is not PI

Answer 6

Disclosure report to be filed and served no less than 14 days before the first case management conference

Question 7

What must a disclosure report be verified with

Answer 7

statement of truth

Question 8

What must happen 7 days before first case management conference

Answer 8

parties must (by meeting or telephone) discuss and seek to agree a proposition relating to disclosure that meets the overriding objective.

Question 9

Which documents must be provided when giving standard disclosure

Answer 9

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

Question 10

To what extent should the parties search for docs

Answer 10

docs dealing with those issues and which affect the case to a material extent

Question 11

How is the scope of SD limited

Answer 11

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

Question 12

Does a party need to disclose a copy?

Answer 12

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

Question 13

What does it mean by making a reasonable search

Answer 13

‘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

Question 14

When can a party be withheld right to inspect docs

Answer 14

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

Question 15

Form for standard disclosure

Answer 15

form n265

Question 16

What is a disclosure statement

Answer 16

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

Question 17

what happens if a person lies on disclosure statement

Answer 17

they are in contempt of the court

Question 18

Reasons to withhold the right to inspect

Answer 18

docs are protected by legal prof privilege

docs tending to incriminate producing party

docs privileged on public policy grounds

Question 19

when are communications between solicitor and third party privileged

Answer 19

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

Question 20

how to determine if a doc is privileged between cl and third party

Answer 20

look to dominant purpose when it came into existence

Question 21

what if privileged docs went to the other party by mistake

Answer 21

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

Question 22

part 1 of the disclosure list

Answer 22

actual docs are identified and the party does not object to them being inspected

Question 23

part 2 of the disclosure list

Answer 23

party should disclose the type of docs they are claiming privilege from inspection - existence is disclosed but legitimate ground must be claimed

Question 24

part 3 disclosure list

Answer 24

doc is no longer in control of the party

state when it was last in partys control and where it is now

Question 25

what happens where a party fails to disclose

Answer 25

financially penalised

Question 26

when will specific disclosure be applicable

Answer 26

a party is dissatisfied with disclosure provided

notice to specify court order they would like and grounds for the application + supporting evidence

Question 27

what would an order for specific disclosure require a party to do

Answer 27

disclose specified doc or class of doc

carry out a search and disclose docs located as a result

Question 28

when will pre-action disclosure be made

Answer 28

where party is unsure they have a good case

Question 29

can a party to proceedings apply for disclosure against a non party

Answer 29

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

Question 30

what must an order for non party disclosure contain

Answer 30

specify the docs/class of docs to be disclosed
require non party to specify which docs are no longer in their control/privileged

Question 31

can order be made where docs are within jurisdiction, but the non party is outside

Answer 31

yes- gorbachev v guriev

Question 32

para 1.4 SRA- what must the solciitor never do

Answer 32

mislead the court - they must promptly disclose a doc where they become aware during the course of a case which should have been disclosed

Question 33

when can a court order non party disclosure

Answer 33

docs in question likely to support applicants case or adversely affect another party

disclosure is necessary to dispose fairly of the case/save costs

Question 34

what should a solicitor do if a client insists on giving imperfect disclosure

Answer 34

withdraw from the case