Disclosure

Question 1

Disclosure vs inspection

Answer 1

Disclosure
Stating to another party that a document exists or has existed

Inspection
The party to whom a document has been disclosed looking at the document (they can also request a copy of that document)

Question 2

When does the obligation to disclosure end?

Answer 2

Any duty of disclosure continues until proceedings are concluded

Question 3

What qualifies for a standard disclosure?

Answer 3

Standard disclosure requires a party to disclose only–
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.

Question 4

What is a document?

Answer 4

A document is defined very widely and is anything which records information. It can therefore include:
Digital recordings
Emails
Photographs
Text messages
Voicemails
Metadata (data about data eg the time of creation or modification of a file, or its author)

Question 5

Is it in the party’s control?

Answer 5

The document is (or was) in the physical possession of the party; or
The party has (or has had) a right to possession of the document (eg documents held by party’s agent, such as documents a party sent to its own accountant); or
The party has (or has had) a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records).

Question 6

What is a reasonable search and what does it depend on?

Answer 6

If an order for standard disclosure is made, the rules provide that a party must make a reasonable search
What is reasonable depends on the following:
The number of documents involved
The nature and complexity of the proceedings
How difficult/expensive it is to retrieve any document
The significance of any document likely to be found

Question 7

When can inspection be forbidden?

Answer 7

The document is no longer in the disclosing party’s control;
Allowing inspection would be disproportionate; or
The disclosing party has a right or duty to withhold inspection, ie it is privileged.

Question 8

What information can you redact?

Answer 8

confidentiality / commercial sensitivity alone does not justify redaction
the privileged part can and indeed should be redacted, to avoid waiving privilege
if the information is totally irrelevant to the dispute, it can be redacted. So information which is confidential / commercially sensitive and irrelevant is generally redacted

Question 9

What is waiver?

Answer 9

It is possible for a party to deliberately allow inspection of a privileged document if it considers that the document helps its case.
a party cannot ‘cherry pick’ certain parts of a privileged document to reveal to the other side/the court

Question 10

Who has the burden of proof if there is a dispute over whether a document is privileged or not?

Answer 10

The person claiming there is privilege

Question 11

Can a party inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit and and expert’s report?

Answer 11

Yes

Question 12

Procedure for inspection

Answer 12

The other side must allow inspection within 7 days of receipt of the notice

Question 13

Consequences of failing to permit inspection?

Answer 13

A party may not rely on any document in respect of which he fails to permit inspection unless the court gives permission

Question 14

Privileges

Answer 14

Legal advice privilege
Litigation privilege
Without prejudice communications

Question 15

Legal advice privilege

Answer 15

confidential communication between a lawyer and a client
dominant purpose of giving or receiving legal advice
If the document is not confidential, privilege will not apply
A solicitor’s note of a conversation with his client concerning legal advice will be a confidential communication between lawyer and client and therefore subject to legal advice privilege.
A solicitor’s attendance note of a conversation between parties (ie normally between the solicitors for each party), or of what happens at court, is not privileged since, although the court held that the note is a communication, there is no confidentiality in notes of matters at which both sides are present

Question 16

Litigation privilege

Answer 16

between the lawyer and his client or between one of them and a third party
dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect
litigation must be a real likelihood rather than a mere possibility. A general apprehension of future litigation is insufficient.

Question 17

Without prejudice communication

Answer 17

“A document whose purpose is a genuine attempt to settle a dispute”
‘without prejudice save as to costs’ - means that the court will not see the document’s contents unless it is considering the costs of the action or a particular issue

Question 18

Pre-action disclosure (against a ‘likely’ party to proposed proceedings):
what is it?
when will the court order it?
who bears the costs?

Answer 18

What is pre-action disclosure?
The court’s power to order pre-action disclosure enables a party to obtain disclosure of documents before proceedings have commenced
The court may make an order for pre-action disclosure where:
The respondent is likely to be a party to subsequent proceedings; and
The applicant is also likely to be a party to those proceedings; and
If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents which the applicant seeks
The application must specify order sought and be supported by evidence
The applicant bears respondent’s costs

Question 19

What is non-party disclosure and when can it be made?

Answer 19

The court has the power to order a person who is not a party to the proceedings to give disclosure of documents
The documents are likely to support the applicant’s case or adversely affect the case of one of the other parties to the proceedings
Disclosure is necessary in order to dispose fairly of the claim or to save costs.

Question 20

Pre-action non-party disclosure: Notwitch Pharmacal orders

Answer 20

Norwich Pharmacal Order: This type of order provides a solution where court proceedings cannot be commenced because the identity of the defendant is unknown – it orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant.
Requirements
Wrong carried out by an ultimate wrongdoer
There’s a need for an order to enable action to be brought against the ultimate wrongdoer
The person against whom the order is doubt must be more than a mere witness/bystander + are able to provide information necessary for the ultimate wrongdoer to be sued
The order must be necessary and proportionate
The applicant pays the costs of the respondent

Question 21

What to do if you discover a document after disclosure?

Answer 21

you should disclose it to the other party; but if you wanna use it at trial seek court’s permission