Disclosure Flashcards
What does the obligation to disclose come from?
An order for disclosure
What is required for the Small Claims Track regarding disclosure?
Each party must file and serve copies of all documents at least 14 days before the final hearing
This order given on allocation.
When is the order for disclosure usually given in the Fast Track/Intermediate Track and what type of disclosure is it?
- Usually given on allocation
- Usually standard disclosure
What must parties complete in the Multi-Track (other than PI claims)?
A disclosure report
This report must be filed and served not less than 14 days before the first CMC.
What is the next step after filing a disclosure report?
Parties must enter into discussions and seek to agree a draft disclosure order to be filed not less than 7 days before the first CMC
Court will decide on the most appropriate form of disclosure at the CMC
What does the Disclosure Report (Form N263) explain?
- What docs exist/may exist
- where/with whom/how they are being stored
- estimate the broad range of costs involved in giving standard disclosure
- which other disclosure directions will be sought
What is the purpose of the Electronic Documents Questionnaire (EDQ - Form N264)?
To provide information regarding electronic documents involved in the case
At the CMC, what does the court consider regarding standard disclosure?
Whether standard disclosure is too expensive and which alternative might be better
What could the court order regarding disclosure?
- dispense with the need for disclosure
- require disclosure in relation to issues/in stages
Under what conditions do copies of documents need to be disclosed?
- If they contain modifications which themselves satisfy the test for standard disclosure; or
- If the party never had the original
This ensures that necessary information is still available for the case.
When does the duty of disclosure end?
Until proceedings are concluded
This duty persists throughout the legal process.
Can documents be used for collateral or ulterior purposes?
No, except if:
- the doc has been read or referred to by the court at a public hearing
- the court gives permission
- parties agree
CPR for standard disclosure?
CPR 31.6
Standard disclosure reuiqres a party to disclose only:
a. The docs on which he relies; and
b. The docs which
i. Advrsely affect his own case
ii. Adversely affect another party’s case or
iii. Support another party’s case; and
c. The docs which he is required to disclose by a relevant practice direction
Structure for standard disclosure
- Is there a document?
- Is it under the party’s control?
- Does it fall under standard disclosure?
What is included in standard disclosure?
Documents as defined in CPR 31.4 - anything which records info
This includes digital recordings, emails, photos, voicemails, and metadata.
What does it mean for documents to be in a party’s control?
Documents are in a party’s control if:
- They are in the party’s physical possession
- The party has a right to possession
- The party has a right to inspect or take copies of the document.
this encompasses documents presently and formerly in a party’s control
What types of documents must be disclosed?
Documents must be disclosed if they:
- Are relied on
- Adversely affect the party’s case
- Adversely affect another party’s case
- Support another party’s case
- Are required by a relevant practice direction.
Do documents that do not support or undermine either case need to be disclosed?
No
What is required of a party regarding document searches?
A party must make a reasonable search for documents, taking into account the principle of proportionality.
What is a disclosure list?
Each party needs to make a list of documents, which are exchanged simultaneously.
What are the three parts of a disclosure list?
- Documents I control and do not object to inspecting.
- Documents I control but object to inspecting due to privilege (these docs are generally described)
- Documents I had but are no longer in my control.
What must a disclosure list contain?
Adisclosure statement that sets out:
- The extent of the search made
- Certifies the party understands its duty
- Certifies it has carried out its duty.
must be signed by the party themselves NOT the solicitor!
Can parties rely on undisclosed documents?
No, parties cannot rely on documents they fail to disclose or permit inspection of.
What should solicitors do regarding disclosure obligations?
Solicitors should advise clients of their disclosure obligations at the outset of a case.
