Disclosure Flashcards
When do the disclosure rules in part 31 not apply?
Small claims track
How is a document disclosed?
By a party stating that it exists
When is the right to inspect a disclosed document limited?
(i) when the party who disclosed it no longer controls it
(ii) the party who disclosed it has a right to withhold it
(iii) the party who disclosed it thinks that a category or class of documents would be disproportionate to disclose, and they make a disclosure statement to that effect
When does standard disclosure apply?
multi- and intermediate track claims which do not include PI
Under standard disclosure, when must list and disclosure be completed?
Not less than 14 days before the first CMC
When must the parties seek agreement about the scope of any disclosure order?
Not less than 7 days before CMC
What is the test for disclosure under standard disclosure?
Party must disclose:
documents on which they rely
and
documents which:
(a) adversely affect their own case
(b) adversely affect another party’s case
(c) support another party’s case
and anything required by PDs
Does a document that does not adversely affect a case, but may indicate lines of inquiry toward that which would fall to be disclosed?
No
What are the four categories of documents relevant to disclosure?
(i) parties’ own documents
(ii) adverse documents
(iii) relevant documents
(iv) train of inquiry documents
Which two categories of documents fall to be disclosed under standard disclosure
(i) parties own documents
(ii) adverse documents
How should the test of adversely affecting be judged?
Against the statement of case
What is the test for redaction of information in a document?
Same as standard disclosure
What is the duty of search?
Under standard disclosure, a party must make a reasonable search for documents.
If a search is not conducted as it is deemed to be unreasonable, the party’s disclosure statement should say so
What documents is it a party’s duty to disclose, assuming they pass the disclosure test?
Those which are, or have been in their control
That is, those documents which it has:
(a) physical control over
(b) right to possession of
(c) right to inspection of
What must be included in standard disclosure?
A list stating of docs and a short description which indicates which are withheld and which are no longer in the party’s control
and
a disclosure statement
What is in a disclosure statement
It sets out
The extent of the search
certifies that the duty of disclosure is understood
certifies that this duty has been carried out
sets out why docs are withheld or were not searched for
When does the duty of disclosure end?
It continues throughout proceedings
If a document is mentioned in a statement of case, witness statement or experts report can it be inspected?
Yes -
though this may be subject to a proportionality exercise (only likely to be disproportionate in an experts report as there are so many docs mentioned
What is the procedure if a party wishes to inspect a disclosed document?
It must given written notice of this wish
Inspection must be permitted not more than 7 days after service of the request
If a copy is requested this must be supplied within 7 days, subject to the party paying reasonable copying costs
What is the consequence of failing to disclose of permit inspection?
The document may not be relied on by that party
What is the consequence of making a false disclosure statement?
Contempt of court proceedings may be brought against you
Can the procedure for standard disclosure be varied by agreement between the parties?
Yes - by written agreement which is filed with the court
What is an order for specific disclosure?
An order to either:
(a) disclose docs or classes of docs specified in the order
(b) carry out a search to the extent of the order
(c) disclose any documents located as a result of the search
What is an order for specific inspection?
An order for a party to allow inspection of a document that was considered disproportionate to allow inspection of by the party disclosing it
