Disclosure Flashcards
Disclosure (definition)
31.2
party must disclose every (RELEVANT) document of which it has control and which falls within the scope of the court’s order for disclosure
Inspection (definition)
31.3 - allowing otherside to see document
if document as a whole is privileged
PART 2 (not inspectable)
if you want to waive any part of it - must waive whole document (Great Atlantic)
If document as a whole is NOT privileged
PART 1
if you want to redact any severable part - redacted version goes in PART 1 (unredacted goes in PART 2)
5 stage
- document
- control
- standard disclosure?
CONCLUDE: disclosable or no?
- Inspection?
- which list
- DOCUMENT?
31.4
State whether it is a document?
31A PD 2A.1 (e-Documents)
- control
31.8
physical possession
right to possession
right to inspect or take copies
- test for standard disclosure satisfied?
31.6
copy out 31.6 word for word
in your mind: read “relies” as “relevant”
ONE - RELIES
TWO - ADVERSELY AFFECTS
THREE - REQUIRED TO DISCLOSE BY PD
REMEMBER to provide full reasons why
reasonable search?
- 7
- party only needs to make reasonable search considering factors in 31.7
courts consider also: overriding objective, and proportionality
- inspection
31.3 - cannot inspect if (1) no longer have it (2) privilege, (3) disproportionate
The 3 types of privilege:
ONE – legal advice privilege
TWO – litigation privilege
THREE – without prejudice
also: common interest, self-incrimination, public interest
waiver
only client can waive privilege by:
- loss of confidentiality
- mention of document in court document
- accidentally
- agreement
CANNOT WAIVE IN PART
- listed in part 1,2, or 3?
PART 1: disclose and other side can inspect
PART 2: disclose but privileged (other side can’t inspect)
- describe generically
PART 3: documents we had but no longer have
after list is signed and served to other side
INSPECTION 31.15
31.14
party can inspect document mentioned in statement of case/witness statememt
redaction
redacting IRRELEVANT or PRIVILEGED parts of a document is fine
redacted version - part 1
non-redacted version - part 2
LEGAL ADVICE PRIVILEGE
Document which is
- confidential
- communication
between a lawyer and a client and was
- prepared for the purpose of giving or receiving legal advice
Parry v Newsgroup Newspapers
OPEN CORRESPONDANCE IS NOT PRIVILEGED
LEGAL ADVICE PRIVILEGE (communication between lawyer and client)
Three Rivers (communication with client)
narrow definition of client - identify your client and always correspond with someone with authority to deal with case and authority to provide instructions
LEGAL ADVICE PRIVILEGE (communication between lawyer and client)
Balabel v Air India
“continuum of communication” is privileged (if solicitor retained primarily to provide legal advice, wider communications even if ancillary to purpose will be privileged)
LEGAL ADVICE PRIVILEGE (purpose of giving/receiving legal advice)
Three Rivers
“presentational advice” is privileged
LEGAL ADVICE PRIVILEGE (purpose of giving/receiving legal advice)
The Good luck
if client repeats internally legal advice provided by his lawyer (e.g. to other personnel in company) the repetition is privileged
LEGAL ADVICE PRIVILEGE (purpose of giving/receiving legal advice)
LITIGATION PRIVILEGE
Scope: document which is
- confidential communication which
- passed between lawyer and his client or between one of them and a 3P
- where the dominant purpose in creating the document is to obtain legal advice, evidence, or information
- for use in conduct of litigation which was at the time reasonably prospect
Waugh v British Railways Board
if duality of purpose (and both have equal weight) - litigation is NOT dominant purpose
LITIGATION PRIVILEGE (dominant purpose)
Re Highgrade Traders
ask the commissioner not the author what dominant purpose was
LITIGATION PRIVILEGE (dominant purpose)
USA v Phillip Morris
litigation must be a real likelihood rather than a mere possibility (apprehension insufficient)
LITIGATION PRIVILEGE (litigation reasonably in prospect)
WITHOUT PREJUDICE
Scope: documents whose purpose is a genuine attempt to settle a dispute
Rush and Tomkings v Greater London Council
court looks at substance not form (doesn’t matter if it is just marked with ‘attempt to settle’, it must actually be a genuine attempt to settle)
common interest privilege
Confidential communication between party in the action and 3P with whom it has common interest in the subject matter and the action (common categories of relationships: insurers/assured, agent/principal, parties who use same solicitors, company in the same group)
privilege against self-incrimination
documents which would tend to incriminate or expose to a subsequent criminal penalty the party disclosing it
rare
problem in fraud actions
Public interest immunity (CPR 31.19)
– if disclosure document would damage the public interest
- rare
- invoked in actions against police/government departments
PROPORTIONALITY (31.3(2))
not a kind of privilege but CPR provides inspection must be proportionate
but if document is found and its existence disclosed, after reasonable search there is generally little additional expense in allowing inspection (so this provision is little used in practice)
