Disclosure Flashcards
What is the meaning of ‘disclosure’ under CPR 31.2?
A party discloses a document by stating that the document exists or has existed
When does disclosure apply?
All claims BAR claims on the small claims track
What is a document?
CPR 31.4
Anything in which information of any description is recorded
Includes:
- Audio recording
- Videos
- Computer files
Disclosure duties
- Duty on the parties to provide a ….
- There is a legal obligation on solicitor to _____ clients on disclosure and to go through documents and _______ them
- There is an ethical duty on counsel to ______ if a client _____ to give disclosure
- Disclosure statement + list of documents it is going to rely on
- Advise / check
- Withdraw / refuses
What may result if a party makes a false disclosure statement without honest believe in its truth?
Proceedings for CONTEMPT of COURT may be brought against them
What documents must be disclosed under standard disclosure?
TEST
Documents on which the party relies on; and
Documents which
- Adversely affect their own case;
- Adversely affect another party’s case;
- Support another party’s case; and
Documents which they are required to disclosure by a relevant PD
When giving standard disclosure, a party is required to make a _______ _____ for documents
What are the factors relevant in deciding the reasonableness of a search?
If a party has not searched for a category of document on the grounds that to do so would be unreasonable, what must they do?
Reasonable Search
Factors:
Number of documents involved
Nature and complexity of proceedings
Ease and expense of retrieval of particular documents
Significance of any document, Which is likely to be located during the search
Need to state so in their disclosure statement and identify the category/class of document
A party’s duty to disclose documents is limited to documents which _______________
When will this have occurred?
Are or have been in their control
Party has or has had a document in their control if:
It is or was in their physical possession
They have or has had a right to possession of it; or
They have or has has a right to inspect or take copies of it
How many copies of the documents does the party have to provide?
Only 1 copy
What is a Peruvian Guano Order?
Order to disclose any document which may LEAD TO AN ENQUIRY which may enable a party to advance its case or damage another’s case
Do documents relating to quantum need to be disclosed?
Will insurance documents need to be disclosed?
Does the claimant still need to give disclosure if the D has been barred from defending the claim?
If being dealt with all together then yes, but
If a split trial is taking place, where quantum will only be decided once liability has been, disclosure of documents relating to this should take place after the liability dispute is concluded
Insurance = not unless insurance is an issue
Still need to give disclosure - D not allowed to formally run any defence but can point out issues with C’s case
In the fast track, an order to give disclosure is an order to give _____ disclosure, unless the ______ ______ otherwise;
Court may ___ with or ___ ______ disclosure; and
The parties may ____ in writing to ______ with or to ___ _______ disclosure
STANDARD/ court orders
Dispense/ limit / standard
Agree / dispense / limit / standard = RARE
When may the court limit standard disclosure? (4)
If amount of of documentation may be large and needs to be cut down
Where many of the documents both parties have access to anyway
Parties already provided informal disclosure and inspection for the majority of documents
If costs of providing standard disclosure would be disproportionate
What are the 3 types of private privilege?
- Legal Professional Privilege
- Without Prejudice Privilege
- Privilege against Self-incrimination
What are the two types of Legal Professional Privilege?
Legal Advice Privilege
Litigation Privilege
What documents are protected under Legal Advice privilege?
Documents created to provide legal advice or assistance, and explaining what action client should take
What documents are protected under Litigation privilege?
Covers confidential communications with client and third parties,
Where ligation was contemplated or pending and the documents were created with a view to litigation
Where a document has been created for more that’s one purpose, what test does the court have to apply?
Court has to look for DOMINANT PURPOSE behind the creation of the document
What falls within the scope of without prejudice privilege?
Does the words “without prejudice” need to be expressly used?
Communications which are genuine aimed at settlement
Word do not have to be used - although good practice to do so
What may a person do if they are claiming privilege agaisnt self-incrimination?
Person may refuse to answer any question or produce a document or thing it to do so would ten to expose that person to proceedings for an offence
How does privilege apply in practice?
Party A disclosed that document exists and indicate that they object to Party B inspecting, because Party A claiming privilege
What will be the effect of this?
Party B will know that the document exists but will not be about to inspect and therefore will not know what the document says
How can a party B challenge another party A’s claim to privilege?
Yes, the party B can challenge the claim for privilege, Court will look at the document and decide if Party’s A claim to privilege is made out
Party B will not see document unless court concluded that privilege cannot be claimed
Who can waive privilege
Legal Advice Privilege
Litigation Privilege
Without Prejudice Privilege
Legal Advice Privilege = ONLY the CLIENT
Litigation Privilege = ONLY the CLIENT
Without Prejudice Privilege = ONLY with CONSENT of BOTH parties
List of documents which each party must make and serve on every other party, must identify the documents in a _______ order and as _______ as possible
Needs to list the documents that ….
Why may a document be sunbelt to be inspected?
Convenient / concisely
Can be inspected and though which cannot be inspected
Cannot be inspected, because:
Privilege claimed,
party no longer has control of the document; or
It would be disproportionate to search for
A party to whole a document has been disclosed has a right to ______
What are the exceptions to this rule?
Inspect that document
Except where:
Document no longer in. The control of the party who disclosed it
Party disclosing the document has a right to withhold inspect of it (privilege)
Party considers that it would be disproportionate to the issues to permit inspect
If a party feels that it would be disproportionate to permit inspect of document, what must that party do?
They miss state in their disclosure statement that inspect will not be permitted on the grounds that it would be disproportionate
The list of documents must be verified by what?
Disclosure statement
What will the disclosure statement set out?
What may happens if a party makes a false disclosure statement?
Extend of the search that has been made to locate documents
Certifying the party understand the duty to disclose documents; and
Certifying that to the best of their knowledge they have carried out that duty
————-
Contempt of court proceeds may be brought against them
Where a party has a right to inspect a document, does that party need to give the party that disclosed it notice if they wish to inspect it?
In what time limit must inspection be permitted?
What if the party requests a copy of the document?
Yes need to give written notice
Party who disclosed document must permit inspect not more that 7 days after the date on which they received the notice
If the party requests a copy (and undertake to pay reasonable copying costs) party who disclosed document must simply other party with a copy not more that 7 days after receiving the request
Inspection of documents can take place for documents mentioned in which documents?
Documents contained in disclosure list or
Documents referred to in:
- statement of case
- Witness statements
- witness summaries
What is the consequence of failing to disclose a document or permit the inspect of a document?
The party may not rely on the document UNLESS the court gives permission
What are the 4 heads of disclosure?
Protocol Disclosure
Pre-action Disclosure
Post-issue disclosure by a party
Obtaining documents s post-issue
How long before the first case management conference must each party file a report?
Needs to be verified by a ….
What does this report need to set out?
At least 14 days before
Verified by a statement of truth
Set out:
Briefly describe documents exist or may exist or may be relevant to matters
Where and with whom those documents are
Describe how electronic document are being stored
Estimate of costs for complying with standard disclosure, eg the search
State what directions are sought from court
No less than 7 days before 1st case management conference court can direct what ….
parties to meet/call to discuss and try to agree disclosure proposal
What can the court do if the parties have agreed a disclosure proposal?
If court considers the proposal appropriate, then can approve it without a hearing and give directions in the terms proposed
What will the court have regard to when making disclosure orders?
Regard to the overriding objective and need to limit disclosure to that which is necessary to deal with the case justly
What orders may the court make in relation to disclosure?
Order dispensing with disclosure
Order for specific disclosure
Order for Disclosure to be given issue by issue
Order for each party to disclose document which may contain information to advance their own case, or to damage other parties or which leads to AN ENQUIRY
Order for standard disclosure
Other order court considers appropriate
Any duty of disclosure continues until _______________
If document to which that duty extend comes to a party’s notice at any time during proceedings, they must ___________________
The proceedings are concluded
Immediately notify every other party
