Disclosure

Question 1

Four jurisdictional requirements for statutory pre-action disclosure

Answer 1

1) Respondent likely to be a party
2) Applicant likely to be a party
3) Respondent’s duty would extend to disclosure, if proceedings had started
4) Disclosure is desirable in order to (a) dispose fairly; OR (b) assist the dispute to be resolved without litigation; OR (c) save costs

Question 2

Three things for which an application for specific disclosure can be made

Answer 2

1) disclose documents or classes of documents
2) carry out a search
3) disclose documents following a search

Question 3

Test for whether court will allow an application for specific disclosure

Answer 3

The court will apply the overriding objective. In particular, it will consider whether

1) the documents are relevant
2) the documents are within the party’s control

Question 4

Two things a court order for pre-action disclosure MUST do

Answer 4

1) require the respondent to specify what documents (or classes) the respondent must disclose

2) require the respondent to specify documents that
(a) are no longer in his control OR
(b) over which he claims a right to withhold inspection

Question 5

Two things a court order for pre-action disclosure MAY do

Answer 5

1) require the respondent to indicate what has happened to any documents which are no longer in his control
2) specify the time and place for disclosure or inspection

Question 6

Two things a court order for disclosure against a non-party MUST do

Answer 6

1) require the respondent to specify what documents (or classes) the respondent must disclose

2) require the respondent to specify documents that
(a) are no longer in his control OR
(b) over which he claims a right to withhold inspection

Question 7

Two things a court order for disclosure against a non-party MAY do

Answer 7

1) require the respondent to indicate what has happened to any documents which are no longer in his control
2) specify the time and place for disclosure or inspection

Question 8

Test for whether court will allow an application for disclosure against a non-party

Answer 8

1) Whether it is likely to support the case of the applicant or adversely affect the case of another party
2) Whether disclosure is necessary in order to fairly dispose of the claim or to save costs

Question 9

Main purpose of a Norwich Pharmacal order

Answer 9

To allow the claimant to discover the identify of an (alleged) wrongdoer

Question 10

Characteristics of parties against whom a Norwich Pharmacal order may be brought

Answer 10

“Facilitators” - meaning they are innocently caught up in the wrongdoing.

They must be more than a mere witness.

Question 11

Three requirements before a Norwich Pharmacal order can be granted

Answer 11

1) a wrong has been carried out (or arguably)
2) there is a need for the order, to enable the action to be brought against the wrongdoer

3) the party against whom the order is sought is
(a) a facilitator; and
(b) likely to be able to provide the information necessary

Question 12

Two things the parties must do to dispense with disclosure by agreement

Answer 12

1) record the agreement in writing
2) lodge the agreement with the court

PD31A, para 1.4

Question 13

Test for a document qualifying for public interest immunity from disclosure

Answer 13

Whether disclosure would be “injurious to the public interest” (Burmah Oil).

Question 14

Consequence of failure to disclose a document, or refusal to allow inspection of it

Answer 14

Party not able to rely on it, unless the court gives permission - r.31.21

Question 15

Consequence of making a false disclosure statement, without an honest belief in its truth

Answer 15

Contempt of court proceedings may be brought - r.31.23

Question 16

Three things that might waive the rule against the collateral use of a disclosed docoument

Answer 16

1) document used in open court
2) court gives permission
3) party who gave disclosure consents