Disclosure and Inspection Flashcards
Part 31 - disclosure and inspection - applies to which claims?
fast/multi track
Definition of Disclosure
’ stating that a documents exists or has existed ‘
A party to whom a document has been disclosed has the right to inspect that document, except where….
… the document is non longer in the control of the party who disclosed it or the disclosing party has a right or duty to withhold inspection
…where it would be disproportionate to allow it for particular doc/class of docs
Meaning of document
anything on which information can be recorded
Multi - track timeline of deciding on extent of disclosure (unless PI)
- not less than 14 days before CMC - file and serve disclosure report
- not less than 7 days before CMC - meet to discuss in relation to OO
- @ first CMC, court decision on any limits of disclosure
What docs must be disclosed under std. disclosure
- documents on which party relies
- documents which adversely effect their case
- documents which adversely effect another party’s case
- document’s which support another party’s case
NOT merely ‘collaterol’/non-material
Duty of Search - A party is required to undertake a ‘reasonable’ search for documents - having regard to
- number of docs
- nature and complexity of proceedings
- ease and expense of retrieval
-significance of any document likely to be retrieved
Duty of disclosure extends to documents which are/have been in a party’s control - including…
- physical possession
- has had right to possession (med report)
- has had right to inspect/take copies
Only one ‘copy’ of each doc required unless….
contains modification/obliteration/marking which falls under std. disc itself.
What must be included in a disclosure report?
- party’s exchange list of docs that exist, inc those which it has right/duty to withhold and why, inc those which are no longer in control and what has happened to them
- includes statement of reasonable search and understands/carried out duty (if firm must ID person making statement)
If a doc arises after disclosure has occurred, must a party disclose it?
yes, duty of disclosure is continuing
A party has a right to inspect any document referred to in..
- Statement of Case
- Witness Statement
- Witness Summary
- Affidavit
(same rights/duties to withhold apply)
When must a party allow inspection , after received notice of wish to do so ..
nor more than 7 days
Consequence of failure to disclose/permit inspection
may not rely on it
Consequence of false disc statement (knowing/without honest belief)
contempt of court
If a party wishes to inspect documents mentioned in an expert report , what is the correct CoA?
- before issuing application, informally request inspection
- this should be given unless unreasonable / where large #, only if not possible to obtain another way.
Categories of documents (x4)
- 1 parties’ own docs (reliance)
- 2 adverse documents (to a material extent - adversely affact a party’s case
- 3 relevant documents (do not obvs support/undermine either side but are relevant)
- 4 train of inquiry (enable a party to advance their own/damage anothers’ case)
1+2 ONLY inc in std. disc.
4 in fraud/dishonesty proceedings
Test for what can be redacted
same as std. disc
What is a specific disclosure order?
a party subject to it must
- disclose docs/class of docs specified
- carry out search to extent ordered
- disclose any docs located as a result of that search
How/when can a party obtain specific disclosure?
if a party believes disc is inadequate
grounds on which sought must be set out in application/assoc evidence
Does the court have discretion to make an order for specific disclosure or inspection - what factors will it take into account?
all circumstance inc.- generally towards whether it would assist either party to present a full and constructive case, must be relevant
In what circumstances may a disclosed document outside of the proceedings in which it is disclosed?
- document read to/by court in a public hearing
- court permission
- the disclosing party agrees
(this can be excluded)
Is pre-action disclosure available where;
- Party A is likely C, Party B is not related to claim
- Disclosure requested is within std. disclosure
- disclosure is desirable to assist/dispose/save costs of proceedings?
NO - both parties must be likely parties
other factors are correct
To what extent should the merits of the potential claim be considered in an applicaton for pre-action disclosure?
- enough to show properly arguable/real prospect of success - at least ‘prima facie’ case and entitlement to relief
What order is appropriate when asking for disclosure by non-party to proceedings BEFORE proceedings have been commenced - info needed iot commence.
Norwhich Pharmacal Order
What type of privilege protects communications between client and legal professional for purposes of legal advice?
Legal professional privilege.
(clients privilege > lawyers’, survives death/dissolution)
What type of privilege protects communications between client, legal pro and any 3rd party party for purposes of advice about litigation/made in contemplation of litigation?
Litigation privilege.
Exceptions to without prejudice in settlement negotiations
- where facts communicated are part of a factual matrix that led to settlement - and aid in understanding the construction of the agreement
