Disclosure and Inspection

Question 1

Part 31 - disclosure and inspection - applies to which claims?

Answer 1

fast/multi track

Question 2

Definition of Disclosure

Answer 2

’ stating that a documents exists or has existed ‘

Question 3

A party to whom a document has been disclosed has the right to inspect that document, except where….

Answer 3

… 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

Question 4

Meaning of document

Answer 4

anything on which information can be recorded

Question 5

Multi - track timeline of deciding on extent of disclosure (unless PI)

Answer 5

• 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

Question 6

What docs must be disclosed under std. disclosure

Answer 6

• 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

Question 7

Duty of Search - A party is required to undertake a ‘reasonable’ search for documents - having regard to

Answer 7

• number of docs
• nature and complexity of proceedings
• ease and expense of retrieval
  -significance of any document likely to be retrieved

Question 8

Duty of disclosure extends to documents which are/have been in a party’s control - including…

Answer 8

• physical possession
• has had right to possession (med report)
• has had right to inspect/take copies

Question 9

Only one ‘copy’ of each doc required unless….

Answer 9

contains modification/obliteration/marking which falls under std. disc itself.

Question 10

What must be included in a disclosure report?

Answer 10

• 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)

Question 11

If a doc arises after disclosure has occurred, must a party disclose it?

Answer 11

yes, duty of disclosure is continuing

Question 12

A party has a right to inspect any document referred to in..

Answer 12

• Statement of Case
• Witness Statement
• Witness Summary
• Affidavit
  (same rights/duties to withhold apply)

Question 13

When must a party allow inspection , after received notice of wish to do so ..

Answer 13

nor more than 7 days

Question 14

Consequence of failure to disclose/permit inspection

Answer 14

may not rely on it

Question 15

Consequence of false disc statement (knowing/without honest belief)

Answer 15

contempt of court

Question 16

If a party wishes to inspect documents mentioned in an expert report , what is the correct CoA?

Answer 16

• before issuing application, informally request inspection
• this should be given unless unreasonable / where large #, only if not possible to obtain another way.

Question 17

Categories of documents (x4)

Answer 17

• 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

Question 18

Test for what can be redacted

Answer 18

same as std. disc

Question 19

What is a specific disclosure order?

Answer 19

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

Question 20

How/when can a party obtain specific disclosure?

Answer 20

if a party believes disc is inadequate
grounds on which sought must be set out in application/assoc evidence

Question 21

Does the court have discretion to make an order for specific disclosure or inspection - what factors will it take into account?

Answer 21

all circumstance inc.- generally towards whether it would assist either party to present a full and constructive case, must be relevant

Question 22

In what circumstances may a disclosed document outside of the proceedings in which it is disclosed?

Answer 22

• document read to/by court in a public hearing
• court permission
• the disclosing party agrees
  (this can be excluded)

Question 23

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?

Answer 23

NO - both parties must be likely parties
other factors are correct

Question 24

To what extent should the merits of the potential claim be considered in an applicaton for pre-action disclosure?

Answer 24

• enough to show properly arguable/real prospect of success - at least ‘prima facie’ case and entitlement to relief

Question 25

What order is appropriate when asking for disclosure by non-party to proceedings BEFORE proceedings have been commenced - info needed iot commence.

Answer 25

Norwhich Pharmacal Order

Question 26

What type of privilege protects communications between client and legal professional for purposes of legal advice?

Answer 26

Legal professional privilege.
(clients privilege > lawyers’, survives death/dissolution)

Question 27

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?

Answer 27

Litigation privilege.

Question 28

Exceptions to without prejudice in settlement negotiations

Answer 28

• where facts communicated are part of a factual matrix that led to settlement - and aid in understanding the construction of the agreement