Disclosure and Inspection Flashcards
Under standard directions, parties are required to provide _____ prior to the exchange of ______ ________
disclosure, witness statements
The duty to provide disclosure is to inform the other party of the existence of all _________ that are ________ to the litigation
documents, relevant
Standard disclosure in fast track and PI multi track cases requires each party to identify and inform the other of the existence of which four types of documents?
- Party intends to rely
- Adversely affect the party’s case
- Adversely affect the other party’s case
- Support the other party’s case
What 3 circumstances is a party deemed to have ‘control’ of a document, meaning the duty to disclose extends to it?
- Physical possession
- Right to possession
- Had possession but no longer does
‘Control’ of a document would include documents that a party has the right to do what 3 things?
- Possess
- Inspect
- Copy
What type of search do the courts expect each party to make for documents?
A reasonable and proportionate search
If a document is removed/destroyed a solicitor is required to inform the ____ and the ____ ____ of its existence, together with the ______ for its destruction
court, other party, reason
What can the court do with the fact that a party has failed to preserve a relevant document?
Draw an adverse inference
Can the court alter or dispense standard disclosure?
Yes
What 3 sections are parties to a fast track or PI multi-track case required to split the disclosure list into?
- Documents in its control that they don’t object to the other party inspecting
- Documents in its control that they do object to inspection, along with reasons why
- Documents no longer in its control
What 3 things must a party’s disclosure statement entail?
- Understanding of the duty to give disclosure
- Certification of duty
- They believe the extent of search made is reasonable and proportionate
What 4 things must a written request for information include?
- Documents sought and why they are relevant
- Why it’s reasonable and proportionate for the docs to be disclosed
- Grounds for believing their existence
- Safeguards
What 4 options does a party have if they are not content with disclosure provided by an opponent?
- Apply for specific disclosure
- Notice to admit facts
- Apply for an unless order
- Make a request for information
What four situations can rebut an automatic right to inspect a disclosed document?
- Privilege
- Document no longer in party’s control
- Disproportionate to allow inspection
- Documents may be redacted
In a non-PI multi track claim, when must each party file a disclosure report?
14 days before first CMC, otherwise with the Direction’s Questionnaire
Not less than how many days before the first CMC must the parties meet/discuss to agree a proposal for disclosure that meets the overriding objective?
7 days
Legal advice privilege protects communications between a _____ and their _______ with a view to obtaining or providing legal _____
client, solicitor, advice
Litigation privilege protects communications with _____ ______ (for example, barristers and _______) relating to pending or contemplated _________
third parties, experts, litigation
Litigation privilege applies as long as the communication was sent when there was a…
real likelihood of litigation
Common interest privilege occurs when there are multiple _________ or _____ _____. The parties may send privileged documents to each other but claim these are privileged from inspection by _______ _________
defendants, group actions, other parties
Without prejudice privilege protects discussions regarding potential ________ that the parties agreed were not to be referred to in _____ to the ________ of a party
settlement, court, detriment
Public interest immunity aims to protect against disclosure of what types of documents/information?
That which might harm the nation or the administration of justice
Who does privilege belong to and can only be waived by?
The client
When can an opponent use privileged information that a solicitor has accidentally disclosed?
With the permission of the court
Remember: privileged documents are ________ with a generic description in the __________ ____, but they may not be ________ if they’re privileged
disclosed, disclosure list, inspected
if the party does intend to rely on the report, it must be _______ and it loses its ________ and is subject to _______
disclosed, privilege, inspection
A party who discloses a document must permit inspection not more than how many days after the date on which they received the notice?
7 days
How many days after a request must a party provide a copy of a document that has been disclosed?
7 days
The court can make a specific disclosure order requiring a party to search for and disclose documents which, it is reasonable to suppose, may contain information what potential 2 things?
Information that:
1. Will assist the applicant’s case or damage the respondent’s case; or
2. May lead to a train of enquiry that will assist the applicant’s case or damage the respondent’s case.
An order for specific disclosure will require a party to do one or more of which 3 things?
- Disclose documents or classes of documents specified in the order
- Carry out a search to the extent specified in the order
- Disclose any documents located as a result of that search
