Disclosure and inspection Flashcards
What is the difference between disclosure and inspection?
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Disclosure = stating to another party that a document exists/existed
Inspection = the party to whom a document has been disclosed looking at a document
What are the purposes of disclosure?
- Clarify issues in dispute
- Enable parties to evaluate strength of claim against them
- Encourage settlement
- Ensure court has all facts/evidence to deal justly and appropriately
When is an order for disclosure given?
Usually given on allocation or at a case management conference
When are directions for disclosure given for the small claims track and what is the usual order?
- Given on allocation
- Must file and serve on every other party copies of all documents on which he intends to rely 14 days before hearing
When are directions for disclosure given for the fast track and what is the usual order?
- Given on allocation
- Standard disclosure
When and how do parties to a multi-track claim file disclosure?
Addressed in last element fully
- Complete disclosure report not less than 14 days before first CMC
- Seek to agree a draft disclosure order which they ask the court to make not less than 7 days before first CMC
What does a disclosure report explain?
- What relevant documents (may) exist
- Where and with whom they are
- How e-docs are stored
- Estimate broad range of costs that could be involved in giving standard disclosure
- States which of disclosure directions are to be sought
What does the court use the disclosure report to decide?
If standard disclosure is too expensive
And potentially an alternative order to make
Does a party need to disclose every copy of a document?
No - only if they contain a modification/obliteration or the party never had or no longer has the original in its control
Does a party’s obligation of disclosure end after the disclosure report?
No - has a continuing disclosure obligation until proceedings are concluded
What can a party to whom a document has been disclosed use that document for?
I.e. subsequent use of disclosed documents
Only for purposes of proceedings for which it is disclosed and not for any collateral/ulterior purpose
What are the 3 exceptions to the subsequent use of disclosed documents?
Circumstances in which party can use disclosed document for purposes beyond proceedings for which it is disclosed
- Document has been read to or referred to by court at a hearing in public
- The court gives permission
- The party who disclosed the document and to whom it was disclosed agree
What documents does standard disclosure require the parties to disclose?
Standard disclosure is most common type of disclosure
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Requires a party to disclose only:
- The documents on which he relies
- The documents which adversely affect his own or another party’s case or supports another party’s case
- The documents he is required to disclose by a practice direction
Must satisfy one criterion but will often satisfy multiple
Will consider issues in dispiute from statements of case to decide if they are satisfied
What questions must be asked about documents subject in standard disclosure?
What are the two Qs that must first be asked?
- Is it a document?
- Is it within the party’s control?
- (Does it fall within standard disclosure) ?
The 3 Qs together are test for standard disclosure
Q 3 would be satisfied by meeting requirements of standard disclosure
What is a document?
Literally anything
What does ‘within a party’s control’ mean?
Defined widely; presently and formerly within party’s control…
- Is/was in physical possession
- Has/has had right to possession (e.g. documents a party sent to accountant)
- Has/had right to inspect or take copies of document (e.g. a right to look at own medical records)
This principle applies for all types of disclosure not just standard!
Do documents that tell a story of what happened but do not support/undermine a party’s side need to be disclosed?
No
What kind of search must be carried out when a standard disclosure order is made? What is this?
A reasonable search for documents that adversely affect/support case and require disclosure
How is a search deemed ‘reasonable’?
What does it depend on
Depends on:
- Number of documents involved
- Nature and complexity of proceedings
- How difficult/expensive it is to retrieve document
- Significance of any document likely to be found
Will take into account principle of proportionality
How is standard disclosure performed?
By each party making a list of required documents and serving it on the other party
What are the 3 parts of the disclosure list?
- Have control of listed documents - do not object to inspecting
- Have control of listed documents - object to inspecting (due to privilege)
- Have had listed documents - but no longer in control
Do parties need to list in detail the documents they are withholding from inspection?
No - generically describing will suffice
What is the disclosure statement and what does it contain?
Part of disclosure list, which:
- Sets out extent of search made
- Certifies the party understands duty to disclose
- Certifies that it has carried out duty to best of party’s knowledge
- Should include details of documents the inspection of which the party considers disproportionate
Who signs a disclosure statement?
The disclosing party (appropriate officer if company - must say why they are appropriate person)
When should a solicitor advise of disclosure obligations?
At the outset of the case
Can a party rely on a document which he fails to disclose/permit inspection to?
Only with the court’s permission
What happens if a person makes a false disclosure statement without an honest belief in its truth?
They are in contempt of court
What if additional documents come to light/are created after disclosure list is served?
They must be included in a supplemental list
What are the other types of disclosure?
Aside from standard
- An order dispensing with disclosure
- An order that a party disclose the documents on which it relies and at same time request specific disclosure from any other party
- An order directing disclosure be given by each party on issue by issue basis
What is the default position of inspection?
The party has a right to inspect a document that has been disclosed
What are the 3 exceptions to default position of inspection?
- Document no longer in party’s control
- Inspection wold be disproportionate (rare and would usually happen at disclosure stage)
- Right/duty to withhold inspection (e.g. privilege)
Existence must still be disclosed even if privileged
In what 2 circumstances is redaction possible?
Redaction = blanking parts of a document out
- If distinct part of document attracts privilege but remainder does not
- If information is totally irrelevant to dispute (e.g. commercially sensitive information)
What are the limitations on waiving privilege?
- Cannot ‘cherry pick’ certain aspects of a privileged document to reveal to other side and must waive whole (unless entirely different subject matter)
- Waiver of privilege in one document may lead to loss of privilege in others (e.g. waiving privilege on one solicitor’s letter may waive all)
What does ‘once privileged, always privileged’ mean?
If something is privileged for one set of proceedings, it is privileged for all proceedings unless waived
If there is a dispute over whether document is subject to privilege, on who is the burden of proof?
The party claiming privilege
Is privilege in a document lost by reference to it in a statement of case?
Not necessarily - court has a general discretion to refuse inspection
How can privilege be waived?
- Loss of confidentiality by exchanging or serving the document (e.g. particulars, defence)
- Mentioning a document in a court document
- Accidentally
- Agreement
What is the procedure for inspection?
Where a party wishes to inspect
Party wishing to inspect must send written notice to other side - other side must allow inspection within 7 days of receipt of notice
Can a party ask for copies of documents?
Yes with an undertaking to pay reasonable photocopying charges
Copies must be provided within 7 days of receipt of request
What are the 3 main types of privilege?
- Legal advice privilege
- Litigation privilege
- Without prejudice communications
What document is protected by legal advice privilege?
A document which is confidential communication between a lawyer and client prepared for dominant purpose of giving or receiving legal advice
Is an attendance note of conversation between parties or what happens at court privileged?
No confidentiality where both sides present = no privilege
What is confidential information?
- A note of a conversation with client re legal advice
- Solicitor’s memoranda if confidential
If document not confidential privilege will not apply
Would tax advice from an accountant count as legal advice privilege?
No - does not apply to advice of a quasi-legal nature by non-lawyers
What is covered by ‘prepared for dominant purpose of giving legal advice’?
And is therefore privileged
- Wider communications - even if ancillary to purpose
- Presentational advice - advice about best way to present information
- Client repeats - legal advice is repeated to other personnel in company
- In-house laywer communications - if it does not concern commercial/executive capacity; strictly legal
I.e. all are privileged
Does not apply to qualified laywers not employed in legal role
What document is protected by litigation privilege?
A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect
Extends to documents brought into existence for purpose of claim
^ Even if between two layers in same firm without client/TP invovled
What third party communications would also benefit from this privilege?
Witnesses, experts
What if the document has more than one purpose?
Re dominant purpose requirement (for litigation)
Court will look at dominant purpose - commissioner of author may be asked
Dual purpose e.g. report produced after railway accident - prepared to improve safety and for solicitor’s legal advice re claim - litigation was not dominant purpose
What does it mean for litigation to be ‘reasonably in prospect’?
Litigation must be a real likelihood rather than mere possibility/general apprehension
Means a document produced before breach definitely never benefits
Will litigation privilege cover draft statements of case?
Yes
What is ‘without prejudice communications’?
A document whose purpose is a genuine attempt to settle dispute
Will generally not be seen by court unless privilege waived
What does ‘substance not form’ mean re without prejudice communications?
Does not matter whether document marked ‘without prejudice’ or not
When would courts see documents marked ‘without prejudice save as to costs’?
Only if considering costs of action/particular issue
Specific disclosures overview
Are the following used a) before or after proceedings have started and b) for the (intended) opponent or a non-party?:
- Specific disclosure
- Pre-action disclosure
- Non-party disclosure
- Norwich Pharmacal Orders
- Specific disclosure = after (opponent)
- Pre-action disclosure = before (intended opponent)
- Non-party disclosure = after (non-party)
- Norwich Pharmacal Orders = before (non-party)
What is the procedure for these types of disclosure?
Specific disclosures
- Specify order sought (including list of documents)
- Support with evidence (usually witness statement)
- (Require respondent to specify documents no longer under his control or which he has a right to withhold from inspection)
Who bears the costs for these kinds of orders?
Party against whom order sought for pre-action awarded costs of application and of complying with it
So applicant usually pays
Can be changed e.g. respondent did not comply with pre-action protocol or relatively modest request so can bear costs itself
Why would a specific disclosure order be used?
- Opponent not complied with existing obligations
- Applicant wants documents earlier than current directions provide for (but after proceedings issue)
- Applicants want something more than order provides for
What can specific disclosure order?
3 things
An order that a party must do one or more of the following things:
- Disclose (classes of) documents specified in order
- Carry out search to extent stated in order
- Disclose any documents located as a result of said search
When can an application for specific disclosure be made?
Any time after proceedings have been issued
Generally made after standard disclosure when applicant wants more
What 3 things will court consider when deciding to grant a specific disclosure order?
- All circumstances
- Overriding objective (proportionality/reasonableness of making order)
- If other party has failed to comply with obligations already imposed
If party can show court has made standard disclosure order but the documents concerned should have already been disclosed = court will usually order opponent to disclose
Will specific disclosure application only succeed where party has breached obligation to disclose?
No - can be where disclosure is inadequate or where something more than standard disclosure is called for (e.g. trail of inquiry)
What is specific inspection?
Order permitting party inspection of a disclosed document but inspection not allowed because disproportionate
Rare
Challenging privilege is more common
What is pre-action disclosure and who is it used against?
Court’s power to enable a party to obtain disclosure of documents before proceedings have commenced against a likely party to proceedings
When would a court make an order for pre-action disclosure?
I.e. the requirements
- Respondent and applicant both likely to be a party to proceedings;
- If proceedings started, respondent’s duty by way of standard disclosure would extend to documents applicant seeks; and
- Pre-action desirable to fairly dispose of anticipated proceedings, assist dispute without proceedings, or save costs
Pre-action disclosure scope cannot be wider than standard disclosure
Procedure same as specific order (specify order sought [with list] and support with evidence)
What is non-party disclosure and what are the requirements?
Court can order a person not party to proceedings to give disclosure of documents. Requirements:
- Documents are likely to support applicant’s case or adversely affect case of one or other parties
- Disclosure is necessary to dispose fairly of the claim or to save costs
Who is application notice for non-party disclosure served on?
The non-party from whom disclosure sought and any other party to proceedings
What is a Norwich Pharmacal order and when would it be used?
Orders the respondent (who is not the D) to disclose information allowing C to sue the right D
Used where identity of D is unknown
E.g. ordering HMRC to disclose unknown person who is infringing patent
Is an application notice used for a Norwich Pharmacal order?
No - claim form issued against ‘person unknown’ and sets out claim as best as possible against ultimate wrongdoer
If court makes effective order against that person proceedings must either first be started against that person/that person joined onto existing proceedings
When will the court grant an application for a Norwich Pharmacal order?
- A wrong must have been (arguably) carried out by an ultimate wrongdoer
- Ther must be need for an order to enable action to be brought against them (information cannot be obtained another way)
- The person against whom order sought is more than a bystander (but not necessarily be at fault) and able to provide information necessary to enabled wrongdoer to be sued
Must be necessary and proportionate
Who pays the costs of a successful Norwich Pharmacal Order?
A successful applicant will pay costs incurred by respondent
May be able to recover from wrongdoer
Must a party disclose the letter of claim it has received from other party even though that other party authored it?
Still under obligation to disclose as it will meet criteria
