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
Specific disclosures overview
