Disclosure and Inspection

Question 1

what is disclosure and where does the obligation to disclose come from?

Answer 1

disclosure is stating to another party that a document exists or has existed

the obligation to disclose comes from a court order (it is not automatic)

Question 2

what is the usual disclosure obligation in small claims track cases?

Answer 2

• court gives directions on allocation
• usually = at least 14 days before trial, parties must file and serve all docs they intent to rely on at the hearing

Question 3

what is the usual disclosure obligation in fast track cases?

Answer 3

• court gives directions on allocation
• usually standard disclosure

Question 4

what is the usual disclosure obligation in multi track cases? (4 points)

Answer 4

• court gives directions in CMC
• parties must file a disclosure report at least 14 days before CMC (but not in PI cases)
• parties must file draft directions including any agreed disclosure directions at least 7 days before CMC
• court makes disclosure order which is proportionate in cost to what is necessary to deal with the case justly (can dispense with need for search for documents)

Question 4

does a party need to disclose copies of original documents?

Answer 4

no - exceptions:
1) copy contains modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure
2) the original doc is not in party’s control

Question 5

does a party need to disclose a doc which falls within their disclosure obligation if the doc comes to light after the deadline to disclose?

Answer 5

yes immediately - disclosure is a continuing obligation which lasts until proceedings are concluded

Question 6

what is the standard disclosure obligation?

Answer 6

parties must disclose a document which is in its control and which falls under the CPR 31.6 test

Question 7

what ‘documents’ fall within standard disclosure?

Answer 7

widely defined = includes digital recordings, emails, pics, texts, voicemails, metadata, physical docs, etc.

Question 8

when will a document be in a party’s control for the purpose of standard disclosure? (3)

Answer 8

1. doc is or was in party’s physical possession
2. the party has or had a right to possess the doc (e.g., doc with agents)
3. the party has or had a right to inspect or take copies of a doc (e.g., right to inspect their own medical records)

(applies to docs presently and formerly in control)

Question 9

when does a doc within a party’s control fall within the standard disclosure obligation? i.e., what is the test under CPR 31.6?

Answer 9

a party must disclose a doc which:
1. it relies on (not simply if it supports its case)
2. adversely affects its own case
3. adversely affects another party’s case
4. supports another party’s case, and /or
5. it is required to disclose by a PD

Question 10

if a doc simply tells the story of what happened but a party does not want to rely on it and it does not support or undermine either’s case, does it have to disclose it?

Answer 10

not under standard disclosure obligation

Question 11

do parties have a duty to search for documents under a standard disclosure obligation?

Answer 11

yes - parties must carry out a reasonable search for documents

what is reasonable depends on:
- number of docs involved
- nature and complexity of proceedings
- difficulty or costs of retrieving docs
- significance of docs likely to be found
- overriding objective and proportionality

Question 12

what must a party send to the opposing party under standard disclosure?

Answer 12

a disclosure list stating:
- docs it has control over which it does not object to inspection
- docs it has control over but objects to inspecting (due to privilege)
- docs that are no longer in its control

+ must contain a disclosure statement

Question 13

what is a disclosure statement and what does it contain? (6)

Answer 13

statement in the disclosure list - contains:
- the extent of the search made = that the search was reasonable and proportionate
- what was not searched for = e.g., docs before a certain date
- party understands the duty to disclose
- to the best of the party’s knowledge it carried out that duty
- details of docs the inspection of which is disproportionate
- signed by disclosing party

Question 14

what happens if a party does not disclose a doc or allow inspection of a doc?

Answer 14

it cannot rely on such doc unless court gives permission

Question 15

how is the duty of disclosure enforced? (4)

Answer 15

1. solicitor must endeavour to ensure that the party understands the duty of disclosure
2. party cannot rely on a doc it fails to disclose or allow inspection of
3. contempt of court proceedings may be brought where a person makes a false statement without believing it is true
4. supplemental lists must be prepared if more docs come to light or are created after service of disclosure lists

Question 16

what docs does a party have a right to inspect? what are the 3 exceptions?

Answer 16

• party has the right to inspect a doc (or request a copy) that was disclosed
• exceptions:
  1. doc is no longer in the disclosing party’s control (and they cannot provide a copy)
  2. allowing inspection is disproportionate (rare)
  3. the document is privileged (but it must still be disclosed and described generically)

Question 17

what is the inspection procedure and time limits? (2)

Answer 17

1. party wishing to inspect must send written notice to inspect (or send copies)
2. other side must allow inspection (or send copies) within 7 days of notice

Question 18

what are the 3 types of privilege?

Answer 18

1. legal advice privilege
2. litigation privilege
3. without privilege communications

Question 19

what is legal advice privilege and when can it apply?

Answer 19

litigation privilege = applies where a doc is confidential communication between a lawyer and client and was prepared for the dominant purpose of giving or receiving advice

• litigation does not have to be contemplated
• must be confidential = attendance note of a hearing with both sides is not privileged b/c both sides are present

Question 20

if a client repeats legal advice given by his lawyer to other personnel within its company, is that repetition privileged?

Answer 20

yes it will have legal advice privilege

BUT: careful as it client might be stating his opinion which is not privileged - advise client not to disseminate info freely

Question 21

what is litigation privilege and when does it apply?

Answer 21

litigation privilege = a doc which is confidential communication between a lawyer and client or between one of them and a third party where the dominant purpose in creating the doc is to obtain legal advice, evidence, or information for use in the conduct of litigation which at the time was reasonably in prospect

• dominant purpose must be for litigation (not exclusive purpose)
• litigation must be a real likelihood not a mere possibility

Question 22

what is privilege for without prejudice communications?

Answer 22

a doc whose purpose is a genuine attempt to settle is privileged

• substance not form = no need to mark it ‘without prejudice’ vice versa
• such docs will not be seen by the court (unless privilege is waived) but without prejudice save as to costs means court will see it for assessing costs

Question 23

can a non-confidential doc attract litigation or legal advice privilege?

Answer 23

no - can only be privileged if confidential

example: a note of a conversation between opposing party lawyer is not confidential so not privileged

Question 24

what is redaction?
when can documents be redacted? (2)
when can they not be redacted?

Answer 24

• redaction = blanking out parts of a doc so that they cannot be inspected
• cannot redact only because doc is confidential or commercially sensitive
• can redact where:
  1. a clear and distinct part of a doc attracts privilege but the rest does not, the privileged part can be redacted to avoid waving privilege
  2. info irrelevant to the dispute can be redacted e.g., irrelevant commercially sensitive info can be redacted

Question 25

can a party waive privilege over a part of a doc but retain privilege over the remaining part?

Answer 25

no - waiving privilege over some parts of a wholly privileged doc leads to waiver over the entire doc (party cannot cherry pick)

Question 26

if a party waives privilege over a doc, when can this lead to waiving privilege in other docs?

Answer 26

if it would be unfair to allow the waiving party not to put these docs before the court / opponent

example: if all docs deal with the same subject matter and permitting inspection of one can lead to facts being misunderstood

Question 27

if a doc is referred to in a statement of case, witness statement, affidavit, expert report, what are a party’s inspection rights for the document?

Answer 27

yes - can inspect it even before disclosure stage of proceedings

BUT this is subject to whether the doc referred to is privileged (although sometimes by simply referring to it a party may have waived privilege - be careful)

Question 28

can you prevent inspection of a doc because it contains confidential or commercially sensitive information?

Answer 28

no - this cannot prevent inspection but to deal with it you can have the confidential or commercially sensitive information redacted only if it is irrelevant to the matters in dispute