Disclosure and Inspection? Flashcards
Small track and disclosure?
- Directions given on allocation usually order is at least 14 days before date fixed for the final hearing
- Each party must file and serve copies of all documents intended to rely upon at the hearing CPR 27.4
What is disclosure and what is inspection?
Disclosure: stating to another party that a document exists or has existed
Inspection: looking at the document, under CPR 31.15 where they can inspect it, they also have a right to request a copy of it
Fast track and disclosure?
Usually standard disclosure.
Multi-track and disclosure?
Disclosure report - not less than 14 days before CMC
Conversations between parties not less than 7 days before CMC
Court makes appropriate disclosure order.
They can make disclosure in stages order which has costs savings.
Procedure for disclosure?
At CMC
- Court uses disclosure report and other info to decide whether standard disclosure is too expensive. Concerns amongst judges that this procedure for determining could be better
Procedure
Does not need to disclose every copy of a document
- Only need to disclose if contain a modification
- Or party has never had original
They have a continuing obligation until proceedings are concluded CPR 31.11
Standard disclosure?
Standard disclosure’ is a particular form of disclosure which the court can order, and it is the most common type of disclosure to be ordered.
MUST DISCLOSE ANY DOCUMENT RELEVANT TO THE CLAIM
Before that
- Is it a document 31.4
- Is it in parties’ control 31.8
- Does it fall within standard disclosure 31.6
CPR 31.6: Standard disclosure requires a party to disclose only–
a. the documents on which he relies; and
b. the documents which –
a. adversely affect his own case;
b. adversely affect another party’s case; or
c. support another party’s case; and
c. (c) the documents which he is required to disclose by a relevant practice direction
BUT MUST BE READ SUBJECT TO TWO OTHER PROVISIONS
- Disclosure is about documents, and documents is defined in rules CPR 31.4
o Digital recordings, emails, photographs, text messages – anything which records info, so even meta data
- Secondly its limited to documents which are or have been in his control
o Was or is in physical possession of party
o Party has/had a right to possession of document
o Party has/had a right to inspect or take copies of the document
Only need to satisfy ONE of these criteria – then this needs to be disclosed which just means it exists, or has existed.
Disclosure list?
- List falls into 3 parts
- Document I have control of and DO NOT object you to inspect
- Document I have control of BUT I OBJECT to inspection
- I have HAD documents but no LONGER in my control
- Don’t have to list everything individually but can list nature of it grouped
- It is signed by the client – obligation on client to disclose- and you need to tell client that client could be found in contempt of court for failure to fully comply
Inspection?
A party has a right to inspect except were
- Document is no longer in disclosing party’s control
o Common sense
- Allowing inspection would be disproportionate
o Going to be rare
- Disclosing party has a right or duty to withhold inspection
o Known as privileged
o Legal advice privilege
o Litigation privileged
o Without prejudice communications
Redaction with inspection?
- Blacking out parts – possible in certain circumstances
- Generally, confidentially or commercials sensitivity DOES NOT JUSTIFY REDACTION
- But it’s allowed if:
- If a clear and distinct part of does attract privilege but remainder does not, then privilege part can be redacted
- Second if completely irrelevant to dispute
Waiver - inspection?
- possible to allow inspection of a privilege document if it considers that the document helps it case – but does not have an unrestricted right to determine precisely what it wishes to waive privilege over
- waiver will lead to waiver of whole document – a party cannot cherry pick parts of privileged document –
- as such waiving privilege in certain documents can mean loss of it in other ones
Statements of case and inspection?
- Documents referred to in statements of case, a witness statement, a witness summary can take place, may even happen before disclosure stage of proceedings.
- Subject to usual rules on privilege – so privilege is not simply lost by virtue of it being in statements of case
Once privileged, always privileges
Burden of proof – where there isa dispute whether a document is subject to privileged, it’s on party claiming privilege to establish it
Procedure for inspection?
Send a written notice of its wish to do to other side
Other side must allow inspection within 7 days of receipt of notice
Court directions may vary these limits
Possible to ask for copies as well – with an undertaking to pay reasonable photocopying charges – 7 days of receipt of request
Legal advice privilege?
- A document with confidential communication between a lawyer and client and was prepared for dominant purpose of giving or receiving legal advice
- Communication between lawyer and client – wide definition,
- Solicitors’ attendance notes of a conversation between parties or what happens at court is not privileges since there is no confidentially in notes of matters which both sides are present
- Does not apply to advice given by non-lawyers
- Where a solicitor is retained primarily to provide legal advice, wider communications between the solicitor and client even if ancillary to that purpose will become
- Communications with in-house lawyers can also enjoy legal advice privilege before English courts in civil actions
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 – dominant purpose was for legal advice or use in conduct of litigation “reasonably in prospect”.
- Dominant purpose test – can be other purposes
- Must be sued for litigation reasonably in prospect rather than just a mere possibility
Without prejudice communications?
A document whose purpose is a genuine attempt to settle a dispute
- Substance rather than form
