Disclosure And Inspection

Question 1

What does disclosure mean?

Answer 1

The process by which a party informs another party that they possess a particular document

Question 2

What duty are parties under regarding disclosure?

Answer 2

Parties are under a duty to search for documents and the duty to disclose is limited to the documents which are in that party’s control

Question 3

What does inspection mean?

Answer 3

The right of the other party to read or receive copies of a document that has been disclosed

Question 4

What is a ‘document’ in terms of disclosure?

Answer 4

Anything in which information of any description is recorded - includes an email, a USB stick, a photograph, a video or any information on a hard drive

Question 5

What documents does a party need to disclose?

Answer 5

General position is:
- documents they intend to rely that adversely affect their own case
- adversely affect another party’s case
- support another party’s case
- required to be disclosed by a relevant practice direction
This is standard disclosure

Question 6

Do parties need to disclose documents on elements of the dispute that have already been agreed upon?

Answer 6

No, just documents that are relevant to the matters in dispute

Question 7

What is specific disclosure?

Answer 7

Where the disclosure of specific documents or classes of documents is specified in the court order

Question 8

When is a document in the party’s control?

Answer 8

• it is or was in the physical possession of the party
• the party had or has had the right to inspect the document
• the party has or has had the right to inspect or take a copy of the document

Question 9

What happens if the party no longer has physical possession over a document?

Answer 9

They must still disclose the document but a detailed explanation of how the document was lost must be included on the disclosure form

Question 10

Does a party have the ability to prevent the other party inspecting a disclosed document?

Answer 10

A party to whom a document has been disclosed has a right to inspect it unless an exception applies. The exception is if the document is privileged

Question 11

What are the types of privilege?

Answer 11

• legal advice privilege
• litigation privilege
• without prejudice privilege

Question 12

What is legal advice privilege?

Answer 12

• protects confidential communication between a legal representative and their client
• not communications with third parties (so legal rep and expert)
• do not need to be in relation to litigation that is either commenced or is being contemplated
• the dominant purpose of the communication must be the seeking and receiving legal advice
• general advice about litigation not privileged
• a letter specifically advising a client on the merits of their claim certainly would be

Question 13

What is litigation privilege?

Answer 13

• protects confidential communications between a legal representative and a client and a third party
• also protects communications between a client and a third party
• third party can be expert, witness, or any other person consulted in connection with the litigation
• narrower than legal advice privilege
• the document must have been created for the sole or dominant purpose of obtaining information or advice in connection with the litigation itself
• the litigation had to exist or was reasonably contemplated at the time the document was created

Question 14

What is without prejudice privilege?

Answer 14

• applies to documents typically written in the course of negotiations to settle
• generally marked without prejudice but not a requirement
• the substance of the document needs to be looked at - was it a genuine offer to settle on sensible terms?
• if so it is likely to be protected

Question 15

Who is able to waive the privilege of a document?

Answer 15

The party who is withholding the inspection of the document

Question 16

What is the procedure to follow for disclosure?

Answer 16

• reasonable search carried out and relevant documents identified
• a numbered list is prepared using form N265
• list must contain disclosure statement, signed by the party, confirming the extent of the search and certifying they understand their duty
• the form is served on the other party
• the opposition then needs to prepare a written notice informing the party of the documents they wish to inspect
• inspection must be allowed within 7 days of receiving the notice

Question 17

What happens if a party does not believe the other party has conducted a proper search?

Answer 17

They should write to the other party setting out their reasons as to why they think a proper search was not done and include what they would like the party to do to rectify it - if not rectified they can apply to the court for specific disclosure

Question 18

Is there a duty of disclosure prior to a claim being commenced?

Answer 18

No, parties can pick and choose which documents to disclose however if a parties believes the other side is deliberately withholding a document that could have a material impact on settlement or whether a claim is suitable at all the party can make an application for pre-action disclosure

Question 19

How does a party make a pre-action disclosure application?

Answer 19

• N244 form
• witness statement that outlines:
• the parties are likely to be parties to the anticipated proceedings
• the document the party wants disclosing
• that if proceedings had started the party would be under a duty to disclose that document
  -disclosure is desirable to save costs, assist with the dispute being resolve, enable the parties to dispose fairly of the anticipated proceedings

Question 20

When is an application for non-party disclosure appropriate?

Answer 20

Where proceedings have been issued, disclosure taken place and a party has said that they are no longer in possession of a relevant document but they know that somebody who is not a party to the proceedings is in possession of it