Disclosure And Inspection Flashcards
What does disclosure mean?
The process by which a party informs another party that they possess a particular document
What duty are parties under regarding disclosure?
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
What does inspection mean?
The right of the other party to read or receive copies of a document that has been disclosed
What is a ‘document’ in terms of disclosure?
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
What documents does a party need to disclose?
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
Do parties need to disclose documents on elements of the dispute that have already been agreed upon?
No, just documents that are relevant to the matters in dispute
What is specific disclosure?
Where the disclosure of specific documents or classes of documents is specified in the court order
When is a document in the party’s control?
- 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
What happens if the party no longer has physical possession over a document?
They must still disclose the document but a detailed explanation of how the document was lost must be included on the disclosure form
Does a party have the ability to prevent the other party inspecting a disclosed document?
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
What are the types of privilege?
- legal advice privilege
- litigation privilege
- without prejudice privilege
What is legal advice privilege?
- 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
What is litigation privilege?
- 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
What is without prejudice privilege?
- 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
Who is able to waive the privilege of a document?
The party who is withholding the inspection of the document
What is the procedure to follow for disclosure?
- 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
What happens if a party does not believe the other party has conducted a proper search?
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
Is there a duty of disclosure prior to a claim being commenced?
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
How does a party make a pre-action disclosure application?
- 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
When is an application for non-party disclosure appropriate?
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
