Disclosure And Inspection

Question 1

Why is disclosure needed?

Answer 1

To enable the parties to evaluate the strengths and weaknesses of their caes in advance of the trial.

This will assist them in making an informed decision about whether to pursue or whether to seek an early settlement.

Question 2

What is disclosure defined as in Part 31

Answer 2

A party discloses a document by stating that it exists or has existed

Question 3

What documents court for disclosure?

Answer 3

Anything in which information of any description is recorded.

Question 4

What are the differnet disclosures for the differnet tracks?

Answer 4

Small claims track: at leases 14 days before the date of the final hearing, file and service on every other party copies of ALL documents, including experts, on which they intend to rely

Fast track: standard disclosure

Multitrack: standard disclosure, but court may tailor the order to requirements of the particular case.

Question 5

Hwo does the parties notify the court of thier requirements for disclosure in multi-track?

Answer 5

By compiling a disclosure report

Question 6

When must the disclosure report be filed and serviced in multi track?

Answer 6

Not less than 14 days before first CMC

Question 7

What happens after the disclosure report has been filed and served in a multi track?

Answer 7

Not less than 7 days before the first CMC, the parties must disclosure and seek to agree a proposal for disclosure that meets the overriding objective

Question 8

What is standard disclosure?

Answer 8

Requires a party to disclose:

• documents on which THEY rely

The documents which:

Adversely affect their OWN CASE
Adversely affect ANOTHER partys case, or
SUPPORTS another partys case

Question 9

What are the rule 31.6 documents?

Answer 9

These are all the documents that are involved in standard disclosure

Question 10

What is the duty to disclose LIMITED to?

Answer 10

The duty to disclose is limited to documetns in the PARTYs CONTROL.

Documetns that:

• either are or were in physical possession
• have a right to possess
• have a right to inspect

Question 11

What is the duty to search for disclosure?

Answer 11

All parties to the proceedings are subject to a duty to search for documents.

Question 12

What is the scope of search for disclosure documents?

Answer 12

A party is required to make a reasonable and proportionate search for all documents that affect own caes, another’s, or supports another.

Documents on which the party INTENDS to rely are not listed, but, the party would look for these ANYWAY, as it is in their interests to do so

Question 13

What counts as reasonable for the duty to search for documetns during disclosure?

Answer 13

Number of documetns involved

Nature and complexity of proceedings

Ease and expense of retrieval of any particualr document

Significant of document

Question 14

What are the limitations to the duty to search for documents during disclosure?

Answer 14

Duty to search is not exhaustive, and a party may limit the extent of their search in several ways:

• by NOT searching for documents that came into existence befoer a particular date
• by specifying a particular place or places they search,
• by limiting the categories of documetns

Question 15

How is disclosure made?

Answer 15

Once party has gathered together documetns, they are disclosed in a list, and on a completion of Form N265.

Question 16

What is the form which disclosure is completed on?

Answer 16

N265

Question 17

What is included in Form N265 for disclosure?

Answer 17

Formalities - claim number, parties etc
Disclosure statement
The list (1,2 and 3)

Question 18

What is part 1 of the disclosure list?

Answer 18

Documents that are within the partys control, and they do NOT object to the other party inspecting.

Question 19

What is part 2 of the disclosure list?

Answer 19

Documents which ARE in the partys control, but where there is an OBJECTION to inspection - usually because they are PRIVILEGED

Question 20

What is part 3 of the disclosure list?

Answer 20

Sets out documents that are privileged from inspection, but are NO LONGER in the partys control.

List must state what has happened to documents.

Question 21

Can a party legitimately withhold documetns?

Answer 21

YES! This comes within the definition of legal professional privilege

Question 22

How can you protect documents under legal professional privilege?

Answer 22

The other parties cannot inspect them
They are described generically

Question 23

What is the advantage of legal professional privilege?

Answer 23

Whilst it is disclosure, it cannot be inspected.

Question 24

What are the 2 types of legal professioanl privilege?

Answer 24

Advice privilege

Litigation privilege

Question 25

What is legal advice privilege?

Answer 25

Any document where the sole or dominant purpose of communication is to seek or give legal advice. If a document has a dual purpose, the dominant one must be established

Question 26

What is litigation privilege?

Answer 26

Document of communication between a client or lawyer and third party, that cam einto existence when litigation was contemplated or ongoing.

Question 27

What are the 3 criterias for litigation privilege?

Answer 27

Passing between clietn or lawyer and third party Which came into existence when litigation was contemplated or Ongoing Which was produced with a VIEW to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or for obtaining evidnece to be used in litigation.

Question 28

What are examples of litigation privilege documents?

Answer 28

Report from an expert, obtained by solicitor in order to advise client on proceedings Witness statement obtained.

Question 29

Can you waiver privilege?

Answer 29

Privilege is the right of the client and not their lawyer. Clinet may give up or waive, that privilege. May occur by mistake, but can happen.

Question 30

What is without prejudice correspondence?

Answer 30

Without prejudice correspondence, will record information as part of a partys genuine attempt to settle a case. Correspondence will satisfy the definition of standard disclosure, as it is likely to set out the strengths of a partys caes, and may also contain concessions that are adverse to their case and suit the opponent.

Question 31

What is form N244?

Answer 31

Application notice , filed at cour with a witness statement and serviced ont eh opponent. This happens if the writing to the other side for disclosure has failed.

Question 32

What is specific disclosure and when is it needed?

Answer 32

If the disclosure is inadequate, an applciation can be made for specific disclosure, under CPR r 31.12

Question 33

What can specific disclosure request an order to do?

Answer 33

Order the party to carry out a more extensive search Disclosure any further documetns located as a result of that search Disclosure specific documents that the party would have been expected to see

Question 34

What is needed in addition to the specific disclosure?

Answer 34

A witness statement in support, explaining why the applicant believes the document exists, and justify the application.

Question 35

What is CPR r 31.19 ?

Answer 35

Challenge a claim for privilege. ‘ If the opponent does nOT believe it should be privileged The court may require the part claiming privilege to produce the document, invite any person to make representatives and will determine if it has been correctly categories.

Question 36

What is pre-action disclosure?

Answer 36

Pre-action protocols require the parties to prospective litigation to SHARE INFORMATION. This is to make sure it runs smoothly and cheaply. Although there is no general obligation.

Question 37

How can parties overcome the pre-action disclosure?

Answer 37

May issue an application for pre-action disclosure under CPR. This procedure is normally used where a party is unsure as to the strength of their caes.

Question 38

What is non-party disclosure?

Answer 38

Where proceedings have commenced, a party can apply for disclosure against a NON-PART, if this would help to resolve an issue in the case.

Question 39

What must non-party disclosure applicaiton be supported by and when is it ordered?

Answer 39

Supported by evidence and disclosure only ordered if: Documents in question are likely to support applicants case or adversely affect case of another Disclosure is necessary to dispose fairly of case and save costs