Disclosure And Inspection Flashcards
Why is disclosure needed?
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.
What is disclosure defined as in Part 31
A party discloses a document by stating that it exists or has existed
What documents court for disclosure?
Anything in which information of any description is recorded.
What are the differnet disclosures for the differnet tracks?
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.
Hwo does the parties notify the court of thier requirements for disclosure in multi-track?
By compiling a disclosure report
When must the disclosure report be filed and serviced in multi track?
Not less than 14 days before first CMC
What happens after the disclosure report has been filed and served in a multi track?
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
What is standard disclosure?
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
What are the rule 31.6 documents?
These are all the documents that are involved in standard disclosure
What is the duty to disclose LIMITED to?
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
What is the duty to search for disclosure?
All parties to the proceedings are subject to a duty to search for documents.
What is the scope of search for disclosure documents?
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
What counts as reasonable for the duty to search for documetns during disclosure?
Number of documetns involved
Nature and complexity of proceedings
Ease and expense of retrieval of any particualr document
Significant of document
What are the limitations to the duty to search for documents during disclosure?
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
How is disclosure made?
Once party has gathered together documetns, they are disclosed in a list, and on a completion of Form N265.
What is the form which disclosure is completed on?
N265
What is included in Form N265 for disclosure?
Formalities - claim number, parties etc
Disclosure statement
The list (1,2 and 3)
What is part 1 of the disclosure list?
Documents that are within the partys control, and they do NOT object to the other party inspecting.
What is part 2 of the disclosure list?
Documents which ARE in the partys control, but where there is an OBJECTION to inspection - usually because they are PRIVILEGED
What is part 3 of the disclosure list?
Sets out documents that are privileged from inspection, but are NO LONGER in the partys control.
List must state what has happened to documents.
Can a party legitimately withhold documetns?
YES! This comes within the definition of legal professional privilege
How can you protect documents under legal professional privilege?
The other parties cannot inspect them
They are described generically
What is the advantage of legal professional privilege?
Whilst it is disclosure, it cannot be inspected.
What are the 2 types of legal professioanl privilege?
Advice privilege
Litigation privilege
What is legal advice privilege?
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
What is litigation privilege?
Document of communication between a client or lawyer and third party, that cam einto existence when litigation was contemplated or ongoing.
What are the 3 criterias for litigation privilege?
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.
What are examples of litigation privilege documents?
Report from an expert, obtained by solicitor in order to advise client on proceedings
Witness statement obtained.
Can you waiver privilege?
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.
What is without prejudice correspondence?
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.
What is form N244?
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.
What is specific disclosure and when is it needed?
If the disclosure is inadequate, an applciation can be made for specific disclosure, under CPR r 31.12
What can specific disclosure request an order to do?
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
What is needed in addition to the specific disclosure?
A witness statement in support, explaining why the applicant believes the document exists, and justify the application.
What is CPR r 31.19 ?
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.
What is pre-action disclosure?
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.
How can parties overcome the pre-action disclosure?
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.
What is non-party disclosure?
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.
What must non-party disclosure applicaiton be supported by and when is it ordered?
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
