Disclosure and Inspection Flashcards
What is disclosure?
It is the process of a party stating whether a document exists or has existed in the past.
What is standard disclosure?
A party must disclose:
(i) the documents on which they rely; and
(ii) documents which: adversely affect their case, another party’s case, or support another party’s case.
What disclosure orders are standard on each track?
Small claims track: Copies of all documents 14 days before the date of the final hearing;
Fast track: standard disclosure;
Multi-track: Usually standard disclosure, but the court may vary the order depending on the cases complexity
When must the disclosure report and disclosure discussion report be filed?
Disclosure report: Not less than 14 days before the first CMC;
Disclosure discussion report: Not less than 7 days before the first CMC
What standard is the duty to search assessed at?
A ‘reasonable and proportionate search’.
What is reasonable depends on the number of documents and the complexity of the case. Also, depends on the significance of the document.
What limitations can be put on the duty to search?
- Searching for documents in a specific time frame; or
- specifying a particular place to search; or
- limiting the categories of documents.
Limitations must be justified.
What form is disclosure made on and what is the ‘list’ for disclosure?
Form N265;
The list sets out the status of the documents:
- Part 1 = within the party’s control and no objection to inspection;
- Part 2 = documents in the party’s control but there is an objection to inspection;
- Part 3 = documents not privileged from inspection but no longer in the part’ys control
What is a disclosure statement and who signs it?
A statement that confirms the extent of the search and that the party understands their duty of disclosure.
A legal representative CANNOT sign the statement, the party themselves must sign it.
What enables a document to benefit from legal advice privilege?
If the dominant purpose for a document was to provide legal advice, then it would benefit from this privilege.
If there was a dual purpose, and the dominant purpose wasn’t the provision of legal advice, then the document would not benefit from this privilege.
What enables a document to benefit from litigation privilege?
The document must be a communication:
(a) passing between the client or lawyer and a third party;
(b) which came into existence when litigation was contemplated or ongoing; and
(c) was produced with a view of litigation, either for legal advice or to obtain evidence
How can a party waive privilege?
By serving a document privilege can be waived, i.e. serving a statement of case.
What is without-prejudice correspondence?
Where a party makes a genuine attempt to settle a case, the without-prejudice mark prevents the trial judge from seeing it.
What is specific disclosure and when is it ordered?
This is where the initial disclosure appears inadequate or if one party requires more.
Could order that the party:
- carries out a more extensive search; and
- disclose any further documents located or any specific documents the party would have wanted to see
When would pre-action disclosure be ordered?
Often if a party is unsure as to the strength of their case, they may request pre-action disclosure if the following can be satisfied:
- applicant and respondent likely to be parties to proceedings;
- documents sought would fall under standard disclosure; and
- disclosure is desirable in line with the overriding objective
When is non-party disclosure ordered?
Often where a party indicated in their disclosure list that X document is with X party, non-party disclosure will be ordered.
The application will only be ordered if:
(a) the documents are likely to support the applicant’s case or adversely affect the other party’s case; and
(b) is necessary to align with the overriding objective
