Disclosure and Inspection

Question 1

What is the difference between disclosure and inspection?

Answer 1

Disclosure is the process by which a party tells the other that they are in possession of a document. Inspection is the process by which the other party requests to look at it.

Question 2

What is the extent of the duty that parties are under to search for documents for the purposes of disclosure?

Answer 2

The duty is to conduct a reasonable search.

Question 3

What is standard disclosure?

Answer 3

A party must disclose documents which they intend to rely on, regardless of whether they help or hinder their case

Question 4

The standard direction in the fast track is for parties to file and serve all documents on which they intend to rely on no later than 14 days prior to the trial date.

Answer 4

False, this is for the small claims track

Question 5

What is pre-action disclosure?

Answer 5

Order made by court specifying what documents that a party should disclose to another before proceedings are issued

Question 6

What are the considerations when determining whether a document needs to be disclosed?

Answer 6

1. What is a party required to disclose?
2. Is the document within the party’s control?
3. Does the party have the ability to prevent another party from inspecting the document?

Question 7

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

Answer 7

It still needs to be disclosed, but an explanation of how the document was lost must be included.

Question 8

What is the only reason for a party to be able to deny inspection of a document?

Answer 8

When the document is privileged.

Question 9

What are the three types of privilege?

Answer 9

1. Legal Advice privilege
2. Litigation privilege
3. Without Prejudice privilegeha

Question 10

What is the document used for disclosure?

Answer 10

Form N265

Question 11

What is an order for specific disclosure and when should a party request it?

Answer 11

An order for another party to disclose specific documents. Made when a party feels the other party has not searched for a document well enough.

Question 12

What is a an order for non-party disclosure?

Answer 12

When a party to proceedings does not have an original document, but a third party does.

Question 13

A claimant is bringing an action against a defendant for breach of contract. The court orders that disclosure take place on the standard
basis.

Which of the following best describes the duty to search for documents that the parties are under?

A. The parties are under a duty to make an adequate search for all documents required under the appropriate basis for disclosure. The
extent of the search should be limited to only documents that are directly relevant to the claim.

B. The parties are under a duty to make an extensive search for all documents required under the appropriate basis for disclosure. The
extent of the search should be anything remotely related to proceedings, however minimal.

C. The parties are under a duty to make a reasonable search for all documents required under the appropriate basis for disclosure.
The extent of the search should be proportionate in line with the overriding objective.

D. The parties are under a duty to make a reasonable search for all documents required under the appropriate basis for disclosure.
The extent of the search should be anything remotely related to proceedings, however minimal.

E. The parties are under a duty to make an extensive search for all documents required under the appropriate basis for disclosure. The
extent of the search should be proportionate in line with the overriding objective.

Answer 13

C. The parties are under a duty to make a reasonable search for all documents required under the appropriate basis for disclosure.
The extent of the search should be proportionate in line with the overriding objective.

Question 14

A company is a defendant in an action for breach of contract against them. The claimant is arguing that the defendant took the wrong
details for an order, and instead of supplying 100 brochures in fact supplied and invoiced for 1,000 brochures. Disclosure is ordered on
the standard basis as part of the directions order. During the defendant’s search for documents, they come across a written letter from
the claimant which specifies that she would like the defendant to supply 100 brochures.

Which of the following best describes the defendant’s position?

A. The defendant does not have to disclose the document as it is clearly adverse to their case.

B. The defendant must disclose the document as even though it is clearly adverse to their case, the document falls within the test for standard disclosure.

C. The defendant must disclose the document as it has been discovered as part of a reasonable search.

D. The defendant must disclose the document but can withhold inspection on the basis that the document is privileged.

E. The defendant does not have to disclose the document on the basis that the document is privileged.

Answer 14

B. The defendant must disclose the document as even though it is clearly adverse to their case, the document falls within the test for standard disclosure.

Question 15

A claimant commences proceedings against a defendant for breach of contract. Shortly after the proceedings were issued, the
claimant’s solicitor wrote to the defendant stating that it was clearly not in any of the parties’ interests for the matter to proceed to court,
that the claimant recognised that both parties could have conducted themselves more appropriately, and that the claimant therefore
wished to negotiate. The letter included an offer to settle but was not marked ‘without prejudice’. The defendant did not accept the offer
to settle and refused to negotiate further, and so the litigation continued.

Which of the following best describes whether the claimant is entitled to withhold inspection from the defendant?

A. The claimant cannot withhold inspection. The letter was sent to the defendant and they have therefore already seen it.

B. The claimant cannot withhold inspection. It was not marked ‘without prejudice’ and therefore cannot benefit from without prejudice privilege.

C. The claimant can withhold inspection. The letter contains an offer to settle and is therefore by its very nature privileged.

D. The claimant can withhold inspection. Although the letter was not marked ‘without prejudice’, it can still benefit from being covered
by without prejudice privilege if it is clearly a genuine attempt to settle.

E. The claimant can withhold inspection. It has resulted from advice given to the claimant by his solicitor and therefore can benefit from
legal advice privilege.

Answer 15

D. The claimant can withhold inspection. Although the letter was not marked ‘without prejudice’, it can still benefit from being covered
by without prejudice privilege if it is clearly a genuine attempt to settle.

Question 16

A claimant issues proceedings against a defendant for damages relating to a personal injury caused by the defendant’s negligent
driving in failing to stop in time to prevent a collision. The defendant defends the action on the basis that the brakes of the car did not
seem to function as well as they should, increasing the vehicle’s stopping distance. As part of the disclosure list, the defendant
references a checklist and report that was conducted internally by a local garage on the condition of the car following its most recent
vehicle safety test. The defendant states that the document cannot be inspected as the garage has told them that it is private and the
garage will not release it.

Which of the following best reflects the way that the claimant should proceed?

A. The claimant should ignore the document. It is unlikely that the document is relevant as the action is focused on the defendant’s
standard of driving.

B. The claimant should proceed and make an application for specific disclosure against the defendant immediately.

C. The claimant should write to the garage and request that the document be handed over, failing which they should make an
application to the court for specific disclosure against the defendant.

D. The claimant should write to the garage and request that the document be handed over, failing which they should make an
application to the court for specific disclosure against the garage.

E. The claimant should write to the garage and request that the document be handed over, failing which they should make an
application to the court for non-party disclosure against the garage.

Answer 16

E. The claimant should write to the garage and request that the document be handed over, failing which they should make an
application to the court for non-party disclosure against the garage.

Question 17

A claimant company commences proceedings against a defendant for breach of contract. The court has ordered that disclosure takes
place on the standard basis, and the claimant company has conducted a reasonable search and has identified the documents that are
appropriate for disclosure. The claimant company has acted up to this point on their own but has decided to instruct a solicitor to advise
them on the disclosure process that they need to comply with.

Which of the following best represents the way in which the claimant company should proceed?

A. The claimant company should prepare a list of the documents for disclosure on the standard form and sign a disclosure statement
before filing the list with the court.

B. The claimant company should prepare a list of the documents for disclosure on the standard form and sign a disclosure statement
before serving the list on the other parties to the claim.

C. The claimant company should prepare a list of the documents for disclosure on the standard form and serve the list on the other
parties to the claim.

D. The claimant company should simply write to the defendant with a numbered list of the documents for disclosure. Although the
standard form is available, it is not a prescribed form, so alternative means can be used.

E. The claimant company should simply write to the court with a numbered list of the documents for disclosure. Although the standard
form is available, it is not a prescribed form, so alternative means can be used.

Answer 17

B. The claimant company should prepare a list of the documents for disclosure on the standard form and sign a disclosure statement
before serving the list on the other parties to the claim.