Disclosure and Inspection Flashcards
What is the obligation of disclosure and when does it arise?
Disclosure is simply stating to the other party(ies) that a document exists. The obligation to disclose derives from a court order (standard disclosure / specific disclosure) and continues until proceedings conclude.
For what purpose can disclosed documents be used?
Disclosed documents can only be used for the proceedings in which they are disclosed, unless they are referred to in a public hearing, the court gives permission, or the disclosing party and the recipient agree.
What are the disclosure requirements for small claims and fast track cases?
For small claims, documents must be filed and served on all parties at least 14 days before the hearing automatically. For fast track, a direction for standard disclosure is given
What must parties do before the first Case Management Conference (CMC) in a multi-track case?
Parties must complete a disclosure report, file and serve it at least 14 days before the first CMC, and agree on a draft disclosure order 7 days before the CMC.
What does standard disclosure require the parties to disclose?
Parties must disclose documents in its control which:
(a) they rely on
(b) adversely affect their own or another party’s case
(c) support another party’s case, or
(d) are required by a practice direction.
Documents include anything recording information, such as digital recordings, emails, photos, texts, voicemails, and metadata. Control = possession, right to possession or right to inspect / take copies.
Which factors determine the reasonableness of a search?
Number, complexity of proceedings, difficulty and cost of retrieval, significance of documents and O.O.
What are the 3 parts of the disclosure list?
- Control with no objection to inspection
- Control with objection to inspection (privilege, document not in control or inspection disproportionate)
- Not in control.
When is redaction justified?
Privileged docs or irrelevant & commercially sensitive info.
What is legal advice privilege?
Covers confidential communications between lawyer and client for the dominant purpose of giving or receiving legal advice.
Also includes wider communications between solicitor and client, including if client repeats it (not their own opinion).
What is litigation privilege?
Document which is confidential communication passed between lawyer and client or between one of them and a third party where the dominant purpose of creating the document is to obtain legal advice or evidence for use in conduct of litigation which was at the time reasonably in prospect.
What is a Without prejudice Communication?
A document whose purpose is a genuine attempt to settle a dispute.
When will privilege be considered to have been waived by a party?
Where a privileged document is referred to in a witness statement, statement of case, witness summary, affidavit or expert report.
When might a court order specific disclosure?
Can be made any time after proceedings are issued but generally after applicant dissatisfied with standard disclosure and wants documents earlier or extra.
When might a court order pre-action disclosure?
Respondent and applicant likely to be parties to the subsequent proceedings + documents sought would be required anyway under standard disclosure + pre-action disclosure necessary to dispose fairly of proceedings, assist settlement or save costs.
Respondent’s costs paid by app.
When might the court order non-party disclosure?
Where docs are likely to support applicant’s case or adversely affect another party’s case + necessary to dispose fairly or save costs.
Can only be used when proceedings have started.
