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CPQ - Civil Litigation > Disclosure and Inspection > Flashcards

Disclosure and Inspection Flashcards

1
Q

What is Disclosure?

A

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

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2
Q

What is inspection?

A

Seeing or being supplied with a document.

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3
Q

Before proceedings are started what is the position of disclosure?

A

Disclosure and inspection is dealt with on a voluntary basis - No specific CPR deals with it.
Best practice to exchange documents voluntarily.
Some pre-action protocols may apply (Medical report disclosed pre-action for PI Claims).

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4
Q

What is pre-action disclosure?

A

Order which requires a likely defendant in subsequent proceedings to disclosure documents to the proposed claimant before a substantive claim is issued.

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5
Q

What step must be carried out before an order for pre-action disclosure can be applied for?

A

The party intending to apply should make a formal request in writing to the other party, and warn them that they will apply for an order if the documents are not supplied.

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6
Q

What are the requirements for pre-action disclosure?

A
  • Must be by and must be sought against parties who are likely to be party to a subsequent action.
  • Must be justified.
  • Must be for documents that fall within standard disclosure.
  • Must be necessary to:
    Dispose fairly of the proceedings;
    Save costs; and/or
    Assist the resolution of the dispute without the need to commence proceedings.
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7
Q

When can an order for non-party disclosure be made?

A
  • Where the documents sought are likely to either support the case for the applicant, or adversely affect the case of the other parties to the proceedings; and
  • Disclosure is necessary to dispose fairly of the claim or to save costs.
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8
Q

Which part of the CPR deals with disclosure and inspection once proceedings have started?

A

Part 31

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9
Q

What type of disclosure and inspection is used in the Small Claims track?

A

Formal disclosure and inspection does not apply.
Parties usually directed to file and serve on their opponent all documents they intend to rely at least 14 days’ before the hearing.

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10
Q

What type of disclosure and inspection is used in the Fast and Multi-track for Personal Injury claims?

A

Standard Disclosure under Part 31.

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11
Q

What type of disclosure is used in the multi track?

A

Tailor (menu-based) disclosure under Part 31

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12
Q

What documents are required to be disclosed in standard disclosure?

A
  1. The documents the party relies on.
  2. The documents which:
    - Adversely affect their own case;
    - Adversely affect another party’s case; or
    - Support another party’s case.
  3. Documents they are required to disclose by a relevant Practice Direction.
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13
Q

What duty do the parties have to search?

A

Each party under an obligation to give standard disclosure is under a duty to make a reasonable search for documents, which fall within the scope of standard disclosure.

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14
Q

In what ways is the duty to search in standard disclosure limited?

A
  1. It is limited to documents which are or have been in the party’s control.
  2. It is limited to what is reasonable and proportionate.
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15
Q

In what ways would a party have or had control of a document?

A

The document is (or was) in the party’s physical possession;
The party has (or had) a right of possession of the document;
The party has (or had) a right to inspect the document;
The party has (or had) a right to take copies of the document.

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16
Q

How will the court determine if the extent of a search is reasonable and proportionate?

A
  • The number of documents involved;
  • The nature and complexity of the proceedings;
  • The ease and expense of retrieval of the documents; and
    The significance of any document which is likely to be located during the search.
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17
Q

What documents must the parties serve as part of standard disclosure?

A

N265 List of Documents: standard documents.

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18
Q

What is contained in form N265:List of Documents?

A

A list of documents revealed in the document search, including where relevant a short description, the location, or last known location.
Categorised into one of three categories.
Contains a disclosure statement.

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19
Q

How are documents categorised in form N265 List of Documents?

A
  1. Documents the party has control of, and does not object to inspection.
  2. Documents the party has control of, but objects to inspection. Reasons given.
  3. Documents the party no longer has control of.
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20
Q

What does a disclosure statement contain?

A

Sets out the extent of the search made for documents.
Certifies that the party understands the duty to disclose, and to the best of their knowledge they have carried out that duty.
- Where the party is an organisation, identifies the person making the disclosure statement and asks them to explain why they are suitable to make the statement.

21
Q

Who usually signs a disclosure statement?

A

The client

22
Q

What is the consequence for making a false disclosure statement?

A

Proceedings for contempt of court can be brought against any person if they make or cause to be made a false disclosure statement without an honest belief in its truth.

23
Q

What is the process of inspection?

A

Receiving party can request inspection of items from the opponent’s list of Documents by serving written notice.
Disclosing party should allow the opponent to attend to inspect or provide copies of the documents (usually within 7 days).

24
Q

What is privilege?

A

A right which entitles a party to withhold inspection of a document to a third party or to an opponent in proceedings, or to the court.

25
Q

What does it mean if privilege of a document is established?

A

An absolute right to withhold the document arises.
Still required to disclose document, but only broad descriptions are required in the list of documents.

26
Q

What are the types of legal privilege?

A
  • Legal Advice Privilege.
  • Litigation Privilege.
27
Q

What type of documents are subject to legal privilege?

A

Can apply to all types of communications, which are confidential.

28
Q

When does legal advice privilege apply?

A
  • Only to communications between a client and their lawyer.
  • Applies in both contentious and non-contentious legal context.
  • Communication must be for the sole and dominant purpose of obtaining or giving legal advice in a relevant legal context.
  • A claim does not have to be started or in contemplation.
29
Q

When does litigation privilege apply?

A
  • Applies to communications between a client or their lawyer, and a third party (e.g., expert or factual witness).
  • Applies only to contentious matters.
  • Communication must be for the sole or dominant purpose of preparation for contemplated, pending or existing proceedings.
  • Only applies once proceedings have been contemplated or started.
30
Q

What is without prejudice privilege?

A

Neither party to “without prejudice” negotiations may put in evidence the content or detail of the fact that an offer or concession has been made, if the offer or concession was made as part of a good faith attempt to negotiate a settlement of the case or some of the issues.

31
Q

What are the exceptions to without prejudice privilege?

A
  • All parties consent to revealing the existing of the concession/offer, and/or its details.
  • A concluded settlement is reached.
  • It has been made “save as to costs”.
  • Disclosure is sought by an individual who is not a party to the proceedings.
32
Q

How can privilege be waived?

A

Intentionally e.g., serving a witness statement on the opponent so this can be relied upon.
Accidentally e.g., including a document in a bundle, or referring to in a statement of case. Court will decide if it can be used.

33
Q

How does disclosure work in the business and property courts?

A

No standard disclosure.
Parties are under a disclosure duty.

34
Q

What are the steps for disclosure in the business and property courts?

A
  1. Initial disclosure of key documents.
  2. Discussion and co-operation between the parties to agree Extended Disclosure.
  3. Disclosure model decided by court at CMC.
35
Q

What are the key documents that the parties required to disclose in the business and property courts?

A

Those they intend to rely and that are necessary for the opponent to understand their case.

36
Q

What duty do the parties have for disclosure in the Property and Business Courts?

A
  • A duty to co-operate to promote the reliable, efficient and cost-effective conduct of disclosure.
  • A wider duty to disclose adverse documents in all cases, irrespective of whether an order to do so is made.
37
Q

What form is required in the Property and business Court for Disclosure?

A

Disclosure Review Document.

38
Q

What does the Disclosure Review Document require the parties to do?

A
  • List the issues for disclosure in the case (the key issues);
  • Exchange proposals for extended disclosure; and
  • Share information about how documents are stored, how they might if required be searches and reviewed.

Estimate of likely costs for disclosure should also be filed.

39
Q

What can the parties do in the business and property courts if there is dispute about disclosure?

A

Apply for a Disclosure and Guidance Hearing to seek informal guidance from the court.

40
Q

What is tailored disclosure?

A

The court has a list or menu of possible disclosure orders, it can make to comply with the overriding objective.
Flexible approach.
Disclosure limited to what is necessary to deal with the case justly.

41
Q

What form is required in tailored disclosure?

A

Disclosure Report (N263).

42
Q

What information is completed in the Form N263 Disclosure Report

A
  • A brief description of the documents which are relevant to the matters in issue.
  • A brief description of the location of the items.
  • How many electronic documents stored.
  • Cost estimate for standard disclosure and searching and disclosing electronically stored documents.
  • Identify the type of disclosure to be used.
43
Q

What document applies for the disclosure of electronic documents?

A

Electronic Documents Questionnaire (Form N264)

44
Q

What sanction applies for a failure to disclose/inspect?

A

Automatic sanction - A party cannot rely on, as evidence any document they fail to disclose or provide inspection of, unless court permits.

45
Q

What options are available for an opponent’s non-compliance with disclosure/inspection?

A
  1. Ask the court to impose a sanction e.g., unless order, to strike out the parties case, or costs sanction.
  2. Initiate proceedings against the opponent for contempt of court.
  3. Apply to court to determine whether an opponent’s claim to withhold disclosure or inspection should be upheld.
  4. Apply to court for an order for specific disclosure and/or inspection.
46
Q

What does an order for specific disclosure require a party to?

A
  1. Prepare a supplemental list of documents;
  2. Disclose documents or classes of documents specified in the order; and
  3. Carry out a search to the extent stated in the order, and disclose documents revealed by the search.
47
Q

What type of documents can a order for specific disclosure be requested for?

A

Can be made for documents, which it is reasonable to suppose may contain information which will assist the case of the party applying for the order, or damage the case of the party giving disclosure, or lead to a train of enquiry which would have these consequences.

48
Q

What steps should be taken before making an order for specific disclosure?

A

Not usually done before standard disclosure is ordered.
Party applying should write to the opposing party and give them reasonable time to comply.

CPQ - Civil Litigation (15 decks)

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