Disclosure and Inspection

Question 1

What is disclosure?

Answer 1

It is the process by which a party informs another party that they possess a particular document.

Question 2

What is inspection?

Answer 2

Right of other party to read or receive copies of a document that has been disclosed

Question 3

What is the duty to search in relation to disclosure?

Answer 3

All parties are under a duty to make a reasonable search for all documents required under the appropriate basis for disclosure

Question 4

What should be taken into account in deciding what a reasonable search for all documents is?

Answer 4

• overall number of documents involved
• the nature and complexity of the proceedings
• how significant an individual document will actually be in the context of the proceedings overall
• ease and expense of finding any particular document

Question 5

What should be considered when establishing whether a document needs to be disclosed by one party to another?

Answer 5

• what is a party obliged to disclose?
• is the document within the party’s control?
• does the party have the ability to prevent another party from inspecting the document?

Question 6

What is a party obliged to disclose under the standard basis?

Answer 6

A party must disclose documents on which they intend to rely that adversely affect their own case

Documents that adversely affect their own case

Documents that support another party’s case

Document that are required to be disclosed by relevant practice directions

Question 7

How will a party know if they are to disclose on the standard basis?

Answer 7

It will be specified in the directions order

Question 8

Do documents on elements of the dispute that have already been agreed by the parties have to be disclosed?

Answer 8

No - only documents that are relevant to the matters in dispute

Question 9

What is the standard direction for disclosure for small claims track?

Answer 9

Each party at least 14 days before the date of the final hearing, file and serve on every other part copies of all documents on which they intend to rely at hearing

Question 10

What is specific disclosure?

Answer 10

It is disclosure of specific documents or classes of documents by court order

Question 11

When will a judge make an order in relation to disclosure? What should they bear in mind?

Answer 11

Usually at the first case management conference

They should bear in mind the overriding objective to deal with cases justly and at proportionate cost

Question 12

When is a document in a party’s control?

Answer 12

• it is or was in the physical possession of the party
• the party had or has had the right to inspect the document
• the party has or has had the right to inspect or take a copy of the document

Question 13

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

Answer 13

The document will still need to be disclosed with a detailed explanation of how the document was lost in the disclosure form

Question 14

What is the general position in relation to inspection of documents?

Answer 14

A party whom a document has been disclosed has a right to inspect it unless an exception applies

Question 15

What is the effect of a document being privileged?

Answer 15

Even though the opposing party will be aware of the document through disclosure, they are prevented from inspecting or seeing it

Question 16

What are the three types of privilege?

Answer 16

• legal advice privilege
• litigation privilege
• without prejudice privilege

Question 17

What is covered by legal advice privilege?

Answer 17

Protects confidential communications between a legal representative and their client but not communications with third parties

Applied widely and does not need to be in relation to litigation that is either commenced or is being contemplated.

Dominant purpose of communication must be seeking and receiving of legal advice

General advice given about litigation process will not be privileged but a letter specifically advising a client on the merits of their claim would be

Question 18

What is covered by litigation privilege?

Answer 18

Protects confidential communications between a legal representative and a client and a third party or between a client and a third party directly.

A third party can be an expert or a witness or any other party consulted in connection with the litigation.

Narrower than legal advice privilege as the document must have been created for the sole or dominant purpose of obtaining information or advice in connection with the litigation itself

Question 19

What is covered by without prejudice privilege?

Answer 19

Applies to documents written in the course of negotiations to settle with another party.

Substance of document must be looked at - is it a genuine offer to settle on sensible terms by a party open to settlement?

Question 20

How does a party waive privilege of a document?

Answer 20

Party would write to opposition indicating that they are not relying on privilege as well as inviting them to inspect the document in question if they wished

Question 21

What is the procedure for disclosure and inspection that a party should follow?

Answer 21

• once a reasonable search has been carried out and the relevant documents have been identified, the party will prepare a numbered list of those documents using form N265
• the list must also contain a disclosure statement, signed by the party confirming the extent of the search made to locate documents and certifying that they understand their duty of disclosure
• the N265 form must then be served n the other party by the deadline set out in the directions order
• upon receipt of the other party’s N265 form, the opposition must prepare a written notice informing the party of the documents that they wish to inspect from the list. The party must allow inspection within seven days of receiving that notice

Question 22

When would a specific disclosure order be needed?

Answer 22

When a party feels the opposing party has not search as extensively as their duty requires

Question 23

What should happen if a party feels the opposing party has not search as extensively as their duty requires?

Answer 23

The dissatisfied party should first write to the other party setting out reasons as to why the believe a search has not been carried outs thoroughly as required and including what they would like to be done to rectify matters

Failing which they party should apply to court using form N244 and accompanying witness statement for specific disclosure

Question 24

What will happen if a court grants a specific disclosure order?

Answer 24

Party against whom the order is made, will be required to do one or more of the following:

• disclose specific documents or classes of documents covered in the order
• carry out additional search
• disclose any documents located as a result of that search
• comply with any timescale

Question 25

When may a pre-action disclosure be useful?

Answer 25

As no duty to disclose pre-action parties may cherry pick disclosure of documents. If party feels opponent is deliberately withholding a document that could have a material impact on the chances of the matter being settled by negotiation, or whether the claim is suitable for being used at all, an application for pre-action disclosure may be useful

Question 26

What is pre-action disclosure?

Answer 26

Application that asks court to make an order requiring a party to disclosure a particular document or class of document before proceedings are issued

Question 27

What must applicant do to make a pre-action disclosure application?

Answer 27

Application must complete an N244 form and attach a witness statement that outlines:

• both the respondent and applicant are likely to be parties to the anticipated proceedings
• the document or class of documents that the applicant would like to be disclosed
• that if proceedings have already started, the respondent would under a duty to disclose the document or documents in question
• that disclosure prior to proceedings being commenced is desirable as it will save costs, assist with the dispute being resolved without proceedings or is likely to enable that parties to dispose fairly of anticipated proceedings

Question 28

When is an application for non-party disclosure appropriate?

Answer 28

Where proceedings have been issued, disclosure has taken place and a party has said that they are no longer in possession of a relevant document but they know that somebody who is not party to proceedings is in possession of it

Question 29

What must be done for an application for non-party disclosure to be made?

Answer 29

Use N244 form and accompanying witness statement that explains:

• the documents are likely to support the case of the applicant or adversely affect the case of one of the other parties to proceedings
• disclosure is necessary in order to dispose fairly of the claim or to save costs

Question 30

What does the CPR require in relation to electronic disclosure?

Answer 30

That the parties agree between them how the volume of electronic disclosure can be limited for instance with reference to specific keywords, agreeing specific categories of documents to be disclosed and the manner in which these documents will be inspected by the other party