Disclosure and Inspection Flashcards
What is disclosure?
Stating to another party that a document exists or has existed. Parties will often have obligations to disclose documents that support them and that are adverse to their position.
What is inspection?
The party to whom a document has been disclosed looking at a document.
What are the purposes of disclosure and inspection?
Help to clarify the issues that are in dispute;
Enable parties to evaluate the strength of the claim against them;
Encourage settlement;
Ensure the court has all the facts and evidence before it in order to deal justly and appropriately with the case.
How does the court arrive at a disclosure order in the small claims track?
Directions are given on allocation. The usual order is that at least 14 days before the date fixed for the final hearing, each party must file and serve on every other, copies of all documents on which they intend to rely at the hearing.
Where does the obligation to give disclosure come from?
There is no automatic obligation to disclose anything - obligation comes from a court order.
Usually given on allocation or at a case management conference.
Party can also apply for order of disclosure at a later stage.
How does the court arrive at a disclosure order in the fast track?
Court will usually give directions on allocation. Usual is to give ‘standard disclosure’, but court may order something less.
How does the court arrive at a disclosure order in the intermediate and multi-tracks?
More complex - parties must complete a disclosure report to be filed and served not less than 14 days before the first CMC.
Not less than 7 days before the first CMC, consider the issues in the case and enter into discussions to seek to agree a draft disclosure order which they will then ask the court to make.
At CMC court will decide what form of disclosure is most appropriate.
What is a disclosure report?
It briefly explains what relevant documents exist/may exist;
Where and with whom they are;
How any electronic docs are stored;
An estimate of broad range of costs that could be involved in giving standard disclosure in the case; and
Which of the disclosure directions are to be sought.
What happens at the CMC regarding disclosure?
Court uses disclosure report and any other info to consider whether standard disclosure is too expensive, considers what disclosure order to make. Can make any order relating to disclosure that it thinks is appropriate.
What is the usual procedure for disclosure order in the small claims track?
Disclosure order included in directions given on allocation.
14 days before hearing, file and serve docs relying on.
What is the usual procedure for disclosure order in fast track?
Disclosure order included in directions given on allocation.
Usual order = standard disclosure.
What is the usual procedure for disclose in multi-track?
Disclosure report is filed and served not less than 14 days before CMC.
Conversation between parties not less than 7 days before CMC
Court makes appropriate disclosure order - no usual order.
Generally, copies of documents need only be disclosed if…
They contain a modification, obliteration or other marking to feature which itself satisfies the test for standard disclosure, or the party has never had the original or no longer has it in its control.
Is there a continuing obligation of disclosure?
Yes - any duty continues until proceedings are concluded. Party must serve disclosure docs which come within its control or were created after the date it originally gave disclosure if they fall within disclosure obligations.
What is the rule regarding subsequent use of disclosed documents? What are the exceptions?
A party to whom a document has been disclosed can only use it for the purposes of the proceedings in which it has been disclosed, not for other proceedings.
Exceptions:
- Document haș been read to or referred to by the court at a hearing in public.
-Court gives permission.
- Person who disclosed document and person to whom document belongs agree.
What does standard disclosure require?
Party disclose only the documents on which he relies, and the documents which adversely affect his own case, adversely affect another party’s case, or support another party’s case, and the documents which he is required to disclose by a relevant practice direction.
Document can include…
Digital recordings, emails, photos, texts and voicemails, metadata.
Key questions to ask in standard disclosure:
- Is it a document?
- Is/was it in the party’s control?
- Does it fall within standard disclosure?
What is a disclosure list, how is it used?
Standard disclosure is performed by each party making a list of docs and serving it on other party - usually simultaneously.
Three parts - I have control, you can inspect.
I have control, you cannot inspect. (can say generically e.g. correspondence between me and my solicitor rather than each individual doc).
I have had docs, they are no longer in my control.
What does ‘in a party’s control’ mean?
Doc is/was in physical possession, party has/had a right to possession, party has/had a right to inspect or take copies of document.
What constitutes a reasonable search for the purposes of standard disclosure?
Depends on number of docs, complexity, significance of docs. Court must take into account overriding objective and in particular the principle or proportionality.
Where is the disclosure statement? What is it?
It is part of the disclosure list - sets out the extent of the search made, certifies the party knows its duty to disclose and that it has carried out that duty to the best of its knowledge.
Must be signed by the disclosing party, or an appropriate officer of the company who identifies themselves and states why they are the appropriate person.
What is inspection?
A party has a right to inspect a document that has been disclosed?
When does a party not have a right to inspect a disclosed document?
The document is no longer in the disclosing party’s control.
Allowing inspection would be disproportionate.
Right/duty to withhold inspection. (privilege)
