Disclosure and Inspection

Question 1

What is ‘Disclosure’?

Answer 1

STATE to another party a document EXISTS or HAS EXISTED

Question 2

What type of obligation is ‘Disclosure’?

Answer 2

Ongoing

Question 3

What is ‘Inspection’?

Answer 3

Allow OTHER SIDE to LOOK AT documents disclosed (original or copy)

Question 4

In the Small Claims and Fast Track, when is the Disclosure Order given?

Answer 4

As part of Directions on Allocation (to track)

Question 5

What ‘Disclosure Order’ is usually made in the SMALL CLAIMS TRACK?

Answer 5

Min 14 DAYS pre trial, each party file & serve ALL DOCUMENTS intend rely on

Question 6

What ‘Disclosure Order is usually made in the FAST TRACK?

Answer 6

Standard Disclosure Order

Question 7

When is the ‘Disclosure Order’ typically made in the MUTLI-TRACK

Answer 7

Case Management Conference (CMC)

Question 8

In the MULTI-TRACK , before the ‘Disclosure Order’ is issued, what are the 2 stages that must take place first and when?
(1)
(2)
CMC
(3) DISCLOSURE ORDER issued

Answer 8

(1) DISCLOSURE REPORT - MIN 14 days pre CMC
(2) Talks between Parties agree ‘PROPOSAL’ - MIN 7 days pre CMC
CMC
(3) DISCLOSURE ORDER issued

Question 9

What are 3 examples of ‘Disclosure Orders’ the court may issue on the MULTI-TRACK?

Answer 9

Any order court considers appropriate - e.g.
(1) Standard Disclosure
(2) Specific Disclosure
(3) Disclosure on an issue by issue basis

Question 10

What are the 3 stage test / questions for ‘Standard Disclosure?

Answer 10

(1) Is it a DOCUMENT?
(2) Is / was it in PARTY’S CONTROL?
(3) Does it fall within CPR 31.6?

Question 11

One of the 3 criteria for Standard Disclosure is (2) Is / was it in PARTY’S CONTROL.

What are 3 examples of this?

Answer 11

(1) Was / has been in their PHYSICAL POSSESSION
(2) Right to POSSESS
(3) Right to INSPECT

Question 12

One of the 3 criteria for Standard Disclosure is (2) Is / was it in PARTY’S CONTROL.

Does this apply to documents that had in the PAST been in the party’s control but are no longer?

Answer 12

Yes

Question 13

Under ‘Standard Disclosure’ a Party must disclose documents that fall within CPR 31.6. What 4 types documents are these?

Answer 13

Documents which
(1) Party RELIES
(2) ADVERSELY AFFECT other Party’s case
(3) ADVERSELY AFFECT their case
(4) SUPPORT other Party’s case

Question 14

(1) If the criteria of ‘Standard Disclosure’ are met what DUTY re the documents is the party bound by?

(2) What STANDARD must this duty be carried out to?

Answer 14

(1) Duty to SEARCH

(2) ‘REASONABLE AND PROPORTIONATE’ search

Question 15

Under ‘Standard Disclosure’ a ‘reasonable and proportionate’ search must be carried out for documents.

What are 3 factors that influence what is considered ‘Reasonable and Proportionate’?

Answer 15

(1) Significance of document
(2) Complexity of proceedings
(3) Number of documents

Question 16

Following a Party’s search for the documents under ‘Standard Disclosure:
(1) What form are these listed in?
(2) What are the 2 components of this form?
(3) For component 1, there are 3 Parts. What are these?

Answer 16

(1) Form N265

(2)
(a) DISCLORURE LIST
(i) Part 1 - docs WITHIN PARTY’S CONTROL + DO NOT OBJECT TO INSPECT
(ii) Part 2 - WITHIN PARTY’S CONTROL + DO OBJECT INSPECT (e.g. privileged)
(iii) Part 3 - NO LONGER IN PARTY’S CONTROL

(b) DISCLOSURE STATEMENT

Question 17

What is the GENERAL RULE on whether a ‘Disclosed Document’ can be Inspected?

Answer 17

A Disclosed Document can be Inspected UNLESS Privileged

Question 18

What are the 2 key effects of a document being Privileged?

Answer 18

(1) CANNOT be INSPECTED
(2) Described GENERICALLY

Question 19

What are the 3 types of Privilege?

Answer 19

(1) Legal Advice Privilege
(2) Litigation Privilege
(3) ‘Without Prejudice’ Privilege

Question 20

What is ‘Legal Advice Privilege’. There are 3 components?

Answer 20

(1) COMMUNICATION between a
(2) LAWYER AND CLIENT with the
(3) DOMINANT purpose of providing LEGAL ADVICE

Question 21

What is ‘Litigation Privilege’? There are 3 components

Answer 21

(1) COMMUNICATION between (see diagram)
(2) For DOMINANT PURPOSE of providing LEGAL ADVICE
(3) CREATED at time litigation was (a) ‘REASONABLY IN PROSPECT’ or (b) ONGOING

Question 22

What is ‘Without Prejudice’ Privilege?

Answer 22

GENUINE attempt to settle

Question 23

How can a Party give the other Party a right to ‘Inspect’ a Privileged Document?

Answer 23

Waive Privilege

Question 24

If a document is Privileged, in what Part of the DISCLOSURE LIST will it be contained in on form N265?

Answer 24

Part 2

Question 25

(1) If following a Disclosure Order, a party feels the disclosure is inadequate, what new order can they request?
(2) Before requesting this, what should the party do?

Answer 25

(1) ‘Specific Disclosure’
(2) Write other Party

Question 26

What are 3 things that could be ordered as part of ‘Specific Disclosure’?

Answer 26

(1) Disclose SPECIFIC DOCUMENTS / CLASS OF DOCUMENTS
(2) New SEARCH
(3) Disclose DOCUMENTS FROM NEW SEARCH

Question 27

What is the 2 part test for ‘Specific Disclosure’

Answer 27

(1) Would it need to be disclosed under STANDARD DISCLOSURE anyways?
(2) Would it be REASONABLE to order?

Question 28

(1) BEFORE proceedings are issued, what type of Disclosure Order can a Party apply for?
(2) What is the main purpose of this?

Answer 28

(1) Pre-Action Disclosure
(2) Unsure strength of case (& help make decision issue proceedings)

Question 29

What is the 3 part test of ‘Pre-Action Disclosure?
(1)
(2)
(3)
(a) OR
(b) OR
(c)

Answer 29

(1) Applicant and Respondent are LIKELY PARTIES TO SUBSEQUENT PROCEEDINGS
(2) If proceedings issued test of STANDARD DISCLOSURE met
(3) DESRIABLE to:
(a) DISPOSE FAIRLY of proceedings OR
(b) Resolve dispute WITHOUT PROCEEDINGS
(c) Save COSTS

Question 30

What Disclosure Order is used against
(i) 3rd Party (to proceedings)
(ii) AFTER Proceedings Issued

Answer 30

Non-Party Disclosure Order

Question 31

When is a ‘Non-Party Disclosure Order’ typically used?

Answer 31

A Party lists a document as not in their possession and with a third party and Other Party wants it disclosed

Question 32

What is the 2 part test of ‘‘Non-Party Disclosure’?
(1)
(a) OR
(b)

(2)
(a). OR
(b)

Answer 32

(1)
(a) SUPPORT Applicant’s case OR
(b) ADVERSELY affect Other Party’s case

(2) Necessary to
(a) DISPOSE FAIRLY claim OR
(b) SAVE COSTS

Question 33

(1) How long does a Party have to ‘Inspect’ disclosed documents?

(2) What 2 methods of ‘Inspection’ are there?

Answer 33

(1) within 7 DAYS of DISCLOSURE
(2)
(a) Personally OR (b) Request copies