Disclosure and Inspection Flashcards
What is ‘Disclosure’?
STATING to another party a document EXISTS or HAS EXISTED
What type of obligation is ‘Disclosure’?
Ongoing
What is ‘Inspection’?
Allow OTHER SIDE to LOOK AT documents disclosed (original or copy)
In the Small Claims and Fast Track, when is the Disclosure Order given?
As part of Directions on Allocation (to track)
What ‘Disclosure Order’ is usually made in the SMALL CLAIMS TRACK?
Min 14 DAYS pre trial, each party file & serve ALL DOCUMENTS intend rely on
What ‘Disclosure Order is usually made in the FAST TRACK?
Standard Disclosure Order
When is the ‘Disclosure Order’ typically made in the MUTLI-TRACK
Case Management Conference (CMC)
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
(1) DISCLOSURE REPORT - MIN 14 days pre CMC
(2) Talks between Parties agree ‘PROPOSAL’ - MIN 7 days pre CMC
CMC
(3) DISCLOSURE ORDER issued
What are 3 examples of ‘Disclosure Orders’ the court may issue on the MULTI-TRACK?
Any order court considers appropriate - e.g.
(1) Standard Disclosure
(2) Specific Disclosure
(3) Disclosure on an issue by issue basis
What are the 3 stage test / questions for ‘Standard Disclosure?
(1) Is it a DOCUMENT?
(2) Is / was it in PARTY’S CONTROL?
(3) Does it fall within CPR 31.6 (I.e. definition of standard disclosure)?
One of the 3 criteria for Standard Disclosure is (2) Is / was it in PARTY’S CONTROL.
What are 3 examples of this?
(1) Was / has been in their PHYSICAL POSSESSION
(2) Right to POSSESS
(3) Right to INSPECT
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?
Yes
Under ‘Standard Disclosure’ a Party must disclose documents that fall within CPR 31.6. What 4 types documents are these?
Documents which
(1) Party RELIES
(2) ADVERSELY AFFECT other Party’s case
(3) ADVERSELY AFFECT their case
(4) SUPPORT other Party’s case
(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?
(1) Duty to SEARCH
(2) ‘REASONABLE’ search
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’?
(1) Significance of document
(2) Complexity of proceedings
(3) Number of documents
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?
(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
What is the GENERAL RULE on whether a ‘Disclosed Document’ can be Inspected?
A Disclosed Document can be Inspected UNLESS Privileged
What are the 2 key effects of a document being Privileged?
(1) CANNOT be INSPECTED
(2) Described GENERICALLY
What are the 3 types of Privilege?
(1) Legal Advice Privilege
(2) Litigation Privilege
(3) ‘Without Prejudice’ Privilege
What is ‘Legal Advice Privilege’. There are 3 components?
(1) COMMUNICATION between a
(2) LAWYER AND CLIENT with the
(3) DOMINANT purpose of providing LEGAL ADVICE
What is ‘Litigation Privilege’? There are 3 components
(1) COMMUNICATION between (see diagram)
(2) For DOMINANT PURPOSE of obtaining LEGAL ADVICE, EVIDENCE or INFORMATION for use in
(3) LITIGATION that was (a) ‘REASONABLY IN PROSPECT’ or (b) ONGOING
What is ‘Without Prejudice’ Privilege?
GENUINE attempt to settle
How can a Party give the other Party a right to ‘Inspect’ a Privileged Document?
Waive Privilege
If a document is Privileged, in what Part of the DISCLOSURE LIST will it be contained in on form N265?
Part 2
