Disclosure and Inspection Flashcards
How long does the duty to disclose last?
Throughout the case, terminates on conclusion of the proceedings
Which documents MUST a party disclose?
Any document within the party’s control:
- On which it relies
- Which adversely affects its case or the other party’s case
- That supports the other party’s case
NOTE: a “Document” is anything with information recorded on it- not just a physical file.
What must a solicitor do if a client refuses to comply with the disclosure requirements?
Cease to act for them, as it is a breach of the duty to disclose
What must a solicitor do if a document is lost or destroyed?
Inform the court and the opposing party of its existence + the reason for it’s destruction or loss.
What will the court do if a party tells them that a document has been lost of destroyed prior to disclosure?
The court will draw an adverse inference from the fact that a party has failed to preserve a relevant document
When does a party have ‘control’ of a document?
- Physical possession of it
- Right to possess, inspect, or make copies
- Had the document in their possession at some point
How thorough does a party need to be when conducting a search for documents?
The search must be REASONABLE and PROPORTIONATE.
Look at:
- Importance of the document
- Ease of retrieval
In which tracks is a disclosure list required?
Fast track cases
PI Multi Track cases
What does a ‘disclosure list’ contain?
1) A list of documents the party DOES NOT mind the other party inspecting
2) A list of documents the party OBJECTS to the other party inspecting + reason for the objection (e.g., privilege)
3) A list of documents no longer in it’s control, including when they were last in their control + where they are now
What does a ‘disclosure statement’ do?
Details the extend of the search made for documents, signed by the PARTY (not the representative), stating that they believe the search was reasonable and explaining why any search wasn’t carried out.
What can the court do if a party makes a false disclosure statement?
Contempt of court proceedings
How long do the parties have to serve their disclosure lists on the other party?
28 days from the date of the directions order from the court.
When is the directions order made?
When a case is allocated to its track
When can a party challenge the other party’s disclosure?
If they documents which logically should appear on the disclosure list are missing
When the other party inappropriately claims privilege
They believe the other party has not carried out an extensive search
What is the Automatic Right to Inspection?
Disclosure of document = automatic right to inspect it UNLESS specifically challenged.
What are the grounds for refusing inspection of a document?
- Privilege
- Document no longer in party’s control
- Disproportionate to allow inspection
When must a party permit the other party to inspect a document?
7 days after the party gives notice that they want to inspect the document
How is disclosure limited in small claims cases?
Disclosure is limited to documents that the court considers necessary and proportionate to resolve the case.
In what track must a disclosure report be filed?
Non-PI, multi-track claims
When must a disclosure report be filed?
At least 14 days before the case management conference, or otherwise with the directions questionnaire
What information should be contained in the disclosure report?
- Description of the documents
- Where the documents are located
- If eDocs, how they are stored
- Estimated cost of providing standard disclosure
- How they would like the court to decide on what disclosure is necessary
- What order the court should make
- Statement of truth
