disclosure and inspection Flashcards
What is the standard requirement for document submission before a final hearing in the Small Claims Track?
Each party is required to submit and serve copies of all relevant documents (including any expert reports) to all other parties at least 14 days before the final hearing.
How is disclosure handled on the Fast Track?
Disclosure on the Fast Track will be limited to what is necessary to deal with the case justly and at proportionate cost. Standard disclosure is an option, but the court may direct a more limited approach.
What are the possible disclosure orders for the Intermediate Track?
- to dispense with disclosure
- disclosure of documents on which a party relies and, at the same time, a request for any
specific disclosure it requires from any other party; - disclosure on an issue-by-issue basis;
- standard disclosure.
- any other disclosure order considered appropriate
How do the parties notify the court of
their requirements for disclosure in multi track?
By compiling a disclosure report
when must the disclosure report be filed and served?
Not less than 14 days before the first case management
conference (CMC)
What must happen before the Case Management Conference (CMC) in the multi-track process?
Not less than 7 days before the first CMC the parties must
discuss and seek to agree a proposal for disclosure that
meets the overriding objective
on the multi track what orders for disclosure can the
court make?
An order for standard disclosure or any other order that the
court considers appropriate.
What is standard disclosure as defined in CPR, r 31.6?
Standard disclosure requires a party to disclose:
(a) The documents on which they rely; and
(b) The documents which:
(i) Adversely affect their own case;
(ii) Adversely affect another party’s case; or
(iii) Support another party’s case.
What should parties focus on when searching for documents for standard disclosure?
Parties should concentrate on searching for documents that impact the issues that are in dispute.
NO need to search for and disclose documents that relate to agreed matters.
Can parties limit the extent of their document search?
Yes, a party may limit their search by:
- Not searching for documents before a certain date.
- Specifying particular places to search.
- Limiting the categories of documents searched.
Any limitations must be justified
when are limitations to search for docs allowed?
The limitations will be acceptable if the court is satisfied they would not affect a proper
investigation into the merits of the case
How are documents disclosed in court proceedings?
Documents are disclosed by completing Form N265, which includes a list of documents
Who must sign the disclosure statement if the party is a legal entity such as a partnership or company?
An individual responsible for overseeing the disclosure process within the organization must sign the disclosure statement. The individual’s name, address, and office/position must be included.
What happens if a party makes a false disclosure statement?
A false disclosure statement can lead to contempt of court proceedings.
What are the three parts of the list of documents?
Part 1: Documents within the party’s control and available for inspection.
Part 2: Documents within the party’s control but privileged, not for inspection.
Part 3: Documents no longer in the party’s control, with an explanation of what happened to them (e.g., lost or destroyed).
What is the consequence of failing to disclose a document?
A party who fails to disclose a document may not rely on it at trial unless the court permits. If the document is harmful, their case could be struck out.
How should privileged documents be listed in the disclosure process?
They should be given a broad description:
“Correspondence, attendance notes, instructions to counsel, and counsel’s advice created for the sole or dominant purpose of giving or receiving legal professional advice.”
When can a party withhold documents from disclosure in court proceedings?
A party can withhold documents if they are covered by legal professional privilege. These documents must still be disclosed in the list but cannot be inspected by other parties.
Who is protected under legal advice privilege?
Legal advice privilege applies to solicitors, licensed conveyancers, legal executives, in-house lawyers, barristers, and foreign lawyers. It does not apply to non-lawyers like accountants.
What is required for a document to qualify for legal advice privilege?
The sole or dominant purpose of the communication must be to seek or give legal advice. If the document serves a dual purpose, the dominant purpose must be legal advice.
What does litigation privilege require for a document to be protected?
The document must be a communication:
(a) passing between the client or lawyer and a third party;
(b) which came into existence when litigation was contemplated or ongoing; and
(c) which was produced with a view to the litigation, either for the sole or dominant purpose
of giving or receiving legal advice in regard to it, or for obtaining evidence to be used in
the litigation.
What are examples of documents that can be protected by legal advice privilege?
- Letters or emails seeking or giving advice
between solicitor and client. - Attendance notes of a meeting between
solicitor and client. - Instructions to counsel and counsel’s advice.
Who holds the right to waive privilege?
Privilege is the right of the client, not their lawyer. The client may give up, or waive, that privilege.
When does waiving of privilege typically occur in litigation?
Waiver of privilege often occurs when a party serves documents, such as statements of case or witness statements, to the other side. Once served, the privilege is waived.
Can privilege be waived unintentionally?
Yes, waiver of privilege can sometimes occur by mistake, although it is often intentional during litigation.
Does “without prejudice” correspondence need to be disclosed during the standard disclosure process?
Yes, “without prejudice” correspondence is likely to satisfy the definition of standard disclosure, as it may contain information that is relevant to the case, even if it is adverse to the party’s case.
How must a request to inspect documents be made?
The request to inspect must be made in writing and is typically granted within 7 days, though a longer period can be agreed between the parties.
What should a party do if they are dissatisfied with their opponent’s disclosure efforts?
The party should first write to the other side to try to resolve the issue quickly and cheaply.
If this fails, they must file an application notice (Form N244) at court along with a witness statement and serve it on the opponent
what if the disclosure is inadequate?
this can order that the party:
- carry out a more extensive search; and
- disclose any further documents located as a result of that search; or
- disclose specific documents that the party would have expected to see
What can a party do if they believe that their opponent is improperly claiming privilege to hide documents?
They can apply to the court under CPR, r 31.19 to challenge the claim for privilege.
What will the court do when a party challenges a claim for privilege under CPR, r 31.19?
The court may require the party claiming privilege to produce the document, invite representations, and decide whether the document has been correctly categorized. If not, the court will order the document to be revealed to the opponent.
When can a party apply for pre-action disclosure under CPR, r 31.16?
A party can apply for pre-action disclosure when they are unsure of the strength of their case and need to make an informed decision on whether to issue proceedings against the intended defendant.
What must the court be satisfied of before granting pre-action disclosure under CPR, r 31.16
The court must be satisfied that:
- Both parties are likely to be involved in subsequent proceedings.
- The documents sought would come within standard disclosure.
- Disclosure is desirable to dispose fairly of the anticipated proceedings, assist in resolving the dispute without proceedings, or save costs.
When can a party apply for disclosure against a non-party under CPR, r 31.17?
A party can apply for disclosure against a non-party if it would help resolve an issue in the case, typically when the document is no longer in the possession of the party but is held by a non-party.
