Disclosure and Inspection Flashcards
chapter 8
What is the primary purpose of disclosure and inspection of documents in legal proceedings?
To enable parties to evaluate the strengths and weaknesses of their case before trial and assist in making informed decisions about pursuing the matter or seeking settlement. This also prevents surprises at trial and ensures the court has all relevant information.
What is the definition of a ‘document’ for disclosure purposes?
Anything in which information of any description is recorded. This includes written documents, audiotapes, videotapes, photographs, and electronic documents like emails and databases. The key factor is whether information is recorded, not if the document is admissible or will be used at trial.
What is standard disclosure, as defined in CPR, r 31.6?
A party must disclose documents they rely on and documents that:
○ Adversely affect their own case.
○ Adversely affect another party’s case.
○ Support another party’s case. Essentially, any document that helps or hinders a party must be disclosed.
What does ‘control of documents’ mean in the context of disclosure?
It includes documents that are or were in a party’s physical possession, documents they have a right to possess, or documents they have a right to inspect. This can include documents held by third parties such as solicitors or accountants.
What is a party’s duty regarding the search for documents?
A party must make a reasonable and proportionate search for documents that adversely affect their case, adversely affect another party’s case, or support another party’s case. This is not exhaustive and the scope depends on the number of documents, complexity of the case, cost of retrieval, and significance of the document.
How is disclosure of documents actually made?
Disclosure is made by way of a list of documents (Form N265). This list includes a disclosure statement signed by the party confirming the extent of their search and their understanding of their disclosure duty. The list itself has three parts: Part 1 for disclosable documents, Part 2 for documents with withheld inspection (privilege) and Part 3 for documents no longer in a party’s control.
What is legal professional privilege, and what are the two main types?
Legal professional privilege allows a party to withhold inspection of certain documents, though they must still be disclosed in a list. The two main types are:
○ Legal Advice Privilege: Communication between a client and lawyer for the dominant purpose of seeking or giving legal advice.
○ Litigation Privilege: Communication between a client/lawyer and a third party, created when litigation is contemplated or ongoing, for the dominant purpose of obtaining evidence or advice for litigation.
What does ‘without prejudice’ mean and how does it affect disclosure?
‘Without prejudice’ correspondence records information as part of a party’s genuine attempt to settle a case. The correspondence is still subject to standard disclosure and must be disclosed to the other party, but the content is inadmissible in court.
What actions can a party take if they are dissatisfied with their opponent’s disclosure?
They can:
○ Apply for specific disclosure to request a more extensive search or specific documents.
○ Apply to challenge a claim of privilege if they believe privilege has been claimed incorrectly.
What is pre-action disclosure?
An application for pre-action disclosure can be made before a claim is issued, where a party needs to understand the strength of their case before issuing proceedings. The court must be satisfied that documents would be subject to standard disclosure.
What is non-party disclosure?
An application for non-party disclosure can be made if documents are in the possession of someone not involved in the proceedings and where those documents would help resolve the issue at hand.
What is the continuing duty of disclosure?
The duty to disclose is ongoing, and if a party becomes aware of additional relevant documents at any time before the conclusion of proceedings, they must prepare and serve a supplemental list of documents.
