Disclosure and Inspection

Question 1

What is the usual order for disclosure in the small claims track?

Answer 1

Included in directions given on allocation, usually 14 days before hearing to file and serve documents relied upon.

Question 2

What is the usual order for disclosure in the fast track and intermediate track?

Answer 2

Included in directions given on allocation, Court will make an order for disclosure having regard to overriding objective and limiting disclosure to what is necessary to deal with case justly.

Usually order for standard disclosure.

Question 3

What is the usual order for disclosure in the multi-track?

Answer 3

Disclosure report filed and served not less than 14 days before CMC (not personal injury claims).

Conversation between the parties to agree a draft disclosure order not less than 7 days before the CMC.

Court makes appropriate disclosure order: there is no ‘usual’ order.

Question 4

When does the duty of disclosure cease to exist?

Answer 4

The duty of disclosure continues until proceedings are concluded.

Question 5

Outline the scope of standard disclosure under CPR 31.6.

Answer 5

CPR 31.6-Standard disclosure requires a party to disclose only-

(a) the documents on which he relies; and

(b) the documents which-

(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant PD.

Question 6

What is the definition of a document under CPR 31.4?

Answer 6

A document is defined very widely and is anything which records information. It can therefore include videos, emails, photos, texts, voicemails and metadata.

Question 7

What is the definition of control under CPR 31.8?

Answer 7

Control is defined widely. It means:

(a) The document is (or was) in the physical possession of the party; or
(b) The party has (or has had) a right to possession of the document
(c) The party has (or has had) a right to inspect or take copies of the document

Question 8

What kind of search must be carried out after an order for standard disclosure is made?

Answer 8

A reasonable search must be made.

Question 9

What factors determine whether a reasonable search for documents has been made?

Answer 9

-Number of documents involved

-The nature/complexity of the proceedings

-How difficult/expensive it is to retrieve any document

-Significance of any document likely to be found

Question 10

In what two circumstances can parts of a document be redacted?

Answer 10

-If the information attracts privilege, but the remainder does not, then the privileged part should be redacted

-If the information is totally irrelevant to dispute, it can be redacted e.g. confidential/commercially sensitive information

Question 11

What is waiver of privilege?

Answer 11

When a party deliberately allows inspection of a privileged document if it considers that the document helps its case.

Question 12

What is the effect of waiver of privilege in part of a wholly-privileged document?

Answer 12

It will lead to waiver of privilege over the remainder of the document.

Question 13

Can a party inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit and an expert’s report?

Answer 13

Yes, CPR 31.14 allows for this.

Question 14

What is the procedure for inspection?

Answer 14

A party wishing to inspect documents must send a written notice to the other side who must allow inspection within 7 days of receipt of the notice.

Question 15

Can a party rely on a document in respect of which they fail to permit inspection?

Answer 15

No, this is not allowed.

Question 16

Describe legal advice privilege and provide an example.

Answer 16

A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving legal advice.

An example would be a solicitor’s note of a conversation with his client concerning legal advice.

Question 17

Describe litigation privilege and provide an example.

Answer 17

A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time was reasonably prospect.

An example would be a discussion with a witness to gather evidence for the litigation.

Question 18

Describe without prejudice privilege and provide an example.

Answer 18

A document whose purpose is a genuine attempt to settle a dispute.

The document need not be marked ‘without prejudice’ for the privilege to apply. Conversely, a document marked ‘without prejudice’ may not be a genuine attempt to settle and will therefore fall to be inspected.

The Court will look at substance rather than form-for example, a without prejudice offer on liability.

Question 19

What is an order for specific disclosure?

Answer 19

An order for specific disclosure is an order that a party must do one or more of the following things:

(a) Disclose documents/classes of documents specified in the order;

(b) Carry out a search to the extent stated in the order;

(c) Disclose any documents located as a result of the search

Question 20

When can the Court make an order for specific disclosure?

Answer 20

The Court has the jurisdiction to make an order for specific disclosure and/or inspection at any time after proceedings have been issued.

Question 21

What factors will the Court take into account when considering whether to make an order for specific disclosure?

Answer 21

-All the circumstances of the case

-The overriding objective

-If the respondent has failed adequately to comply with existing disclosure obligations, the Court will usually make an order as is necessary to ensure that those obligations are properly complied with

Question 22

What should an application for specific disclosure include?

Answer 22

It must:

-specify the order sought, including a schedule listing the documents sought

-be supported by evidence and be as specific as possible

It is common practice to attach a witness statement to an application for specific disclosure along with a draft order.

Question 23

What is pre-action disclosure?

Answer 23

The Court’s power to order pre-action disclosure enables a party to obtain disclosure of documents before proceedings have commenced.

Question 24

In what circumstances may the Court make an order for pre-action disclosure?

Answer 24

(a) The respondent is likely to be a party to subsequent proceedings; and

(b) The application is also likely to be a party to those proceedings; and

(c) If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents which the applicant seeks

Question 25

What should an application for pre-action disclosure include?

Answer 25

It must:

-specify the order sought, including a schedule listing the documents sought

-be supported by evidence and be as specific as possible

Question 26

What is the general rule on costs in pre-action disclosure applications?

Answer 26

The applicant for pre-action disclosure will generally have to pay the respondent’s costs. This is not an absolute rule-for example, if the respondent failed to comply with a pre-action protocol.

Question 27

When may the Court make an order for non-party disclosure?

Answer 27

The court may order a person who is not a party to the proceedings to give disclosure of documents under CPR 31.17 where:

(a) The documents are likely to support the applicant’s case or adversely effect the case of one of the other parties to the proceedings; and

(b) Disclosure is necessary in order to dispose fairly of the claim or to save costs.

Question 28

When can an application for non-party disclosure be made?

Answer 28

It can be only be made once proceedings have actually started.

Question 29

What should an application for non-party disclosure include?

Answer 29

It must:

-specify the order sought, including a schedule listing the documents sought

-be supported by evidence and be as specific as possible

Question 30

What is the general rule regarding costs in non-party disclosure applications?

Answer 30

The presumption is that the Court will order the applicant to pay the costs of the respondent in dealing with the application itself and complying with any order made as a consequence.

This may be rebutted e.g. if the non-party respondent has acted unreasonably in opposing the application and any previous request for disclosure.

Question 31

What is a Norwich Pharmacal Order?

Answer 31

This type of order provides a solution where Court proceedings cannot be commenced because the identity of the D is unknown-it orders the respondent, who is not the D, to disclose information allowing the C to sue the right D.

Question 32

What is the usual procedure for an application for a Norwich Pharmacal Order?

Answer 32

It is usual for the applicant to issue a claim form against the respondent third party who has the relevant information using the alternative issue procedure in CPR 8.

Question 33

What three conditions must be satisfied for the Court to grant an application for a Norwich Pharmacal Order?

Answer 33

1. A wrong must have been carried out by an ultimate wrongdoer;
2. There must be the need for an order to enable action to be brought against the ultimate wrongdoer; &
3. The person against whom the order is sought must be more than a mere witness/bystander and be able to or likely be able to provide the necessary information to enable the wrongdoer to be sued.

Question 34

What is the general rule regarding costs in Norwich Pharmacal Order applications?

Answer 34

The usual rule is the applicant will pay the costs incurred by the respondent, including the costs of giving the disclosure. The applicant may then be able to recover those costs from the wrongdoer in either the same or subsequent proceedings.