Disclosure and Inspection Flashcards
Obligation to give disclosure
No automatic obligation to give disclosure.
Obligation comes from a court order.
Order is usually given on allocation or at a CMC. Party can also apply for an order at a later stage in the proceedings.
Small claims track disclosure
Directions given on allocation.
Usual order is that at least 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing.
Fast and intermediate track
Court will give directions either on allocation (common for fast) or list for CMC (common for intermediate). Other than PI (which is almost always standard disclosure) the court will decide (having regard to the OO) and need to limit disclosure to which is necessary to deal with the case justly:
Orders:
a) dispensing with disclosure
b) An order that a party disclose the documents on which it relied and at the same time request any specific disclosure it requires from any other party
c) An order that directs where practicable the disclosure by each party on an issue by issue basis
d) standard + may lead to train of enquiry
e) An order for standard disclosure
f) Any other order which court thinks is appropriate
Multi-track disclosure
14 days: served not less than 14 days before
7 days: draft disclosure order - considering proportionate costs and to limit disclosure to what is necessary to deal with the case justly
At CMC the court will consider carefully what form of disclosure order is most appropriate
Disclosure order at CMC
Court uses disclosure report and any other information available to consider if standard disclosure is too expensive and to consider what disclosure order to make.
Court might dispense with the need to carry out a search for documents or require disclosure in relation to some of the issues or disclosure in stages.
ANY ORDER it considers appropriate.
Disclosure and copies of a document
Copies of documents only need to be disclosed if:
- they contain a modification, obliteration or feature which satisfied itself the test for standard disclosure
- Party has never had the original or no longer has the original in its control
Procedure for disclosure and inspection
If court orders standard disclosure: procedure prescribed by CPR
Order other than standard: procedure will be set out in the order
Continuing obligation of disclosure
Duty of disclosure continues until proceedings are concluded (CPR 31.11)
A party must disclose documents which come within its control or were created after the date it originally gave disclosure if they fall within disclosure obligations.
Subsequent use of disclosure documents
CPR 31.22: a party to whom a document has been disclosed may only use that document for the purposes in which it is disclosed and not for any collateral or ulterior purpose.
Some exceptions:
- Document has been read to or referred to by the court at a hearing held in public
- The court gives permission
- The party who disclosed the document and the person to whom the document is disclosed agree
Court can be asked to make an order restricting or prohibiting the use of a document read or referred to at a public hearing
When might the court order the parties to give disclosure?
When giving directions on allocation, at a case management conference, or on a party’s application.
What is standard disclosure?
Requires party to disclose:
(a) documents on which he relies; and
(b) documents which adversely affect his case
(c) adversely effect another party’s case
(d) support another party’s case; or
(e) It is required to disclose by a relevant practice direction
Test for standard disclosure
Is it a document?
Is/was it in the party’s control?
Does it fall within standard disclosure?
Meaning of ‘document’
Defined widely, includes:
- Digital recordings
- Emails
- Photographs
- Text messages
- Voicemails
- Metadata
Meaning of ‘in the party’s control’
Duty of disclosure is limited to documents which are or have been within a party’s control. Means:
- Document is in the physical possession of the party
- Party has (or has had) a right to possession of the document (eg held by party’s agent such as accountant)
- Party has or (has had) a right to inspect or take copies of the document (eg a party has a right to inspect their own medical research)
Obligation encompasses documents presently and formerly within a party’s control.
Reasonable search
When performing standard disclosure the parties must make a reasonable search for documents falling into categories (b) to (e.
Reasonable depending on:
- number of documents involved
- nature and complexity of the proceedings
- How difficult/expensive it is to retrieve any document
- Significance of any document likely to be found
Taking into account the OO and concept of proportionality.
Disclosure list
Each party makes a list of the documents and serves it on the other party.
Lists are usually ordered to be exchanged simultaneously.
3 Parts:
(a) has control and no objection to inspection
(b) has control but objects to inspection (due to privilege)
(c) have had the documents numbered and listed below but no longer in my control
Disclosure statement in disclosure list
- sets out extent of the search made (reasonable and proportionate)
- certifies the party understands its duty to disclosure the documents; and
- certifies to the best of its knowledge it has carried out that duty
Must also include details of documents the inspection of which the party considers disproportionate
Disclosure statement must be signed by the disclosing party
If person making the statement is a company, statement should be made by an appropriate officer.
Failure to disclose
A party may not rely on any document it fails to disclose or fails to permit inspection unless court gives permission.
Proceedings may be brought against a person if he makes or causes to be made a false disclosure statement without an honest belief in its truth
Can make a SUPPLEMENTAL LIST to be served if additional documents come to light or are created later.
Right to inspect documents
A party has a right to inspect a document which has been disclosed except where:
- no longer in control
- disproportionate (rare if it has been found and disclosed)
- right/duty to withhold inspection (eg privilege)
+ legal advice privilege
+ litigation privilege
+ without prejudice communications
Two circumstances where it may be possible to redact parts of a document
- There is a clear and distinct part of the document which does attract privilege but remained does not, privileged part can and should be redacted.
- Information is totally irrelevant to the dispute. Information which is confidential/commercially sensitive AND irrelevant is generally redacted.
Note: redacted documents will be listed in first part of disclosure list, un-redacted will be listed in the second part of the list - inspection refused
Waiver
Possible to waive privilege but you cannot waive privilege in part - this will lead to a waiver of privilege of the rest of the document (unless it deals with entirely different subject matter).
This can also lead to other documents having privilege being waived as it would be unfair to allow waiver of one document and not the rest.
Need to be careful referring to privileged documents in statements of case as this can sometimes lead to a waiver of privilege.
