Disclosure and Inspection Flashcards
What is the premise underpinning disclosure?
That litigation is based on all the information that will be available to the court at trial having already been made available to the parties
What does disclosure mean?
Revealing the existence of relevant documents although not all documents need to be made available for the opponent to see
What’s the main purpose of disclosure?
To enable the parties to evaluate the strength of their case before trial and so encourage settlement and saving of costs
Disclosure is subject to-
Management by the court
What does the court have to take into account when making a disclosure order?
The overriding objective
What’s the idea of the disclosure pilot?
That disclosure should be no wider that is strictly necessary to dispose of a case
Disclosure pilot structure
Initial disclosure of key documents within statements of the case followed by possible extended disclosure which takes place later
What is disclosure to do?
Reveal the existence of all the documents that either support or undermine the respective parties’ case
When, in most cases, will an order for disclosure be made?
When the court considers the parties’ DQs or at the first CMC
In the context of disclosure, the directions order-
Will include a date by which the parties lists of documents are to be made available to each other
Document
Anything upon which information of any description is recorded, including electronically
In multi-track (excluding PI), as regards disclosure, the court-
Has flexibility to make a range of disclosure orders with regard to the overriding objective and the need to deal with the case justly
In fast track (and PI), as regards disclosure, the court-
Will usually order standard disclosure (with limits sometimes imposed)
Under r31.6, standard disclosure requires a party to disclose-
Documents on which it relies, documents which affect its own case adversely and affect the other party’s case adversely and support the other party’s case, documents which in particular types of claim are specified by a relevant PD
How is the question of whether a document should be disclosed in SD determined?
By reference to issues raised in the parties’ statements of case
The meaning of control
The documents which a party has physical possession of, a right to possession or to inspect or take copies of, had but no longer has
North Shore Ventures Ltd v Anstead Holding Inc 2012
The court will take a factual approach to determine whether documents are in party’s control - a document can be within a party’s control notwithstanding that it has never been in a party’s possession
When giving standard disclosure, a party has a duty to-
Make a reasonable search for those documents falling within r31.6(b) or (c)
In deciding what is a reasonable search, a party can consider the following factors (4)
The number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval of documents, the significance of any document which is likely to be located during the search
Rule 31.7(3)
Where a party considers it unreasonable to search for a particular category or class of documents that party does not need to disclose that category or class but must state in the disclosure statement that it has not been disclosed as it would be disproportionate to do so
Para 2 PD 31A - it may be reasonable to decide-
Not to search for documents coming into existence before a particular date or to limit the search to documents in a particular place or to documents falling into particular categories
A legal representative has an obligation to the court to ensure that-
Their client makes a full disclosure
Each party under an obligation to give disclosure-
Is required to make a reasonable and proportionate search for documents - qualified by the principle of reasonableness
When it comes to electronic documents in the multi-track-
The DQ asks parties to consider issues of e-disclosure early and to complete an electronic documents questionnaire where appropriate
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List of documents
