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
N265
List of documents
Can the parties agree in writing as regards the form of disclosure?
Yes - no list or disclosure statement
What does the disclosure statement must do?
Detail extent of the search undertaken, certify that person giving it understands the duty to give disclosure, certify that they have carried out that duty, declare they believe search reasonable in the circumstances, that if a search not carried out the reasons why, if any searches limited then what limitations and why
Who signs the disclosure statement?
The party disclosing the documents i.e. the client
Three sections of N265
Top: lists and numbers all documents that it doesn’t object to the opponent inspecting; Middle: documents it objects to inspecting and reason; Bottom: documents no longer in control but when they were and where document is now
Two questions to ask when compiling list of documents
Is the document disclosable? Does the client have the right (or duty) to withhold inspection?
Five categories of documents
Disclosable but disclosure withheld; Disclosable but inspection withheld; Disclosable and disclosure and inspection will be permitted; Partly disclosable - part will be redacted; Not disclosable
The obligation to give disclosure is-
Continuing until the proceedings are concluded - supplemental lists to be served if necessary
If a client objects to disclosing a disclosable document-
The legal representative has a duty to withdraw from acting for that client as they have an overriding duty not to mislead the court and not be complicit in the client misleading the court
The time period for inspection of documents is-
Set out in the directions and usually seven days after disclosure
If no time period set for inspection in directions-
Written notice given by a party who wishes to inspect and inspection within seven days from that
Any claim to withhold inspection-
May be challenged by the opponent
Grounds for withholding inspection
No longer in control; Right or duty to withhold inspection; would be disproportionate to the issues in the case to permit inspection
Steps to take after being served with a list of documents
Review the list, serve the notice to inspect
How to challenge the extent of search/allocation of documents
Contempt of court (rare); Write to opponent’s legal representative; Application for specific disclosure; Application for specific inspection/challenging right of opponent to withhold inspection (when privilege claimed)
Rule 31.21
Unless the court gives permission, a party may not rely on as evidence any document which they fail to disclose or in respect of which they fail to permit inspection
What is the underlying purpose of specific disclosure?
To ensure that justice is done between the parties and to avoid a situation where a party may have or obtain an unfair advantage as a result of a document not being produced for inspection as a result of standard disclosure
The court can make a specific disclosure order requiring a party to disclose or search for and disclose documents which (2)
It is reasonable to suppose may contain information which will assist the applicant’s case or damage the respondent’s case; May lead to a train of enquiry which has either of those consequences
The court will make a specific disclosure order if-
Standard disclosure is inadequate
Steps to take before making a specific disclosure application
Write to the opposing party, explain what is wanted and why, seek full particulars of the search that has been made and give a deadline
Privilege
It entitles a party to withhold evidence from production to a third party, an opponent in proceedings or to court
Once privilege has been established-
An absolute right to withhold the documents in question arises
Types of privilege (7)
Legal advice privilege; Litigation privilege; Common interest privilege; Joint interest privilege; Privilege against self-incrimination; Public interest immunity; Without prejudice privilege
Legal professional privilege cannot be claimed-
Unless the evidence in question is confidential
Who does legal professional privilege belongs to?
The client
To what does legal advice privilege apply?
To all communications made between the client and their lawyer in which advice is sought or given within the legal context
When does legal advice privilege apply?
Whether or not litigation is pending or contemplated
What does litigation privilege protect?
Third party communications such as those with an expert withness
For litigation privilege to arise-
Litigation must be pending or contemplated
To claim litigation privilege for a document-
The dominant purpose of the document must be to prepare for the litigation in progress or in contemplation by giving advice, obtaining advice and collecting advice
What will the litigation privilege attach to once established?
The communications themselves, the documents and materials used to provide the advice and the documents generated from the communications
Common interest privilege
Operates to preserve privilege in documents that are disclosed to third parties
How is the common interest privilege applied?
If party A has a sufficiently common interest in communications held by party B then party A can obtain disclosure of those communications from party B even though as against third parties the communications would be privileged from production
Joint interest privilege
Where a third party can establish a joint interest with one another then, even though there is no confidentiality between them, each can assert joint privilege if they should subsequently fall out
Without prejudice privilege
A genuine attempt to settle proceedings is protected as such, that means neither party to the WP negotiations may put in evidence the content or detail or the fact that an offer or concession has been made at all
Public interest immunity
A party is entitled to withhold disclosure of a document on the ground that disclosure would damage the public interest
Will the court permit to put in evidence part only of a privileged document?
No, a limited waiver is treated as a waiver in respect of the entire document
A party who has come into possession of illegally obtained documents-
Is not allowed to assert privilege over them
Once the illegally documents have been disclosed-
The court has a discretion to exclude them as evidence at trial
