Disclosure and Inspection

Question 1

What is the main purpose of disclosure and inspection of documents?

Answer 1

To enable the parties to better evaluate the strength of their opponent’s case in advance of the trial. The parties have to reveal to each other the documents which have a bearing on the case.

Question 2

What is disclosure?

Answer 2

Where a party discloses a document by stating that the document exists or has existed

Question 3

What is a document?

Answer 3

Anything in which information of any description is recorded, including written documents, audiotapes, videotapes, photographs and electronic documents

Question 4

What governs whether or not a document will form part of disclosure?

Answer 4

What the document records

Question 5

Does disclosure apply on the small claims track?

Answer 5

Standard disclosure rules do not apply on the small claims track. Instead, each party will file and serve at least 14 days before the hearing date, copies of all documents on which the party intends to rely on at the hearing

Question 6

Does disclosure apply on the fast track?

Answer 6

Standard disclosure applies on the fast track

Question 7

Does disclosure apply on the multi-track?

Answer 7

Standard disclosure applies on the multi-track

Question 8

When is a disclosure report required?

Answer 8

For all multi-track claims which are NOT for personal injury, a disclosure report should be filed no less than 14 days before the first case management conference

Question 9

What is included in a disclosure report?

Answer 9

Which documents exist/may exist which may be relevant, where they are located, how electronic documents are stored, an estimate of the costs involved in giving disclosure, disclosure directions sought and a statement of truth

Question 10

What is standard disclosure?

Answer 10

Where a party must only disclose the documents on which he relies, the documents which adversely affect his own case; the other party’s case or support another party’s case

Question 11

What sort of issues in dispute will be relevant to standard disclosure?

Answer 11

The main legal issues in dispute will be quantum or liability, as well as costs, so any documents relating to this should be included

Question 12

How does control of documents relate to standard disclosure?

Answer 12

The duty of disclosure is limited to documents which are or have been in a party’s control, either physically, or the party has had the right to possession or inspection of it

Question 13

What is the duty to search?

Answer 13

A party must make a reasonable search for all documents which may adversely affect their own or another party’s case or which supports the other party’s case

Question 14

Can a party limit the search for certain documents?

Answer 14

If a party has limited the search for certain documents, this must be stated it his disclosure statement e.g. it may be reasonable to decide not to search for documents from before a particular date

Question 15

What is the right of inspection?

Answer 15

A party has the right to inspect a disclosed document

Question 16

When can a party NOT inspect a disclosed document?

Answer 16

Where the document is no longer in control of the party who disclosed it, where the party disclosing the document has a right/duty to withhold inspection of it or where a party considers it disproportionate to the issues in the case to permit inspection and states this in the disclosure statement

Question 17

If a party wishes to inspect a document what is required?

Answer 17

The party wishing to inspect a disclosed document must given written notice of his wish to inspect, and the party who disclosed the document must permit inspection of it no more than seven days after the date on which he received the notice

Question 18

What must the parties do if an order for standard disclosure has been made?

Answer 18

Each party must make and serve a list of documents which must identify the documents in a convenient order and manner and as concisely as possible.

Question 19

What is a disclosure statement?

Answer 19

This is a statement made by the party disclosing the documents which sets out the extent of the search to locate the documents, certifies that he understands the duty to disclose documents and certifies that to the best of his knowledge this duty has been carried out

Question 20

How is disclosure a continuing obligation?

Answer 20

Disclosure is an obligation which continues throughout the proceedings meaning if documents come to a party’s notice during the proceedings, even after the list of documents have been disclosed, the party must immediately notify every other party

Question 21

What are the two types of privilege which withheld documents fall into?.

Answer 21

Documents protected by legal professional privilege or documents protected by litigation privilege

Question 22

What is legal professional privilege?

Answer 22

This is where letter and other communications passing between a party and his solicitor are privileged from inspection (provided they are written to the solicitor in his professional capacity) and for the sole or dominant purpose of obtaining legal advice or assistance

Question 23

What is the test for legal professional privilege?

Answer 23

The dominant purpose test

Question 24

What is litigation privilege?

Answer 24

This includes communications passing between the solicitor and a third party, and communications passing between the client and a third party.

Question 25

When are communications passing between the solicitor and a third party privileged?

Answer 25

Only if they come into existence after litigation is contemplated or commenced and are made with a view to the litigation, either for the sole or dominant purpose of obtaining or giving advice in regard to it, or for obtaining evidence to be used in it

Question 26

When are communications passing between the client and a third party privileged?

Answer 26

If the sole of dominant purpose for which they were produced was to obtain legal advice in respect of existing or contemplated litigation, or to conduct, or aid in the conduct of, such litigation, usually to have as evidence.

Question 27

What happens if there are documents tending to incriminate the party who would produce them?

Answer 27

A party can also claim privilege for documents which will tend to incriminate either him or his spouse

Question 28

What happens if there are documents privileged on the ground of public policy?

Answer 28

If a copy of a document would be injurious to public interest then this can be withheld on the ground of public policy

Question 29

Can a party challenge a claim to privilege?

Answer 29

Yes. A party who wishes to challenge a claim to privilege can apply for the court to decide whether the claim to privilege should be upheld.

Question 30

What happens if there is an inadvertent disclosure of privileged documents?

Answer 30

The solicitor should return the privileged documents to the party without alerting the client to its contents, if an obvious mistake. If it is not clear that this is a mistake of the other party, then the receiving party may make use of the document in the litigation but the disclosing party may obtain an injunction to prevent its use if it can persuade the court that it would have been obvious to a hypothetical and reasonable solicitor that this was a mistake.

Question 31

How many parts are there to a disclosure list?

Answer 31

Three

Question 32

What is part one of a disclosure list?

Answer 32

This is where the actual documents are identified

Question 33

What is part two of a disclosure list?

Answer 33

This is where the type of documents for which the party is claiming privilege from should be listed under a heading such as ‘confidential correspondence between the claimant and his solicitor’

Question 34

What is part three of a disclosure list?

Answer 34

This is where the party must state the actual (non-privileged) document that he once had, but no longer has in his control

Question 35

What happens if a party fails to disclose a document or fails to allow inspection of a document?

Answer 35

They may not rely on this document at trial unless the court permits. The court may strike out the party’s case as a result of failure to comply with an order for specific disclosure. They may also be financially penalised.

Question 36

What checks should be made when you receive an opponent’s list of standard disclosure documents?

Answer 36

If there was joint co-operation, then this should be straight forward. Just check for any omitted documents or unexpected documents and check if privilege has been properly claimed