Disclosure and inspection MCQs Flashcards
James is claiming £20,000 damages from Abax Computers Ltd for breach of contract. The claim is allocated to the Fast Track. James has conducted a reasonable search for documents, which search has revealed a number of documents exist. Which ONE of the options below is NOT a category of documents which James will be required to disclose under standard disclosure?
Please select ONE of the following:
The documents that support the defendant’s case.
The documents on which he relies.
The documents which adversely affect his own case.
All the documents that he can locate by a reasonable search.
All the documents that he can locate by a reasonable search.
CPR 31.6 defines what is meant by “standard disclosure”. This is the correct answer as it is NOT a category of documents required to be disclosed under standard disclosure.
James is claiming £20,000 damages from Abax Computers Ltd for breach of contract. The claim is allocated to the Fast Track. Which ONE of the following documents is NOT privileged from production and inspection in the above proceedings?
Please select ONE of the following:
A letter from James’ solicitor to a witness for James, Miss Star, asking her to clarify her witness statement.
A letter written by James to Miss Star, a witness for James, before proceedings were contemplated.
A letter from James to his solicitor asking for legal advice before he entered into the contract with Abax Computers.
A letter written by the solicitors for Abax Computers to James’ solicitors offering a settlement and marked ‘without prejudice’.
A letter written by James to Miss Star, a witness for James, before proceedings were contemplated.
This letter would NOT be privileged from inspection. As the examinable commentary in the first sub-paragraph of 31.3.9 of White Book Volume 1 makes clear: “The general principle is that documents embodying communications with (including reports to or from) a non-professional servant, agent or third party are privileged if, and only if, coming into existence for the purpose of obtaining legal advice in existing or anticipated proceedings (see the cases summarised in Seabrook v British Transport Commission [1959] 1 W.L.R. 509). This commentary ought to be read in conjunction with the wording of CPR 31.3 itself.
Daniel is claiming £12,000 damages from Kitchens Direct Limited for breach of contract. The claim is allocated to the Fast Track. Which ONE of the following factors is NOT a relevant factor in deciding whether Daniel has made a reasonable search for documents to be disclosed under standard disclosure?
The number of documents involved.
The age of the documents.
The ease and expense of retrieval of any particular document.
The nature and complexity of the proceedings.
The age of the documents.
The age of the documents is NOT a factor listed as a relevant factor in CPR Rule 31.7.
Browns Limited (‘Browns’) have issued a claim for breach of contract in the sum of £200,000 against Spice is Right Ltd (‘Spice’). A full defence has been filed and served denying all liability and case management directions have been given to the parties. The claim has been allocated to the multi-track.
The claim is a straightforward one and the trial will last for one day.
Browns have this morning been served with a list of documents in the relevant practice form from Spice in accordance with the directions from the court. Having read the list of documents (the ‘List’), Browns wish to write promptly to Spice to notify them that Browns wish to inspect every document on the List and have sought your advice in that regard. Browns suspect that Spice has altered some of the documents referred to in the List.
In these circumstances, what is the BEST ADVICE for you to give to Browns:
Browns may request to inspect the originals, within 7 days after Spice has received Brown’s notice to inspect, of all the documents on the List, except any documents which are no longer in Spice’s control, or any documents of which Spice has a right or duty to withhold inspection, or where Spice considers that it would be disproportionate to the issues in the case to permit inspection of such a document.
Browns may request copies of all the documents on the List, within 14 days after Spice has received Brown’s notice to inspect, except any documents which are no longer in Spice’s control, or any documents which Spice has a right or duty to withhold inspection of, or where Spice considers that it would be disproportionate to the issues in the case to permit inspection of such a document.
Browns may request copies of all the documents on the List, except any documents which are no longer in Spice’s control, or any documents of which Spice has a right or duty to withhold inspection, or where Spice considers that it would be disproportionate to the issues in the case to permit inspection of such a document.
Browns may request copies of all the documents on the List except those which are privileged, and Spice must allow inspection within 7 days after Spice has received Browns’ notice to inspect.
Browns may request to inspect the originals, within 7 days after Spice has received Brown’s notice to inspect, of all the documents on the List, except any documents which are no longer in Spice’s control, or any documents of which Spice has a right or duty to withhold inspection, or where Spice considers that it would be disproportionate to the issues in the case to permit inspection of such a document.
This is the BEST ADVICE for 3 reasons: first, the 7 day time limit is correct; second, the 3 categories of documents where inspection can be withheld are all present; and third, Browns are entitled to inspect the ORIGINALS rather than simply requesting copies, since on the facts, Browns fear that the documents may have been altered. Whilst it is usual practice to request COPIES to inspect, it would be better advice for Browns to look at the originals in this case due to their concerns (identified in the fact pattern).
Browns Limited (‘Browns’) have issued a claim for breach of contract in the sum of £200,000 against Spice is Right Ltd (‘Spice’). A full defence has been filed and served denying all liability and case management directions have been given to the parties. The claim has been allocated to the multi-track.
The claim is a straightforward one and the trial will last for one day.
The parties have exchanged disclosure lists in accordance with the directions from the court. Following inspection of the documents, Browns is convinced that Spice is in possession of further specific documents which it has not disclosed to Browns and which properly fall to be disclosed under the order for disclosure. Browns cannot specify which exact documents are missing. In these specific circumstances, what is the BEST ADVICE for Browns from the following options?
Browns should apply for a sanction (e.g. of costs) against Spice.
Browns should apply for specific disclosure for Spice to disclose the document(s) specified in the court order.
Browns should apply to strike out Spice’s defence.
Browns should apply for specific disclosure and the court is likely to order that Spice carry out a search to the extent stated in the court order and for Spice to disclose any documents located as a result of the search.
Browns should apply for specific disclosure and the court is likely to order that Spice carry out a search to the extent stated in the court order and for Spice to disclose any documents located as a result of the search.
This is the BEST ADVICE as these are 2 of the 3 orders the court can make – see CPR 31.12. If Browns has not been able to specify which exact documents it thinks are missing from the List, the Court can make a more general order under the “specific disclosure” provisions.
During the conference the claimant tells you that as part of the continuing duty of disclosure, the defendant yesterday disclosed and made available for inspection a document. It is a document from KwikRepair Garages stating that the lorry was serviced one month prior to the accident and specifies that the brakes were in good working order.
The claimant feels certain that this document has been altered and is not authentic.
What is the best advice to give in respect of any step the claimant should take in relation to the authenticity of this evidence?
The claimant must serve a notice on the defendant stating that they wish the document to be proved at trial. This notice must be served within 14 days of disclosure of the document.
The claimant should serve a Notice to Admit the fact that the document is not authentic on the defendant no later than 21 days before trial.
The claimant need take no further steps until the trial. At trial, the claimant can then dispute the authenticity of the document and then the onus shifts to the defendant who will be required to prove its authenticity
The claimant must serve a notice on the defendant stating that they wish the document to be proved at trial. This notice must be served within 7 days of disclosure of the document.
The claimant must serve a notice on the defendant stating that they wish the document to be proved at trial. This notice must be served within 7 days of disclosure of the document.
This is the best advice and the correct procedural step. See CPR 32.19. A party is deemed to accept the authenticity of a document unless he serves notice that he wishes it to be proved at trial. As witness statements have been served this must be done within 7 days of disclosure
Question 1
A solicitor is conducting proceedings on behalf of a client. The court makes an order for
directions and the solicitor writes to the client outlining their standard disclosure obligations.
Which of the following statements should the solicitor make to the client?
A The court order requires you to carry out an exhaustive search for documents sparing
no expense.
B Once you have listed all of the documents that is the end of your disclosure obligations.
C If you have lost any documents then that is unfortunate, but there is no need to give me
details of these.
D In due course, I will produce a draft list of documents for your approval. You will need
to consider this carefully because you will sign the disclosure statement confirming that
you understand your duty to give disclosure and have complied with it. If that statement
is wrong, you could be imprisoned for contempt of court.
E Once the list has been served, that is it and your opponent cannot obtain disclosure of
any documents that have been missed.
Answer
Option D is correct. Option A is wrong because the CPR require a reasonable and
proportionate search (not an exhaustive one). Option B is wrong as disclosure is a
continuing obligation throughout the proceedings. Documents that have been lost or
destroyed must still be disclosed (in Part 3 of the list) so option C is wrong. Option E is
wrong because a party who is dissatisfied with their opponent’s disclosure does have
options available to them, for example, applying for an order for specific disclosure or to
dispute privilege claimed.
Question 2
A couple issue proceedings for £15,000 against a company for breach of a written contract
in relation to the provision of a buffet at their wedding. The couple allege that several of
the guests were unhappy that no vegetarian options were provided and additional food
had to be purchased for them on the day. The couple send an email to the company
making these complaints about the buffet. The company respond by pointing to a checklist
that the couple were asked to complete in which the vegetarian option was not ticked. The
company deny the food supplied was not in accordance with the terms of the contract.
There is no dispute that full payment was made by the couple to the company. During the
course of the negotiations, a ‘without prejudice’ letter is sent from the couple’s solicitors to
the company offering to accept £10,000 in settlement.
Which of the following best describes the documents that the couple would need to
disclose if the court orders standard disclosure?
A The contract, the proof of payment, the email of complaint, the checklist and the without
prejudice letter.
B The contract, the email of complaint, the checklist and the without prejudice letter.
C The contract, the email of complaint and the checklist.
D The contract, the email of complaint and the without prejudice letter.
E The checklist and the without prejudice letter.
Answer
Option B is correct as the only document that does not need to be disclosed is the proof of
payment (and A is wrong for this reason). This is because there is no dispute that full payment
was made and so the document does not record any information relevant to the disputed
issues between the parties.
Option C is not the best answer – the without prejudice letter should also be disclosed as it
falls within standard disclosure. The letter most probably records information upon which the
couple will rely as part of their claim, and the fact that the couple will now accept £10,000 is
adverse to their claim for £15,000. The effect of a document being marked in this way is that
it cannot be shown to the judge at trial but disclosure takes effect between the parties and, in
any event, both have seen the letter.
Option D is wrong because the checklist must also be disclosed as it adversely affects the
couple’s case and so comes within the definition of standard disclosure. Option E is not the
best answer as the couple will want to rely upon the contract as to the disputed issue of
the provision of the food as well as the email recording the detail of their complaint that is
disputed by the company.
Question 3
A company manufactures scooters. On testing the finished product, it becomes apparent
there is a problem with the brakes. The manufacturing company obtains a report from
their quality control department to check the reason, which concludes that the cause may
either have been a temporary glitch in the software or a fault with the brakes themselves.
The manufacturing company instructs solicitors and issues proceedings against one of its
parts suppliers (which supplied the brakes) for breach of contract and to claim damages
including loss of profits. The proceedings are defended and the court directs that standard
disclosure is given.
Which of the following approaches should the manufacturing company’s solicitors take
when completing the list of documents?
A Any confidential document must be disclosed but may be included in Part 2 of the list.
B Attendance notes of meetings between the manufacturing company and their solicitors
need not be disclosed as they will not be relied on at trial.
C Instructions to counsel and counsel’s opinion may be disclosed in Part 2 of the list as
they fall within the definition of advice privilege.
D All witness statements obtained must be disclosed in Part 1 of the list of documents.
E The report from the quality control department is subject to litigation privilege and
should be disclosed in Part 2 of the list.
Answer
Option C is correct. Option A is wrong because documents may only be disclosed in Part 2 if
they satisfy the test of legal professional privilege – confidentiality is irrelevant to answering
this particular question. Option B is also wrong as attendance notes of meetings between the
client and their solicitor would fall within the definition of standard disclosure and so must be
disclosed. However, they are protected by legal advice privilege and would be described
generically in Part 2.
Witness statements, whether helpful or not to the manufacturing company, would be subject
to litigation privilege and disclosed in Part 2 of the list – hence, option D is wrong. If the
party decides to rely upon any of the witnesses, privilege is waived at the next stage in the
proceedings when the parties exchange the witness statements of those witnesses that they
intend to rely on at trial.
Option E is wrong because the report does not satisfy the requirements of litigation privilege.
It was commissioned before litigation was contemplated and the purpose was to establish the
cause of the fault with the brakes, and not with a view to litigation for the sole or dominant
purpose of obtaining advice or evidence.
Question 3
A company is the claimant in an action for negligence against a defendant accountancy practice. The claimant seeks damages for allegedly negligent professional advice provided by the defendant to the claimant. Standard disclosure has been ordered.
A two page letter sent to the claimant’s managing director by a financial adviser is included in the claimant’s list of documents. The financial adviser is independent of both parties to the litigation. The letter was found in the office of the claimant’s managing director, and the only copy is in the possession of the claimant’s solicitor. It is clear that the letter was written with the sole purpose of giving advice about drafting the letter before claim in the present litigation.
On what basis can the claimant claim a right to withhold inspection of the letter?
A. The letter is no longer in the control of the party disclosing it.
B. The letter is subject to legal advice privilege.
C. It would be disproportionate to the issues in the case to permit inspection of the letter.
D. The letter is subject to litigation privilege.
E. The letter was written after the cause of action accrued.
D - The letter is subject to litigation privilege.
The claimant in an employer’s liability personal injury claim believes that, if the defendant discloses documents relevant to the issue of whether the defendant is liable for the claimant’s injuries, then the parties are likely to be able to reach a settlement without the need to exchange documentation in relation to the question of quantum. The claim has been allocated to the multi-track and a case management conference has been listed.
Which of the following is the best way for the claimant to manage disclosure in this way?
Select one alternative:
Request that the court orders a trial in relation to the issue of liability as a preliminary issue.
Request that the court dispenses with the need for disclosure and ask for the documentation relevant to liability as part of a settlement discussion.
Request that the court order standard disclosure but withhold disclosure of documents relevant to quantum.
Request that the court order disclosure in relation to different issues in stages.
Request that the court order standard disclosure and agree with the defendant to limit the search for documents to documents relevant to liability.
Request that the court order disclosure in relation to different issues in stages.
This question relates to ‘orders for disclosure’ and to a lesser extent ‘standard disclosure’ and ‘costs and case management conferences’. In particular, the question relates to the ways in which the court can control the disclosure process in accordance with the overriding objective. In this case, there are likely to be significant cost savings by carrying out disclosure in stages. The court has the power to order disclosure in stages and will consider doing so in a multi-track claim (CPR 31.5(7)). Requesting standard disclosure and then withholding documents relevant to quantum is likely to be a breach of a party’s disclosure obligations. Agreeing with the defendant to limit the search to documents relevant to liability may be permissible but is problematic – if the dispute does not settle as anticipated, what happens about disclosure of the documents relevant to quantum? Requesting the documentation only as part of a settlement discussion puts the control in the hands of the defendant, and again is problematic if the dispute does not settle. Trying the issue of liability as a preliminary issue is possible, but it is likely to be more costly than simply giving disclosure in relation to one issue at a time, and is not what the claimant wants.
A toy manufacturer is defending a product liability (personal injury) claim. The claimant alleges that the defendant failed to take the necessary precautions to adequately test the safety of the toy before sale. The defendant alleges that it did carry out tests, but the video records of those tests have been destroyed in the ordinary course of business.
Is it likely that the video records need to be disclosed?
Select one alternative:
No, because the videos are no longer in the defendant’s control.
Yes, because the documents are likely to support the claimant’s case, be adverse to the defendant’s case, be adverse to the claimant’s case or be documents that the defendant wishes to rely on.
Yes, because the videos relate to the subject matter of the dispute.
No, because the videos are not documents.
No, because the destruction of the videos was in ordinary course of business.
Yes, because the documents are likely to support the claimant’s case, be adverse to the defendant’s case, be adverse to the claimant’s case or be documents that the defendant wishes to rely on.
The videos must be disclosed because they are documents which are likely to support the claimant’s case, be adverse to the defendant’s case, be adverse to the claimant’s case or be documents that the defendant wishes to rely on, given that they shed light on the testing of the toys, and the testing of the toys is an important issue in dispute (CPR 31.6). The other answers are wrong because videos are documents (CPR 31.4), the disclosure obligation extends to documents that were (rather than are) in a party’s control (CPR 31.8), the fact that they were destroyed in the ordinary course of business is not relevant to whether they need to be disclosed, and the fact that they ‘relate to the subject matter of the dispute’ is not the same as the ‘test’ set out in CPR 31.6 and is therefore not correct.
9
A clothing manufacturer brings a breach of contract claim against a manufacturer of cotton for failure to deliver cotton on time in accordance with the contract. The defendant defends the claim on several bases including that the claimant could have purchased equivalent cotton elsewhere, in time, and at no extra cost, and therefore has suffered no recoverable loss. After the litigation has commenced, the claimant enters into a new contract (‘New Contract’) to purchase replacement cotton from a new supplier instead, at a greater cost. The claimant considers that the New Contract is adverse to the defendant’s case and intends to rely on it at trial. The claimant has not yet made the defendant aware of the New Contract.
Is the New Contract currently privileged from inspection?
Select one alternative:
Yes, because it satisfies the definition of legal advice privilege.
Yes, because it is not currently referred to in any of the statements of case.
No, because the claimant intends to rely on it.
No, because it does not satisfy any definition of privilege.
Yes, because it satisfies the definition of litigation privilege.
No, because it does not satisfy any definition of privilege.
This document does not satisfy any type of privilege, and for this reason is not privileged from inspection. The fact that it has been created after litigation was commenced does not mean that it attracts privilege. On the other hand, the fact that the claimant intends to rely on it would not cause it to lose privilege if it was otherwise privileged, although at some point the claimant would presumably need to waive privilege.
