Disclosure and Inspection of Documents Flashcards
What is the purpose of disclosure?
Allows the parties to evaluate the strengths and weaknesses of their case pre-trial, which enables them to make informed decisions about whether to pursue the matter or to seek an early settlement
What is the meaning of ‘disclosure?’
‘A party discloses a document by stating that it exists or has existed.’
What is a ‘document’ for the purposes of disclosure?
A document is anything in which information of any description is recorded
Videos, emails, written documents, databases etc
How does disclosure differ on each track?
1) Small claims track - each party shall, at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely at that hearing
2) Fast and intermediate tracks – disclosure limited to what is necessary to deal with the case justly and at proportionate cost; may be standard disclosure, may be dispensed with etc
3) Multi-track – parties can notify the court of their disclosure requirements by compiling a disclosure report and filing + serving this not less than 14 days before CMC 1
- Not less than 7 days before CMC 1, parties agree a proposal for disclosure that meets the overriding objective and agreed proposals are filed at court
- Court may make an order for standard disclosure or any other order they consider appropriate
What is standard disclosure?
1) This requires a party to disclose:
(a) the documents on which they rely; and
(b) the documents which:
- (i) adversely affect their own case;
- (ii) adversely affect another party’s case; or
- (iii) support another party’s case.
Essentially, they must disclose all documents that help or hinder their case
2) If there is no dispute on an issue, this document might not need to be disclosed (for instance, if both parties agree a payment was made)
3) Parties only have to disclose documents in their control, which means those that:
- (a) either are or were in their physical possession;
- (b) they have a right to possess; or
- (c) they have a right to inspect (medical records of their own)
What is the ‘menu’ of disclosure orders available on the multi-track (for non personal injury cases)?
1) Dispensing with disclosure
2) A party discloses the documents on which it relies and requests for specific documents or categories
3) Order for parties to disclose on an issue-by-issue basis
4) Train of enquiry disclosure
- Party must disclose documents which it is reasonable to suppose may contain information which advances their case or damages the other side’s
5) Standard disclosure
To what extent must parties search for documents they might need to disclose?
1) Parties must make a reasonable and proportionate search for the categories of documents they are required to disclose
2) What is reasonable depends on
- Number of documents involved
- Nature and complexity of proceedings
- Ease and expense of retrieval
- Significance of a document
3) Parties can limit their search in certain ways, provided each limitation is justified
- Limiting by date, category of document or only searching a particular place
- Limitations acceptable if court is satisfied they would not affect a proper investigation into the merits of the case
What form is used to disclose the gathered documents?
Form N265
The disclosure form has a disclosure statement. What is this for and who can sign it?
1) Form contains a disclosure statement which cannot be signed by a legal representative
2) The statement confirms the extent of the search and certifies that the party understands their duty of disclosure and that, to the best of their knowledge, the duty has been carried out
3) After the statement is signed, if additional documents are found, a supplemental list must be served - disclosure is an ongoing obligation
What are the consequences of making a false disclosure statement without an honest belief in its truth?
Proceedings for contempt of court may be brought
What are the three ‘Parts’ of the disclosure form?
Part (1) - documents within party’s control which they don’t object to other side inspecting
- Other side can only inspect these documents – request to inspect must be made in writing and granted within seven days, although a longer period can be agreed between parties
Part (2) - document within party’s control which they do object to other side inspecting, usually due to privilege
Part (3) - documents that aren’t privileged, but are no longer in the party’s control (lost or destroyed for example)
What is the effect of withholding inspection?
Documents that are withheld for inspection must be disclosed, but they are described generically
- Example - correspondence for the dominant purpose of giving legal professional advice, so covered by legal advice privilege
- The other party cannot inspect them
When might documents be withheld from inspection due to legal advice privilege (under the umbrella of legal professional privilege)?
Applies where the sole or dominant purpose of communication is to seek or give legal advice
- Seeking commercial advice from a lawyer not covered by privilege
- Attendance notes of meetings covered
When might documents be withheld from inspection due to litigation privilege (under the umbrella of legal professional privilege)?
For this to apply, the document must be a communication:
- (a) passing between the client/lawyer and a third party;
- (b) which came into existence when litigation was contemplated or ongoing; and
- (c) which was produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or for obtaining evidence to be used in the litigation
Expert report to advise on breach of contract at trial would be covered
Witness statements would be privileged for this reason
Who can waive privilege?
Privilege is the client’s right, not the solicitors, so the client may waive privilege intentionally
When statements of case are served, privilege is intentionally waived
How are ‘without prejudice’ communications disclosed?
These communications are made in a genuine attempt to settle a case and will be subject to standard disclosure
Marking it ‘without prejudice’ means the trial judge won’t see it
The disclosure process is just between the parties, so it is irrelevant that the recipient of the document has already seen it
What orders can be made in relation to disclosure?
1) If a party is dissatisfied with the other party’s disclosure, they should first write to them to resolve the issue
- Failing this, they can file an application notice (Form N244) with witness statement and serve it on the opponent
- Witness statement should explain why they believe the document exists and justify the application
2) Application could be made for specific disclosure
- Request for more extensive search
- Disclose specific documents the party was expecting to see
3) Application could be made to challenge a claim for privilege
When is pre-action disclosure appropriate?
1) Generally, no obligation to reveal documents prior to issuing a claim form
2) A party can issue an application for pre-action disclosure, if they are unsure of the strength of their case
(i) Application must be supported by a witness statement and court must be satisfied that:
- both the applicant and the respondent are likely to be a party to subsequent proceedings;
- the documents sought would come within standard disclosure; and
- disclosure is desirable to dispose fairly of the anticipated proceedings, assist the dispute being resolved without proceedings or save costs
When is non-party disclosure appropriate?
1) When proceedings have commenced, a party can apply for disclosure against a non-party if it would help resolve an issue in the case
- Common where X no longer has control, but Y does
2) Application must be supported by evidence and disclosure will only be ordered if:
- (a) the documents in question are likely to support the applicant’s case or adversely affect the case of another party; and
- (b) disclosure is necessary to dispose fairly of the case or to save costs.
3) The order must specify the documents to be disclosed; and require the non-party to identify which documents are no longer in their control and which are privileged.
