Disclosure and Standard Disclosure

Question 1

What is disclosure?

Answer 1

Stating that a document exists or has existed.

Question 2

What is inspection?

Answer 2

The party to whom a document has been disclosed looking at a document. Where a party has a right to inspect a document they also have the right to request a copy of that document.

Question 3

Where does the obligation to give disclosure come from?

Answer 3

There is no automatic obligation to give disclosure of anything. The obligation comes from a court order.

Question 4

When can an order for disclosure be given?

Answer 4

On allocation, at the CMC or later in the proceedings a party can apply for an order for disclosure.

Question 5

What disclosure can the court order?

Answer 5

*standard

*alternative

*no order

Question 6

How does the court arrive at one of the orders?

Answer 6

It depends on the track to which the claim has been allocated.

Question 7

When is a disclosure order made in the small claims track?

Answer 7

The court usually give directions on allocation.

Question 8

What is the usual order in the small claims trac?

Answer 8

At least 14 days before the date for the final hearing, each party must file and serve on every party copies of all the documents on which he intends to rely.

Question 9

When will the court make an order in the fast and intermediate track?

Answer 9

Either on allocation (usually for fast track cases) or list the case for a CMC.

Question 10

What order will be made for PI cases in the fast or intermediate track?

Answer 10

Unless the court states otherwise, it will be standard disclosure.

Question 11

Except for PI cases what orders may the court give in fast or intermediate track cases?

Answer 11

The court will decide having regard to the overriding objective and the need to limit disclosure to what is necessary.

The orders could be:

a) no disclosure

b) Party discloses what it relies on and any specific disclosure it requires from any other party.

c) Disclosure to be given on an issue by issue basis.

d) Disclose any documents which reasonably advances its own case or damages that of another party.

e) Standard disclosure

f) anything else the court considers appropriate.

Question 12

Why is disclosure in relation to multi-track cases more complex?

Answer 12

Some multi-track cases involve a large amount of documentation, and the wrong order could result in unnecessary inconvenience and expense.

Question 13

What is the process for making an order in multi-track cases?

Answer 13

The parties must:

1. Complete a disclosure report to be filed and served not less than 14 days before the first CMC.
2. Not less than 7 days before the CMC, consider the issues in the case and enter discussions to agree a draft disclosure order which will ask the court to make.

(parties should refer to overriding objective during discussions).

3. Court makes appropriate disclosure order at CMC.

Question 14

What does the disclosure report contain?

Answer 14

a) what relevant documents exist;

b) where, and with whom, they are;

c) How any electronic documents are stored;

d) estimate the broad costs that could be involved in giving standard disclosure;

e) states which of the disclosure orders are to be sought.

Question 15

What form does a disclosure report take? And what happens where electronic documents are being disclosed?

Answer 15

N263.

Parties should consider using Electronic Documents Questionnaire (EDQ - Form N264).

Question 16

What happens at the CMC?

Answer 16

At the CMC, the court uses the disclosure report and other information to consider if standard disclosure is too expensive and what order to make.

Court can make any order in relation to disclosure that it thinks is appropriate.

Question 17

Do copies of all documents need to be disclosed?

Answer 17

A party does not have to disclose every document. Copies of documents only need to be disclosed if:

a) They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure.

b) The party has never had the original or no longer has the original in its control.

Question 18

What is the procedure for disclosure and inspection if the court orders standard disclosure?

Answer 18

The procedure that accompanies that is the prescribed CPR.

Question 19

What is the procedure for disclosure and inspection if the court makes an order other than standard disclosure?

Answer 19

The procedure will be set out as part of that order.

Question 20

Is there a continuing obligation to disclose documents?

Answer 20

Yes any duty of disclosure continues until proceedings are concluded.

A party must disclose documents which come within its control or were created after the date it originally gave disclosure if they fall within the disclosure requirements.

Question 21

What is the rule in relation to subsequent use of disclosed documents?

Answer 21

A party to whom a document has been disclosed may only use that document for the purposes of the proceedings. There are exceptions to this rule:

a) The document has been read to or referred to by the court at a hearing held in public;

b) The court gives permission; or

c) The party who disclosed the document and the person to whom the document belongs agrees.

The court can make an order restricting or prohibiting the use of a document read or referred to at a public hearing.

Question 22

What obligation does a standard disclosure order place on a party?

Answer 22

It requires a party to disclose documents which are in their control, and which they rely on, or which are adverse to their case, adverse to another party’s case, support another party’s case, or where a PD requires them to disclose.

Question 23

What is a `document’ for the purposes of disclosure?

Answer 23

A document is anything which records information. This can include:

a. Digital recordings

b. Emails

c. Photographs

d. Text messages

e. Voicemails

f. Metadata

Question 24

What is the meaning of `in a party’s control’?

Answer 24

Control means:

a) a document in the physical possession of the party (or was); or

b) the party has (or had) a right to possession of the document (e.g. held by accountant)

c) the party has (or has had) right to inspect or take copies (e.g. medical records).

Question 25

What is the concept of a reasonable search?

Answer 25

If an order for standard disclosure is made, a party must make a reasonable search for documents falling in categories b to e.

What is reasonable depends on:

1. The number of documents involved;
2. The nature and complexity of the proceedings
3. How difficult / expensive it is to retrieve documents
4. Significance of any document likely to be found.

Question 26

What is a disclosure list?

Answer 26

Standard disclosure is performed by each party making a list of the required documents and serving it on the other party.

The lists are normally exchanged simultaneously.

Question 27

What three parts is a disclosure list split up into?

Answer 27

a. `I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies’

b.`I have control of the documents numbered and listed here, but I object to you inspecting them (due to privilege)’.

c.`I have had the documents numbered and listed below, but they are no longer in my control’.

Question 28

Are privileged documents included in the disclosure list?

Answer 28

The details of each document which must be disclosed, but which are privileged from inspection, are not revealed in the list.

If the recipient disagrees with the disclosing party’s assertion of privilege, it can apply to court challenging the alleged privilege.

Question 29

What is a disclosure statement?

Answer 29

Every disclosure list must be followed by a disclosure statement which:

a) Sets out the extent of the search made;

b) Certifies the party understands its duty to disclose the documents; and

c) Certifies that, to the best of the party’s knowledge, it has carried out that duty

Question 30

What additional details must be considered in the disclosure statement?

Answer 30

Must include details of any documents the inspection of which the party considers disproportionate

Question 31

Who must the disclosure statement be made by and who if it involves a company?

Answer 31

The disclosure statement must be made (signed) by the disclosing party.

If the person making the statement is a company the statement should be made by an appropriate officer, who must identify themselves and state why they are the appropriate person to make the statement.

Question 32

Why is complying with the duty of disclosure so important?

Answer 32

A party may not rely on any document which he fails to disclose or which he fails to permit inspection UNLESS the court gives permission.
Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth.

Question 33

What are supplemental lists?

Answer 33

Supplemental lists may need to be prepared and served if additional documents falling within a party’s disclosure obligations come to light, or are created, after the disclosure list is served.