Disclosure - CPR 31 Flashcards
What is disclosure?
Saying that a document exists
What is standard disclosure?
Documents that affect, support or are adverse to your case. You need to do a reasonable search for the documents you’re in control of
What is inspection?
Examining the document
Must I disclose everything?
Yes, must disclosure everything but not everything needs to be examined
What grounds would you refuse a right to inspect?
No longer in control of that document or don’t physically have it anymore or cus you have a right to withold inspection (CPR 31.3(1).
What is governed under right to withhold inspection?
Privilege against self-incrimination to something that you’d expose you to criminal charges, which also applies to your spouse/civil partner.
Example - if your bank statements show that you’ve been stealing from a Trust, self-incrimination privilege doesn’t apply here. Would still need to disclose the bank statement
Legal advice privilege (LAP) - what is it?
Communication between Sol + Client; any discussions whatsoever, has to be disclosed but cannot be inspected
Consequences for not complying with specific disclosure?
Contempt of court
Must disclose everything; can’t refuse. But can refuse inspection - true or false?
True
Disclosure doesn’t apply to small claims track as it’s a formal process - true or false?
True. In small claims it’s just a general ‘send copy of what you’re relying on’; no strict disclosure rules like in fast and intermediate track - CPR 31.5
Litigation privilege - what is it?
Any doc created in contemplation or during pending litigation e.g. third party
Example of litigation privilege - You’ve installed a roof, Ian thinks it’s been done negligently and writes letter to local roofing company for advice, clear that it’s in contemplation of legal proceedings cus that’s why ur asking for letter from roofing company. Do this have to be disclosed?
This has to be disclosed but not inspected, but can waive this privilege if you want to rely on it and therefore it has to be inspected. This principle is the same for medical report.
Another example - Dispute between homeowner and builder in relation to roofing work - owner of house had report done on roof as part of the mortgage. Does report need to be disclosed
must disclose but doesn’t need to give it up for inspection cus report wasn’t created in relation to contemplated litigation, purpose of it was just to value the house. The inspection could reveal that the problems were already there before the builder came, meaning you wouldn’t win your case.
what does without prejudice mean?
Any type of communication which has sole intention of seeking to settle litigation doesn’t have to be disclosed - goes against ADR (resolving issue w/o court proceedings)
Without prejudice save as to costs - what does this mean?
Can be disclosed only at the point of discussing costs, to the costs judge.
The doc has no impact on whether you win or lose as the decision has already been made.
Costs
Decide who pays what, the amount, standard + indemnity. W/O prejudice save as to costs comes into play here
Why disclose before proceedings have started?
Dispose fairly, assist the dispute to be resolved w/o proceedings and to save costs. Always be mindful of overriding objective, expeditiously, fairly, reasonable costs etc.
CPR 31.16 - Question of liability - example:
Whether or not nan was secured in wheelchair area of bus. Before you issue proceedings, ask lawyer if you can have the CCTV footage from the bus, other side refused on basis that proceedings haven’t been issued, but need pre-action disclosure before proceedings have started. Need CCTV in advance to assess whether negligence was there.
Order against disclosure against a person not a party to the proceedings - r31.17
Saying to bank I need details of X cus that’s who I need to bring claim against. A Norwich Pharmaceutical order (NPO) - requires respondent to disclose certain docs/info to applicant.
Disclosure has occurred - how many days do you have to request to inspect doc?
7 days
how many days to file and serve report?
14 days
7 days before?
discussing how disclosure is going to work/an agreement between parties
Within 7 days of disclosure of doc, serve notice that you wish for it to be proved at trial
7 days - to give time to challenge
When is NPO granted?
Granted against 3rd party which has been mixed up in wrongdoing, forcing disclosure of docs/info.
Consequences of non-disclosure
Can’t rely on the document if not disclosed it.
E.g. disclosed med report but won’t allow inspection = can’t rely on doc.
If there’s been specific disclosure but you haven’t complied, court might strike out.
General rule for disclosure?
Disclose everything no matter what but inspection depends on privilege
Litigation privilege - disclosure?
contemplated/related to litigation - can’t allow inspection.
If not related to litigation - has to be disclosed and inspected.
documents obtained for the purpose of contemplated proceedings may be subject to litigation privilege if they meet certain conditions.
Litigation privilege protects confidential documents created for the dominant purpose of obtaining legal advice or for use in legal proceedings (whether actual or contemplated).
For a document to be privileged under this rule, it must:
Be a confidential communication between a lawyer and client, or between a lawyer and a third party.
Have been created for the dominant purpose of conducting or assisting in litigation.
Relate to litigation that is reasonably in prospect at the time.
Does the Document Have to Be Inspected?
If a document is privileged, it does have to be disclosed but not inspected.
If the document does not meet the criteria for litigation privilege, it must be disclosed if it is relevant and falls within standard disclosure obligations under CPR 31.6.
The party claiming privilege must disclose that the document exists (CPR 31.19), but they can withhold inspection by stating the reason for privilege.
Solicitor-client privilege/legal advice privilege.
Inspection or no inspection?
No inspection
