Disclosure - CPR 31

Question 1

What is disclosure?

Answer 1

Saying that a document exists

Question 2

What is standard disclosure?

Answer 2

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

Question 3

What is inspection?

Answer 3

Examining the document

Question 4

Must I disclose everything?

Answer 4

Yes, must disclosure everything but not everything needs to be examined

Question 5

What grounds would you refuse a right to inspect?

Answer 5

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).

Question 6

What is governed under right to withhold inspection?

Answer 6

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

Question 7

Legal advice privilege (LAP) - what is it?

Answer 7

Communication between Sol + Client; any discussions whatsoever, has to be disclosed but cannot be inspected

Question 8

Consequences for not complying with specific disclosure?

Answer 8

Contempt of court

Question 9

Must disclose everything; can’t refuse. But can refuse inspection - true or false?

Answer 9

True

Question 10

Disclosure doesn’t apply to small claims track as it’s a formal process - true or false?

Answer 10

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

Question 11

Litigation privilege - what is it?

Answer 11

Any doc created in contemplation or during pending litigation e.g. third party

Question 12

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?

Answer 12

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.

Question 13

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

Answer 13

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.

Question 14

what does without prejudice mean?

Answer 14

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)

Question 15

Without prejudice save as to costs - what does this mean?

Answer 15

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.

Question 16

Costs

Answer 16

Decide who pays what, the amount, standard + indemnity. W/O prejudice save as to costs comes into play here

Question 17

Why disclose before proceedings have started?

Answer 17

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.

Question 18

CPR 31.16 - Question of liability - example:

Answer 18

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.

Question 19

Order against disclosure against a person not a party to the proceedings - r31.17

Answer 19

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.

Question 20

Disclosure has occurred - how many days do you have to request to inspect doc?

Answer 20

7 days

Question 21

how many days to file and serve report?

Answer 21

14 days

Question 22

7 days before?

Answer 22

discussing how disclosure is going to work/an agreement between parties

Question 23

Within 7 days of disclosure of doc, serve notice that you wish for it to be proved at trial

Question 24

7 days - to give time to challenge

Question 25

When is NPO granted?

Answer 25

Granted against 3rd party which has been mixed up in wrongdoing, forcing disclosure of docs/info.

Question 26

Consequences of non-disclosure

Answer 26

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.

Question 27

General rule for disclosure?

Answer 27

Disclose everything no matter what but inspection depends on privilege

Question 28

Litigation privilege - disclosure?

Answer 28

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.

Question 29

Solicitor-client privilege/legal advice privilege. Inspection or no inspection?

Answer 29

No inspection

Question 30

Difference between standard disclosure and specific disclosure?

Answer 30

Standard Disclosure - Each party must disclose: Documents they rely on. Documents that harm their case or help the other side’s case. Documents that are required by law to be disclosed. It includes documents that are or were in their control (even if they no longer have them now). It’s like showing your cards fairly – even the ones that don’t help you. Specific Disclosure - This happens when standard disclosure isn’t enough, or one party thinks the other is hiding something important. A party can ask the court to order the other side to: - Disclose a particular document or category of documents. - Search more thoroughly for documents. It’s more targeted, like saying: “We believe you have these specific documents, please hand them over.” Standard disclosure = general rule for what everyone must share. Specific disclosure = a special request for extra or more detailed documents.

Question 31

Can use Norwich for disclosure of the person and documents

Question 32

You’ll get pre action disclosure if you’d ordinally have to disclose it.

Question 33

When can you get NPO?

Answer 33

Norwich – only when the third party has facilitated the wrongdoing, cant use it to get info from a third party

Question 34

The privilege vests with the client, not the solicitors. So if Kent LPC may object to inspection is wrong, it should be Alan may object to inspection.

Question 35

Can disclose settlement of W/O prejudice document where an agreement has been breached by one party; don’t need the other parties permission to waive privilege in this circumstance. A and B make agreement, B breaks it, A can waive privilege and show court the contents of the W/O privilege agreement.

Question 36

Can judgment be automatically entered?

Answer 36

No such thing as judgment automatically entered.