Disclosure I

Question 1

CPR 31?

Answer 1

Disclosure and Inspection of Documents

Question 2

What does CPR 31 not apply to?

Answer 2

CPR 31 on disclosure and inspection of documents does not apply to small claims track.

Question 3

Define disclosure?

Answer 3

A party discloses a document by stating that the document exists or has existed.

Question 4

How do the rules of disclosure differ for the fast track?

Answer 4

Fast track claims are often directed to have less than “Standard Disclosure” in comparison to the multitrack.

Question 5

When does a party have a right to inspect a disclosed document?

Answer 5

When a document has been disclosed to them, always except where (1) no longer in other party’s control (2) or the other party has a right or duty to withhold inspection.

Question 6

When can a party refuse to permit inspection of a disclosed document?

Answer 6

When they think it would be disproportionate to the case: must state non-permittence on proportionality grounds in disclosure statement.

Question 7

Define document for the purposes of disclosure?

Answer 7

Anything in which information of any description is recorded.

Question 8

Define “copy” [of document] for the purposes for disclosure?

Answer 8

Anything onto which information recorded in a document has been copied, by whatever means, directly or indirectly.

Question 9

Give examples of objects which constitute documents for the purposes of CPR 31 disclosure?

Answer 9

audio recordings, videos, inscriptions on walls, computer files, hard disks, computer databases and software, even if deleted or obscured in some way (e.g. coded).

Question 10

What is an order to give disclosure?

Answer 10

In all multitrack claims except PI, it means an order for STANDARD DISCLOSURE - though the court or parties in written agreement may dispense with this.

Question 11

What is standard disclosure?

Answer 11

Party must disclose (1) documents they’ll rely on (2) documents aiding opponents case, or adverse to own or opponents case, (3) whatever is required by a relevant PD.

Question 12

Where are the rules to standard disclosure found?

Answer 12

CPR 31.6

Question 13

What is the procedure for the first instance of disclosure in Part 31?

Answer 13

At least 14 days before first CMC, each party must file and serve a verified disclosure report describing what documents exist or existed and where and with whom they can be found/ stored.

Question 14

What should be included in the first disclosure report?

Answer 14

What documents exist or existed; where and with whom they are found/ stored; estimate of costs for search and disclosure; statement which Next Step they wish the court to take in 31.5 (7) or (8)

Question 15

Where can you find the 2nd step of standard disclosure proceedings?

Answer 15

31.5(7) and (8)

Question 16

What must parties do at least 7 days before first CMC?

Answer 16

Parties must discuss and seek to agree a proposal to ensure the scope disclosure meets the overriding objective. If court finds appropriate, they may approve and give 2nd directions without a hearing.

Question 17

Where can you find a non exhaustive list of orders for disclosure that the court may give at the first CMC?

Answer 17

CPR 31.5(7)

Question 18

Where can you find practical directions for disclosure that the court may give after the first CMC?

Answer 18

CPR 31.5(8).

Question 19

What is the general rule of disclosability of documents relating to quantum?

Answer 19

Documents relating to the amount of damages a successful party is to be awarded are normally disclosable, but documents relating to insurance are usually not relevant and NOT disclosable.

Question 20

CPR PD 31B para 6?

Answer 20

Outlines 5 general principles which parties should bear in mind when considering disclosure of electronic documents.

Question 21

What should happen as soon as litigation becomes a real possibility?

Answer 21

legal representatives must immediatley notify their clients of the duty to preserve disclosable documents including electronic ones.

Question 22

What is the relationship between disclosure and admissibility?

Answer 22

They’re 2 different concepts. Inadmissibility of evidence is not grounds for refusing disclosure. They should still be disclosed.

Question 23

What happens with disclosure rights where C obtains a search order against D?

Answer 23

D must give the documents without getting to consider whether they’d be required to do so in accordance with general disclosure rules.

Question 24

CPR 31.7?

Answer 24

Outlines the duty of “reasonable” search for standard disclosure of documents not relying upon.

Question 25

What 4 factors are relevant to deciding the reasonability of a search for disclosable documents?

Answer 25

(1) number of docs involved; (2) nature and complexity of proceedings; (3) ease and expense of retrieval; (4) significance of any document.

Question 26

What must parties do if they do not conduct a search of disclosable docs because they consider it unreasonable?

Answer 26

They must state this in their disclosure statement and identify the category or class of document.

Question 27

Where can you find the rules on writing a disclosure statement?

Answer 27

CPR 31.10

Question 28

What is a way of restricting electronic search to ensure it is reasonable?

Answer 28

Searching of databases and hard drives by key word.

Question 29

What is the recommended staged approach of searching for disclosable documents?

Answer 29

Begin with known custodians and sources of documents, then work away into the extremities.

Question 30

What should a party do if they suspect improper disclosure by the opposition?

Answer 30

They should apply for a further review of that party's disclosure exercise conducted by independent lawyers. Serious breaches can lead to strike out by the court.

Question 31

What limits a party's duty of disclosure?

Answer 31

Per 31.8, disclosure is limited to documents which are or have been within your control.

Question 32

What is meant by a document being within your control?

Answer 32

That it is or was in your physical possession or you have or had a right to possession of it, inspection of, or copies of it.

Question 33

What is the rule on disclosure of copies of documents?

Answer 33

Parties needn't disclose more than one copy of a document?

Question 34

What characteristics negate a document's status as a copy?

Answer 34

Any modification, obliteration, marking or other feature a party intends to rely on which affects any party's case. Those are their own documents.

Question 35

What are the usual procedural steps for standard disclosure?

Answer 35

(1) each party MUST make + serve list in relevant practice form identifying relevant documents in a convenient and concise order (2) including a disclosure statement (3) if party is an organisation explain why person making statement is appropriate spokesman.

Question 36

What should be included in the standard disclosure list of documents?

Answer 36

Documents which the party claims a right or duty to withhold; documents no longer in their control and why; disclosure statement; reason for choosing person who gave statement.

Question 37

How many things must be included in a standard disclosure list?

Answer 37

3 things, sometimes 4 if the party giving it is an organisation appointing a spokesperson.

Question 38

What is included in a disclosure statement?

Answer 38

A disclosure statement (1) sets out extent of search done (2) certifies understanding of disclosure duties (3) certifies that duty was fulfilled as much as possible.

Question 39

CPR 31.12?

Answer 39

The court may make an order for specific disclosure or inspection.

Question 40

What is an order for specific disclosure?

Answer 40

An order that the party must do one or more (a) disclosing documents or class of documents specified (b) carry out a search to specified extent (c) disclose anything located as a result.

Question 41

What is an order for specific inspection?

Answer 41

An order that a party permit inspection of a document unearthed as a result of 31.12(2) (orders of specific disclosure)

Question 42

When may a party apply for an order of specific disclosure or inspection?

Answer 42

Applications for SD or SI may be made at any stage in proceedings, but especially whenever directions are being given. Lateness might undermine the claim.

Question 43

When is it appropriate for parties to apply for orders of specific disclosure or inspection on the fast track?

Answer 43

Usually most appropriate to apply for specific disclosure or inspection upon allocation or on filing of listing questionnaires.

Question 44

When will the court grant an order of specific disclosure?

Answer 44

Where they are satisfied of the relevance of potential documents, that they've been in the party's control and that their disclosure would further the overriding objective.

Question 45

What is the PI exception to specific disclosure?

Answer 45

Claimant's solicitors should produce doctors records; c shouldn't be ordered to supply D with authority to obtain these, although if C refuses to be medically examined the court can stay proceedings.

Question 46

Can you order disclosure for interlocutory proceedings?

Answer 46

Yes, but disclosure orders for provisional proceedings should be very rare and only used when the documents in question are necessary for just disposal of proceedings.

Question 47

What documents do parties have a right to inspect?

Answer 47

Parties may inspect documents mentioned in (1) statement of case; (2) witness statements; (3) witness summaries; (4) affidavits, and (5) may apply to inspect anything mentioned by experts' reports not already disclosed.

Question 48

If a party has a right to inspect a document, what is the procedure to get a chance to do so?

Answer 48

A party who's a right to inspect a document must give the disclosing party notice of desire to inspect. The "owner" then has max 7 days after notice to allow inspection. If a copy is requested and paid for, this should also be provided within 7 days.

Question 49

What are the consequences of failing to disclose or allow inspection of documents without reason?

Answer 49

A party may not rely on any document which he fails to disclose or permit inspection of without court permission (31.21)

Question 50

When may a disclosed document for proceedings be subsequently used?

Answer 50

Where the document was read or referred to, or by, the court in public, or party who disclosed it agrees. Though court can order restriction of using document even if this is satisfied.

Question 51

Who can apply for an order by the court restricting subsequent use of a publicly (not closed court) disclosed document?

Answer 51

A party or any person who owns the document may apply for an order restricting or prohibiting subsequent use of a disclosed document (31.22(3)).

Question 52

What is the consequence of false disclosure statements?

Answer 52

Proceedings for CONTEMPT OF COURT may be brought against a person who makes or causes to be made a false disclosure statement without honest belief in its truth.