Disclosure II Flashcards
When does a party have a right to inspect a document disclosed to them?
Always except where the document is no longer in control of the party that disclosed it or there’s a duty/right to withhold inspection.
How does proportionality interact with the right to withhold documents from inspection?
Where a party considers inspection of a category or class of documents to be disproportionate to issues in the case they must state so in their disclosure statement.
Can disclosure be done before proceedings begin?
Yes (31.16) by application supported with evidence. Even outside of jurisdiction.
When will the court order disclosure before proceedings start?
ONLY when respondent and applicant are both likely to be parties, and if proceedings had begun, where standard disclosure would include the documents currently being sought
Why would disclosure before proceedings be granted?
To dispose fairly of proceedings, to assist resolving of dispute without proceedings, to save costs.
What must be included in a court order for disclosure before proceedings?
An order for early disclosure must specify document/s or class of docs to be disclosed and require the respondent to specify any documents no longer in their control or that he had a duty/right to withhold.
What MAY be included in a court order for disclosure before proceedings?
An order for early disclosure MAY require the respondent to indicate what happened to documents no longer in their control and MAY specify the time and place for disclosure and inspection.
CPR 31.17?
Orders for disclosure against a person not a party: applications made under any act for disclosure by 3rd parties.
Can third parties to proceedings be obliged to disclose documents?
Yes - an application can be made with supporting evidence for 3rd party disclosure when permitted by any relevant Act.
When may the court order disclosure of documents by a third party?
Where the documents sought are likely to support the case of the applicant or adversely affect other parties AND disclosure is necessary for fair disposal of the claim or costs saving.
What must orders for 3rd party disclosure of documents do?
Court Orders for 3rd party disclosure MUST specify the documents or classes of documents to be disclosed and require the respondent to specify those no longer in their control or that there’s a right/duty to withhold.
What MAY orders for 3rd party disclosure of documents do?
Court orders for 3rd party disclosure MAY require respondent to indicate what happened to documents no longer in their control
What is the interaction between 31.16 (disclosure before proceedings) and 31.17 (disclosure by 3rd parties) and general court powers?
Neither 31.16 nor 31.17 limit other powers the court has to order disclosure before proceedings start or disclosure against people not party to proceedings.
What is an example of 31.17 (disclosure by third parties) in action?
The Norwich Pharmacal principle
Where can you find explanation of the Norwich Pharmacal principle and test?
31.18
What is the purpose of the Norwich Pharmacal principle?
It provides that a person caught up in the wrongdoing of another (as more than merely a witness) CAN BE COMPELLED to disclose the identity of the wrongdoer so proceedings can be brought against them.
How many steps are there to the test for applying Norwich Pharmacal?
3
What is the 1st step of the Norwich Pharmacal test?
A wrong must’ve been carried out or arguably carried out by an “ultimate wrongdoer”
What is the 2nd step of the Norwich Pharmacal test?
There must be a need for an order to enable action to be brought against the “ultimate wrongdoer”
What is the 3rd step of the Norwich Pharmacal test?
The 3rd party person that the order is sought against MUST (a) have facilitated wrongdoing or (b) be able or likely to be able to provide the information required to enable suing of the “Ultimate wrongdoer”/
What is a wrong that may have been committed by an “ultimate wrongdoer” in NP?
The wrong that may be sought to sue the ultimate wrongdoer for may be a crime, tort, breach of contract, equitable wrong or contempt of court. Must be identifiable in general terms. Doesn’t need proving to exist but should be a reasonable basis for the claim.
What is guidance for the 2nd limb of the Norwich Pharmacal test?
Must be just and convenient to give an NP order. The relief is a remedy of LAST RESORT. Shouldn’t be available when the information required could be obtained another way.
To obtain a Norwich Pharmacal relief order is it necessary to bring proceedings against the wrongdoer if granted?
No - it is not a requirement for applicant to bring court proceedings.
Only that they seek to obtain redress or protect themselves against further wrongs.
What is a defence to a Norwich Pharmacal order to disclose the ultimate wrongdoer?
A 3rd party facing a NP order does not have to disclose the identity if it would incriminate them to do so. Or use defence under s.10 Contempt of Court act unless disclosure is necessary for public interest.
