Disclosure + inspection

Question 1

What does “disclosure” mean?

Answer 1

Stating that the document exists/existed

Question 2

What is a “document”?

Answer 2

Anything where information is recorded

Question 3

What must the court consider when choosing a disclosure order?

Answer 3

Limiting disclosure to reduce the burden on parties

Question 4

Which documents must be disclosed under standard disclosure?

Answer 4

• those on which the party relies,
• those which adversely effect the party’s case,
• those which adversely effect the other party’s case,
• those which support the other party’s case

Question 5

Which documents is the duty to disclose limited to?

Answer 5

Those in the party’s control

Question 6

Definition of “in party’s control”:

Answer 6

• are/were in party’s physical possession,
• party has right to possess,
• party has right to inspect

Question 7

Scope of duty to search for documents

Answer 7

Parties must make reasonable and proportionate search for all documents adversely affecting either party’s case, or supporting the other party’s case (not supporting own case!)

Question 8

How + when can the duty to search be limited?

Answer 8

By date, place, and categories of documents
Limitation must be justified: not affecting the investigation into the merits of the case!

Question 9

What is included in the disclosure form:

Answer 9

1. court + claim number + parties
2. disclosure statement (reasons for limitations on search + party’s signature)
3. the list

Question 10

3 parts of the list

Answer 10

1. part 1: documents in party’s control + no objection to inspection
2. part 2: documents in party’s control by object to inspection
3. part 3: documents no longer in party’s control

Question 11

Consequences of non-disclosure:

Answer 11

• can’t rely on the document without court’s consent
• case might be struck out if the document harmed the party’s argument

Question 12

When may “legal professional privilege” apply?

Answer 12

• legal advice given by a lawyer
• the only/dominant purpose of communication was obtaining legal advice

Question 13

It’s legal advice privilege if…

Answer 13

it’s communication between client and lawyer with sole/dominant purpose of legal advice

Question 14

It’s litigation privilege if…

Answer 14

• it’s a communication between client/lawyer and 3rd party,
• it was created when litigation was contemplated/ongoing,
• it was produced with view to litigation (eg. witness statement)

Question 15

How to request inspection of documents?

Answer 15

Request must be in writing
Must be granted within 7 days unless agreed otherwise

Question 16

Can apply for a specific disclosure order requesting the party to…

Answer 16

• carry out a more extensive search and disclose documents located, or
• disclose specific documents the party expected to see

Question 17

How to apply for specific disclosure order?

Answer 17

Must include a witness statement explaining why party believes the document exists, and why the document is needed

Question 18

Is there a duty of pre-action disclosure?

Answer 18

No, unless court order obtained

Question 19

3 conditions for court ordering pre-action disclosure:

Answer 19

1. both parties likely to be parties in subsequent proceedings,
2. documents sought would fall within standard disclosure,
3. disclosure is desirable to dispose fairly of the proceedings, assist with ADR, or save costs

Application must be supported by a witness statement!

Question 20

2 conditions for court ordering non-party disclosure:

Answer 20

1. the documents are likely to support the applicant’s case/adversely affect another party’s case, and
2. disclosure is necessary to dispose of the case fairly, or save costs

Application must be supported by evidence!