Disclosure - N265 Flashcards
Part 1
Documents which O/S can inspect and they have no objections with them inspecting.
Part 1 - Key point on how to reference the documents
Needs to help them identify needs to state what documents are, dates and where they’re held or if attached to particulars of claim e.g Medical report of Ms Marta Cardona dated 9 July [last year] attached to Particulars of Claim [dated]
ONLY NEEDS TO IDENTIFY ACTUAL DOCUMENT DOESN’T NEED TO DISCLOSE ANY DETAILS AS TO WHAT IT CONTAINS OR WHY IT IS BEING DISCLOSED
Part 2
Documents covered by privilege and so O/S can’t inspect. Need to be described generically
Part 3
Documents no longer in their control but that they don’t have an objection to them seeing. Need to state where known, when they were last in the party’s control and where they are now
Standard disclosure
A party only has to disclose a document that is now or has been in the past in its control and:
1) Documents which they intend to rely
2) Documents which adversely affect their own case
3) Documents which adversely affect another party’s case
4) Documents which support another party’s case
Anything that helps or hinders a parties’ case
When is a document in a party’s control
If they have a right of possession, a right to inspect or take copies
Waiving privileged documents
Documents which would be covered by privileged may still be disclosed in Part 1 if they have been waived e.g by filing it at court and serving it on the defendant
Medical records of claimant - If the claim regards personal injury
They should be included in Part 1 e.g ‘Claimant’s medical records [DATE] held at his doctor’s surgery and [HOSPITAL]’
What if a document isn’t included within privilege but a client doesn’t want you to disclose it
If it doesn’t fall under privilege and it should be disclosed then it needs to be in Part 1
Expert evidence if used for litigation e.g as evidence
Part 2 if not already been sent to O/S
Part 2 - Example wording
An expert’s report obtained by the claimant’s solicitors when this litigation was reasonably contemplated for the dominant purpose as having as evidence for this litigation and so it is protected by legal professional, litigation privilege
Draft Part 2 - Key point
Need to address the following points:
1) Describe it generically e.g if an expert’s report don’t put the name of the expert
2) Whether it was obtained when litigation was reasonably contemplated or existing or ongoing
3) Why it was obtained e.g for the dominant purpose as having as evidence for the contemplated litigation
What if the client doesn’t intend to rely on witness statement
If it falls within standard disclosure e.g adverse to their case or another party’s case then irrespective of whether they intend to use it they need to disclose it. However a witness statement will usually be privileged and not waived until later in proceedings therefore it should be included in Part 2
Part 2 - Witness statement example
A witness statement obtained by the claimant’s solicitors when this litigation was ongoing for the sole purpose of giving legal advice for this litigation and so it is protected by legal professional, litigation privilege
