disclosure (week 6)

Question 1

what is the likely cost order for non-party disclosure and Norwich pharmacal orders?

Answer 1

applicant pays respondent’s costs of the application and of giving the disclosure/info

Question 2

is there an automatic obligation for disclosure?

Answer 2

no - obligation comes from a court order

Question 3

at what stage in proceedings is an order of disclosure given?

Answer 3

given on allocation or at a case management conference

Question 4

in a small claims court and fast track when does disclosure happen?

Answer 4

given on allocation

Question 5

what is the time frame for disclosure in small claims track?

Answer 5

at least 14 days before the date fixed for the final hearing, each party must file and serve on each other party copies of all docs they intend to rely on at hearing.

Question 6

at what stage in proceedings in the intermediate and multi-track does disclosure happen?

Answer 6

at the CMC - case management conference

Question 7

what is the time frame for disclosure in the intermediate and Muti-track?

Answer 7

complete a disclosure report to be filed and served not less than 14 days before 1st case management conference

not less than 7 days before the 1st case management conference

Question 8

when might a court order parties to give disclosure? (3 times)

Answer 8

giving direction on allocation
case management conference
on party’s application

Question 9

when should a party disclose a copy of a doc rather than an original doc?

Answer 9

doc contains a modification, obliteration or other marking which satisfies the standard disclosure
party never had original or no longer has control of the original

Question 10

what is the continuing obligation to disclose?

Answer 10

any duty of disclosure continued until proceedings are concluded

Question 11

what are the requirements for standard disclosure?

Answer 11

docs the party relies on
docs that adversely affect their case
docs that support other party’s case
docs that adversely affect other party’s case
required to disclose by a relevant practice direction

Question 12

what is a ‘document’ for purposes of disclosure?

Answer 12

anything that records information - interpretation is super wide

eg, car can be a doc in road traffic accident as stuff on dash records info.

Question 13

does every list of documents submitted need to include a disclosure statement?

Answer 13

yes

Question 14

what is standard disclosure?

Answer 14

requires a party to disclose docs which are in their control, and which they rely on, or which are adverse to their case, adverse to another party’s case, support another party’s case or which a practice direction requires them to disclose

Question 15

what are the 3 situations when a party doesnt need to inspect a document?

Answer 15

1, no longer in the disclosing party’s control
2, allowing inspection would be disproportionate
3, disclosing party has right or duty to withhold inspection

Question 16

what is waiver of privilege?

Answer 16

party is allowing the inspection of a privileged document if it considers the document helps its case

Question 17

what does ‘once privileged, always privileged’ mean?

Answer 17

if something is privileged in relation to one set of proceedings, then it will remain privileged in relation to all proceedings

Question 18

if there is a dispute over whether a document is subject to privilege - who has the burden of proof?

Answer 18

the burden of proof is on the party claiming privilege is established

Question 19

if a party wishes to inspect a document - what must they do?

Answer 19

must send a written notice of its wish to the other side, and other side must allow inspection within 7 days of receipt of notice

Question 20

what are the 3 different types of privilege?

Answer 20

legal privilege
litigation privilege
without prejudice communications

Question 21

what must you examine to work out if privilege is present?

Answer 21

what the dominant purpose is

Question 22

what is specific disclosure?

Answer 22

the search for documents and/or disclose specified documents
the disclosing party alleges it is disproportionate to allow inspection

Question 23

when does specified disclosure happen?

Answer 23

any time AFTER proceedings have been issued

Question 24

when does pre-action disclosure happen?

Answer 24

before the proceedings

Question 25

why would court allow pre-action disclosure? (3 things that must be satisfied)

Answer 25

1. respondent likely to be a party
2. applicant likely to be a party
3. if proceedings began the respondent would have a standard disclosure duty to disclose the document

if these are satisfied court has DISCRETION

Question 26

when does an application for disclosure of non-parties happen?

Answer 26

once proceedings have begun

Question 27

who pays the costs in a pre-action disclosure?

Answer 27

generally the applicant pays the respondent’s costs

Question 28

who must the application notice be served on for non-party disclosure?

Answer 28

must be served on the non-party and all other party’s in the proceedings

Question 29

who pays the costs for a non-party disclosure?

Answer 29

the applicant pays the costs of the respondent

Question 30

what is a Norwich pharmacal order?

Answer 30

when identity of D is not known, then orders the respondent (who is not the D) to disclose information allowing C to sue the right D