Dispute Resolution - Disclosure and Inspection Flashcards
Disclosure
Existence of document
Requires generic description of the document and its existence - not necessarily disclosure of document itself
Duty to disclose continues throughout a case
In small claims cases, limited to those documents the court considers necessary and proportionate
Inspection
Process of enabling other side to view disclosed document
What documents should be disclosed?
Any documents on which it relies and documents which adversely affect its case
“Documents” not confined to paper or originals - anything with information recorded on it
Only documents relevant to the issues in question need to be disclosed but obligation extends to any documents within the party’s control
Standard Disclosure
Documents on which party relies
Documents that adversely affect their case
Documents that adversely affect/support defendant’s case
Obligation to disclose falls to client
Obligation to disclose
Obligation is on the client
All documents client has within possession or control
Documents parties have a right to possess
Documents parties may inspect or copy
Includes documents which were in their possession but which they no longer have
Some documents parties must have to search for - reasonable and proportionate efforts
How disclosure is made
File with court and serve on other party a disclosure list
Disclosure list must be filed and served by date specified in direction
Party must verify and sign list
Inspection
Automatic disclosure:
Other party has an automatic right to inspect all documents within other party’s control and those doucments the other party has no objection to inspection
Party wishing to inspect must give notice to other party
Other party must permit inspection within 7 days after receiving notice
After inspection, requesting party may take the view that disclosure is inadequate - if so, party should make written request for other party to voluntarily disclose
If answer is no, party makes application for specific disclosure
If court allows application it may order party to carry out search or disclose documents
Privilege
- Legal Advice Privilege: communications between solicitor and client - must be for purpose of providing client with legal advice
- Litigation Privilege: communications between solicitor and third parties (e.g. expert witnsses and barristers) provided it relates to preparation for contemplated or actual litigation
- Common Interest Privilege: applies where parties who all have the same interest in a piece of litigation all disclose documents relating to the litigation to one another [unlikely to be tested
- Without Prejudice Privilege: communication to another party to the litigation with a view to settling the claim
- Public Interest Immunity Doctrine: inspection of document would harm the nation or administration of justice
Privilege belongs to client NOT solicitor - client can waive privilege. Once this has happened it cannot be restored
Electronic Disclosure
- Parties required in multi-track cases to complete an electronic documents questionnaire as well as disclosure list - enables parties to investigate, categorise and agree nature of documents held electronically
- CPR requires parties to preserve disclosable documents once litigation is contemplated - retention policies should be suspended if they would result in disclosure being destroyed
When is document in party’s control?
- Have physical possession
- Have the right to possession, inspection or to make copies
- Had the document in their possession but no longer have it
Disclosure List
Required in fast track and multi-track personal injury cases
Standard directions allow 28 days from the date of the directions order to serve list
Disclosure Statement
Required by each party
Details extent of search made
Signed by party not legal representative
Disclosure Report
Required in non-personal injury multi-track cases
Must be filed at least 14 days before first CMC or with the Directions Questionnaire
