Dispute Resolution - Disclosure, Evidence, Trials and Appeals Flashcards
Disclosure:
How does a party disclose a document?
What orders for disclosure can the court make?
By stating it exists or has existed.
Orders
- Standard disclosure
- Specific disclosure
- Dispensing with disclosure
- Issue-by-issue disclosure
“A document” means information of any description that is recorded.
Disclosure
Provide an overview of disclosure on the multi-track.
- The parties compile a disclosure report at least 14 days before the CMC.
- The parties seek to agree a proposal for disclosure at least 7 days before CMC, and this is filed at court.
- The court will usually make the disclosure order at the CMC.
In seeking a proposal for disclosure, the overriding objective must be kept in mind.
In the multitrack, parties are given a ‘menu of options’ as to disclosure to choose from.
Standard disclosure
If the court orders standard disclosure, what are parties required to disclose?
What do references to “the case” mean?
What is the duty to disclose limited to?
(a) the documents on which they intend to rely;
(b) the documents which hinder the party’s case.
Issues that are in dispute (not agreed matters).
Documents within the party’s control.
Technically, (b) is comprised of documents that:
- adversely affect their case;
- adversely affect another party’s case; or
- support another party’s case.
Standard Disclosure: control
What is the meaning of ‘documents in the party’s control’?
Documents that:
- are or were in their physical possession;
- they have a right to possess; or
- they have a right to inspect.
Duty to search
What is the scope of search required of each party?
A reasonable and proportionate search of documents that:
- adversely affect their case;
- adversely affect another party’s case; or
- support another party’s case.
Duty to search
Reasonableness of a party’s search depends on:
- number of documents;
- nature and complexity of proceedings;
- ease and expense of retrieval of any document;
- significance of the document.
Duty to search: limiting the scope
How might a party limit the extent of their search?
When would such limitations be acceptable?
- not searching before a certain date;
- specifiying a particular** place** they search;
- limiting the categories of documents
If they would not affect the proper investigation of the merits of the case.
Such limitations need to be justified.
Seek early proposals of limitations with the other party to adhere to the overriding objective.
How disclosure is made
What form is used for disclosure of documents?
What are the formalities?
What are some requirements of the disclosure statement?
What is the penalty for a false disclosure statement?
N265.
The court, claim number and parties are set out at the top right hand corner.
Disclosure statement:
- parties must sign to confirm the extent of the search.
- parties must certify that they understand their duty of disclosure.
- A legal representative cannot sign the disclosure statement on behalf of the client.
- If a party does not permit inspection of a category or class of documents, reasons must be given.
Penalty: contempt of court proceedings may be brought.
Examples of reasons for not permitting a class of documents to be inspected are:
- difficulty or expense of search compared to marginal relevance.
Disclosure is a continuing duty
Form N265: the list
What is the list comprised of?
Part 1 - documents within the party’s control which the other party can inspect.
Part 2 - documents within the party’s control which the other party cannot inspect.
Part 3 - documents which are no longer in the party’s control.
Form N265: the list
How should you structure Part 1?
What documents are usually listed in Part 2?
Give a common example of the use of Part 3.
What is the consequence of failing to disclose a document?
Part 1: Number list documents in date order with a concise description of each.
Part 2: Privileged documents.
Part 3: A copy of a document is listed in Part 1, and Part 3 states “the original of the letter from the claimant’s solicitor to the defendant dated [x] which was last in the claimant’s control on the day it was posted”.
You may not rely on it at trial unless the court permits and if such a document is harmful to your case, the case could be struck out altogether.
Part 1 example “email from A to B dated 10 May 2024” or “contract dated 10 May 2024 between A and B”.
Disclosure: withholding inspection of documents
When would a party legitimately withhold inspection of documents, and how would this be listed in the N265?
Legal professional privilege.
In Part 2, described generically.
“Correspondence, attendance notes, instructions to counsel and counsel advice created for the sole or dominant purpose of giving or receiving legal professional advice and so covered by legal advice privilege.”
“Correspondence between the claimant’s solicitors and witnesses, both expert and factual, including proofs, statements, reports, drafts and similar documentation created when this litigation was reasonably contemplated and so covered by legal professional litigation privilege.”
Disclosure: withholding inspection of documents
What are the two types of legal professional privilege?
Legal advice privilege.
Litigation privilege.
“Correspondence, attendance notes, instructions to counsel and counsel advice created for the sole or dominant purpose of giving or receiving legal professional advice and so covered by legal advice privilege.”
“Correspondence between the claimant’s solicitors and witnesses, both expert and factual, including proofs, statements, reports, drafts and similar documentation created when this litigation was reasonably contemplated and so covered by legal professional litigation privilege.”
Disclosure: withholding inspection of documents
What is legal advice privilege?
Communications between a lawyer and his client, where the sole or dominant purpose is to seek or give legal advice.
Where there is a dual purpose, the dominant purpose must be established.
Do not confuse disclosure with the documents to be used at trial. E.g. an attendance note will be generically disclosed in the N265, but it wouldn’t be referred to at trial.
Disclosure: withholding inspection of documents
What is litigation privilege?
Communication which:
- passed between the client or lawyer and a third party;
- came into existence when litigation was contemplated or ongoing; and
- was produced with a view to the litigation either for the sole or dominant purpose of legal advice or obtaining evidence.
Includes: expert report, witness statements.
Waiving privilege: privileged document mistakenly disclosed
Suppose the claimant’s barrister sends a letter to the defendant’s solicitor in error, having intended for it to go to to the claimant’s solicitor, what should the defendant’s solicitor do?
Return the advice to the barristers’ chambers confirming they have not read it. They should not inform their client.
Waiving privilege: without prejudice correspondence
What is without prejudice correspondence and does it need to be disclosed?
Correspondence which is not to be made aware to the trial judge until costs are considered (in an attempt to settle the case).
This needs to be disclosed as a document falling within standard disclosure.
Note: disclosure/inspection of documents is purely between the parties, not the trial judge.
Also note: a party may apply to court to challenge a claim for privilege, in which case the court may require the other party to produce the document and invite representations, but such application is rarely effective.
RIght of inspection
After receiving the opponent’s list, what should the solicitor do in order to inspect the documents?
Request inspection in writing, which will be granted in seven days.
Parties may ask for copies of the documents if they agree to pay the costs; electronic documents are usually provided on a hard drive or USB.
Parties often agree a longer time for which inspection will be granted.
Orders for disclosure
After the list is served and the contents scrutinised, what should a party do if the opponent’s disclosure appears inadequate?
- Write to the other side.
- If this fails, file an application notice (N244) to court for specific disclosure, accompanied by a witness statement and serve on opponent
The witness statement must explain why the applicant believes the document exists and justify the application.
Orders for disclosure: specific disclosure
What would an order for specific disclosure require?
- a more extensive search and disclosure of documents located as a result; or
- disclosure of specific documents that the party would have expected to see.
Pre-action disclosure
If a party wishes to apply to the court for pre-action disclosure, what must they satisfy to the court?
- Applicant and respondent are likely to be parties to proceedings;
- the documents sought would come within standard disclosure; and
- disclosure is desirable to dispose fairly of anticipated proceedings, and to avoid proceedings/costs.
Non-party disclosure
If a party wishes to apply to the court for non-party disclosure, what must they satisfy to the court?
What will the order require?
- the documents are likely to support the applicant’s case or adversely affect another party’s case; and
- disclosure is necessary to dispose fairly of the case or save costs.
The documents to be disclosed; and the non-party to identify which documents are no longer in their control and which are privileged.
Evidence: Witness statements
What are some formalities of the witness statement?
- Numbered paragraphs.
- Numbers expressed as figures.
- Dates expressed as 4 August 2024.
- Written in first-person, using witness’ own words.
- Documents attached are exhibited ‘AP1’
- There must be a statement of truth.
Evidence: Witness statements
What can be done if a witness statement is not possible to obtain?
The party can apply to court without notice for an order to serve a witness summary, containing:
- the witness’ name and address,
- the witness’ evidence, or if not available, the disputed issues on which the witness would have been questioned at trial.
Evidence: Witness evidence
What is the starting point for admissibility of evidence?
Opinion evidence is generally inadmissible. What are the two exceptions?
Irrelevant material is inadmissible.
- the statement conveys facts personally perceived by the witness, without drawing a conclusion.
- expert evidence.
Note: “He was driving at high speed” is admissible. “He was driving too fast” is not admissible, as it draws a conclusion.
