Disputes - Disclosure and Inspection (10) Flashcards
What are disclosure and inspection?
Disclosure and Inspection: Disclosure required both parties to provide a list of relevant documents to the other prior to trial. Inspection allows the opponent to view those documents on request (subject to privilege).
What are the types of disclosure that will be ordered depending on the track?
By Track: The extent to which parties must search for and disclose documents differs by track.
(1) Small Claims: Parties file and serve their own documents and expert reports 14 days before trial. They are not obliged to disclose documents adverse to their position or in support of another.
(2) Fast Track: Courts invariably order ‘Standard Disclosure’ (below).
(3) Multi Track: Courts typically order ‘Standard Disclosure’, but can make bespoke orders on a case-by-case basis.
What is pre-action disclosure?
Pre-Action: Parties are encouraged to share information under the pre-action protocols, but are not required to share documents adverse to their own claim unless ordered by the court (CPR 31).
(1) Application: Parties can apply for pre-action disclosure of relevant documents. Applications must justify their reasoning in an attached witness statement. Informal disclosure should be sought first.
(2) Order: Courts must consider the likelihood of the claim being formally issued, whether requested documents would fall under a standard direction order, and whether the order complies with the overriding objective.
What is third party disclosure?
Third-Party: Parties can apply for disclosure from a third-party to the claim (CPR 31).
(1) Application: Parties can apply for disclosure, as justified on an attached witness statement. Informal disclosure should be sought first.
(2) Order: Disclosure is ordered if the document qualifies as a ‘standard disclosure’ document, and is necessary to dispose of the case fairly or reduce costs (these are usually documents the opponent no longer ‘controls’).
What is standard disclosure?
Standard Disclosure: Standard disclosure requires parties to provide a list of ‘Rule 31.6 documents’. The list must state that the document exists, and whether the party has control of it. The extent to which it is described on the list will differ (below).
(1) Document: Documents are any recorded information (i.e. documents, videos, e-mails etc).
(2) Rule 31.6 Document: Rule 31.6 documents are documents that either: a) the party relies upon; b) adversely affects the party’s case; c) supports another party’s case; or d) adversely affects another party’s case (CPR 31.6).
(3) Relevant Document: Documents must be ‘relevant’, meaning they act as evidence of a disputed issue.
>I.e. proof of payment is unlikely to be disputed, so need not be disclosed. However, a settlement offer is likely to be relevant to a disputed issue, so is disclosed.
(4) Controlled Document: Documents must be or have been in the party’s control, meaning they physically possess the document, previously physically possess the document, or have the right to possess or inspect the document.
What is bespoke disclosure?
Bespoke Disclosure: Complex multi track claims may involve bespoke disclosure orders. The process is as such:
(1) Disclosure Report: Parties file disclosure requirements no later than 14 days before the first CMC.
(2) Disclosure Agreement: Parties agree and file an agreed disclosure order, which must comply with the overriding objective, no later than 7 days before the first CMC (if possible).
(3) Bespoke Order: The court will approve the agreement or order as it sees fit. Courts tend to adopt a midground, meaning disclosure of documents reasonably relevant to the case.
>Ranges from ‘no disclosure’, to standard disclosure, to ‘keys to the warehouse’ disclosure.
What is the duty to search?
Duty to Search: Parties have a duty to search for and disclose documents compliant with their disclosure order.
(1) Definition: Parties must make reasonable and proportionate searches.
(2) In Practice: This will vary from case-to-case, depending on factors such as the number and significance of documents, the complexity of the case, the costs of search, and the ease of locating them.
How is the extent of the search limited?
Justifying Limitations: Parties can limit the extent of their search provided they have ‘justification’. Examples include limiting searches by time period, location, subject matter, storage device, and keywords.
(1) Justification: The limitation must not impede proper investigation into the merits of the case.
(2) Disclosure: Limitations must be disclosed and justified on Form N265.
What are the disclosure rules for electronic documents?
Electronic Documents: Electronic documents benefit from special rules due to their volume. This includes readily accessible electronic documents, as well as those that have been deleted or are stored on back-up servers.
(1) Search Technology: Parties can use search technology to facilitate searches.
(2) Agreement: Parties must discuss and attempt to agree the extent of electronic document search, the means of disclosure and the process of inspection. This should be done on an Electronic Disclosure Questionnaire (pre-order).
How is disclosure made?
Disclosure Form: Disclosure is made on Form N265 before the court deadline. Parties have a continuing duty to update the list as documents emerge. Court permission is required to rely on any new documents if the opponent does not consent.
What is the disclosure statement?
Disclosure Statement: Form N265 begins with a disclosure statement. This includes:
(1) Confirmation of Compliance: Parties sign, confirming the extent of their search and compliance with their duty to search. Must be signed by the party, not the solicitor.
(2) Refused Inspection: Parties state the documents to which they refuse inspection on any non-privileged grounds (i.e. expense). This requires disclosure to be disproportionate to the probative value of the given document.
What is the list of documents on the last page of the disclosure report?
List of Documents
List of Documents: On the last page, documents are disclosed. Remember that this is simply a list of document names and references, it is not a bundle of the documents themselves.
(1) Part 1: Documents in the party’s current control, to which inspection is not objected. They are numbered and listed by date, with precise descriptions for each item.
(2) Part 2: Documents to which the party refuses inspection. These are grouped and described generically, alongside the reason for refusal.
(3) Part 3: Documents out of the party’s current control, a description, and the reason for being out of control. This is typical of lost documents (even if copies of said documents are provided in Part 1).
What happens if a party knowingly serves a false disclosure form?
Contempt of Court: Contempt of court proceedings can be brought against a party who serves a knowingly false disclosure form.
What are the consequences of non-disclosure?
A) Court Sanction
Court Sanction: Failure to disclose a relevant document may result in court sanctions.
(1) Inadmissible: A document relied upon by a non-disclosing party may be ruled out at trial.
(2) Strike Out: A party’s case may be struck out for failing to disclose a document adverse to its position.
B) Order for Specific Disclosure
Order for Specific Disclosure: Parties can apply for a court order for specific disclosure. This obliges the opponent to disclose a document that should have been disclosed, but was not. They cannot order disclosure of a non-relevant document.
(1) Informal Disclosure: Parties should first seek disclosure informally.
(2) Court Application: Specific disclosure should be sought as an interim application on Form N244, supported by a witness statement (CPR 31). This outlines the document, reason for disclosure, and justification.
Which documents can a party inspect?
Right of Inspection: Parties have the right to inspect disclosed documents as such:
(1) Part 1: Right to inspect.
(2) Part 2: No right to inspect (if refusal is justified).
(3) Part 3: No means to inspect (subject to third-party disclosure order).
