DR 10 - disclosure Flashcards
What is the standard disclosure direction on allocation to the small claims track?
Each party must file and serve on the other party copies of all documents that they intent to rely on at the hearing at least 14 days before the hearing.
What is the disclosure direction most commonly given on the Fast Track
Standard Disclosure
What is the disclosure process for the Multi Track?
14 days before CMC - Complete a disclosure report 14 days before the first Case Management Conference (CMC)
7 days before CMC - Enter into discussions to seek to agree a draft disclosure order which the parties will then ask the court to make. (Should meet the overriding objective to conduct litigation at proportionate cost and to limit disclosure to that which is necessary to deal with the case justly)
What is included in a disclosure report?
a) what relevant documents exist
b) Where and with whom they are
c) How electronic documents are stored
d) costs of giving standard disclosure
e) State which of the disclosure directions are to be sought.
When does an early version of a document need to be disclosed?
a) Contains a feature which itself satisfies the test for standard disclosure;
OR
b) The party has never had the original or no longer has the original under their control
When does the disclosure obligation cease?
The obligation continues until the proceedings are concluded.
What can you use a disclosed document for? What are the exceptions?
The purpose of the proceedings only.
Except
a) the document has been read or referred to by the court in a public hearing (inc skeleton).
b) the court gives permission
c) the party who owns the doc and the party disclosed the docs agree
Does the court in a multi-track case have to issue a disclosure order?
No, it has discretion
Is there an obligation to file a disclosure report for a personal injury in a multi-track case?
No
What documents are to be disclosed under a standard disclosure order?
The documents on which he relies; and
The documents which:
a) adversely affect his own case;
b) adversely affect another party’s case; or
c) support another party’s case
The documents which he is required to disclose by a relevant practice direction.
What is a document for disclosure purposes?
anything which records information
What does control mean?
Documents which are presently or formerly:
Physical possession
right to possession
right to inspect or take copies
What should the court consider when considering what constitutes a reasonable search?
- number of docs involved
- nature and complexity of proceedings
- how difficult/expense it would be to retrieve a document
- the significance of any document
+overriding objective particularly proportionality
What is included within a disclosure statement?
a) the extent of the search
b) party understands duty to disclose
c) to the best of its knowledge, the party has carried out that duty
- details of documents the inspection of which the party considers disproportionate
- signed by disclosing party
- if company, signed by appropriate officer explaining why they are an appropriate person.
What are the consequences of not disclosing
- party may not rely on document not disclosed unless the court allows
- contempt of court
🗡️
A party has a right to inspect a document that has been disclosed except…
- the document is no longer in the party’s control
- allowing inspection would be disproportionate
- the disclosing party has a right to withhold - e.g. privilege
When is redaction of a document allowed?
- clear part of document that attracts privilege
- information totally irrelevant to the dispute
Can you selectively waive privilege?
No
- a waiver or privilege over part of a document will waive privilege over all of it (unless the remainder is on an entirely different subject)
- a waiver of one doc waives for them all.
Is there an obligation to file a disclosure report for a personal injury in a multi-track case?
No
Who has the burden of proof when it comes to privilege?
The party claiming privilege
Does the court in a multi-track case have to issue a disclosure order?
No, it has discretion
When can a party inspect documents outside of a court order?
If mentioned in:
- statement of case,
- witness statement
- witness summary
- an affidavit
- an expert’s report
What is the procedure for inspection of a document?
- Inspecting party must send a written notice to the other side
- Other side must allow inspection within 7 days of reecipt of the request
What are the types of privilege?
- Legal advice privilege
- Litigation privilege
- Without prejudice communications
What is Legal Advice Privilege?
A document which is a confidential communication between a lawyer and client and was prepared for the dominant purpose of giving or receiving legal advice.
ONLY between solicitor and client.
What is Litigation privilege?
A document which is confidential communication which is passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation what was at the time reasonably in prospect.
- dominant purpose
- reasonably in prospect
What is without prejudice?
A document whose purpose is a genuine attempt to settle a dispute.
What is specific disclosure?
an order that a party must do one or more of;
a) Disclose documents / classes of documents specified in the order
b) Carry out a search to the extent stated in the order
c) Disclose any document located as a result of the search
When can an order for specific disclosure be made?
at any time after proceedings have been issued.
What are the three parts of the inspection form?
Part 1 - disclose and allow inspection
Part 2 - disclose but object to inspection
Part 3 - no longer in control
What is the procedure for a specific disclosure order?
applicant must:
- specify the order sought
- supported by evidence
What is specific inspection?
order to inspect a document where a party refused inspection of a document on the grounds that it would be disproportionate to allow inspection
What is pre-action disclosure
Court allow party to obtain disclosure of documents before proceedings have commenced.
When will the court grant a pre-action disclosure order?
a) the respondent is likely to be party to proceedings; AND
b) the applicant is also likely to be party to those proceedings; AND
c) if proceedings started the documents would be included in a standard disclosure; AND
d) it is desirable for fairness OR assist dispute without proceedings, OR save costs
NOTE: Court still has discretion under the overriding objective
What is the procedure for pre-action disclosure
applicant must:
- specify the order sought
- be supported by evidence
Who pays for a pre-action disclosure?
generally the applicant, but could be the respondent if it has been unreasonable.
When can the court make an order for disclosure to a person who is not party to the dispute?
Where:
a) the documents are likely to support the applicants case ✅
b) disclosure is necessary for fairness or to save costs ⚖️💰
NOTE: Court has discretion and will consider the overriding objective.
What is the procedure for a non-party disclosure?
applicant must:
- specify the order sought, including listing the documents sought
- be supported by evidence
- require the respondent to specify docs no longer under his control or which he has a right to withhold from inspection.
The application notice must be served on the non-party and any other party to the proceedings.
Who pays the costs form a non-party disclosure application?
the applicant
What is a Norwich Pharmacal order?
Used where identity of defendant is unknown
Orders the respondent WHO IS NOT the defendant, to disclose information allowing the claimant to sue the right defendant.
What is required before a Norwich Parmacal Order can be started?
The applicant must start a claim against ‘persons unknown’.
When will a court grant a Norwich Parmacal Order?
- a wrong has been carried out💥; AND
- there is a need for the order to enable action against the wrongdoer🥸; AND
- the person against whom the order is brought is:
i) more than a mere witness/bystander (need involvement but not fault)👯♂️
ii) be able to provide the info needed, - When necessary and proportionate ⚖️,
Who will pay for a Norwich Parmacal Order?
Usually, the applicant but these may be recovered from the wrongdoer in subsequent proceedings.
What will a court consider when thinking about whether to grant a specific disclosure order?
a) all the circumstances of the case
b) the overriding objective
c) if there has been a failure to disclose (not necessary for order to be made)
