DR 10 - Disclosure and Inspection Flashcards
Where does the obligation to give disclosure come from?
It comes from a court order.
Is there an automatic obligation to disclose documents?
No, disclosure only happens when the court orders it.
When does the court usually order disclosure?
At allocation, during a case management conference (CMC), later in proceedings.
What is the disclosure requirement for the Small Claims Track?
File and serve documents 14 days before the final hearing.
What is the disclosure requirement for the Fast Track?
Usually standard disclosure.
What must parties do for the Multi-Track disclosure?
Party must:
(1) File a disclosure report 14 days before CMC and (2) discuss/disclose 7 days before CMC.
Does the duty of disclosure end once documents are provided?
No, the duty continues until proceedings are concluded.
Can disclosed documents be used in other cases?
No, unless the court reads or refers to them, grants permission, or the disclosing party agrees.
What is standard disclosure?
A party must disclose:
1. Documents they rely on
2. Documents that hurt their own case
3. Documents that help another party’s case
4. Documents required by practice directions
What counts as a document?
Anything that records information, including emails, photos, texts, voicemails, metadata, digital files, and recordings.
What does ‘control’ of a document mean?
A document is within a party’s control if:
* they physically have it,
* they have a right to possess it, or
* they can inspect/copy it.
Do parties need to search for all possible documents?
No, only a reasonable search considering:
* number of documents,
* cost and effort,
* case complexity, and
* document importance.
How is standard disclosure done?
- Each party prepares a list of documents
- Sent to the other party
- Documents are categorised:
1. Available for inspection
2. Not available for inspection (e.g., privileged)
3. No longer under control
When can a party inspect disclosed documents?
Unless the document is no longer under control, inspection is disproportionate, or the document is privileged.
Can sensitive parts of a document be redacted?
Only if:
- The redacted part is privileged
- The information is irrelevant
Can a party choose to disclose a privileged document?
Yes, but this may waive privilege over the entire document or other related documents.
Can a party inspect documents mentioned in pleadings?
Yes, but privilege still applies unless waived.
What does legal advice privilege cover?
- Confidential lawyer-client communications
- Given for legal advice
- Covers emails, letters, and meetings
Does privilege apply to in-house lawyers?
Yes, but only if acting in a legal capacity.
What does litigation privilege cover?
- Communications between lawyer, client, or third parties
- Dominant purpose: Preparing for litigation
- Litigation must be reasonably in prospect, not just a possibility
What is without prejudice privilege?
Communications made to settle a dispute.
Does a document need to be marked ‘without prejudice’ to be protected?
No, as long as it was made to settle the case.
What does ‘without prejudice save as to costs’ mean?
The document can be used to decide costs, but not liability.
What is an order for specific disclosure?
A court order requiring a party to:
* disclose specific documents,
* search for specified documents, and
* reveal any documents found.
Can a party get disclosure before a claim is filed?
Yes, if:
- Both parties are likely to be in litigation
- The documents would be disclosable if the claim had started
- It would help settle the dispute or save costs
Can a non-party be ordered to disclose documents?
Yes, if the documents affect the case and disclosure is necessary for fairness.
Who pays the costs of non-party disclosure?
Normally, the applicant pays the costs.
What is a Norwich Pharmacal Order?
A court order forcing a non-party to disclose information when:
- A wrong has been committed
- The applicant needs disclosure to take legal action
- The non-party is not a mere bystander
What is the key feature of standard disclosure?
Disclose only relevant documents.
What is the key feature of inspection?
Party can inspect disclosed documents unless privileged or disproportionate.
What is the key feature of legal advice privilege?
Lawyer-client confidential advice.
What is the key feature of litigation privilege?
Communications to obtain evidence for litigation.
What is the key feature of without prejudice?
Settlement discussions protected.
What is the key feature of specific disclosure?
Court order for specific documents.
What is the key feature of a Norwich Pharmacal Order?
Forces a non-party to reveal a wrongdoer’s identity.
