DR 11 Flashcards
When must disclosure be provided under the standard directions?
Before exchange of witness statements.
What does disclosure mean?
Clearly identify and inform the other side of the existence of a document relevant to the litigation (whether in physical or electronic form)
For how long does the duty to disclose run and when does it terminate?
Continues through the whole case and concludes when the case is over
What does standard disclosure require in fast track and personal injuty multi-track cases?
Standard disclosure requireseach party to identify and inform the other side of the existence of:* Documents on which the party intends to rely* Documents that adversely affect the party’s case* Documents that adversely affect the other party’s case* Documents that support the other party’s case
What is the requirement for relevance in disclosure?
A party need disclose only documents which are relevant to the issues in question
How far does the obligation to disclose go? Does a party need to have possession?
A party’s obligation to disclose extends to any document within the party’s controlThis includes documents no longer in the party’s possession if they have a right to control the document
What three criteria, one of which is enough, will determine if a party has control of a document?
- Physical possession2. Right to take possession, inspect or take copies, or3. Had the document in their possession but no longer
When is the obligation when a document is unavailable or has been destroyed?
Notify the court and other party of its existence, and provide reasons
What are the duties of a solicitor in relation to disclosure obligations?
- Advise clients of their disclosure obligations:* Cease to act for a client who is not prepared to comply* Inform the court and the other party of the existence of a document removed or destroyed and the reason for its distruction
What must a solicitor do if the client makes it clear they will not comply with the disclosure requirements?
Cease to act
Can the court draw an adverse inference when a party fails to provide a relevant document?
Yes
What is standard that the court will expect a search for documents to meet?
The search must be reasonable and proportionate, depending on the nature of the case, its value, and its importance
How is a standard disclosure order amended?
The court can alter the order as it sees fit, including by dispensing with disclosure altogether.
On what tracks is each party requires to file and serve a disclosure list divided in three sections?
Fast track and personal injury in the multi-track
What are the three sections of the disclosure list?
- Documents a party controls that they do not object to the other party inspecting2. Documents a party controls that they do object to the other party inspecting (along with reasons)3. Documents that are no longer in a party’s control (stating when they were last and where they are now)
Who signs the disclosure statement detailing the extent of the search made?
The party, not their solicitor* It must certify that the person signing the statement understands the duty to give disclosure and that they have carried out that duty to the best of their knowledge* They must declare that they believe that the extent of the search made is reasonable and explain why any particular search may not have been carried out
The Directions Order is made when the case is allocated to a track. Under standard directions, within what time limit from that point must the disclosure lists be served?
28 days (inspection to take place within 7 days)
If a party is not content with the disclosure provided by an opponent, (e.g. if logic or common sense would dictate that a document is missing), what can they do?
They can challenge the disclosure. Options are to:* apply for specific disclosure* serve a Notice to Admit Facts, or* apply for an unless order if the opponent continues to disregard their obligations under the CPR* submit A Request for Information to obtain information that appears to be missing
Unless challenged, what does disclosure of a document provide?
An automatic right to inspect itNote, documents may be redacted to blank out irrelevant and confidential information
What are the three grounds for refusing inspect of a disclosed document?
- Privilege2. Document no longer in party’s control3. Disproportionate to allow inspection
If a party with a right to inspect a document wishes to do so, what must they do to the other party, and from that point, within what time limit must the other party make the document available?
Notify them. 7 days.
Instead of a disclosure list, what must be filed in non-personal injury cases on the multi-track, and within what time limit of what event must this be filed?
Disclosure report.At least 14 days before the first Case Management Conference, or otherwise with the Directions Questionnaire.The parties are encouraged to try to agree the scope of disclosure, but otherwise disclosure is similar to that for fast track and personal injury multi track
What are the two criteria for an interim order for specific disclosure, either one of which is sufficient, that the court must be satisfied of to grant one?
Court believes the party has documents that may:1. Contain information that would assist the applicant’s case or damage the respondent’s case2. Lead to a train of enquiry which has either of those consequences
What should a party do before making an application for specific disclosure?
Make a written request for the documents, which should include:* Description of the documents sought and why they are relevant* Why it is reasonable and proportionate for the documents to be disclosed* Grounds for believing they exist and* The safeguards that can be provided (e.g. to protect trade secrets).The application should include evidence in support.
What four things must a case involve before the court will depart from the general rule that pre-action disclosure is only available against persons likely to become a party to the case?
- Freezing injuctions2. Search orders3. Applications for preservation of property4. Requests for further information
Must a document which is privileged still be disclosed?
Yes, but it can be withheld from inspection
What are the four types of privilege and the one immunity which functions like a privilege?
- Legal advice privilege2. Litigation privilege3. Common interest privilege4. Without prejudice privilege5. Public interest immunity
What does legal advice privilege protect?
Communication between a lawyer and a client in which advice is given or requested within a legal context
What does litigation privilege protect?
Communication with third parties (e.g. barristers, experts) relating to preparation of pending or contemplated litigation
If a document has multiple purposes one of which is preparation for litigation, is it still protected by litigation privilege?
Only if the court decides the dominant purpose is to prepare litigation (i.e. not the stated purpose)
Who bears the burden of proving litigation privilege?
The party seeking to assert it
What is common interest privilege?
Common interest privilege occurs when there are multiple defendants or group actions. The parties may send privileged documents to each other and claim these documents are still privileged from inspection by other parties
What is the one requirement of the common interest for common interest privilege to apply?
The common interest must have been present at the time of disclosure between the parties
If the common interest was present at the time of disclosure, does the privilege subsist if there is a subsequent breakdown in the parties’ relationship?
Yes
Who can waive privilege?
The client only
What is public interest immunity?
It protects against disclosure of documents on the basis that disclosure might harm the nation or the administration of justice
If a solicitor accidentally sends a privileged document to the other side, can they use it?
Only with the permission of the court
