DR 4 - Disclosure Flashcards
What is disclosure of documents?
Disclosure is defined in Part 31 as
‘a party discloses a document by stating that it exists or has existed’.
This is done by preparing and serving a list of documents on all the other parties.
What are ‘documents’?
A document is anything in which information of any description is recorded.
Note: This is deliberately defined very widely and could include an email, a USB stick, a photograph, a video or any information held on the hard drive.
What are the disclosure requirements on the fast and intermediate track?
Fast and intermediate tracks
- Disclosure will be limited to what is necessary to deal with the case justly and at proportionate cost.
- Standard disclosure is an option, but the court may direct a more limited approach such as that no disclosure takes place, or specify the documents or classes of documents which the parties must disclosure.
Intermediate track the court will select one the following orders:
- To dispense with disclosure
- Disclosure of documents on which a party relies and at the same time, a request for any specific disclosure it requires from any other party
- Disclosure on an issue-by-issue basis
- Disclosure of documents which it is reasonable to suppose may contain information which enables a party to advance its own case or to damage that of another party or which leads to an enquiry which has these consequences
- Standard disclosure
- any other disclosure order considered appropriate
What is the disclosure on the small-claims track?
The standard direction is that each party shall, at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents (including any expert report) on which the court has discretion to depart from this approach, if they see fit or necessary.
What is the disclosure on a multi-track?
The court is most likely to depart from disclosure on the standard basis if the claim is allocated to the multi-track. This is because claims tend to be higher-value and more complex, therefore the volume of documents needs to be carefully controlled as to allow the court to only consider those that are relevant to the dispute.
The court can make the following alternative disclosure orders:
- an order dispensing with disclosure
- an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party
- an order which directs that the disclosure is given by each party on an issue-by-issue basis (where the overall litigation is so expansive that the areas in the dispute need to be compartmentalised)
- any other order in relation to disclosure that the court considers appropriate
What is ‘standard disclosure’?
This is the most common type of disclosure and is the default position unless the court orders otherwise.
It is defined in CPR r 31.6 and requires a party to disclosure:
a) The documents on which they rely
b) The documents which
- adversely affect their own case
- adversely affect another’s party’s case or
- support another party’s case.
Essentially documents that may ‘help or hinder’ the party. You are required to provide your opponent with the means to defeat you - however this is a requirement of the CPR and a mutual obligation so they should receive similar disclosure from another party.
Depending on the matter type, and more specifically the track to which a matter is allocated, the court may make an order to disclosure to take place on a different basis to that of standard disclosure.
What does the duty to disclosure is ‘limited to documents in the party’s control’ CPR r31.8?
A party only needs to disclose a document that is in their control. This means if they
a) either are or were in their physical possession
b) they have a right to possess
c) they have a right to inspect.
What if a person no longer has physical possession of the document?
The document will still need to be disclosed in Part 3 but a detailed explanation of how the document was lost must be included in the disclosure form.
What kind of documents are considered to be ‘in physical possession’ ‘right to possess’ and ‘right to inspect’
Physical Possession:
This includes documents, contract, correspondence, original letters (even ones sent to the opponent which were in their previous possession).
Right to possess:
- Those held by third parties, statements that are retained on the solicitors file
- Documents that any accountants have regarding loss of profits
Right to inspect:
- E.g. medical records
What is the ‘duty to search’?
All parties are under a duty to make a reasonable and proportionate search for all documents required under the appropriate basis for disclosure. Including documents that
a) adversely affect their own case
b) adversely affect another party’s case
c) support another party’s case
Documents on which the party intends to rely on as well.
What is reasonable depends on
1) The number of documents involved
2) The nature and complexity of the proceedings
3) The ease and expense of retrieval of any particular document
4) The significance of the document
Therefore, if a document is peripheral to the main issues and would be expensive to locate, it would not be reasonable for the party to be ordered to search for it. In contrast, if the claim is of high value, the search required is likely to be more extensive than for a low value one.
How can a party limit the extent of their search?
- By not searching for documents that came into existence before a particular date
- By specifying a particular place or places they search
- By limiting the categories of documents
Any such limitation will NEED to be JUSTIFIED.
Example:
Gillian has issued proceedings against her former solicitors, Throp & Co, for negligence. Throp & Co limit their search in the following ways:
*By time: they do not search for documents that pre- date 10 May [two years
previously] as this was the date when they were first instructed by Gillian.
*By location: they limit their search to the main office and the branch office that dealt
with Gillian’s case.
*By category: Throp & Co only search for documents that relate to the subject matter
of the client’s current negligence claim.
*By type of electronic storage devices: they search for documents on their office
computers but not mobile devices.
*By keywords: the solicitors search the electronic devices using Gillian’s full name.
Will the court accept limitations to disclosure?
They will be acceptable if the court is satisfied they would not affect a proper investigation into the merits of the case.
Arguments concerning the extent of the disclosure provided by arise after lists of documents have been sent, there might be a request for a further disclosure.
What is ‘electronic disclosure’?
Electronic documents include those which are readily accessible from computer systems and other electronic devices and media.
There are special rules that apply to these documents (due to the volume)
CPR require the parties to
- Manage electronic documents to minimise the costs incurred to disclosure and to use technology to ensure that the search is undertaken efficiently and effectively.
- Keep the work at a sensible level, the parties must discuss and agree such matters as the categories of electronic documents to be disclosed, how data will be exchanged, the format for inspection and any limitations, e.g. what keywords will be used.
This will be done before directions are given for the conduct of the case and the parties may, if they wish use an electronic disclosure questionnaire for this purpose.
At the case management conference, the parties will discuss disclosure and the court will then either give written evidence on how electronic disclosure will proceed or order a separate hearing to deal with this aspect.
How is standard disclosure made?
Once a party has gathered together the documents, they are disclosed by way of a list and this is done by completion of form N265.
Contents of the lists are:
1) Formalities
2) Disclosure statement - a party must sign to confirm the extent of the search made to locate any documents, must also certify that they understand their duty of disclosure and that it has been carried out to the best of their knowledge.
A legal representative CANNOT SIGN THE DISCLOSURE DOC ON BEHALF OF CLIENT.
3) The list
- First part - List of documents that are in the party’s control
- Second part are those documents which are in the party’s control but where there is an objection to inspection, as they are privileged (legal advice privilege or litigation privilege)
- Third part - sets out the documents that are not privileged from inspection but are no longer in the party’s control. This list must state what happened to inspection - e.g. lost, destroyed in a fire.
What is litigation privilege and how is the 3 part test assessed?
The document must be a communication:
1) Passing between the client or lawyer and a third party
2) Which came into existence when litigation was contemplated or ongoing
3) Was produced with a view of litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or for obtaining evidence to be used in litigation.
The document must have been created for the sole or dominant purpose for obtaining information or advice in connection with the litigation itself, which is either existed or was reasonably contemplated at the time the document was created.