DR 4 - Disclosure Flashcards

1
Q

What is disclosure of documents?

A

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.

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2
Q

What are ‘documents’?

A

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.

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3
Q

What are the disclosure requirements on the fast and intermediate track?

A

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

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4
Q

What is the disclosure on the small-claims track?

A

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.

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5
Q

What is the disclosure on a multi-track?

A

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

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6
Q

What is ‘standard disclosure’?

A

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.

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7
Q

What does the duty to disclosure is ‘limited to documents in the party’s control’ CPR r31.8?

A

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.

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8
Q

What if a person no longer has physical possession of the document?

A

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.

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9
Q

What kind of documents are considered to be ‘in physical possession’ ‘right to possess’ and ‘right to inspect’

A

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

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10
Q

What is the ‘duty to search’?

A

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.

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11
Q

How can a party limit the extent of their search?

A
  • 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.

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12
Q

Will the court accept limitations to disclosure?

A

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.

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13
Q

What is ‘electronic disclosure’?

A

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.

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14
Q

How is standard disclosure made?

A

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.

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15
Q

What is litigation privilege and how is the 3 part test assessed?

A

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.

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16
Q

What is legal advice privilege?

A

This protects confidential communications between a legal representative and their client.

BUT NOT communications with third parties (such as between legal representative and instructed expert). This is widely applied and does not need to be in relation to litigation that is either commenced or is being contemplated. In order to benefit from this privilege, the dominant purpose of the communication must be the seeking and receiving of legal advice.

General advice - e.g. about the litigation process will not be privileged, but a letter specifically advising a client on the merits of their claim certainly would be.

17
Q

What is ‘without prejudice privilege’?

A

This applies to documents that are typically written in the course of negotiations to settle with another party. Without prejudice communications are used generally where a party is seeking to make an offer during the course of litigation proceedings that it does not want to be seen by the court.

The communication is marked ‘without prejudice’ although this is not a requirement - to establish whether the document benefits from without prejudice privilege the substance of it must be looked at.

Is it a genuine offer to settle on sensible terms by a party open to settlement? if so, document is likely to be protected by without prejudice privilege whether it is marked ‘without prejudice’ or not.

18
Q

What is ‘waiving privilege’?

A

Privilege is the right of the client and not their lawyer.

The client may give up, or waive that privilege. A waiver will often occur during litigation because it is the only way to advance the proceedings. For example, where a party’s solicitors are drafting documents of a case and witness statements, they are privileged from inspection, but once these are served on the other side, the privilege is waived. It can be intentional or by mistake.

19
Q

How can privilege be waived by mistake?

A

Example:
A barrister is instructed to advise a claimant on the evidence in a claim. In error, the barrister’s chambers send the letter with the enclosed advice to the solicitors acting for the defendant. The solicitor reads the letter and immediately appreciates that, although it concerns their client’s case, it was meant for the claimant’s solicitors.

What is the solution here?

Option 1 - read the advice.
Applying the SRA Code, principle 7 would suggest continuing to read the letter and the enclosure as it is in the defendant’s best interests to know what advice the claimant is receiving about the evidence in the case.

Option 2- do not read the advice.
Principles 1, 2 and 5 suggest otherwise as reading the advice would not uphold the
proper administration of justice, nor uphold public trust and confidence in the solicitors’ profession and would lack integrity.

Action is required: solicitor should return the advice pointing out the error and confirming they have not read it. However, they should not inform their client - the defendant. SRA Code 6.4(d) provides that general duty to make a client aware of all the relevant information does not apply if that information is contained in a privileged document that has been mistakenly disclosed.

20
Q

What is without prejudice correspondence and what is it’s significance in terms of standard disclosure?

A

Without prejudice correspondence will record information as part of a party’s genuine attempt to settle a case.
- Correspondence will probably satisfy the definition of standard disclosure as it is likely to set out the strengths of a party’s case and may contain concessions that are adverse to their case and support the opponent.
- Remember that it is irrelevant to standard disclosure that the recipient of a document has already seen it.

The point of marking correspondence without prejudice is so the trial judge is unaware of the content whereas, in contrast, the disclosure process is just between the parties. So the purposes for standard disclosure should these types of documents should be disclosed and no privilege from inspection claimed.

21
Q

What is the right of inspection?

A

Having received the opponents list, the party is entitled to inspect documents contained in Part 1.

They cannot inspect documents in Part 2 because they are covered by legal professional privilege and those in Part 3 are no longer in the party’s control.

The request to inspect must be made in writing and granted within 7 days, although a longer period is often agreed between the parties. Rather than going to inspect the documents personally, a party may ask for copies of the documents if they agree to pay reasonable copying costs. Large numbers of copies of electronic documents are often provided on an external hard drive, otherwise USB memory keys or DVDs are commonly used.

22
Q

What is an order for disclosure?

A

To ensure that disclosure is complied with properly, the CPR provide mechanisms to assist a party who is dissatisfied with their opponent’s efforts.

However, before applying to the court the party should write to the other side first as this may lead to a quicker and cheaper resolution of the issue.

If this fails - Form N244 must be filed at court, accompanied by a witness statement, and served on the opponent

23
Q

What is specific disclosure?

A

This is where a party may need to ask the court to intervene on a specific matter regarding disclosure.

This is because they feel that the opposing party has not searched as extensively as their duty requires. If this is the case, the party who is dissatisfied should first write to the other party setting out their reasons for believing that the search has not been carried out as thoroughly as required, and including what they would like to be done to rectify matters.

Alternatively, they could request an order that the party:
1) Carry out a more extensive search
2) Disclose any further documents located as a result of that search
3) Disclose specific documents that the party would have expected to see.

In a form N244 should be filed, the application will require a witness in support, this should explain why the applicant believes the document exists, perhaps the other party has seen it previously and justify the application. It may be that the document is vital to establish an issue such as liability or the information contained will enable the party to pursue a line of enquiry into the disputed facts.

24
Q

What order can a court order for specific disclosure?

A

The court can grant an order for specific disclosure, they will require the party against whom the order is made to:

1) Disclose specific documents or classes of documents covered in the order (this would be where the party who has applied has identified that a particular document or documents exist that fall within the extent of the disclosure required and wish the court to specifically order the other party to disclose those documents)

2) Carry out an additional search
3) Disclose any documents located as a result of the search

If a party has an order for specific disclosure made against them, they must comply with the relevant timescale in that order.

25
Q

Can you dispute privilege?

A

Yes. Application can be made to the court under CPR R31.19 to challenge a claim for privilege.

The court may require the party claiming privilege to produce the document, invite any person (whether or not a party) to make representations and will determine whether it has been correctly categorised.

If not, the court will order that the document be revealed to the opponent.

However, the effectiveness of this option is limited by the broad nature of the claim for
privilege and the general description in Part 2 of the list of documents, which makes it difficult for a party to evaluate whether privilege is being correctly claimed or not.

26
Q

What is pre-action disclosure?

A

Practice Direction on Pre-Action Conduct and Protocols requires parties to share information but prior to a claim being commenced there is no fixed duty on either party to disclose documents on the standard basis or otherwise.

This can lead to parties picking and choosing on which documents to disclose which benefit their own claim.

Where a party feels that their opponent is deliberately withholding a document that could have material impact on the chances of the matter being settled by negotiation, or whether a party is unsure as to the strength of their case, so they can then make an informed decision as to whether to issue proceedings against the intended defendant

The party must complete a N244 form. The application must be supported by a witness statement and the court must be satisfied that:

  • both the applicant and the respondent are likely to be a party to subsequent
    proceedings;
    *the documents sought would come within standard disclosure;
    *disclosure is desirable to dispose fairly of the anticipated proceedings, assist the dispute
    being resolved without proceedings or save costs.
27
Q

What is an application for non-party disclosure?

A

Where proceedings have been issued, disclosure has taken place, and a party has said that they are no longer in possession of the relevant document, but they know that somebody who is not a party to proceedings is in possession of it.

An application for non-party disclosure can then be made using a N244 form and an accompanying witness statement that explains
1) The documents are likely to support the case of the applicant or adversely affect the case of one of the other parties to proceedings
2) Disclosure is necessary in order to dispose fairly of the claim or to save costs.

28
Q

Can a party not permit inspection of a category or class of documents because they consider it would be disproportionate to the issues of the case?

A

Yes they can. However they must explain their reasons on the disclosure statement, e.g. difficulty or expense such a search would entail or the documents’ marginal relevance.

Duty of disclosure - regarded so seriously that proceedings for contempt of court may be brought against anyone who makes a false disclosure statement without an honest belief in its truth.
- Continuing duty so that if, after signing the statement and at any time before such proceedings are concluded, the party becomes aware of additional documents, they must prepare and serve a supplemental list of documents.

If they wish to rely upon a ‘new document’ at trial, and the opponent does not agree - they will have to obtain the court’s permission.

29
Q

Can you withhold the inspection of documents?

A

CPR 31 sets out that a party to whom a document has been disclosed as a right to inspect it.

Exception: if the document is privileged.

This must still be disclosed.