DR - disclosure and inspection Flashcards
what are the types of disclosure that will be ordered depending on which track the case is allocated to?
1) small: parties file and serve their own documents and expert reports 14 days before trial. they are not obliged to disclose documents adverse to their position or in support of another.
2) fast track: standard disclosure
3) multi track: standard disclosure but can make bespoke orders on a case by case basis.
what is pre action disclosure?
Pre-Action: Parties are encouraged to share information under the pre-action protocols, but are not required to share documents adverse to their own claim unless ordered by the court (CPR 31).
(1) Application: Parties can apply for pre-action disclosure of relevant documents. Applications must justify their reasoning in an attached witness statement. Informal disclosure should be sought first.
(2) Order: Courts must consider the likelihood of the claim being formally issued, whether requested documents would fall under a standard direction order, and whether the order complies with the overriding objective.
what is third party disclosure?
parties can apply for third party disclosure
1) application as justified on an attached witness statement - informal disclosure should be sought first
2) disclosure is ordered if the document qualifies as standard disclosure document and is necessary to dispose of the case farly or reduce costs - usually documents no longer within the opponents control
what is standard disclosure?CPR 31
- documents are either ) the party relies upon or adversely affects the party’s case o supports another party case
- document must be relevant 0 meaning they act as evidence of a disputed issue
and must be or have been within the party control
bespoke disclosure
Bespoke Disclosure: Complex multi track claims may involve bespoke disclosure orders. The process is as such:
(1) Disclosure Report: Parties file disclosure requirements no later than 14 days before the first CMC.
(2) Disclosure Agreement: Parties agree and file an agreed disclosure order, which must comply with the overriding objective, no later than 7 days before the first CMC (if possible).
(3) Bespoke Order: The court will approve the agreement or order as it sees fit. Courts tend to adopt a midground, meaning disclosure of documents reasonably relevant to the case.
>Ranges from ‘no disclosure’, to standard disclosure, to ‘keys to the warehouse’ disclosure.
duty to search
- reasonable and proportionate searches - depending on the number and significance of documents, complexity of the case, costs of the search, and the ease of locating them
how is extent of the duty to search limited?
parties can limit the extent of their search to disclose provided they have justification e.g. time period, location, subject matter, key words.
1) justification - the limitation must not impede proper investigation into the merits of the case
2) disclosure limitations must be disclosed and justified on form n265.
how is disclosure made and what is the continuing obligation of duty of disclosure?
Disclosure Form: Disclosure is made on Form N265 before the court deadline.
Parties have a continuing duty to update the list as documents emerge. Court permission is required to rely on any new documents if the opponent does not consent.
what Is a disclosure statement?
form N265 begins with a disclosure statement
1) confirmation of compliance - signed by the party not the solicitor
2) refused inspection - parties state the documents to which they refuse inspection on any non privileged grounds i.e expense. this requires disclosure to be disproportionate to the probative value of the given document.
consequence of non disclosure
a) court sanction
b) in admissible: a document relied upon by a non disclosing party may be ruled out at trial
c) strike out
d) order for specific disclosure: via application to the court. this obliges the opponent to disclose a document that should have been disclosed.
specific disclosure should be sought as an interim application on form N244 supported by a witness statement - outlines the document, reason for the disclosure and justification for asking for an order of specific disclosure.
procedure for inspection?
Inspection Procedure: Inspection allows parties to plan their case and instruct witnesses and experts accordingly. The procedure is as such:
(1) Written Request: Parties request inspection in writing to the opponent.
(2) Permission: Opponent must grant permission within 7 days, subject to any agreed extension.
(3) Inspection: Parties generally inspect copies of disclosed documents, provided printing costs are reasonable. Electronic documents are generally provided on a storage device.
what are privileged documents?
parties can withhold inspection of documents that attract priviledge
1) legal professional privilege
legal professional privilege
1) legal advice privilege: correspondence between a legal representative and client, the dominant purpose of seeking or giving legal advice
2) litigation privilege - correspondence between a client or legal representative and a third party produced during the contemplation or during litigation with the dominant
documents must be prepared for the purpose of litigation.
how is privilege waived / disputed?
1) waiving - expressly or implied permitting inspection - clients impliedly waive if they purposely serve privileged documents on the other party or mention privileged matters during cross examination at trial
2) disputed - parties can challenge and request inspection
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how does the court oversee the evidence procedure
evidence - parties rely on evidence to prove or counter any issues in dispute and there are strict rules surrounding it
1) directions - court will issue directions on evidence regarding a) issues requiring evidence (disputed) b) type of evidence required c) number of witnesses and experts permitted d) way evidence can be presented to the court e.g. witness statements or oral evidence
2) overriding objective
- burden of proof
- standard of proof
by default the claimant has the burden to prove all facts not admitted by the defendant
1) defendant burden - have the burden to prove any counter allegations e.g. contributory negligence, failure to mitigate, counter claims
2) exception: if the defendant is criminally convicted of a corresponding civil action then they have the burden of proof that they were not responsible.
BALANCE OF PROBABILITIES (BETTER THAN 50/50).
what comprises of witness evidence
1) witness statement
2) witness summary -
3) witness affidavit, freezing order/injunctions
what are the rules on witness evidence?
Rules of Witness Evidence: Witness evidence must contain relevant facts and comply with the rules against hearsay.
(1) Relevant: Evidence must relate to an issue in dispute between the parties.
(2) Factual: Evidence must contain fact, not opinion. However, a witness may present an honest and wide opinion from facts personally perceived.
> I.e. Witness can say they saw Defendant ‘driving fast’, but they cannot say they saw Defendant ‘driving too fast’.
Witnesses cannot draw conclusions, i.e. ‘I know he was at fault because I’ve seen it happen before’.
(3) Hearsay: Special rules apply to hearsay evidence, in addition to the aforementioned requirements (below).
>Rules do not apply to small claims track
hearsay evidence
Hearsay Evidence: Hearsay evidence refers to: a) a statement made out of court; b) repeated in court; c) to prove the truth of the matter stated (s1(2) CEA 1995).
(1) First-Hand: Statement was relayed directly to witness.
>I.e. ‘Brian told me Bill was drinking’.
(2) Multiple: Statement was relayed through more than one person before reaching witness.
>I.e. ‘Brian told me that Bob told him that Bill was drinking’.
how is hearsay evidence admissible?
Admissibility: Hearsay is inherently more prone to fabrication and inaccuracy. It must therefore be both relevant factual evidence, and comply with hearsay notice requirements (CPR 33).
(1) No Notice: No notice is required if the statement containing hearsay is confirmed by the witness in oral evidence at trial. The witness statement itself constitutes notice (and the opposition can cross-examine).
(2) Notice: Notice is required if hearsay is being given and the factual witness will not attend trial (s2 CEA; CPR 33). This is served in addition to the witness statement (as the opposition cannot cross-examine).
Contents: a) Identify evidence; b) state reliance at trial; and c) give reasons for non-attendance.
Effect: Non-service of notice does not render the hearsay inadmissible, but may incur costs sanctions and be viewed more sceptically.
Considerations: Courts consider written-only hearsay more critically, with regard to: a) its relevance; b) its importance; c) other available evidence; and d) its probative value relative to other available evidence.
Safeguards: Judges must consider statutory safeguards when weighing the evidence: a) could the statement-maker have been called; b) was the statement made at the time of action or later; c) is it multiple; d) is there evidence of misrepresentation; e) is there evidence of late submission/unfairness (s4).
contents of a witness statement
witness statements contain nd must comply with various content requirements to be admissible
1) heading - title of proceedings, witness name, statement, reference and date I will state as follows
2) opening - witness address, ad occupation, whether statement wa made in the course of employment and if so the name and relevance of the employer to proceedings and authorisation
3) evidence - first person in their own words and language + state how the statement was prepared.
statement of truth - and signed by the witness only
when is expert evidence reliable?
alongside requiring permission of the court 0 only admissible expert evidence can be used at trial & there are FOUR requirements:
- assistance - must be necessary to resolve;ve a relevant issue in dispute
- qualification - have relevant knowledge or experience in the given field
- reliability - the knowledge or experience must derive from a reliable body
- impartiality - act for the court not the party.
what duties does an expert witness have?
- duty to the court
- duty to the party - exercise reasonable care and skill when producing evidence and can be sued in negligence for a poor quality report.
