DR VII Disclosure

Question 1

Meaning of disclosure in law

Answer 1

disclosure precedes exchange of witness statement and experts’ reports. Disclosure means to clearly identify and inform the other side of the existence of a document.

Question 2

Meaning of inspection in law

Answer 2

Inspection is the term given to the separate but related process which enables the other side to view certain of the documents disclosed.

Question 3

Meaning of the standard disclosure

Answer 3

In fast track and PI multi-track cases, the court will make an order for standard disclosure

each party must disclose any documents that
affect their case adversely
affect the other party’s case adversely; or
support the other party’s case

Question 4

What if the client is uncooperative with disclosing documents

What if a document ought to be disclosed is destroyed or removed.

Answer 4

solicitors owe a duty to court. They must cease to act if the client is not prepared to comply with disclosure standard.

if a relevant document is destroyed, the representatitve must inform the court and the other party of its existence and reason for its destruction. Court is entitled to draw an adverse inference from failure to preserve a relevant document.

Question 5

How to determine if a party have control

Answer 5

A party has control of a document if

Have physical possession
right to possession, a right to inspect, or a right to take copies
had the posession but no longer have it

Question 6

Disclosure list must contain information about

control, out of control, not giving control

Answer 6

A list of documents in its control ready to be inspected

that they object to the other side inspecting

that they no longer in its control with statements about where they were last in their control and where they ar enow

Question 7

Time limits for disclosure

Answer 7

28 days from standard directions. directions order is made when the case is allocated to its track. order will need inspection to take place within 7 days

Question 8

Discuss public interest immunity

Answer 8

Where it is in the public interest for a party not to disclose documents because they contain sensitive political or state information.

Question 9

If a party wants to inspect:

Answer 9

they must give notice to the other party. inpsection must take place within seven days.

Question 10

Meaning of redaction of document

Answer 10

Document may be redacted to blank out irrelevant and confidenial information, like commericially sensitive information.

Question 11

Time limits for disclosure for a non PI multi-track claim

Answer 11

each party needs to file at least 14 days before the first Case Managment Conference or otherwise with the DQ.

Question 12

5 types of privileges

Answer 12

Privileges entitles a party to withhold evidence from production. Privileged infomation still must be disclosed

Legal advice privilege;
Litigation privilege;
Common interest privilege;
Without prejudice privilege;
Public interest immunity.

Question 13

Define Legal advice privilege

Answer 13

It protects compulsory disclosure of all types of communication between a client and their lawyer.

Question 14

Define litigation privilege

Answer 14

Litigation privilege relates to communcations with third parties relating to preparation of pending of contemplated litigation, There must be a real likelihood of litigation; a mere possibility is insufficient.

Question 15

Discuss bar for litigation privilege and rule on relying on evidence protected by litigation privilege.

Answer 15

The privileged information must be dominantly used for preparation for litigation.

The bar for claiming litigation privilege is high. The burden of proof rests with the party seeking to assert privilege.

once used in the trial, the protection will be lost and it must be exchanged with the other side.

Question 16

Define common interest privilege

Answer 16

Common interest privilege may apply when there are mutiple defendants or group actions. the parties may send documents to each other and claim these docments are privileged from inspection because the documents have a common interest - they are parties in the same action with common objective.

Question 17

Discuss mistaken disclosure

Answer 17

IF a party inadvertently and mistakenly allows a privileged document to be inspected, the party who has inspected it may use it only with the permission of the court.