DR WK 6

Question 1

Meaning of disclosure

Answer 1

The process of informing the other party about the existence of documents relevant to the case.

Question 2

Meaning of inspection

Answer 2

The process where a party can examine the documents disclosed by the other party.

Question 3

Meaning of Standard Disclosure

Answer 3

The most common type of disclosure, requiring parties to disclose documents they rely on, those that adversely affect their case or another party’s case, and those supporting another party’s case.

Question 4

Meaning of Specific Disclosure

Answer 4

An order requiring a party to disclose specific documents or classes of documents.

Question 5

What is Specific Inspection

Answer 5

An order requiring a party to allow inspection of a specific document they claim is disproportionate to inspect.

Question 6

What is Pre-Action Disclosure

Answer 6

Disclosure of documents before formal legal proceedings begin.

Question 7

What is Non-Party Disclosure

Answer 7

An order compelling a person or entity not involved in the case to disclose documents.

Question 8

What is a Norwich Pharmacal Order

Answer 8

An order compelling a third party to disclose information necessary to identify or sue the correct defendant.

Question 9

What is a document

Answer 9

Broadly defined as anything that records information, including physical and electronic documents, digital records, and metadata.

Question 10

what is Privilege

Answer 10

Legal protection that prevents certain documents from being disclosed or inspected.

Question 11

What is Legal Advice Privilege

Answer 11

Protects confidential communication between a lawyer and client for the purpose of giving or receiving legal advice.

Question 12

Without Prejudice Privilege

Answer 12

Protects documents created as part of genuine settlement negotiations.

Question 13

What is Redaction

Answer 13

Removing parts of a document that are irrelevant or privileged.

Question 14

What is Waiver of Privilege

Answer 14

When a party intentionally or inadvertently discloses the contents of a privileged document, potentially losing the protection of privilege.

Question 15

what is a Disclosure Report

Answer 15

(Form N263); A document filed in multi-track cases detailing relevant documents, estimated costs, and desired disclosure directions.

Question 16

What is a disclosure list

Answer 16

(Form N265) A list used for standard disclosure, categorising documents into those available for inspection, withheld due to privilege, or no longer in control.

Question 17

What is Disclosure Statement

Answer 17

A statement certifying that a reasonable search was conducted and disclosure obligations were fulfilled.

Question 18

What is a Reasonable Search

Answer 18

The duty to conduct a search for disclosable documents, considering factors like the number of documents, complexity of the case, and cost.

Question 19

What are Control of Documents

Answer 19

A party’s disclosure duty is limited to documents within their control, including those in their possession or those they have a right to possess or inspect.

Question 20

What is the Continuing Obligation for Disclosure

Answer 20

The duty to disclose any new relevant documents that come into a party’s control after the initial disclosure.

Question 21

What is the Subsequent Use of Disclosed Documents

Answer 21

Disclosed documents can only be used for the current proceedings unless exceptions apply (e.g., public hearing, court permission, agreement between parties).

Question 22

What are the aims of disclosure and inspection?

Answer 22

To clarify issues in dispute, evaluate the strength of claims, encourage settlement, and ensure all evidence is available for the court to reach a just decision.

Question 23

When does the obligation to give disclosure arise?

Answer 23

There is no automatic obligation; it arises from a court order, typically made at allocation or during a Case Management Conference.

Question 24

What happens in the Small Claims Track regarding disclosure?

Answer 24

Disclosure is handled through directions given on allocation, usually requiring parties to file and serve copies of relied-upon documents 14 days before the hearing.

Question 25

How does disclosure work in the Fast and Intermediate Tracks?

Answer 25

The court gives directions at allocation or a CMC, considering the overriding objective and potentially ordering no disclosure, disclosure of relied-upon documents, issue-by-issue disclosure, standard disclosure, or other appropriate orders.

Question 26

What is the disclosure procedure for Multi-Track cases?

Answer 26

Parties must complete and exchange a disclosure report before the CMC, including details of relevant documents, electronic documents, and cost estimates. The court then decides on the appropriate type of disclosure order.

Question 27

What should be included in a disclosure report?

Answer 27

Details on relevant documents (existence, location, electronic storage), estimated costs for disclosure, and the type of disclosure directions sought.

Question 28

What happens at the Case Management Conference (CMC) regarding disclosure?

Answer 28

The court decides the most appropriate form of disclosure, considering factors such as cost, relevance, and proportionality. It may dispense with a search, order disclosure for specific issues, or order disclosure in stages.

Question 29

How many copies of a document need to be disclosed?

Answer 29

Only one copy, unless other copies have material modifications relevant to the case.

Question 30

Can disclosed documents be used for other proceedings?

Answer 30

No, unless the document is referred to in a public hearing, the court grants permission, or both parties agree to its use.

Question 31

What is the dominant purpose test for legal advice privilege?

Answer 31

The communication must be primarily for the purpose of giving or receiving legal advice.

Question 32

What is the dominant purpose test for litigation privilege?

Answer 32

The communication must be made for the dominant purpose of litigation.

Question 33

Does marking a document “without prejudice” automatically guarantee privilege?

Answer 33

No, the court focuses on the substance of the communication to determine privilege.

Question 34

What are the conditions for granting specific disclosure?

Answer 34

The court considers all circumstances, the overriding objective, and whether the opponent has failed to comply with existing disclosure obligations.

Question 35

When are specific disclosure applications successful?

Answer 35

When standard disclosure was insufficient, additional documents should have been disclosed, or further disclosure is justified (e.g., leading to a “train of inquiry”).

Question 36

When might specific inspection be ordered?

Answer 36

If a party discloses a document but argues that inspection would be disproportionate, though this is rare.

Question 37

Who typically bears the costs of pre-action disclosure?

Answer 37

The applicant, but the court may make different orders, particularly if the respondent failed to comply with pre-action protocols or reasonable requests.

Question 38

What are the criteria for non-party disclosure?

Answer 38

Documents must be likely to support the applicant’s case or adversely affect another party’s case, and disclosure must be necessary for fair disposal or cost savings.

Question 39

When can an application for non-party disclosure be made?

Answer 39

Only after proceedings have started.

Question 40

Who typically bears the costs of non-party disclosure?

Answer 40

The applicant, but the court may order differently if the non-party acted unreasonably.

Question 41

What is the significance of the Norwich Pharmacal case?

Answer 41

It established the principle of Norwich Pharmacal orders, where Customs & Excise were ordered to disclose information enabling a patent holder to sue the correct infringers.

Question 42

When can a Norwich Pharmacal order be sought?

Answer 42

Either before substantive proceedings are issued (using a CPR 8 claim form) or after proceedings begin (through a CPR 23 interim application).

Question 43

What are the conditions for granting a Norwich Pharmacal order?

Answer 43

A wrong must have been committed, disclosure is necessary to bring a claim, the respondent is involved but not necessarily at fault, and the respondent can provide the necessary information.

Question 44

Who usually pays the costs associated with a Norwich Pharmacal order?

Answer 44

The applicant initially pays the respondent’s costs, which may later be recovered from the wrongdoer in subsequent proceedings.

Question 45

How do different tracks of litigation handle disclosure?

Answer 45

Small claims: simple document exchange 14 days before hearing; Fast/intermediate: court decides based on proportionality and case needs; Multi-track: parties file disclosure reports before CMC, court decides on appropriate order.

Question 46

What are the exceptions to the right to inspect disclosed documents?

Answer 46

If the document is no longer in the disclosing party’s control, if inspection would be disproportionate, or if the document is privileged.

Question 47

What are the key principles of disclosure and inspection?

Answer 47

Disclosure reveals document existence, standard disclosure is the most common form, inspection allows viewing disclosed documents, and privilege protects certain documents from inspection.