Evidence needed and disclosure steps required in commencing, responding to, progressing or defending a claim Flashcards
Inspection meaning
[the party to whom a document has been disclosed] looking at a document. Under
CPR 31.15, where a party has a right to inspect a document, they also have a right to request
a copy of that document, and this is commonly also referred to as inspection.
Disclosure meaning
Stating [to another party] that a document exists or has existed (CPR 31.2)
Purposes of disclosure and inspection
- To help clarify the issues which are in dispute
- To enable parties to evaluate the strength of the claim against them
- To encourage settlement
- To ensure the court has all the facts and evidence before it in order to deal justly and appropriately with the case
Where does the obligation to give disclosure come from?
There is no automatic obligation to give disclosure of anything. The obligation comes from a court order.
The order for disclosure is usually given on allocation or at a case management conference.
A party can also apply for an order for disclosure at a later stage in the proceedings, although this is less common.
Small claims track disclosure:
Directions given on allocation. The usual order is that at least 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing (CPR 27.4(1) and (3))
Fast track disclosure
The court will usually give directions on allocation. Usually direction is for each party to give ‘standard disclosure’. This is a common form of disclosure.
It is explained in its own section, but broadly involves a search for relevant documents and also an obligation to disclose documents which are adverse to the disclosing party’s case (CPR 31.6).
It is therefore a costly and time consuming form of order.
Multi track disclosure
the parties must:
(a) complete a disclosure report to be filed and served not less than 14 days before the first case management conference (CPR 31.5(3)).
(b) not less than seven days before the first case management conference, consider the issues in the case and enter into discussions to seek to agree a draft disclosure order which they will then ask the court to make.
The proposal should meet the overriding objective to conduct litigation at proportionate cost and to limit disclosure to that which is necessary to deal with the case justly (CPR 31.5(5)).
At the CMC (in any case), the court will consider carefully what form of disclosure order is most
appropriate.
What is a disclosure report?
briefly explains:
(a) what relevant documents exist, or may exist;
(b) Where, and with whom, they are;
(c) How any electronic documents are stored;
(d) Estimate the broad range of costs that could be involved in giving standard disclosure in the case;
(e) States which of the disclosure directions (several alternatives to standard disclosure are
offered) are to be sought (CPR 31.5(7) and (8)).
What happens at the CMC?
At the CMC, the court uses the disclosure report and any other information available to consider if standard disclosure is too expensive and to consider what disclosure order to make.
The court might dispense with the need to carry out a search for documents, or require disclosure in relation to only some of the issues, or require disclosure in stages, for example.
The court can make any order in relation to disclosure that it thinks is appropriate.
What is standard disclosure?
‘Standard disclosure’ is a particular form of disclosure which the court can order, and it is the most common type of disclosure to be ordered.
CPR 31.6: Standard disclosure requires a party to disclose only–
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.
Meaning of document in standard disclosure
include:
(a) Digital recordings
(b) Emails
(c) Photographs
(d) Text messages
(e) Voicemails
(f) Metadata (data about data eg the time of creation or modification of a file, or its author)
Electronic documents could be stored on personal devices, desktop computers, servers, portable storage and many other locations. In many cases, the majority of documents are electronic documents.
Meaning of ‘in party’s control’ in standard disclosure
It means:
(a) The document is (or was) in the physical possession of the party; or
(b) The party has (or has had) a right to possession of the document (eg documents held by party’s agent, such as documents a party sent to its own accountant); or
(c) The party has (or has had) a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records).
Disclosure list
Standard disclosure is performed by each party making a list of the required documents and serving it on the other party (CPR 31.10). The normal direction is for lists to be exchanged simultaneously.
The list falls into three parts:
(a) ’I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.’
(b) ’I have control of the documents numbered and listed here, but I object to you inspecting
them [due to privilege].’
(c) ’I have had the documents numbered and listed below, but they are no longer in my control.’
What is the disclosure statement?
Every list of documents must include a disclosure statement in the prescribed form (31A PD 4).
This:
(a) sets out the extent of the search made (ie that the search was reasonable and proportionate and also what was not searched for - eg documents predating a certain date);
(b) certifies the party understands its duty to disclose the documents; and
(c) certifies that, to the best of the party’s knowledge, it has carried out that duty.
