SGS 5

Question 1

What is disclosure?

Answer 1

formally stating to the other side that documents or classes of documents exist or have existed, usually in a document known as a list of documents on Form N265

Question 2

What must a party disclose?

Answer 2

Every document of which it has control

Question 3

What is inspection?

Answer 3

Seeing the documents

Question 4

What is a document?

Answer 4

Anything which records information (CPR 31.4)

Question 5

What does control mean?

Answer 5

CPR 31.8

Question 6

What does standard disclosure require?

Answer 6

CPR 31.6

Question 7

What is the basic principle from the Aegis Blaze?

Answer 7

Once privileged, always privileged

Question 8

What is subject to legal advice privilege?

Answer 8

A document which is a confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice

Question 9

Parry v Newsgroup

Answer 9

attendance note between parties not privileged

Question 10

Three Rivers DC

Answer 10

No LPP due to narrow definition of client; presentational advice was covered

Question 11

Balabel v Air India

Answer 11

Wider communications between solicitor and client privileged because of “continuum of communication”

Question 12

Bank of Nova Scotia

Answer 12

if client repeats internally, repetition also has the benefit of LAP

Question 13

What is subject to litigation privilege?

Answer 13

Document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party. Where the dominant purpose of creating the document is to obtain legal advice, evidence or information for the use in the conduct of litigation which was at the time reasonably in prospect

Question 14

Waugh v BRB

Answer 14

Where there are two purposes, litigation must be the dominant one

Question 15

Re Highgrade Traders

Answer 15

Commissioner’s DP not author’s DP

Question 16

USA v Morris

Answer 16

LP only available if party aware of circumstances making litigation between himself and a particular person/class a real likelihood: a general apprehension is sufficient

Question 17

What does without prejudice privilege apply to?

Answer 17

Documents whose purpose is a bona fide attempt to settle a dispute/whose genuine purpose is to attempt to settle a dispute

Question 18

Great Atlantic Insurance v Home Insurance

Answer 18

Generally waiving part of a document means waiving the whole document

Question 19

What can be redacted?

Answer 19

If a document is NOT privileged but contains severable parts that are privileged or irrelevant, those parts can be redacted

Question 20

Which CPRs should you look at when deciding whether a doc should be disclosed?

Answer 20

31.4 (is it a doc) -> 31.8 (is it within control) -> 31.6 (does it fall within standard disclosure)

Question 21

Rush and Tompkins v Greater London Council

Answer 21

The court will look at the substance rather than the form in deciding whether something is without prejudice

Question 22

What if only part of a document satisfies the test for standard disclosure?

Answer 22

The whole document must be disclosed

Question 23

What are the three parts of the Disclosure list?

Answer 23

Part 1 - Disclose and inspect
Part 2 - Disclose but privileged
Part 3 - Had but no longer have

Question 24

What happens following the exchange of lists

Answer 24

CPR 31.15

Question 25

What should you do if something is inadvertently disclosed to you?

Answer 25

CPR 31.20