Sources & types of disclosure obligation Flashcards
Is there an automatic obligation to give disclosure of something?
No - there’s no automatic obligation to give disclosure of anything.
Where does the obligation to disclose come from?
A court order.
When is the order for disclosure usually given?
It’s usually given on allocation or at a case management reference.
Can a party apply for an order for disclosure?
Yes - a party can apply for an order for disclosure at a later stage in the proceedings (less common).
How does the court arrive at one of the orders for disclosure?
Depends on the track to which the claim has been allocated
What are the three different tracks?
1) Small claims track
2) Fast track
3) Multi-track
Small claims track
- 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 & 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
- court usually gives directions on allocation
- usually direction is for each party to give ‘standard disclosure’ (common form of disclosure)
What does standard disclosure involve?
A search for relevant documents & an obligation to disclose documents which are adverse to the disclosing party’s case - CPR 31.6
What are the disadvantages of a standard disclosure?
It’s a costly & time consuming order.
Multi Track
- more complex because some multi-track cases involve lots of documentation
- the wrong order could result in significant unnecessary inconvenience & expense
What must the parties in multi-track cases (other than personal injury cases) do?
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 & to limit disclosure to that which is necessary to deal with the case justly (CPR 31.5(5))
When will the court consider carefully what form of disclosure order is most appropriate?
At the case management conference.
What the disclosure report briefly explain?
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 & 8)
Where there are electronic documents to be disclosed, what should parties consider?
They should consider also using the Electronic Documents Questionnaire (EDQ - form N264) which provides info about electronic documents.
At the CMC, what does the court use to consider if standard disclosure is too expensive, or what disclosure order to make?
The court uses the disclosure report & any other info available.
What concerns do judges/practitioners have about determining the type of disclosure which is required?
They believe this procedure could be improved.
Does a party have to disclose every copy of a document?
No - only one copy of a document needs to be disclosed unless the copies have changes/annotations which are material to the dispute.
When do copies of documents need to be disclosed?
a) if they contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9) - such a copy document also needs to be separately considered for privilege
OR
b) if the party has never had the original or no longer has the original in its control
Once an order for disclosure & inspection has been made, if the court orders standard disclosure - what is the procedure that accompanies it prescribed by?
The procedure that accompanies it is that prescribed by the CPR 31.10.
If an order other than standard disclosure has been made, how will the procedure be set out?
The procedure (in terms of preparing lists, exchanging lists, providing copies of documents) will be set out as part of the order.
How long does a duty of disclosure continue until?
Until proceedings are concluded - CPR 31.11
Which documents must a party disclose?
Documents which come within its control or were created after the date it originally gave disclosure if they fall within its disclosure obligations.
What is the general rule in relation to subsequent use of disclosed documents?
A party to whom a document has been disclosed may only use that document for the purposes of the proceedings in which it’s disclosed & not for any collateral/ulterior purpose (eg in other proceedings) - CPR 31.22(1).
