Sources & types of disclosure obligation

Question 1

Is there an automatic obligation to give disclosure of something?

Answer 1

No - there’s no automatic obligation to give disclosure of anything.

Question 2

Where does the obligation to disclose come from?

Answer 2

A court order.

Question 3

When is the order for disclosure usually given?

Answer 3

It’s usually given on allocation or at a case management reference.

Question 4

Can a party apply for an order for disclosure?

Answer 4

Yes - a party can apply for an order for disclosure at a later stage in the proceedings (less common).

Question 5

How does the court arrive at one of the orders for disclosure?

Answer 5

Depends on the track to which the claim has been allocated

Question 6

What are the three different tracks?

Answer 6

1) Small claims track
2) Fast track
3) Multi-track

Question 7

Small claims track

Answer 7

• 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).

Question 8

Fast track

Answer 8

• court usually gives directions on allocation
• usually direction is for each party to give ‘standard disclosure’ (common form of disclosure)

Question 9

What does standard disclosure involve?

Answer 9

A search for relevant documents & an obligation to disclose documents which are adverse to the disclosing party’s case - CPR 31.6

Question 10

What are the disadvantages of a standard disclosure?

Answer 10

It’s a costly & time consuming order.

Question 11

Multi Track

Answer 11

• more complex because some multi-track cases involve lots of documentation
• the wrong order could result in significant unnecessary inconvenience & expense

Question 12

What must the parties in multi-track cases (other than personal injury cases) do?

Answer 12

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))

Question 13

When will the court consider carefully what form of disclosure order is most appropriate?

Answer 13

At the case management conference.

Question 14

What the disclosure report briefly explain?

Answer 14

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)

Question 15

Where there are electronic documents to be disclosed, what should parties consider?

Answer 15

They should consider also using the Electronic Documents Questionnaire (EDQ - form N264) which provides info about electronic documents.

Question 16

At the CMC, what does the court use to consider if standard disclosure is too expensive, or what disclosure order to make?

Answer 16

The court uses the disclosure report & any other info available.

Question 17

What concerns do judges/practitioners have about determining the type of disclosure which is required?

Answer 17

They believe this procedure could be improved.

Question 18

Does a party have to disclose every copy of a document?

Answer 18

No - only one copy of a document needs to be disclosed unless the copies have changes/annotations which are material to the dispute.

Question 19

When do copies of documents need to be disclosed?

Answer 19

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

Question 20

Once an order for disclosure & inspection has been made, if the court orders standard disclosure - what is the procedure that accompanies it prescribed by?

Answer 20

The procedure that accompanies it is that prescribed by the CPR 31.10.

Question 21

If an order other than standard disclosure has been made, how will the procedure be set out?

Answer 21

The procedure (in terms of preparing lists, exchanging lists, providing copies of documents) will be set out as part of the order.

Question 22

How long does a duty of disclosure continue until?

Answer 22

Until proceedings are concluded - CPR 31.11

Question 23

Which documents must a party disclose?

Answer 23

Documents which come within its control or were created after the date it originally gave disclosure if they fall within its disclosure obligations.

Question 24

What is the general rule in relation to subsequent use of disclosed documents?

Answer 24

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).

Question 25

What are the exceptions to the general rule of subsequent use of disclosed documents?

Answer 25

a) the document has been read to or referred to by the court at a hearing held in public (read = pre read & referred to in skeleton arguments)

b) the court gives permission
c) the party who disclosed the document & the person to whom the document belongs agree

Question 26

Can the court be asked to make an order restricting/prohibiting the use of a document read or referred to at a public hearing?

Answer 26

Yes.