Sources & Types of disclosure obligations Flashcards
What is disclosure?
Stating that a document exists.
What is inspection?
This relates to the party to whom a document has been disclosed looking at the document. Where a party has a right to inspect a document, they also have the right to request a copy of the document.
Is there an automatic obligation to disclose?
No, the obligation comes from a court order.
When will an order for disclosure normally be given?
Usually given on allocation or at a CMC.
A party can also apply for an order for disclosure at a later stage in the proceedings, but this is less common.
What are the types of disclosure orders the court can make?
Standard disclosure or an alternative order.
When are directions in relation to disclosure given on the small claims track?
On allocation.
What is the usual order in the small claims track?
That at least 14 days before the date of the final hearing, each party must file and serve on every part6y copies of all documents on which he intends to rely on at the hearing.
When are directions in relation to disclosure given on the fast and intermediate track?
Usually given at allocation (if fast claims track) or list the case for a CMC.
In PI claims what disclose order will be made?
Unless the court orders otherwise, standard disclosure.
What disclosure order could be made in the fast and intermediate tracks?
- No disclosure
- Party discloses what it relies on and at the same time request specific disclosure it requires from any other party
- Where practicable, disclosure be given on an issue by issue basis.
- Disclose any documents which it is reasonable to suppose may contain information which enable that party to advance its own case or to damage that of the other.
- An order for standard disclosure
- Anything else the court considers appropriate.
What is the procedure for disclosure in the mult-track?
- Complete a disclosure report to be filed and served not less than 14 days before the first CMC. (NO requirement if PI case).
- Not less than 7 days before the CMC, consider the issues in the case and enter into discussions to agree a draft disclosure order which they will ask the court to make.
- Court makes appropriate disclosure order at CMC.
What does the disclosure report contain?
Takes the Form N263. Disclosure report 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 that case;
e) States which of the disclosure directions are to be sought
Where there are electronic documents parties should consider using Electronic Documents Questionnaire (EDQ – Form N264).
What will the courts determine at the CMC?
- At the CMC, the court uses the disclosure report and other information to consider if standard disclosure is too expensive and what order to make.
- The court might dispense of the need to carry out a search for documents.
- He court might require disclosure in relation to only some of the issues.
- The court might require disclosure in stages.
- Therefore, the court can make any order in relation to disclosure that it thinks is appropriate.
Does a party need to disclose every copy of a document?
No
When does a copy of a document need to be disclosed?
a) They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure; or
b) The party has never had the original or no longer has the original in its control.
