Specific Disclosure, Pre-Action Disclosure, and Non-Party Disclosure, and Norwich Pharmacal Orders

Question 1

what is an order for specific disclosure?

Answer 1

court order that a party:
1. disclose specific docs / classes of docs
2. carry out a search
3. disclose any docs located as a result of that search

Question 2

at what stage of the proceedings can an order for specific disclosure be made?

Answer 2

after proceedings started - but usually after disclosure lists are exchanged as the party argues that the disclosure was inadequate

Question 3

what arguments can an applicant submit in favour of specific disclosure? (4)

Answer 3

the applicant can make the order on the ground that the disclosure made by the opposing party is inadequate:

1. the docs should have been disclosed under the original disclosure obligation but were not e.g., standard disclosure
2. even if the respondent complied with their disclosure obligation, the docs must be disclosed because:

• it is reasonable to suppose that the docs may contain info which enables the applicant to advance its own case or damage the respondent’s case, or
• it is reasonable to suppose that the docs or search may lead to a train of enquiry which enables the applicant to advance its own case or damage the respondent’s case
• the court must have regard to all the circumstances of the case and the importance of the potential docs revealed is high to a matter in dispute
• overriding objective: (1) search will not be onerous but at proportionate cost to the importance of the docs + (2) docs are of central importance not peripheral - so it would put parties at unequal footing and the case will not be disposed of justly if disclosure is refused

Question 4

what is the rule as to costs for applications for specific disclosure?

Answer 4

• same as for other applications = winner of application pays loser’s costs
• argument for applicant to not depart from this rule = R should have disclosed doc under standard disclosure obligation so this application is a waste of everyone’s time

Question 5

what is specific inspection?

Answer 5

court has power to order a party allow inspection of a disclosed doc where the disclosing party claims it would be disproportionate to allow inspection

(cannot be made to allow inspection of privileged documents)

Question 6

what is a pre-action disclosure application?

Answer 6

court has the power to order pre-action disclosure allowing a party to obtain docs before proceedings commenced against a likely party to proceedings

Question 7

what must be satisfied to obtain an order for pre-action disclosure? (4)

Answer 7

court has discretion to make the order - all 4 must be met:

1. R is likely to be a party to subsequent proceedings
2. A is likely to be a party to subsequent proceedings
3. if proceedings started, R’s duty under standard disclosure would extend to the documents in question
4. Pre-action disclosure is desirable in order to:
   (a) dispose fairly of anticipated proceedings, or
   (b) assist dispute to be resolved without proceedings, or
   (c) save costs

Question 8

what is the rule as to costs for applications for pre-action disclosure?

Answer 8

general rule = applicant must pay respondent’s costs

but the court can make a different order = e.g., where R did not comply with pre-action protocols or a modest request for pre-action disclosure

Question 9

what is non-party disclosure?

Answer 9

the court has the power and discretion to order a person not party to the proceedings to give disclosure of documents

(application is made after proceedings started)

Question 10

when can an order for non-party disclosure be made? (2 requirements)

Answer 10

court has discretion to order when:

1. docs are likely to support A’s case or adversely affect another party’s case
   AND
2. disclosure is NECESSARY to dispose fairly of the claim or to save costs

Question 11

what is the rule as to costs for applications for non-party disclosure?

Answer 11

presumption = applicant must pay respondent’s costs in dealing with the application and complying with any order that is made as a result

BUT this can be rebutted where the non-party R acted unreasonably in opposing the application or any previous requests for disclosure

Question 12

what is a Norwich Pharmacal Order and when can it be brought?

Answer 12

• Brought where court proceedings cannot be started because the identity of D is unknown
• the court can order R (who is not the potential D) to disclose information allowing C to sue the right D

Question 13

what 4 conditions must be satisfied for the court to grant a Norwich Pharmacal Order

Answer 13

1. a wrong must have been carried out (arguably) by an ultimate wrongdoer in tort, contract, or crime
2. there is a need for an order to enable the action to be brought against the ultimate wrongdoer = order unlikely where the info can be obtained in another way
3. the person against whom the order is sought (R) must:
   i. be more than a mere witness or bystander = they must have some greater involvement but not necessarily any fault, and
   ii. be able to provide the necessary information to enable the ultimate wrongdoer to be sued
4. the order must be necessary and proportionate in all the circumstances of the case

Question 14

what is the rule as to costs for applications for a Norwich Pharmacal order?

Answer 14

applicant pays respondent’s costs (including costs of giving the disclosure)

applicant may recover these costs from the wrongdoer