Specific disclosure, specific inspection and pre-action disclosure Flashcards
What application is used to obtain information from the opponent after proceedings have started?
Application for specific disclosure and/or specific inspection.
What application is used to obtain information from the opponent before proceedings have started?
An application for pre-action disclosure.
What application is used to obtain information from a non-party after proceedings have started?
Application for disclosure from someone not a party to the proceedings.
What application is used to obtain information from a non-party before proceedings have started?
Norwich Pharmacal Orders.
What is an order for specific disclosure?
An order that a party must do one or more of the following things:
a. Disclose documents / classes of documents specified in the order;
b. carry out a search to the extent stated in the order;
c. disclose any documents located as a result of that search.
When must an application for specific disclosure be made?
Court has the jurisdiction to make an order for specific disclosure and / or inspection at any time after proceedings have been issued.
In practice, application generally made after standard disclosure has occurred, where the applicant considers that further disclosure should be made by the other party.
What are the common uses of an application for specific disclosure?
*Applicant wants documents earlier than the current directions provide for (but after proceedings have been issued).
*Applicant wants something more than current directions provide for.
*Opponent has not complied with its existing disclosure obligations (e.g. failed to comply with a direction for standard disclosure).
What will the court take into consideration when deciding whether an application for specific disclosure will be successful?
a. The court will take into account all the circumstances of the case;
b. The court will in particular take account of the overriding objective; and
c. If the court decides that the party against whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure’ the court will usually make such order as is necessary to ensure that those obligations are properly complied with’.
Provide other grounds for applying for specific disclosure
The court can also/in the alternative make an order for specific disclosure even where the respondent has complied properly with its obligations to give standard disclosure but in circumstances where the applicant satisfies the court that (a) such disclosure is, in fact, ‘inadequate’; or (b) the case is one where something more than standard disclosure is called for.
What is the procedure for applying for specific disclosure?
Specify the order sought, including listing the documents sought in a schedule to the order; and
Be supported by evidence
It is usual practice for the evidence in support of the application to be in the form of a witness statement, made by the party itself or by the party’s solicitor.
What is specific inspection?
An order that a party permit inspection of a document which has been disclosed, but the disclosing party alleges it would be disproportionate to allow inspection.
When will a court have the option to make an order for pre-action disclosure?
When the following conditions are satisfied:
a. The respondent is likely to be a party to subsequent proceedings; and
b. The applicant is also likely to be a party to those proceedings; and
c. If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents which the applicant seeks; and
d. Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.
If all prescribed conditions are satisfied, the court may order pre-action disclosure. The court still retains discretion and will consider the overriding objective.
What is the procedure for applying for pre-action disclosure?
The application must:
Specify the order sought, including listing the documents sought
Be supported by evidence
A pre-action disclosure order may also require the respondent to specify those documents which are no longer under its control or which it has a right to withhold from inspection.
What is the general rule in relation to costs and pre-action disclosure?
The party against whom an order for pre-action disclosure is sought will as a general rule be awarded the costs of the application and for complying with it. Accordingly, the applicant for pre-action disclosure will generally have to pay the respondent’s costs.
This is not an absolute rule, the court may make a different order. For example, if the respondent did not comply with a pre-action protocol.
