Specific Disclosure, Specific Inspection and Pre-Action Disclosure Flashcards
What is used to obtain information from the opponent after the proceedings have started?
Application for specific disclosure and/or specific inspection
What is used to obtain information from the opponent before the proceedings have started?
Application for pre-action disclosure
What is specific disclosure?
An order that a party must: a) Disclose documents / classes of documents specified in order b) Carry out search to extent stated in order c) Disclose any documents located as a result of that search
In what situations is specific disclosure commonly used?
1) Opponent has not complied with existing disclosure 2) Applicant wants documents earlier than current directions provide for 3) Applicant wants something more than current direction
What will the court take into account on whether an application for specific disclosure will be successful?
a) All circumstances of the case b) Overriding objective (proportionality, reasonableness) c) If a party has failed adequately to comply with obligations imposed by order for disclosure
What is the procedure for specific disclosure?
Specify order sought (more specific, the better) Be supported by evidence
So what are the 3 things needed in procedure for specific disclosure?
1) Application notice
2) Draft order
3) Supporting evidence
What is specific inspection?
Order that a party permit inspection of a document which has been disclosed, but disclosing party alleges would be disproportionate to allow inspection
Is refusing to disclose based on disproportionality the same as privilege?
No, separate things
What is pre-action disclosure?
Court order allowing party to obtain disclosure before proceedings
When will the court grant an application for pre-action disclosure?
1) Respondent likely to be a party
2) Applicant likely to be a party
3) Standard disclosure in proceedings will cover the document or class of the document
4) Desirable for: fairness, assisting ADR, save costs
What is the procedure for pre-action disclosure?
1) Specify order sought
2) Be supported by evidence
What is the rule of costs on pre-action disclosure?
Applicant will generally have to pay respondent’s costs – although not absolute
When would a respondent have to pay for costs of pre-action disclosure?
If they have not been complying with pre-action protocol, for example
