SQE Disputes Resolution Disclosure and Evidence

Question 1

What is disclosure? What are types:

Answer 1

Duty to inform opponent of the existence of all documents relevant to litigation (written docs, email, databases, photos etc.)

Court has discretion to order:

• standard disclosure
• no disclosure
• on basis court directs
• on an issue by issue basis

Question 2

When is standard disclosure used?

Answer 2

Fast Track

Personal Injury multi track

Question 3

What is included in standard disclosure?

Answer 3

For Fast and PI multi track

Includes documents that:
- affect their cases adversely
- affect the other party’s case adversely, or
- support the other party’s case

This extends to any documents:
- have physical possession of doc
- have right to possession, right to inspect, or right to take copies
- had doc in their possession but no longer have it

Question 4

Duty of Lawyers in Disclosure

Answer 4

Under duty to:
- advise clients on disclosure obligations
- court and opponent

Should not act for client if they refuse to comply

If document is removed or destroyed under duty to inform court and other party of its existence and reason for destruction. (Court will draw an adverses interference against party)

Question 5

What is the duty to search for documents in disclosure?

Answer 5

Must be reasonable and proportionate
- assessed according to nature, value and importance of the case
- ease of retrieval of documents and cost

Question 6

What is a disclosure statement?

Answer 6

Must be made by party (not solicitor) detaining extent of search made. Including:
- person signing understands their duty to disclose
- have carried out duty to best of their knowledge
- believe the extent of the search was reasonable
- explain why any particular search may not have been made

If falsely provided then in contempt of court

Question 7

What is a disclosure list?

Answer 7

For Standard Disclosure

Includes:
- a list of documents in its control that they do not object to the other party inspecting
- a list of documents in its control that they object to the other side inspecting + reasons for objecting (ie privilege)
- a list of documents that are no longer in its control, stating when they were last in their control and where they are now

Question 8

What is the Time Limit for Disclosure?

Answer 8

• generally 28 days from the date of directions order
• directions order made when case is allocated a track
• typically inspection to take place in 7 days (although often just send copies instead)

Question 9

What can a party do if they are not satisfied with other parties disclosure?

Answer 9

1. Apply for specific disclosure
2. Serve a Notice to Admit Facts
3. Apply for an unless order if opponent continues to disregard their obligations

Question 10

What are the rights to inspection of disclosed documents? What is the process for exercising this right?

Answer 10

Automatic Right to Inspection unless challenged by
- privilege
- the document no longer being in parties control
- it would be disproportionate to allow inspection

If party wants to exercise right to inspect they must give notice, other party must permit inspection within 7 days of receiving notice

Question 11

Disclosure requirements/process for multi-track cases (non PI)

Answer 11

• parties to prepare disclosure report to be filed at least 14 days before first Case Management Conference or with the Directions Questionnaire
• parties encouraged to agree on scope of disclosure requirements in the case (otherwise standard disclosure)

Question 12

Process for applying for specific disclosure?

Answer 12

Make written request for documents to other party including:

1. description of docs. and extent of search sought
2. why it is reasonable and proportionate
3. how docs are relevant
4. grounds for believing docs are or have been in other parties control
5. what safeguards can be provided (in case of confidential info)

Question 13

What are the types of privilege that can apply to disclosed documents?

Answer 13

1. legal advice privilege
   - communication between a client and their lawyers in which legal advice is given/requested
   - must be connected to lawyer carrying out professional duties
2. litigation privilege
   - Relates to communications with 3rd parties (experts and barristers) relating to preparation of pending or contemplated litigation (must be real likelihood)
3. common intention privilege
   - communication between 2+ defendants with common intention at time of disclosure
   - must all agree to waive it
4. without prejudice privilege
   - applies to settlement offers or other communications between parties where it is agreed
5. public interest immunity
   - national security or administration of justice

Question 14

Loss of Privilege: who can waive it and when is it waived?

Answer 14

• privilege is clients and can be waived
• once copy is served the privilege is lost
• once waived cannot be regained

Question 15

Mistaken disclosure. Can it still be used

Answer 15

Other party can only use this with permission of the court

Court may prevent it being used if there has been obvious mistake

Court will also consider the interest of justice and overriding objective

Question 16

Process for Electronic Disclosure

Answer 16

Parties must complete electronic disclosure questionnaire at same time as disclosure list

Parties expected to discuss and agree extent of the search.

If they cannot agree then refer to the judge at the first Case Management Conference

Question 17

What must be included in a Witness Statement

Answer 17

• signed by witness
• statement of truth
• relationship to party
• (if parties lawyer for interim application where witness need not attend then firms name & address, and confirmation that they are legal representative to be given. Evidence to be given in : “I’m am informed that” format)

Question 18

What happens if it is not possible to obtain witness statement before date of exchange

Answer 18

Party can serve witness summary with permission of court (must be served in same timeframe as witness statements)

Good if witness is out of country or unwilling to sign witness statement

• Summary must identify witness and summarise factual issues their evidence will cover

Question 19

What happens if a party fails to serve a witness statement/summary?

Answer 19

• cannot call on witness to give evidence unless court gives permission
• can still apply to adduce evidence despite failure to serve on time if they can give a good reason for the failure

Question 20

What will a court consider when considering how much weight to give hearsay evidence?

Answer 20

Consider:
- whether it would have been reasonable/practicable to force witness to attend
- if original statement was made at time of events
- if there is multiple hearsay (layered)
- motive to misrepresent the position stated in the hearsay or to conceal facts
- if original statement is edited
- if events leasing to evidence being presented constitute an attempt to prevent evaluation as to its weight

Question 21

What is the process of relying on hearsay evidence

Answer 21

1. serve notice on other party
2. Other party may:
   - give notice of intention to attack credibility (within 14 days)
   - seek to call witness at trial

Question 22

When can a witness be declared a hostile witness and what effect does this have?

Answer 22

If witness shows significant lack of cooperation to tell the truth for their party or give evidence inconsistent with their witness statement party can ask judge to make them hostile witness

If so own party can cross-examine on the facts of the case

Question 23

What is a Notice to Admit Facts? What is the process?

Answer 23

1. serve at least 21 days before trial
2. if admitted then deemed established
   ((3. Failiure to reply in 14 days then fact deemed admitted))
3. if not then court may order costs for proving fact

Question 24

What is a Notice to Prove? What are the requirements?

Answer 24

1. Notice
   - specify doc challenged
   - last day of witness statement exchange; or
   - 7 days after disclosure
2. If proved authentic
   - court may order costs for proving authenticity

Question 25

What may court do to gather evidence abroad

Answer 25

Letter of Request

Question 26

When may evidence be inadmissible?

Answer 26

1. Irrelevant
2. Privileged
3. Non expert opinion evidence
4. Court discretion to exclude

Question 27

Requirements for expert witnesses

Answer 27

1. Anyone with knowledge or experience of a particular field or discipline (NOT LEGAL)
2. Can demonstrate that they can be regarded as a true expert in relevant field
3. Has reasonable degree of certainty and can give factual basis for opinion
4. Served notice of directions order on them

Question 28

Duty of Expert witnesses

Answer 28

Owe an overriding duty to the court.

Must exercise indépendance, integrity and impartiality.

Question 29

How are experts chosen?

Answer 29

1. Single joint
   - parties agree
   - judge picks from list made by parties
2. Agreed Expert
   - PI cases and in instructed by Claimant
   - D can instruct their own

Question 30

Reasons for court to allow parties to instruct their own experts?

Answer 30

More likely in multi track cases vs fast track

Reasons include:
- complex issues and high value
- more effective to use existing experts from pre action phase
- there are several schools of thought relevant to claim
- issue has huge significance in outcome of action

Question 31

How can parties question an expert witness

Answer 31

Parties can ask questions within 28 days of sending report

Questions to be proportionate, for clarification of report

Must send copy of questions to other side