Standard Disclosure Flashcards
What is standard disclosure?
A particular form of disclosure which the court can order & the most common type of disclosure to be ordered.
CPR 31.6 - standard disclosure requires a party to disclose only…
the documents on which he relies & the documents which:
i) adversely affect his own case;
ii) adversely affect another party’s case; or
iii) support another party’s case
AND the documents which he’s required to disclose by a relevant practice direction.
The disclosure duty is about documents - where is documents defined?
CPR 31.4
What is a party’s duty to disclose documents limited to?
Limited to documents which are or have been in his control - CPR 31.8
What are the three questions which must be asked when it comes to standard disclosure?
1) Is it a document - CPR 31.4
2) Is/was it in the party’s control - CPR 31.8
3) Does it fall within the standard disclosure - CPR 31.6
What is ‘document’ defined as and what can it include?
Document - anything which records information. Can include: digital recordings, emails, photographs, text messages, voicemails, metadata (data about data - eg time of creation, modification, author).
Are the majority of documents electronic?
Yes - electronic documents could be stored on personal devices, computers, servers, portable storage etc.
The duty of disclosure is limited to documents which are or have been within a party’s control. What is meant by ‘control’?
a) the document is/was in the physical possession of the party, or
b) the party has/had a right to possession of the document (eg documents held by party’s agent, such as documents a party send to its own accountant), or
c) the party has/had a right to inspect or take copies of the document (eg a party has a right to inspect their own medical records)
Do documents that might be considered relevant in the sense that they tell the story of what happened (but which don’t support/undermine either side’s case) need to be disclosed under standard disclosure?
No, unless the disclosing party wishes to rely on them.
What is the concept of a reasonable search, if an order for standard disclosure is made?
If an order for standard disclosure is made, the rules provide that a party must make a reasonable search for documents falling into categories (b) to (e) (which are the categories described at CPR 31.6(b) and (c)) - CPR 31.7
What are the four factors in determining a reasonable search?
1) the number of documents involved
2) the nature & complexity of the proceedings
3) how difficult/expensive it is to retrieve any document
4) the significance of any document likely to be found
In addition to the factors in determining a reasonable search, what else should the court take into account when deciding what constitutes a reasonable search?
the overriding objective & principle of proportionality.
How is standard disclosure performed?
By each party making a list of the required documents and serving it on the other party - CPR 31.10
- the normal direction is for lists to be exchanged simultaneously
If a party says ‘I have control of the documents numbered & listed here, but I object to you inspecting them (due to privilege) - what should the recipient do if they disagree with the disclosing party’s assertion of privilege?
Apply to court challenging the alleged privilege - CPR 31.9(5)
Must every list of documents include a disclosure statement in the prescribed form (31A PD 4)?
Yes.
What is the disclosure statement?
- sets out the extent of the search made (that the search was reasonable/proportionate & also what wasn’t searched for - eg documents predating a certain date)
- certifies the party understands its duty to disclose the documents
- certifies that, to the best of the party’s knowledge, it has carried out that duty
What must the disclosure statement include?
Details of any documents the inspection of which the party considers disproportionate - CPR 31.3(2)
Who must the disclosure statement be made/signed by?
The disclosing party.
If the person making the statement is a company, who should the statement be made by?
By an appropriate officer, who must identify themselves and state why they’re the appropriate person to make the statement - CPR 31.10(7)
What is required from a solicitor to ensure compliance with the duty of disclosure?
A solicitor is required to ‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure - 31A PD 4.4
- solicitor should advise its client of the disclosure obligations at the outset of the case
Can a party rely on a document which they fail to disclose or in respect of which they fail to permit inspection?
No, unless the court gives permission - CPR 31.21
Can proceedings for contempt of court be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth?
Yes - CPR 31.23
When may supplemental lists need to be prepared/served?
If additional documents falling within a party’s disclosure obligations come to light, or are created, after the disclosure list is served.
What is the most common form of disclosure order?
Standard disclosure.
