Syllabus Area 14 - Disclosure Flashcards
What are the usual rules on disclosure and inspection?
Usually if a document is disclosed, it can be inspected unless it is NO LONGER in the parties control, they have a right to withhold it or the parties find it disproportionate to do so.
What is the meaning of disclosure?
Disclosure is where a document, relevant to the dispute, can be exchanged with parties.
What are the rules on inspection?
It will not be disclosed if the party no longer has control of the document, they have a right to withhold the document or it is disproportionate to do so.
What is the rules on disclosing a document?
It must be a document, it is within the parties control e.g physical possession or right to possess, right to take copies/inspect and it falls within the list of disclosed documents.
What if a document no longer exists?
Within the disclosure statement, a party will state whether a document exists or has existed.
What does disclosure usually mean for a party?
That they must reasonably search for the documents.
What kind of documents are disclosable?
Any document a party relies, supporting their case or adversely affecting their case AND any document the other party relies upon, supporting their case or adversely affecting their case.
What usually comes with a right of inspection?
Right to have request a copy of that document.
What is the meaning of document and copied?
Document means a recording of information: emails, meta data, photos, voicemails. Copy is a recording of information and copied.
Is there an automatic obligation to disclose a document?
No - it is not automatic - it is always a court order.
What is standard disclosure?
It is a court order which requires you to disclose documents which support/adversely affect your case/other parties’ case.
How is a disclosure order performed?
It depends on the allocation of track to a claim.
How is disclosure order performed for a small claims track claim?
Disclosure will be ordered via directions at allocation stage. 14 days before the fixed date hearing, parties must file and serve copies of the document.
How is disclosure order performed for a fast/intermediate claims track claim?
Disclosure will be ordered via either directions at allocation of track or CMC.
How is disclosure order performed for a multi track claim?
Due to the complexity of the claim, a disclosure report will be at least 14 days before CMC and a disclosure proposal 7 days before CMC agrees to the draft disclosure order. The CMC will consider carefully what form of disclosure will take place.
What does not apply to disclosure rules?
Personal injury claims.
What is the disclosure report?
Disclosure report is where it explains whether a document exists/may exist, when, whom, how it is stored, potential EDQ (Electronic Document Questionnaire).
What is a disclosure proposal?
This is where parties propose what to put in draft disclosure order.
What happens at the CMC?
Court uses disclosure report to consider what order to make.
What types of disclose orders are made?
Order for party to disclose document it relies on, disclosure issue by issue basis, order which may damage the other partis case
What is the standard list of documents to be disclosed under standard disclosure?
Document he relies upon, document other party relies upon, documents that adversely affect his case, document than the other party relies upon.
How many criterion does one have to meet for document to be disclosed?
Only one out of the list.
What categories of documents are to be disclosed?
Parties own documents, relevant documents to the case, adverse documents, train of inquiries, quantum documents if referred to (once liability is established).
Is redaction allowed?
This is allowed if there is privilege or information is totally irrelevant to claim.
What is the duty of search?
Party must REASONABLY search for a document falling into the categories of documents.
When does a party need to provide copies of a document?
They only need to provide a copy of a document where they contain a modification or the party has never had the original in their control.
What is the stages of procedure for standard disclosure?
- Disclosure report stating what is in her control/not in control + why, whether a document exists, what kind of documents etc. 2. Disclosure statement stating to the extent of the search carried out to the best of their knowledge with an understanding of their duty. This must be signed. 3. Disclosure proposal not less than 7 days before CMC for parties to discuss draft disclosure order, if agreed hearing can be vacated.
What is a disclosure statement and what stage?
Comes after report, it is the extent of the search carried out with their understanding of the duty to do so to the best of their knowledge - this must be signed.
What if the disclosure statement isn’t made by the person ordered?
Can be signed by a different person - must say who and why. If a company - what are they to the company.
What if disclosure proposal is agreed?
Hearing can be vacated.
What is the rule of disclosure continuity?
Any duty of disclosure continues until the proceedings are concluded. Parties must disclosed documents even after the disclosure order given.
What kind of documents can a party INSPECT?
Any document mentioned in SOC e.g witness statement, summary, affidavit.
Can a party inspect an expert report?
They MAY apply for an order but informally should try to request an inspection. If it is a large amount of documentation, it may be burdensome so therefore the court will only order if NECESSARY to dispose of proceedings.
What can documents be used for disclosure of?
Only for the use of THOSE proceedings unless it has already been read out by court, held at a public hearing, court has given permission or parties agree to.
What must solicitors do to make the person understand their duty to disclose?
Solicitors are required to endeavor to ensure that a person making the statement understands their duty to disclose.
What are the consequences of failing to disclose documents?
A party cannot rely upon a document if he fails to disclose unless the court gives permission.
What are the consequences if someone files a false disclosure statement?
Contempt of court.
What is considered a reasonable search?
Consider the nature of the claim, complexity, number of documents involved, difficulty or expense of the search.
What must be taken into account overall when looking to the extent of a search carried out?
The overriding objective - is it proportionate and just?
What must happen if it is unreasonable for a search document?
Must state in the disclosure statement that it is unreasonable and why.
What is specific disclosure?
Specific disclosure is an order that a party must disclose documents/classes of documents, carry out a search and disclose the documents from the search.
When is specific disclosure ordered?
If standard disclosure inadequate or if parties did not comply with standard disclosure order.
What is specific inspection?
Same as inspection, party has right to inspect document unless no longer in their possession, allowing them to have it would be disproportionate or they have a right to withhold.
What is the procedure of a specific disclose?
Application order specifying the order supported by evidence.
What is the timing for an application for standard disclosure or inspection?
Any time after proceedings issued - usually CMC or allocation (depending on track)
What is the timing for an application for specific disclosure or inspection?
usually after standard disclosure because further disclosure is needed.
What happens if there is a late application for disclosure?
It may undermine the claim.
Does the court have to order specific disclosure or inspection?
No, it is discretionary if the claim is likely to turn if there is a particular document to be disclosed meaning it will be a strong case for an order.
Can disclosure be done before proceedings started?
Yes , but respondent must shown it is more than probable that the documents fall within standard disclosure and can only be used if it is not inevitable that proceedings are subsequent but there is a reasonable prospect for bringing a valid claim.
Who is responsible for costs of an order?
Party bringing the order.
What is the order of pre-action disclosure?
Application + evidence + draft order.
What is the two stage approach taken by court dealing with pre-disclosure of documents?
- Are A and R likely to be parties to proceedings, 2. Is disclosure needed to fairly dispose of proceedings, assist in settlement or save costs?
When does pre-action disclosure not apply?
Arbitration proceedings.
What is the relevance of the merits of a future claim for pre-action disclosure?
It should be properly arguable and real prospect of success.
Who else can disclosure be ordered against?
A party not to proceedings/non-party
What is the procedure for a non-party to proceedings to disclose?
Application notice + draft order + evidence.
When can a non-party to proceedings be ordered to disclosed?
Only once proceedings have started.
Can the court order third party/non-party disclosure?
Yes, it is discretionary.
What is the issue with disclosure of a third party/non-party?
May be an article 8 issue but justified under article 8 (2) as necessary for protection of rights and freedoms of others.
What is the norwich pharmacal order?
This is where court proceedings cannot be commenced because the identity of the D is unknown. It orders for a third party, e.g bank/company, to disclose information to C to sue to the right wrongdoer.
What are the requirements for a norwich pharmacal order?
- A legally recognized wrong must have been carried out, 2. Respondent to application must be mixed up in wrong doing, 3. The respondent is able to provide information to the identity of wrongdoer, 4. Requiring disclosure of R must be appropriate and proportionate response.
What are the requirements of a norwich pharmacal order in terms of a different act?
Senior courts act says that the High Court shall have power to order person who is not party to proceedings who appears to have possession, custody or power of documents relevant to the issue to disclose them.
What are the types of wrongs covered by norwich pharmacal order?
Breach of contract, crime, tort.
Is there a need for an order to assert rights against the wrong doer in a norwich pharmacal order?
No, not need for party to bring an order.
What must the non-party of the norwich pharmacal order be?
More than a mere bystander.
What are the defences in a norwich pharmacal order?
Party has privilege of self incrimination to disclosing the identity of wrongdoer.
What is the timing for the right to inspect a document?
Party must give written notice and allowed 7 days to inspect, copies included within this.
What happens if something is privileged/how long will it stay like this?
If it is privileged, it will stay privileged through proceedings.
Where does the BOP lie within privileged documents?
It lies within the party claiming the privilege.
What is legal advice privilege?
This is where a document is confidential between a lawyer and a client prepared for the purposes of giving or receiving legal advice in contemplated or pending proceedings.
What is not privileged under legal advice privileged?
Anything which is not contemplated or pending proceedings, attendance notes, whats happened in court when everyone knows, memorandums.
What are considered privileged for legal advice privileged?
Anything in preparation for legal advice being given or received.
What is litigation privilege?
This is where a document is confidential communication passed between lawyer and client or third party with purpose of creating a document to obtain legal advice, evidence or information for litigation.
What is considered litigation privileged?
Anything brought into existence for purposes of claim e.g statements of case, transcripts/examinations to support claim if after dispute arises.
What about communications between solicitor/non-professional/third party for litigation privilege?
If it is for the purposes of litigation/legal advice - privileged.
What should be considered if in doubt for litigation privilege?
Look at the dominant purpose, intention behind document, was the document made in the lead up to litigation?
What about if there are a collection of documents, are these privileged?
Not necessarily - unless it reveals legal advice. Not privileged if regular letters.
Is it privileged if they are pre-existing documents, copies or extracts?
Something is only privileged if has the intention to be - if given to/made by a solicitor it does not become automatically privilege.
Is it privileged if both parties have possession of documents?
no
who can waiver privilege?
Only the client can waiver it.
What can be waived for privilege purposes?
Parties cannot cherry pick what they want waived - it is either waivered entirely or not at all.
When is a document automatically waived?
If revealed in court or read in court - this includes interim applications / injunctions
How can privilege be determined if not sure?
Consider whether it would be unfair to allow party makinig disclosure to not reveal document meaning it may be misleading.
What are examples of not privileged documents?
Instructions to experts, counsel, conversation with solicitors, mediation, disclosure of criminal investigation.
When can documents be waived until?
It is only up until that date, further documents are not subject to it.
What is without prejudice document?
This is a document with a genuine purpose to attempt to settle a dispute.
When is without prejudice documents admissible?
It isn’t generally unless they result in a settlement agreement.
What types of documents are without prejudice documents?
Discussions of settlement, concessions, offers etc.
When is without prejudice documents waived?
If party refers to without prejudice documents in pleadings.
When does protection last until for without prejudice documents?
It lasts even if settlement reached and it can be asserted in future proceedings.
What happens if there is a document “claimed” to be prejudiced?
A claim does not mean it will apply.
What does a right to withhold inspection or disclosure mean?
It means a document will not be produced - why? this is where privilege and without prejudice comes in.
When can a person apply to withhold disclosure or inspection of a document?
A person may apply without notice - but this can be appealed.
When can a privileged/without prejudice document be used?
Only with permission from court.
