Topic 12- Disclosure Flashcards
Which track do the disclosure rules not apply to?
Small Claims track
What is meant by disclosure?
Where a party discloses a document by stating that the document exists or has existed
What can a party do once a document has been disclosed?
The party has the right to inspect that document
What are the exceptions where a party can withhold the inspection of a disclosed document?
It is no longer in the control of the party who disclosed it
The other party has a right to withhold inspection (privileged)
It would be disproportionate to the issues to permit inspection
How many days before the first CMC should each party give details on the documents?
Not less than 14 days before the CMC
What must each party do not less than 14 days before the first CMC hearing?
Describe what documents exist, where and with whom these documents are, the costs that could be involved in finding them
What must each party do not less than 7 days before the first CMC?
Discuss and agree a proposal in relation to disclosure that meets the overriding objective
How many days before the first CMC should each party agree on disclosure?
Not less than 7 days before the first CMC
What happens at the first CMC in relation to disclosure?
The court will make directions on whether to order disclosure of documents, or to dispense with disclosure
What documents must be disclosed in standard disclosure?
Standard disclosure requires a party to disclose-
- Documents on which he relies
- Documents which adversely affect his own case/adversely affect another party’s case/support another party’s case
Does a party have a duty to search for documents that could be disclosed?
Yes, a party is required to make a reasonable search for documents that may adversely affect or support another party’s case
What factors affect the reasonableness of a search for documents?
The number of documents involved
The nature and complexity of the proceedings
The ease and expense of retrieval of the documents
The significance of any document
What is the key restriction on a party’s duty of disclosure?
That the duty is only limited to documents which are or have been in their control
What are the rules surrounding copies of documents disclosed?
A party only needs to disclose one copy of a document
Any copy containing a modification is treated as a separate document
What is the procedure for standard disclosure?
Each party must make and serve a list of all the relevant documents
- Even privileged documents must be disclosed (although can withhold inspection)
The list must include a disclose statement
When does the duty of disclosure end?
The duty of disclosure continues until the proceedings are finished
What should a party do if new documents come to light that need to be disclosed?
The party must immediately notify every other party and disclose the document
What is an order for specific disclosure?
This is an order making a party disclose documents specified in the order
Carry out a search to the extent stated
Disclose any documents located
I.,e searching for specified documents
Which documents does a party have a right to inspect?
The documents mentioned in the statement of case; witness statement; witness summary; or affidavit
What should a party do if they wish to inspect a document?
They must give the party who disclosed it written notice
The party who disclosed must permit inspection within 7 days after the date he received the notice
Can disclose occur before proceedings start?
Yes, an application can be made to the court for disclose before proceedings have started
What must an application for disclosure before proceedings include?
Must be supported by evidence
When will the court allow disclosure before proceedings start?
Where the respondent and applicant are likely to be a party to subsequence proceedings
AND
Where disclosure would be desirable to dispose fairly of the anticipated proceedings, assist the dispute to be resolved, or save costs
Can a party rely on a document even if they failed to disclose it?
No, they cannot rely on a document which he fails to disclose, unless the court gives permission
When can a document be used for other purposes outside of proceedings?
Where court gives permission
Where the document has been read to court
Where the disclosing party agrees
What happens if a party discloses a false statement?
Proceedings for contempt of court may be brought against a person if he makes a false disclosure statement
What should be included in a disclosure statement?
It should state that the disclosing party believes the extent of the search was reasonable in all the circumstances
Should set out the extent of the search
What must the court consider when making an order for specific disclosure?
All the circumstances of the case, and the overriding objective
Will also consider the merits of the case, and whether it has a prospect of success
When can an application for specific disclosure be made?
At any stage of proceedings
Can an order for disclosure be made against a non-party?
Yes, a party can apply to the court for disclosure by a non-party
The application must be supported by evidence, and must meet the criteria of standard disclosure (likely to support his case, etc)
What is the Norwich Pharmacal principle?
Where a non-party can be ordered to disclose the identity of a wrongdoer, and then they can be added as a defendant
The non-party cannot be a mere witness- must be involved in the claim somehow
What are the requirements for making a Norwich Pharmacal order?
The applicant has to demonstrate that a wrong has been committed against them
The respondent must be mixed up in the wrongdoing
The respondent must be able to provide information of the wrongdoer
Disclosure of the wrongdoer would be appropriate and proportionate in the circumstances
How does a party withhold documents from disclosure or inspection?
The party must apply, without notice, for an order permitting him to withhold disclosure
This must be on the grounds that it would damage public interest
How does a party withhold documents from disclosure or inspection if they have a right or duty?
The party must state in writing that he has such a right or duty, and the grounds on which he claims that right or duty
What happens where a party inadvertently allows a privileged document to be inspected?
The party who has inspected the document may use its contents only with the permission of the court
What are documents held by legal advice privilege?
These are documents that cannot be disclosed, and are for the purpose of getting legal advice or assisting the client
What are documents held by litigation privilege?
Documents that hold advice on contemplating litigation or existing litigation
They are privileged
Does a document held by litigation privilege have to be between a client and lawyer?
No, it can be prepared confidentiality if between claimant and the defendant
Who may waive privilege?
Can only be waived by the client, and not the lawyer
If only part of a privileged document is disclosed, does this mean the entire document is disclosed?
Yes
What is a without prejudice communication?
These are privileged, involving communications on negotiation and settlement
Is the without prejudice rule absolute?
No, it may be waived when justice of the case requires it
If the parties have not agreed standard disclosure, what can the court do?
They may make an order to dispense disclosure, or order for specific disclosure
Where a client has brought proceedings against their former solicitors for professional negligence, does this constitute as an implied waiver of privilege?
Yes, this will waive privilege where there is professional negligence
Does litigation privilege extend to third parties?
It will only extend to third parties if the dominant purpose of the report was for litigation
Does a party need to make an application to the court to inspect a document referred to within the statement of case, or witness statement?
No
Does a party need an application to inspect a document referred to within an expert report?
Yes
What are the categories of documents that must be disclosed in standard disclosure?
Documents on which he relies
Adversely affects his own case
Adversely affects another party’s case
Supports another party’s case
Where a party obtains a Norwich Pharmacal order, what obligation does this put on another party?
It compels them to disclose the identity of a wrongdoer, so that the party can bring proceedings against them
What are the circumstances taken into account for the court to allow pre-action disclosure?
The papers would fall within the standard disclosure obligations if proceedings had already started
What provisions are there for a party to make a disclosure application against a non-party?
If the documents would likely support his case/adversely affect a case, and disclosure is necessary to dispose fairly of the claim
If a document that is privileged has been inadvertently disclosed, can the party still use it?
The party can only use it with the permission of the court
If a party has referred to a document in their witness statement, do they need to give inspection?
Yes, they must
Can a Norwich Pharmacal order be made against a mere witness to a wrongdoing?
No, they must have committed a wrongdoing
What is a disclosure statement?
It sets out the extent of the search made and certifies an understanding of the duty to disclose documents
Does the requirement for disclosure apply to personal injury claims?
No, unless the Court orders otherwise
Where a document has been disclosed, does the party have an automatic right to inspect it?
Yes, except where-
The document is no longer in the control of the party who disclosed it
Or
The party has right to withhold inspection
