Week 6- Disclosure and Inspection

Question 1

What documents must you disclose under an order for standard disclosure?

Answer 1

Documents which are/have been in their control, and which they rely on, or which are adverse to their case, adverse to another party’s case, support another party’s case, or which a practice direction requires them to disclose.

Question 2

What is the procedure of disclosure under an order for standard disclosure?

Answer 2

Procedurally speaking, standard disclosure is given by drawing up a list of documents which are being disclosed (“disclosure list”). The list has three parts: a) in control, inspection permitted; b) in control, inspection not permitted; c) no longer in control.

Question 3

What is the usual order for disclosure for a case allocated to small claims track? When are disclosure directions given?

Answer 3

• Directions given on allocation
• Usual order: At least 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing (CPR 27.4(1) and (3)).

Question 4

Counting time recap

“The parties must disclose docs at least 14 days before the date fixed for the final hearing”. When is the latest the parties must disclose docs?

Question 5

In a claim allocated to the small claims track, do the parties need to disclose unused material?

Answer 5

No - only used material (i.e. docs which you’re gonna rely on).

Question 6

What are the 5 steps to analysing whether a party should disclose and inspect docs?

Answer 6

1. Is this a document for the purposes of disclosure (CPR 31.4)?
2. Is the document in your client’s control (CPR 31.8)?
3. Does it satisfy the test for standard disclosure (CPR 31.6)?
4. Can it be withheld from inspection (main reason would be privilege)?
5. Which part of the disclosure list should this be listed under?

4-5 = inspection

1-3 = disclosure

Question 7

Define and break down the elements of legal advice privilege

Answer 7

A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving or receiving legal advice.
**
1. Confidential
2. Communication btwn lawyer and client
3. For the dominant purpose of giving/receiving legal advice**

Question 8

Define and break down the elements of litigation privilege

Answer 8

A document which is a confidential communication which passed between the lawyer and his client or between one of them and a TP, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect.

1. Confidential
2. Communication (either lawyer v client; lawyer v TP; client v TP)
3. The dominant purpose is to obtain evidence/advice for litigation in reasonable contemplation