WS6 - Disclose and Inspection Flashcards
Introduction: What is the definition of “Disclosure” and “Inspection”?
- Disclosure - Stating (to another party) that a document exists or has existed - CPR 31.2
- Inspection - The party to whom a document has been disclosed looking at a document. Under CPR 3.15, where a party has right to inspect a document, they also have right to request a copy of it and this is commonly also referred to as inspection.
Note - When considering below, on this basis you do not actually have to send documents to other side, you simply disclose the list of documents confirming their existence and if aprties want to see opponents documents, they must request inspection, usually within 7 days depending on order which is when they will need to disclose the document!!!
Introduction: What does disclosure involve?
- Stage in proceedings when parties exchange documents relevant to dispute.
- In many case, party required to disclose not only documents it wants to rely on, but also those that may supporrt other partys psoition and therefore you will see evidence in favour but also potential weaknesses other other parties case.
Introduction: What is the purpose of disclosure and inspection?
- Help clarify the issues which are in dispute
- Enable parties to evaluate the strength of the claim against them
- Encourage settlement; and
- Ensure the court has all the facts and evidence before it in order to deal justly and appropiately with the case.
Introduction: Overview flowchart of disclosure and inspection and the sectons we will consider.
So, on the flowchart, it sets out how disclosure and inspection proceeds and those with “Section” are set out in the workbook.
Sources and Types of Disclosure - Introduction: What are the relevant sections of the CPR?
- CPR 27.4 and 27A PD Appendix B - Small claims Track
- CPR 28.2 and 28 PD 3.9 - Fast Track
- CPR 31.5 - Intermediate and Multi-track
- CPR 31.9 and CPR 31.11 - Boarder Disclosure points
Sources and Types of Disclosure - Introduction: Is there an obligation to give disclosure?
- No automatic obligation to give disclosure of anything.
- Obligations comes from a court order.
Sources and Types of Disclosure - Introduction: When will order be made?
- Usually on allocation or CMC
- Party can also apply for an order for disclosure at a later stage, but less common.
Sources and Types of Disclosure - a) Determing the order: How does the court determine the order to make?
It depends on the track which the claim has been allocated to.
Sources and Types of Disclosure - a) Determing the order - i) Small claims: When is directions given and the usual order?
- On allocation
- Usual order is at least 14 days before date fixed for final hearing, each party must file and serve on every other party copies of all documents which they intend to rely on at hearing - CPR 27.4(1) and (3).
Sources and Types of Disclosure - a) Determing the order - ii) Fast Track: When is directions given and the usual order?
- On allocation.
- Usual order is for each party to give “standard disclosure” however court may order something less than standard.
Sources and Types of Disclosure - a) Determing the order - ii) Fast Track: What is standard disclosure?
We will see in own section, it broadly it involves a search for relevant docs and also obligation to disclose documents which are adverse to disclosing parties case - CPR 31.6.
Sources and Types of Disclosure - a) Determing the order - iii) Intermediate/Multi: What is the position for these tacks?
More complex system due to larger amounts of docs in which other than PI claims, parties must:
* Complete a disclosure report to be filed and served not less than 14 days before the first CMC - CPR 31.5(3).
* Not less than 7 days before first CMC, consider the issues in case and enterdiscussions to seek to agree draft disclosure order which they will then ask court to make and this proposal should meet overriding objective - CPR 31.5(5).
Court will then consider what form of disclosure order is most appropiate at CMC.
We looked at disclosure report in WS5 and will consider below more information as to disclosure report and therefore see what it must contain.
Sources and Types of Disclosure - b) Procedure: With each track in mind, what is therefore the procedure to each disclosure order?
Sources and Types of Disclosure - b) Procedure: When do copies only need to be disclosed?
Party does not need to disclose copy of every document, and in summary must only be disclosed if:
(a) They contain modification, obliteration or other marking which itself satisfied test for standard disclosure - CPR 31.9
(b) The party has never had the original or no longer has original in control.
Sources and Types of Disclosure - c) Continuing obligation: When does a duty arising from order last till?
- Untl proceedings are concluded - CPR 31.11
- So, they must disclose any documents which come within their control or were created after original date of disclosure if they fall within its disclosure obligations.
Sources and Types of Disclosure - d) Use of disclosed documents: What is the general rule for use of documents?
Party to whom document disclosed can only use for purposes of proceedings in which disclosed any not for any ulterior purpose such as other proceedings - CPR 31.22(1)
Sources and Types of Disclosure - d) Use of disclosed documents: What are the exceptions to general rule on use?
- Document has been read to or referred to by court at a hearing held in public (read means pre-read and referred to in skeleton arguments)
- Court gives permission
- Party who disclosed document and to whom it belongs agrees.
Note - Court can be asked to make order restricting or prohibiting use of document read or referred to at public hearing.
Standard Disclosure - Introduction: What are the main sections of the CPR?
CPR 31
Standard Disclosure - a) What is it: What does standard disclosure require party to disclose?
CPR 31.6 -
* (a) The documents on which he relies and
* (b) The documents which
(i) Adversely affect hsi own case
(ii) Adversly affect another partys case or
(iii) Support another partys case and
* (c) Documents which he is required to disclose by relevant PD.
Standard Disclosure - a) What is it: What provisions must you then read 31.6 above subject to?
- (a) Is it a document? - CPR 31.4
- (b) Is/was it within partys control - CPR 31.8
- (c) Does it fall within standard disclosure - CPR 31.6 above
So, you read the first two provisions to determine if document and in partys control and if so, then consider if it falls within standard disclosure.
Standard Disclosure - a) What is it - i) Meaning of document: How is it defined?
Widely and as anything which records information:
* Digital Recordings
* Emails
* Photographs
* Text messages
* Voicemails
* Metadata
Standard Disclosure - a) What is it - ii) Meaning of “in a partys control” How is the duty of disclosure limited?
Limited to documetns which are, or have been within partys control and this is defined widely to mean:
* (a) Document is or was in physical possesion of the party or
* (b) The party has or has had a right to possesion of the document (e.g documents held by partys agent such as those sent to its own accountant).
* (c) Party has or has had right to inspect or take copies of the document (such as right to inspect their own medical record)
In short do they or have they had access to it.
**Note - All disclosure boligations are limited to those which are or were in partys control, not just under standard disclosure. **
Standard Disclosure - a) What is it - ii) Meaning of “standard disclosure” When will requirement to disclose be met?
- If doc satsified just one of these criteria, it does not have to satisfy more than one.
- To determine if it does meet, must consider issues in dispute as revealed by statements of case.
Standard Disclosure - b) Concept of reasonable search: What kind of search must party carry out under standard disclosure?
Reasonable search of documents falling into (b)(i,ii,ii) and (c) at FC 19.
Standard Disclosure - b) Concept of reasonable search: What is considered reasonable?
Depends on the following:
* Number of documents involved
* Nature and complexity of proceedings
* How difficult/expensive it would be to retrieve
* Significace of any document likely to be found.
Note - In deciding, court must also take into account overriding objecive and in particular, proportionality, so it might be possible to the search to partocular transaction or documents created on or after specific date.
Standard Disclosure - c) Disclosure List: What must eahc party make and serve on other party?
Standard disclosure performed by each party making a list of required documents and serving it on the other party - CPR 31.10 with normal direction to exchange simultaneously.
Standard Disclosure - c) Disclosure List: How are the documents listed?
N265 with the list falling into three parts:
* (a) I have control of the doucments numbered and listed here. I do not object to you inspecting them/producing copies.
* (b) I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege]
**Note - If reciepient disageed with disclosing party assertion of privilege, they can apply to corut to challenge alleged privilege - CPR 31.19(5) **
- (c) I have had the documents numbered and listed below, but they are no longer in my control.
Standard Disclosure - c) Disclosure List - i) Disclosure statement: What must every list of documents include?
Disclosure statement in prescribed form - 31A PD 4 which:
* Sets out the extent of the search made (that it was reasonable and proportionate and also what wa snot searched for)
* Certifies the party understands it duty to disclose the documents
* Certifies that, to the best of party’s knowledge it has carried out that duty.
It must also include detials fo any docs the inspection of which party considers dispropirtionate. - CPR 31.3(2).
Standard Disclosure - c) Disclosure List - i) Disclosure statement: What if the person making is company?
Statement should be made by appropiate office, who must identify themselves and state why they are the appropiate person to make the statement - CPR 31.10(7)
Standard Disclosure - d) Ensuring compliance with disclosure duty: What must solicitor do?
Required to ensure person making statement understands the duty of disclosure - 31A PD 4.4 and should therfore advise client of it at outset of case.
Standard Disclosure - d) Ensuring compliance with disclosure duty: What if party fail to disclose?
- May not rely on any document they fail to disclose or in respect of which they fail to permit inspection unless court gives permsision - CPR 31.21.
- Proceedings for contempt of court may be broguht against a person if they make or cause to be made a false disclosure statement, without honest belief in its truth - CPR 31.21.
Standard Disclosure - d) Ensuring compliance with disclosure duty: What if additional docs come to light?
Sipplemental list may need to be prepared and served, if any come to light or created after disclosure list served.
Inspection - Introduction: What is the relevant CPR?
CPR 31.1, 31.14, 31.15, 31.19
Inspection - a) Right to inspect: When will parties have right to inspect?
Party has the right to inspect a document that has been disclosed, except where:
* (a) Document is no longer in the disclosing party’s control - CPR 31.3(1)(a)
* (b) Allowing inspection would be dispropiationate - CPR 31.3(1)(a)
* (c) Disclsoing party has a right or duty to withhold inspection (such as privilege) - CPR 31.3(1)(b)
We will look below at these limitations on right to inspect in turn.
Inspection - a) Right to inspect - i) Limitation 1: No longer in control: How does this prevent inspection?
Common sense - Party A cannot let PArty B look at a document which is not in its control.
Inspection - a) Right to inspect - i) Limitation 2: Disproportionate: How does this prevent inspection?
- If party disclsoign thinks disproportioante to permit, not required but must state in disclosure statement that it is not permitted and allowing would be disproportioante - CPR 31.3(2)
- This is rare, as once document found and disclosed, unlikely letting otherside see would be disproprtionate and issues regarding disproprtionality, most likely to arise earlier when decide scope of the search.
Note - Cannot be refused on this ground if reason for disclosure is that party wishes to rely or that PD requires disclosure.
Inspection - a) Right to inspect - i) Limitation 3: Right/duty to withhold: What is the positon if a document is privleged?
- If document falls wthin scope of order for disclosure, and is privileged, its existence must still be disclosed, so it can only be witheld from inspeciton.
- But they can be described generically in partys lsit and not listed indvidiaully.
We will consider privileged docuemnts and the types in a seperate section below.
Inspection - b) Redaction: Is redaction possible?
While no provision in CPR for redaction, it is accepted that it is possible under certain circumstances but confidentiality and commeercial sensitvity alone does not justify and there are two main circumstances redaction is possible.
Inspection - b) Redaction: What is the first circumstances allowing for redaction?
If part of document which attracts privilege, but the remainder does not, then the privileged part can and indeed should be redacted to avoid waiving privleged.
Note - Confidentiality and privilege is not the same and many will be confidential but still not privileged.
Inspection - b) Redaction: What is the second circumstances allowing for redaction?
If the information is totally irrelevant to the dispute, it can be redacted, so if confidential/commercial senstive and irrelevant then generally is redacted.
Inspection - b) Redaction: What is the position for lsiting redacted documents?
- Redacted version of doc listed in first part of list and made available for inspection with appropiate part covered.
- Unredacted version listed generically in second part of list - inspection refused.
Inspection - c) Waiver: What can a party do in relation to privilege?
- They can deliberately allow inspection of a privaleged document if it considers it will help its case, which is called waiver of privilege.
- However, party does not have unrestricted right to determine precisely what it wishes to waive.
Inspection - c) Waiver: What is the first way in which party does not have unrestricted right?
- Waiver of privilege in part of wholly privileged document will lead to waive of privilege over reminder of document, unless it deals with entirely different matter.
- So, aprties cannot cherry pick parts of privileged document to reveal - Great Atlantic Insurance v Home Insurance.
Inspection - c) Waiver: What is the second way a party does not have unrestricted right?
- Waiver in one document can lead to rpivilege being lost in other documents.
- If it would be unfair to allow party waiving not to put those documents before court such as if they all deal with same matter and only permitting inspection of one could lead to misunderstood facts.
Inspection - c) Waiver: What is the position relating to documents referred to in statement of case?
- In addition to disclosure pursuant to court order, party can inspect doc referred to in statement of case such as witness statement - CPR 31.14 which can take place even before disclosure stage.
- Case law suggests this right to inspect is subject to usual rules of privilege, so privilege is not lost simply due to reference in statement of court.
But note - In some circumstances, it could, so parties should tread very carefully.
Inspection - c) Waiver - i) Additional Pricniples of privilidge: What does “once privileged, always privileged mean?
If something privileged in one set of proceedings, it will remain privileged in relation to all proceedings, unless something takes place to cause it be lost such as waiver - The Aegis Blaze 1986
Inspection - c) Waiver - i) Additional Pricniples of privilidge: Where does the burden of proof lie?
If there is dispute over a document being subject to privilege, burden rests of party claim privilege to establish it.
Inspection - d) Procedure of Inspection: What must party wishing to inspect do?
- Must send written notice of its wish to do so on the other side.
- Otherside must then allow inspection within 7 days of reciept of notice - CPR 31.15(a) and (b)
- Court directions can vary these time limits.
Inspection - d) Procedure of Inspection: What can parties also request?
- For copies with an undertaking to pay reasonable phoyocopying charges - CPR 31.15
- Copies must then be provided within 7 days of receipt of request.
Inspection - d) Procedure of Inspection: What if party fails to allow inspection?
Party may not rely on any document in respect of which they fail to permit inspection, unless court gives permission - CPR 31.21.
Tyes of Privilege - Introduction: What are the relevant sections of CPR?
- CPR 31.3
- However, main law underpinning is case law.
Tyes of Privilege - Introduction: What are the most important types?
- Legal Advice privilege
- Litigation privilege
- Without prejudice communications
Tyes of Privilege - a) Legal advice privilege: What is the definition?
A document which is a confidential communication which was between lawyer and client and was prepared for dominant prupose of giving or receiving legal advice.
The definition of privileges are useful starting points and then properly applied with case law, etc and we will look at those in bold and how the courts have applied
Tyes of Privilege - a) Legal advice privilege - i) Confidential: What is the principle of confidentiality relating to this privilege?
- That a client should be able to get legal advice in confidence.
- If it is not confidential, then privilege will not apply.
Tyes of Privilege - a) Legal advice privilege - ii) Communication between lawyer and client: What is the position solicitor notes with clients?
Where concerning legal advice, it will be confidential communication between lawyer and client and therefore subject to legal advice privilege.
Tyes of Privilege - a) Legal advice privilege - ii) Communication between lawyer and client: What is position for attendane note of conversation between parties or what happens at court?
- Not privileged since, although the court held that a note would be communication, there is no confidentaility in notes which both sides are present - Parry v Newroup Newspapers
- So, solicitor notes are communications under the test but only privileged if prepared in relation to confidential work udnertaken for client in purpose of legal advice.
Note - This does not apply to legal or quasi legal advice by non-lawyer such as tax advice by accountants.
Tyes of Privilege - a) Legal advice privilege - iii) Dominat purpose of giving/receiving legal advice: What is position for wider communications between solicitor and client?
Balabel v Air India - If solicitor retained primarily to provide legal advice, wider communciaition between solicitor and client, even if ancillary to that purpose, will be privileged as they fall in continuum of communciation.
Tyes of Privilege - a) Legal advice privilege - iii) Dominat purpose of giving/receiving legal advice: What is the position for “presentational advice?
Three Rivers Council v Governor and Company of Bank of England - Confirmed that presentation advice inclding most appropiate way to present information was covered and fact lawyers giving advice through legal spectacles was key consideration as related to what should be sensibly done in legal context of claim.
Tyes of Privilege - a) Legal advice privilege - iii) Dominat purpose of giving/receiving legal advice: What is the position for in house lawyers?
- they also enjoy legal advice privilege as long as communcation concerns advice given in legal capacity, rather than general commercial or executive capcity with no legal context.
- However, unlikely to attached to communcation with individuals who are qualfiedi lawyers, but not employed in a legal role.
Types of Privilege - b) Litigation Privilege: What is the definition?
A document which is a confidential communication which passed between lawyer and their client or between one of them and a third party, where dominant purpose in creating document is to obtain legal advice, evidence or information for use in codnuct of litigation which was at the time reasonably in prospect.
As with above, we will review each of bold in more details.
Types of Privilege - b) Litigation Privilege - i) Confidentiality: What is the principle of confidentiality?
See same explanation above for legal advice privilege.
Types of Privilege - b) Litigation Privilege - ii) Communication: What is the positon for communication?
- Communication between alwyer and client self-explanatory.
- However, it also extends to documents broguht into existence for purpose prosecuting or defneding the claim such as memoranda from one lawyer in firm to colleague relating to a litigation case, or draft SoC despite not been solicitor and client or third party.
- There is also communciation between lawyer and TP such as a client and a witness.
Types of Privilege - b) Litigation Privilege - iii) Dominant Purpose for legal advice or litigation: What if there is more than one purpose?
- Where more than one purpose, court will look at dominant purpose, so the test is therfore one of dominance and not exclusivity.
- So, can be difficult to establish dominant purpose if document is produced for dual purpose.
Types of Privilege - b) Litigation Privilege - iv) Litigation is reasonably in prospect: What does this mean?
- Litigation for wich documents are to be used mus tbe reasonably in prospect.
- So, it must be a real likelihood than a mere possibility so geneal apprehnsion of future litigation is not suffciient.
Types of Privilege - c) Without Prejudice Communication: What is the definition?
A document whose purpose is to settle a dispute.
Types of Privilege - c) Without Prejudice Communication: What will the court look at?
Substance rather than form - Rush and tomkins v Greater London Council which means:
* Document need not be marked without prejudice to apply
* And one marked without prejudice may not be a genuine attempt to settle and would theefore fail to be inspected.
Types of Privilege - c) Without Prejudice Communication: What is the general position for without prejudice documents?
They generally will not be seen by the court uless privilege is expressly waived.
So, purpose of WOP is to prevent the court from inspecting these documents, the other party will have seen the documentation as it is made to them. Thus it is to prevent impacting court decision deciding claim if they could see the offers made.
Types of Privilege - c) Without Prejudice Communication: When amy court see documents contents?
Where doucment marked without prejudce save as to costs which emans court will not see unless considering costs of action or particular issue.
Types of Privilege - c) Without Prejudice Communication: Which list do WOP docs fall into?
Part 2 - However, in general terms and not detailing the fact it is an offer.
Specific Disclosure, Specific inspection and pre-action disclosure - Introduction: What is the relevant sections of CPR?
CPR 31.12 and 31A PD 5
CPR 31.16
CPR 46.1
Specific Disclosure, Specific inspection and pre-action disclosure - Introduction: What else does CPR 31 allow for?
Provision for application of party or potential party involving specific disclosure and pre-action disclosure and the relevant provisions are summarised below:
Som specific disclosure/inspection is used after proceedings and pre-action is prior to ligiation - Below we will look at specific disclosure and inspection then pre-action disclosure seperate,
Specific disclosure and specific inspection - Introduction: What does an order for specific disclosure set out?
CPR 31.12(2) - That a party must do one or more of following:
- Disclose documents/classes of doucments specified in order
- Carry out a search to extent stated in the order
- Disclose any documents lcoated as a result of that search.
Court has jurisdiction to make ordr for specific disclosure/inspection any time after proceeding siussed.
Specific disclosure and specific inspection - Introduction: When are applications generally made?
After standard disclosure has occured, where applicant considers that further disclosure is required..
Specific disclosure and specific inspection - a) Will application be successful for specific disclosure: What do the rules contain to predice outcome of applciation?
31A PD 5.4 - When court decides to make an order for specific disclosure:
* (a) The court will take into account all the circumstances of the case
* (b) The court will, in particular take account of the overriding objective (including, for example the proportionality and reaosnableness of making an order for specific disclosure) and
* (c) If the court decides that party against whom specific disclosure is soguht has failed adquately to comply with obligations imposed by an order for disclosure.
Specific disclosure and specific inspection - a) Will application be successful for specific disclosure: So, what must be shown where respondent in breach of obligation under standard disclosure?
- Court has made order for standard disclosure
- On proper consideration of disclosure rules, document concerned should have already been disclosed by opponent.
Then court will usually order opponent to disclose.
Specific disclosure and specific inspection - a) Will application be successful for specific disclosure: When else may court order specific disclosure?
Not just confided to where respodnent breached standard disclosure, and can also make where they have complied with standard but appliant satisfies that:
* Such disclose is inadequate
* Case is one where something more than standard disclosure is called for
Specific disclosure and specific inspection - b) Procedure of specific disclosure: What are the requirements of application?
- Must be made by application notice
- Specify the order sought, including listing documents soguht in schedule to order (more specific, more likey to succeed)
- Be supported by evidence - CPR 31A PD 5.2 and 5.3
Specific disclosure and specific inspection - c) Specific inspection: What is the purpose of this order?
- Specific inspection is an order that party permits inspection of a document disclosed, but disclosing party alleges it would be disproportioante to allow inspection - CPR 31.12(3)
- Rare in practice as not common for party to claim disproprtionate to allow inspection.
Pre-action Disclosure - Introduction: What does this allow the court?
To order pre-action disclosure to allow party to obtain disclosure before proceedings commcned - CPR 31.6.
Pre-action Disclosure - Introduction: When may court make order for pre-action disclosure?
Where:
* Respodnent likely to be a party to subsequent proceedings.
* Applicant also likely to be party.
* If proceedings had started, respondents duty by way of standard disclosure - CPR 31.6 would extend to the documents or classes document which applicant seeks (WHICH MEANS SCOPE OF PRE-ACTION DISCLOSURE CANNOT BE WIDER THAN ORDINARY STANDARD DISCLOSURE)
* Pre-action disclosure is desireable in order to:
(i) Dispose fairly of anticipated proceedings
(ii) Assist the dispute to be resolved without proceedings, and
(iii) Save costs.
If all above are met, then court may order, but does not have to as still retains discretion.
Pre-action Disclosure - a) Procedure: What must application do?
As with specific , must:
* Specify order sought, including documents and
* Be supported by evidence
Pre-action disclosure order may also require respondent to specify those documents no longer under its control or which it has right to withhold inspection.
Pre-action Disclosure - b) Costs: What is the psotion to costs and pre-action disclosure?
- At time of application, parties are not party to any actual proceedings.
- General rule is therfore, party against whom order is sought, be awarded costs o application and complying with it, so applicant generally has to pay respondent costs.
Note - This is not an absolute rule and in certains ituations, court may make a different order if respondent did not comply with pre-action protocol or relevaitvely modest request for pre-action disclosure.
Non-Party Disclosure and Norwich Pharmcal Orders: What are the relevant sections of CPR?
- CPR 31.17 - Non-party disclosure
- CPR 31.18 - Norwich Pharmcal orders
Non-Party Disclosure and Norwich Pharmcal Orders: What are the relevant provisions for non-party before and after proceedings?
We look at the first two rows above in specific disclosure and inspection as well as pre-action disclosure for parties/potential parties and now we will look at non-parties, taking each in turn below looking at Non-part first
Non-Party Disclosure - Introduction: What powers do court have?
Order a person who is not a party to the proceedings to give disclosure of documents - CPR 31.17.
Non-Party Disclosure - Introduction: What are the requirements to fufill before court makes such an order?
Order can be made where:
* Docuemnts likely to support applicants case or adversly affect case of one of parties to the proceedings and
* Disclosure is necessary in order to dispose fairly of the claim and to save costs.
**Note - As with pre-action disclosure, even if above satisfied, court may make order but does not mean it has to as discretion remains. **
Non-Party Disclosure - Introduction: When can this application be used?
Only when proceedings have actually started.
Non-Party Disclosure - a) Procedure: What are the requirements of application?
As with specific disclosure - CPR 31.12, applicant must:
* Be made by application notice
* Specify the order sought, including listing documents sought
* Be supported by evidence; and
* Require respondent to specify those documents which are no longer under thier control or which they have right to withhold from inspection - CPR 31.17(4)
Then served on the respondent (non-party) even though not a party to proceedings and any other party to proceedings - CPR 23.4.
Non-Party Disclosure - b) Costs: What is the presumption of the court?
That they will order applicant to pay costs of respondent in deal with application and complying with any order made as a consequence.
Non-Party Disclosure - b) Costs: When may this presumption be rebut?
It may be rebut and different costs order made - CPR 46.1(3) such as if non-party respondent acted unreasonably in opposing applicaiton and any previous request for disclosure.
Alternative Disclosure - Norwich Pharmacal Orders: What does this order allow for?
Solution where court proceedings cannot be comcmned because identity of the defendant is unknown and thereby orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant.
Alternative Disclosure - Norwich Pharmacal Orders - a) Procedure: What is the procedure for this order?
- None in the CPR
- Procedure determined via case law and this is that applciant should issue a claim form against respondent rather than using any application notice.
Alternative Disclosure - Norwich Pharmacal Orders - a) Procedure: What should be included with claim form?
Support with evidence usually in form of witness statement and draft order, with statement including:
* Evidence to show action cannot be borught without information
* Evidence respondent has been involved in wrong doing
* Details of specific documents/information soguht and why respondent is believed to be in possession.
Alternative Disclosure - Norwich Pharmacal Orders - b) When will court grant: What conditions msut be satisified for court to exercise power to order this relief?
- A wrong must have been carried out by an ultimate wrongdoe such as tort, breach or crime.
- There must be the need for an order to enable action to be broguht against ultimate wrongdoer (so unliekly if information can be obtained another way)
- The person against whom the order is sought must:
(i) Be more than mere witness/bystander (so must have some greater involvement, but not necessaily any fault) and
(ii) Be able to (or likely be able to) provide information necessary to enable ultimate wrongdoer to be sued.
Must be necessary and proportionate in all circumstances.
