Disclosure and Inspection of Documents (Syllabus 14)

Question 1

What claims does CPR 31 apply to (disclosure and inspection of documents)?

Answer 1

to all claims except a claim on the small claims track

Question 2

What is the meaning of disclosure?

Answer 2

a party discloses a document by stating that the document exists or has existed

Question 3

Who has a right to inspect a document?

Answer 3

a party to whom a document has been disclosed.

Question 4

When does a party to whom a document has been disclosed no longer have a right to inspection?

Answer 4

where the document is no longer in the control of the party who disclosed it, the party disclosing the document has a right or duty to withhold inspection of it

Question 5

What happens where a party considers that it would be disproportionate to permit the inspection of documents within a particular category?

Answer 5

he is not required to permit inspection of documents within that category or class; but he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

Question 6

What does disproportionate mean in terms of inspection?

Answer 6

the term disproportionate should be given its ordinary meaning when considering proportionality and the overriding objective.

Question 7

What is the meaning of document?

Answer 7

“document” means anything in which information of any description is recorded and “copy” means anything onto which information recorded in the document has been copied by whatever means and whether directly or indirectly.

Question 8

What must each party file and serve not less than 14 days before the first case management conference?

Answer 8

a report which-

(1) describes briefly what documents exist or may exist that are or may be relevant to the ammeters in issue in the case
(2) describes where and with whom those document are ir may be located
(3) in the case of electronic documents, describes how those documents are stored
(4) estimates the broad range of costs that could be involved in giving standard disclosure in the case
(5) states which of the directions are to be sought.

Question 9

When must the report regarding disclosure be filed?

Answer 9

not less than 14 days before the first CMC

Question 10

What must the parties do not less than 7 days before the first CMC?

Answer 10

they must at a meeting or by telephone discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

Question 11

When must the parties have a meeting and seek to agree a proposal for disclosure?

Answer 11

not less than 7 days before the first CMC

Question 12

If the parties agree appropriate proposals for the scope of disclosure what will the court do?

Answer 12

approve the proposals without a hearing and give directions in the terms proposed.

Question 13

What orders can the court make about disclosure?

Answer 13

(1) an order dispensing with disclosure
(2) an order that a party disclose the documents on which it relies and at the same time request any specific disclosure it requires from any other party
(3) an order that directs where practicable the disclosure to be given from any other party.
(4) an order that each party disclose document which it is reasonable to suppose may contain information which enables that party to advance its own case.
(5) an order that a party gives standard disclosure
(6) any other order in relation to disclosure that the court considers appropriate.

Question 14

What documents need to be disclosed for standard disclosure?

Answer 14

standard disclosure requires a party to disclose only-

(1) the documents on which he relies; and
(2) the document which-
(a) adversely affect his own case;
(b) adversely affect another party’s case; or
(c) support another party’s case; and
(3) the documents which he is required to disclose by a relevant PD.

Question 15

Will a document that does not adversely affect a case but provides lines of inquiry leading to information which has a negative effect fall within standard disclosure?

Answer 15

No

Question 16

What are the four categories of documents?

Answer 16

(1) the parties’ own documents
(2) adverse documents
(3) the relevant documents
(4) train of inquiry documents

Question 17

Are train of inquiry documents ever appropriate for disclosure?

Answer 17

Yes, sometimes in cases of fraud, mistake or misrepresentation.

Question 18

What is redaction used for?

Answer 18

redaction is used to remove irrelevant material from disclosed documents.

Question 19

What is a party required to do when giving standard disclosure?

Answer 19

a party is required to make a reasonable search for documents falling within the standard disclosure test.

Question 20

What are the factors that are relevant in deciding the reasonableness of a search?

Answer 20

(1) the number of documents involved;
(2) the nature and complexity of the proceedings
(3) the ease and expense of retrieval of any particular document; and
(4) the significance of any document which is likely to be located during the search.

Question 21

What must a party do if they have not searched for a category or class of document?

Answer 21

state that such a search would be unreasonable in the disclosure statement

Question 22

What is the duty of disclosure limited to?

Answer 22

documents which are or have been in his control

Question 23

What does it mean for a document to be in a party’s control?

Answer 23

if-

(1) it was in his physical possession;
(2) he has or has had a right to possession of it; or
(3) he has or has had a right to inspect or take copies of it.

Question 24

Does a party need to disclose copies?

Answer 24

a copy need not disclose more than one copy of a document

Question 25

If a copy of a document contains a modification, obliteration or other marking or feature how will it be treated?

Answer 25

if the party intends to rely on this feature; or

the feature adversely affects his own case it shall be treated as a separate document

Question 26

What is the procedure for standard disclosure?

Answer 26

the procedure for standard disclosure is as follows:

(1) each party must make and serve on every other party a list of documents.
(2) the list must identity the documents in a convenient order and manner and as concisely as possible.

Question 27

What must a disclosure list indicate?

Answer 27

(1) those documents in respect of which the party claims a right or duty to withhold inspection; and
(2) those document which are no longer in the party’s control and what has happened to those documents.

Question 28

What must the disclosure list include?

Answer 28

a disclosure statement

Question 29

What is a disclosure statement?

Answer 29

a statement made but he party disclosing the document-

(1) setting out the extent of the search that has been made to locate documents which he is required to disclose;
(2) certifying that he understands the duty to disclose documents; and
(3) certifying that to the best of his knowledge he has carried out that duty.

Question 30

When a disclosure statement is made by a company, firm association or organisation what must the statement identify?

Answer 30

the person making the statement and why he is considered an appropriate person to make the statement.

Question 31

What can parties agree in writing?

Answer 31

to disclose documents without making a list; and

to disclose documents without the disclosing party making a disclosure statement.

Question 32

Can a disclosure statement be made by a person who is not a party?

Answer 32

yes but only where it is permitted by a relevant PD.

Question 33

When does the duty of disclosure continue until?

Answer 33

until the proceedings are concluded.

Question 34

what documents can be inspected by a party?

Answer 34

a document mentioned in-

(a) a statement of case
(b) a witness statement
(c) a witness summary; or
(d) an affidavit

A party can also apply for an order for insepcting of any document mentioned in an expert’s report that has not already been disclosed.

Question 35

Where a party has a right to inspect a document, what must that party do?

Answer 35

give the party who disclosed the document written notice of his wish to inspect it, the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice

Question 36

Can a party who requests inspection of a document take a copy of that document?

Answer 36

Yes and if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

Question 37

What is the consequence of failure to disclose documents or permit inspection?

Answer 37

a party may not rely on any document which he fails to disclose or he fails to permit inspection unless the court gives permission.

Question 38

What happens if a person makes, or causes to be made, a false disclosure statement without honest belief in its truth?

Answer 38

proceedings for contempt of court may be brought against that person.

Question 39

What is the normal order for disclosure?

Answer 39

standard disclosure

Question 40

Does disclosure extend to electronic documents?

Answer 40

Yes

Question 41

Where an expert report refers to a large number or volume of documents and it would be burdensome to copy or collate them, what is the court likely to order?

Answer 41

the court will only order inspection of such documents if it is satisfied that it is necessary for the just disposal of the proceedings and the party cannot reasonably obtain the documents from another source.

Question 42

What is an order for specific disclosure?

Answer 42

an order that a party must do one or more of-

(1) disclose documents or classes of documents specified in the order
(2) carry out a search to the extent stated in the order
(3) disclose any documents located as a result of that search.

Question 43

What should an application for specific disclosure state?

Answer 43

• what order is sought and must be supported by evidence.

- the application should set out the documents or classes of documents for which disclosure or inspection is sought.

Question 44

What is he rationale for the discretion to order specific disclosure?

Answer 44

the overriding objective obliges the parties to give access to those documents which will assist the other’s case

Question 45

In personal injury cases what can the court do if a claimant refuses to be medically examined?

Answer 45

the court can stay proceedings.

Question 46

When can a party to whom a document has been disclosed use that document for another purpose?

Answer 46

if the document-

(1) has been read to or by the court at a public hearing
(2) the court gives permission; or
(3) the party who disclosed the document and the person to whom the document belongs agree.

Question 47

What can a document that has been disclosed to a party be used for?

Answer 47

only for the purpose of the proceedings in which it is disclosed.

Question 48

What is an Electronic Documents Questionnaire?

Answer 48

it is to be treated as if it is a document which has been disclosed

Question 49

Do the other rules on disclosure limit the court’s power to order disclosure?

Answer 49

No the rules on disclosure do not limit any power which the court may have to order-

(1) disclosure before proceedings have started; and
(2) disclosure against a person who is not a party to the proceedings.

Question 50

Can an application for disclosure be made before the proceedings begin?

Answer 50

Yes. The application must be supported by evidence.

Question 51

When can the court make an order for disclosure before proceedings begin?

Answer 51

where-

(1) the respondent is likely to be a party to subsequent proceedings.
(2) the applicant is also likely to be a party to those proceedings;
(3) if proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(4) disclosure before proceedings have started is desirable to- dispose fairly of the proceedings, assist the dispute to be resolved without proceedings or save costs.

Question 52

What must an order requiring disclosure before the start of proceedings specify?

Answer 52

the documents or the classes of documents which the respondent must disclose and require him to specify any of those documents which are no longer in his control or in respect of which he claims a right or duty to withhold inspection.

Question 53

What is the scope of documents covered by pre-action disclosure?

Answer 53

applies to documents in a party’s possession, custody or power. This is not the “control test.”

Question 54

what is the two-stage approach for disclosure before proceedings start?

Answer 54

(1) establish whether the jurisdictional thresholds prescribed are satisfied; and if they are
(2) whether as a matter of discretion, an order for disclosure should be made.

Question 55

What must an applicant show when applying for an order for pre-proceedings disclosure?

Answer 55

the applicant must show at least a prima facie case of entitlement to substantive relief.

Question 56

Can an application for an order of disclosure be made against a person who is not a party to the proceedings?

Answer 56

Yes, an application can be made but it must be supported by evidence.

Question 57

When will the court make an order for disclosure against a person who is not a party to the proceedings?

Answer 57

the court has a discretion to make an order where-

(1) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(2) disclosure is necessary in order to dispose fairly of the claim or to save costs

Question 58

What must an order of disclosure against a person who is not a party specify?

Answer 58

(1) the documents, or class of documents which the respondent must disclose; and
(2) require the respondent to specify any of the documents which are no longer in his control or which he claims a right or duty to withhold inspection.

Question 59

What can an order for disclosure against a person who is not a party do?

Answer 59

(1) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(2) specify the time and place for disclosure and inspection.

Question 60

Where is the main statutory power for disclosure by “a person who is not a party to the proceedings”?

Answer 60

in s.34 Senior Courts Act and s.53 County Courts Act

Question 61

If the application for an order for disclosure against a person who is not a party has to be supported by evidence, what Part is that order made under?

Answer 61

CPR Part 23

Question 62

What is the general position of third party disclosure?

Answer 62

it is the exception and not the rule

Question 63

For an order for third party disclosure, what is meant by documents being likely to support the case?

Answer 63

the document may well support the case, as opposed to more probable than not.

Question 64

Before the defendant can apply for third party disclosure what will they probably need to do?

Answer 64

plead the defence.

Question 65

What is the Norwich Pharmacy jurisdiction?

Answer 65

it provides that a person innocently caught up in the wrongdoing of another so that they are more than a mere witness can be compelled to disclose the identity of the wrongdoer so that proceedings may be brought against the proper defendant.

Question 66

What are the three prerequisites of Norwich Pharmacal relief?

Answer 66

(1) a wrong must have been carried out, or arguably carried out bu an ultimate wrongdoer
(2) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
(3) the person against whom the order is sought must-
(a) be mixed up in so as to have facilitated the wrongdoing; or
(b) be able or likely to be able to provide the information necessary to enable the ultimate wrong-doer to be sued.

Question 67

What nature of wrongs are covered by Norwich Pharmacal?

Answer 67

the wrong may be a crime, tort, breach of contract, equitable wrong or contempt of court

Question 68

What is the need of Norwich Pharmacal to assert rights against wrongdoer?

Answer 68

it must be necessary for an order to enable a party to assert rights against the ultimate wrongdoer, or at least that it is just and convenient in the interests of justice to make the order sought.

Question 69

For a Norwich Pharmacal order, does an application have to be bringing proceedings?

Answer 69

No, the procedure us available were an applicant desire to obtain redress against the wrongdoer or to protect himself against further wrongdoing

Question 70

What must be the connection of the person a Norwich Pharmacal order is made against and the wrongdoing?

Answer 70

they must be mixed up in the wrongdoing, they cannot simply be a bystander or a mere witness.

Question 71

Are there any defences to disclosure of the identity of a wrongdoer?

Answer 71

applying the privilege against self-incrimination, a party has a defence to the disclosure of the identity of a wrongdoer where that disclosure would tend to incriminate the disclosing party, it must be the disclosure of the identity of another person that causes the risk.

Question 72

Can a person apply for an order to withhold disclosure of a document?

Answer 72

Yes they can on the ground they disclosure would damage the public interest

Question 73

Is notice require when applying for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest?

Answer 73

No

Question 74

Unless the court orders otherwise, an order of the court must not…

Answer 74

be served on any other person and must not be open to inspection by any person

Question 75

What must a party state when they wish to to claim that they have a right or duty to withhold inspection of a document? How must this be stated?

Answer 75

in writing, that he has such a right or duty and the grounds on which he claims that right or duty.

Question 76

What might the court do when deciding an application to withhold disclosure or inspection?

Answer 76

(1) require the person seeking to withhold disclosure or inspection to produce that document to the court; and
(2) invite any person, whether or not a party to make representations.

Question 77

Is there restriction on the use of a privileged document inspection, which has been allowed?

Answer 77

Yes, if the court allows a privileged document to be inspected, the party who has inspected the document can only use it or its contents with the permission of the court.

Question 78

What is legal professional privilege?

Answer 78

It is a single integrated right with two aspects- legal advice privilege which applies to documents that are privilege whether or not litigation was contemplated or pending; and litigation privilege which applies to documents that are only privileged if litigation was contemplated or pending when they were made or came into existence.

Question 79

Can legal professional privilege exists and is not waived can it be balanced against public interests?

Answer 79

No, it is absolute

Question 80

Who does the privilege belong to?

Answer 80

the party to the proceedings

Question 81

Who can waive the privilege?

Answer 81

only that party

Question 82

aRe documents from a non-professional servant, aged or third-party privileged?

Answer 82

only fi they came into existence for the purpose of obtaining legal advice or existing or anticipated proceedings.

Question 83

How can the dominant purpose of a document be ascertained?

Answer 83

It is not necessarily to be ascertained by the intention of the composer

Question 84

Are copies of documents privileged?

Answer 84

Yes, if they fall under legal advice, or litigation privilege.

Question 85

Does the disclosure of documents for a limited purpose waiver privilege?

Answer 85

No, not without mroe

Question 86

What is the without prejudice principle?

Answer 86

that communications made in the process of attempting ADR and settlement cannot be disclosed.

Question 87

What can without prejudice documents be used to show?

Answer 87

that no adverse cost sanctions should be ordered (without prejudice save as to costs)

Question 88

Who can waiver the without prejudice privilege?

Answer 88

it must be waivered by both parties, not just one. As both parties own the privilege.