Disclosure and Inspection

Question 1

What is the disclosure direction usually given to claims in the small claims track?

Answer 1

Each party will at least 14 days prior to the date of the final hearing, file and serve on all other parties copies of all documents, which they intend to rely on at that hearing.

Question 1

What does the definition of document include for the purposes of disclosure?

Answer 1

Anything in which info of any description is recorded.

This means it can be emails, pictures, videos, audiotapes, and written documents (this is not an exhaustive list).

Question 2

What disclosure order is usually given for fast track claims?

Answer 2

An order for standard disclosure.

Question 3

What disclosure order is usually given for multi-track claims?

Answer 3

Standard disclosure usually ordered, but court may tailor the order to requirements of the particular case.

They will take into account the importance of the issues and complexity of the matter in doing so.

Question 4

Give an overview of the stages of disburse in the multi-track.

Answer 4

1) How do the parties notify the court of their requirements for disclosure?
- By compiling a disclosure report.

2) When must this be filed and served?
- Not less than 14 days before the first case management conference (CMC).

3) What happens next?
- Not less than 7 days before the first CMC the parties must discuss and seek to agree a proposal for disclosure that meets the overriding objective. Any agreed proposal must be filed at court.

4) What orders for disclosure can the court make?
- An order for standard disclosure or any other order that the court considers appropriate.

Question 5

List some examples of disclosure orders the court can make in the multi-track.

Answer 5

An order:
* dispensing with disclosure;
* for specific disclosure;
* disclosure on an issue by issue basis.

Question 6

What documents are required to form part of discourse, under standard disclosure defined in CPR rule 31.6?

Answer 6

Requires a party to disclose:
1) The documents on which they rely; and

2) The documents which:
a) adversely affect their own case;
b) adversely affect another party’s case; or
c) support another party’s case.

Question 7

True or False: There is no need to search for and disclose documents that record only information relating to agreed matters.

Answer 7

True.

Question 8

Explain the requirement to make a reasonable and proportionate search for documents.

Answer 8

Party’s are required to make a reasonable and proportionate search for all documents which:
1) Adversely affect their own case;
2) Adversely affect another party’s case;
3) Support another party’s case.

Question 9

What does reasonable mean in the context of the requirement party’s are required to make a reasonable and proportionate search for documents?

Answer 9

This will depend on:
1) number of documents involved;
2) nature and complexity of proceedings;
3) ease and expense of retrieval of any particular document; and
4) significance of the document.

Question 10

Give an example of when it may not be considered reasonable for a party to locate a document?

Answer 10

Where the document is peripheral to the main issues and would be expensive to locate it. However, the value of the claim is important (ie higher value claim makes it more likely this would be reasonable).

Question 11

Doe the value of the claim have an impact on the extensiveness of the document search required for disclosure purposes?

Answer 11

Yes. A higher value claim will make it more ‘reasonable’ that a more extensive search for document is conducted.

Question 12

List the ways in which a party can limit the extent of their search.

Answer 12

1) By not searching for documents that came into existence before a particular date; or
2) By specifying a particular place or places they search; or
3) By limiting the categories of documents.

NOTE - any such limitation would need to be justified.

Question 13

When will a court likely accept limitations on the search for documents in disclosure?

Answer 13

Limitations will usually be acceptable to the court if the court is satisfied they would not affect a proper investigation into the merits of the case.

Question 14

How and when will the court deal with the issue of disclosure of electronic documents?

Answer 14

Parties should ideally agree the extent and categories of electronic documents which will be disclosed.

At the CMC, parties will discuss the disclosure with the court, and the court will then give either written directions on how the electric disclosure will proceed, or in some cases order for a separate hearing to deal with electronic disclosure.

Question 15

Which form is used for disclosure (ie the disclosure list)?

Answer 15

Form N265.

Question 16

What are the three sections of the disclosure list?

Answer 16

1) Formalities;
2) Disclosure statement;
3) The List

Question 17

Explain the formalities requirement of the disclosure list (form N265).

Answer 17

This must include the court, the claim number, and the parties (details of which must be set out in the top right corner).

Question 18

Explain the disclosure statement section of the disclosure list (form N265)

Answer 18

• Party must sign confirming extent of the search made to locate documents.
• Must also certify they understand duty to disclosure and that (to best of their knowledge) this has been carried out.
• If category or class of documents is not included because it is deemed to be disproportionate to the issues of the case, they must explain reasons for this in their disclosure statement (eg stating the expense is too high/ documents are of marginal relevance).

Question 19

True or False: The duty of disclosure is regarded so seriously that proceedings for contempt of court may be brought against anyone who makes a false disclosure statement without an honest belief in its truth.

Answer 19

True.

Question 20

Is the duty to disclosure a continuing duty?

Answer 20

Yes - means additional documents a party becomes aware of should be served in supplemental list of documents.

If they wish to rely on a newly found document at trial and the opponent does not agree, court must give permission.

Question 21

Explain the format of the list on the disclosure document (found on the back page of the form N265).

Answer 21

Consists of three parts

Part 1: documents within the party’s control which they do not object to the other party inspecting - usually numbered and listed in date order with concise description.

Part 2: documents in the party’s control where there is an objection to inspection (generally because they are privileged).

Part 3: documents that are not privileged from inspection but are no longer in party’s control. List must state what happened to the documents (eg lost/ destroyed in a fire etc). Commonly this will involve original documents which have been posted elsewhere.

Question 22

Explain when a party can withhold certain documents?

Answer 22

Usually when the documents come within the definition of professional privilege. These docs must be contained within the list but the key differences are:

1) other parties cannot inspect them; and
2) they are described generically.

Question 23

What is legal advice privilege?

Answer 23

• Documents are privileged if they contain/ reference advice from a legal professional to the client.
• However legal advice privilege only applies where it is the sole or dominant purpose. If the document has more than one purpose, the dominant purpose must be established.

Question 24

Can an attendance note
1) be disclosed;
2) referred to at trial.

Answer 24

1) Yes;
2) No.

Question 25

What is the legal test to see if something is subject to litigation privilege?

Answer 25

The document must be a communication:
1) passing between client or lawyer and a third party;
2) which came into existence when litigation was contemplated or ongoing; and
3) which was produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice in regard to it, or for obtaining evidence to be used in the litigation.

Question 26

Give an example of a document which would satisfy the test for litigation privilege.

Answer 26

An expert witness report obtained by a solicitor in order to advise their client.

Question 27

Can a client waive privilege?

Answer 27

Yes. Will often occur in litigation as it may be the only way to advance proceedings.

Alternatively, privilege may be waived by mistake (eg when solicitor is drafting statements of case and witness statements, they are privileged from inspection but once served on the other side privilege is waived).