W6 MCQ (Disclosure)

Question 1

When might the court order the parties to give disclosure?

A. When giving directions on allocation.

B. At a case management conference.

C. At a case management conference or on a party’s application.

D. When giving directions on allocation, at a case management conference, or on a party’s application.

E. On a party’s application.

Answer 1

D. When giving directions on allocation, at a case management conference, or on a party’s application.

These are all possibilities.

Question 2

Max has brought a claim against Bill following a road traffic accident. The damages for Max’s injuries are estimated at £35,000. The court has allocated the claim to the multi-track and listed a CMC. When must Max file and serve his disclosure report?

A. At least 28 days before the CMC.

B. At least 21 days before the CMC

C. At least 7 days before the CMC.

D. Max is not obliged to file or serve a disclosure report.

E. At least 14 days before the CMC.

Answer 2

D. Max is not obliged to file or serve a disclosure report.

There is no obligation to file and serve a disclosure report in a personal injury claim.

Question 3

Kelly has brought a claim against Shazia for loss of profits following a breach of contract by Shazia. The claim is valued at £65,000. The court has allocated the claim to the multi-track and listed a CMC. When must Kelly file and serve her disclosure report?

A. At least 21 days before the CMC

B. At least 14 days before the CMC.

C. At least 7 days before the CMC.

D. At least 28 days before the CMC.

E. Kelly is not obliged to file or serve a disclosure report.

Answer 3

B. At least 14 days before the CMC.

Question 4

The judge in a multi-track case is likely to consider at the first CMC…

A. What type of disclosure order to make.

B. What type of disclosure order, if any, to make.

C. Whether the parties have complied with their disclosure obligations.

D. Whether or not to order specific disclosure.

E. Whether or not to order standard disclosure.

Answer 4

B. What type of disclosure order, if any, to make.

Question 5

What is the usual order made in relation to disclosure in a claim allocated to the fast track?

A. Disclosure of unknown adverse documents.

B. Standard disclosure.

C. The parties must file and serve documents they intend to rely on 14 days before the final hearing.

D. There is no ‘usual order’.

E. No order for disclosure.

Answer 5

B. Standard disclosure.

Question 6

The approach recommended in this element for considering what a party should disclose under an order for standard disclosure is to consider…

A. Is it a document, is it or was it in the party’s control, does the party wish to rely on it?

B. Is it a document, is it or was it in the party’s control, does it fall within a reasonable search (CPR 31.7)?

C. Is it a document, does it fall within the test for standard disclosure (CPR 31.6)?

D. Is it a document, is it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?

E. Is it a document, is it or was it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?

Answer 6

E. Is it a document, is it or was it in the party’s control, does it fall within the test for standard disclosure (CPR 31.6)?

This is the approach recommended in this element.

Question 7

Which of the following is not a document?

A. Information stored on a computer about when a document was created, and who by.

B. An email.

C. A phone number memorised by one of the parties.

D. A text message.

E. A voicemail.

Answer 7

C. A phone number memorised by one of the parties.

See the definition of document (CPR 31.4). The other answers are all documents - information stored on a computer about when a document was created, and who by, is also included – this is called ‘meta data’.

Question 8

Which of the following falls outside of the concept of ‘control’ within the disclosure rules (CPR 31.8) as far as Party X is concerned?

A. A document which was destroyed in a fire at Party X’s premises.

B. A document in the possession of a witness who is supporting Party X.

C. A document held by a director of Party X in his capacity as a director of Party X.

D. A document obtained by Party X’s solicitor to be used as evidence in Party X’s case.

Answer 8

B. A document in the possession of a witness who is supporting Party X.

It may be that this will be provided to Party X if Party X asks for it, and at that point it would become in Party X’s control. However, until that happens, it is not within the meaning of ‘control’ within the disclosure rules (CPR 31.8). The other documents are or were all in Party X’s control. Party X’s director would hold documents like the one described as agent for Party X. Party X would have a right to inspect / take possession of a document obtained by its own solicitor for use as evidence.

Question 9

Which of the following is not prescribed as a relevant factor when deciding the reasonableness of a search for the purposes of standard disclosure (CPR 31.7)?

A. The ease and expense of retrieval.

B. The number of documents involved.

C. The resources of the party required to carry out the search.

D. The significance of any document which likely to be located during the search.

E. The nature and complexity of the proceedings.

Answer 9

C. The resources of the party required to carry out the search.

This is not stated in the rules as a relevant factor, but the court can still take it into account if it thinks it is appropriate to do so eg under the overriding objective. The list of factors in the rules (CPR 31.7) is not a list of all possible relevant factors.

Question 10

The CPR lists 3 exceptions to the general right to inspect a document which has been disclosed. Which of the following IS NOT one of them?

A. Allowing inspection would be disproportionate.

B. The document is no longer in the disclosing party’s control.

C. The disclosing party has a right / duty withhold inspection (eg it is privileged).

D. It would be unreasonable to have to search for the document.

Answer 10

D. It would be unreasonable to have to search for the document.

This is relevant to whether the document should be disclosed in the first place, but is not listed as an exception to the right to inspect (CPR 31.3).

Question 11

A company is in involved in litigation and has been obliged to disclose management accounts. Within the accounts are figures relating to directors’ salaries which are not relevant to the dispute and which are confidential. Which of the following is correct in relation to inspection and redaction of the accounts?

A. Inspection of the accounts need not be permitted. The issue of redaction does not arise.

B. Inspection of the accounts must be permitted. The commercially sensitive figures can be redacted because they are privileged.

C. Inspection of the accounts need not be permitted because redaction is not practically possible.

D. Inspection of the accounts must be permitted. The confidential figures can be redacted because they are commercially sensitive.

E. Inspection of the accounts must be permitted. The confidential figures can be redacted because they are irrelevant and commercially sensitive.

Answer 11

E. Inspection of the accounts must be permitted. The confidential figures can be redacted because they are irrelevant and commercially sensitive.

You have correctly understood that redaction of commercially sensitive parts of a document is only permitted if those parts are irrelevant or privileged.

Question 12

The maxim ‘once privileged, always privileged’ encapsulates which legal principle in relation to privilege?

A. If a document is privileged, then that privilege cannot later cease / be lost as a result of actions of the disclosing party.

B. If a document is privileged in relation to disclosure, it will be privileged in relation to inspection.

C. If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, even if those proceedings are entirely unconnected.

D. If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, if the two sets of proceedings concern substantially the same subject matter.

E. If privilege is established in relation to one type of document (for example, letters from a solicitor to a client) then it is established in relation to all documents in the same category (ie all letters from the solicitor to the client).

Answer 12

C. If a document is privileged in relation to one set of proceedings, it will be privileged in relation to later proceedings, even if those proceedings are entirely unconnected.

Question 13

You are a litigation solicitor at Price Prior. You are instructed by Janet McCormack in relation to a claim she has against Dockland Removals Limited (“Docklands”). Docklands’ solicitor phones you a day before his client’s defence is to be served and asks for an extension of time of 14 days to file and serve its defence. You take instructions from your client who agrees to the extra time. You then phone up Docklands’ solicitor to let them know that the extension of time has been agreed. You make a note on one sheet of paper of the three conversations a) with Docklands’ solicitor, b) with your client, Janet McCormack and c) with Docklands’ solicitor again. The case comes to the disclosure stage and an order for standard disclosure is made, and you conclude that the sheet of paper must be disclosed. Is the sheet or any part of it privileged from inspection?

A. The sheet of paper is not privileged as the dominant purpose of the creation of the piece of paper is to record a note of a telephone conversation with the other side’s solicitor which is not privileged.

B. The part of the sheet of paper concerning the conversation with your client is the only part of the sheet of paper which is privileged.

C. No part of the sheet of paper is privileged as its contents deal with the conduct of the case

Answer 13

B. The part of the sheet of paper concerning the conversation with your client is the only part of the sheet of paper which is privileged.

The record of the conversation between solicitor and client will be subject to litigation privilege and/or legal advice privilege. The rest of the sheet of paper is not privileged. The dominant purpose test is not really relevant here: we are not looking at a single communication created for several purposes, which is when the ‘dominant purpose’ test would be useful. Here, we have distinct communications, each with its own clear purpose, and they can effectively be dealt with separately. In practical terms, this means letting the other side see the sheet of paper, but with the record of the conversation between solicitor and client ‘redacted’ ie hidden. Redaction is explained in the element ‘Inspection’.

Question 14

You are a solicitor at Price Prior and you act for Elizabeth Jones (‘EJ’). EJ has brought proceedings against Terry Val (‘TV’) for personal injury she sustained to her back as a result of a car crash she had with him in June of this year. You have drafted the Particulars of Claim and at paragraph 4 you state that Ms Jones has not sustained any previous injuries to her back prior to this accident. However, during your investigation of this matter, you come across a note from a doctor in Tanzania. The note shows that 12 months before the accident occurred, EJ sustained an injury to her back whilst climbing Mount Kilimanjaro. EJ had failed to report this to her British GP. The matter proceeds to disclosure and you include this note in the List of Documents and send the list for approval to your client (standard disclosure has been ordered). EJ telephones you the next day and says that under no circumstances should TV see this document. Which one of the following statements correctly describes the status of this document?

A. The doctor’s note needs to be disclosed, but inspection can be refused because litigation privilege applies.

B. The doctor’s note must be disclosed and inspection permitted

C. The doctor’s note needs to be disclosed, but inspection can be refused because legal advice privilege applies.

D. The doctor’s note need not be disclosed, so the question of inspection does not arise.

Answer 14

B. The doctor’s note must be disclosed and inspection permitted

The document is in the client’s control and is potentially adverse to the client, and therefore must be disclosed. No privilege applies - litigation was not reasonably in prospect at the time the note was written and neither does it meet the test for legal advice privilege (or any other privilege).

Question 15

You are a trainee in the litigation department at Price Prior. You attended and took notes at the case management conference in High Court proceedings issued against your client, Robinson Asset Management Limited (“RAM”) by Lawton Holdings Plc (“LH”). The case management conference was attended by you, your supervising partner, a representative from your client, RAM, counsel for your client, and also by a representative of LH, a partner and an associate solicitor from its representing solicitors (a firm called Taylor Dockett LLP), and counsel. The partner from Taylor Dockett solicitors has contacted you to say that unfortunately owing to an IT problem, they have lost the notes they made of the meeting and they have requested a copy of your notes. You believe that even if the court orders standard disclosure you are not obliged to provide Taylor Dockett with a copy of your notes because they are covered by litigation privilege. Is this true or false?

A. True

B. False

Answer 15

B. False

Pursuant to the case of Parry v Newsgroup Newspapers, a solicitor’s attendance note of a conversation between parties (ie between the solicitors for each party normally), or what happens at court, is not privileged since, notwithstanding that the note is a communication, there is no confidentiality in notes of matters at which both sides are present. Therefore it is likely that you will have to provide a copy of your notes as part of the disclosure and inspection stage of proceedings.

Question 16

Your opponent writes to you by a letter clearly marked ‘without prejudice save as to costs’. Can you show that document to the court?

A. Yes.

B. No.

C. It depends on the content of the letter

D. Yes, but only on the question of costs.

Answer 16

C. It depends on the content of the letter

If the letter is a genuine attempt at settlement, then it will be privileged, and can only be shown to the court when it comes to costs. If it is not a genuine attempt at settlement, then it is unlikely to be privileged at all. The fact that the document is labelled a particular way is not conclusive.

Question 17

An order for specific disclosure can be made…

A. At any time after a disclosure order has been made and the time for compliance with that order has passed.

B. At any time before proceedings have been issued.

C. At any time after proceedings have been issued

D. At any time before or after proceedings have been issued.

Answer 17

C. At any time after proceedings have been issued

An order for specific disclosure (CPR 31.12) can be made at any time after proceedings have been issued. Before proceedings, pre-action disclosure (CPR 31.16) would instead be considered

Question 18

An order for specific disclosure is an order that a party must….

A. Search for documents, disclose specified documents and/or allow inspection of specified documents.

B. Search for documents and/or disclose specified documents.

C. Search for documents.

D. Disclose specified documents.

Answer 18

B. Search for documents and/or disclose specified documents.

Question 19

Which of the following IS NOT required before the court is able to make an order for pre-action disclosure?

A. Disclosure of the documents is proportionate to the sums at stake in the proceedings.

B. The respondent is likely to be a party to subsequent proceedings

C. If proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks

D. Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs

E. The applicant is also likely to be a party to those proceedings

Answer 19

A. Disclosure of the documents is proportionate to the sums at stake in the proceedings.

This is not required before the court is able to make an order for pre-action disclosure. Although it is not a requirement, it would be a relevant consideration, although note also that the respondent can be compensated for costs of compliance by a suitable costs order (as explained in this element) and that proportionality is about more than just the sums in dispute (consider also the complexity of the dispute etc). All the other answers are required by the rules (CPR 31.16) before the court may make an order for pre-action disclosure. Note that even if all these factors are present, the court still has a discretion as to whether to order disclosure – it is not obliged to do so.

Question 20

One of the prescribed conditions that must be satisfied before the court has a discretion to order non-party disclosure (CPR 31.17) is:

A. disclosure of the documents sought is necessary in order to save costs.

B. disclosure of the documents is necessary to avoid proceedings, encourage settlement or allow the proceedings to be conducted more efficiently.

C. disclosure of the documents sought is necessary in order to dispose fairly of the claim or to save costs.

D. disclosure of the documents sought is necessary because the documents cannot be obtained from a party.

Answer 20

C. disclosure of the documents sought is necessary in order to dispose fairly of the claim or to save costs.

Looking at the other answers: whether the documents can be obtained from a party (rather than non-party) is a relevant consideration, but does not form part of any of the conditions that must be satisfied.

Question 21

In relation to both non-party disclosure (CPR 31.17), and also Norwich Pharmacal Orders, the likely costs order if the applicant succeeds in its application is…

A. That the respondent pays the applicant’s costs of the application, but the applicant pays the respondent’s costs of giving disclosure.

B. That the applicant pays the respondent’s costs of the application.

C. That the respondent (the unsuccessful party) pays the applicant’s costs.

D. That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.

Answer 21

D. That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.

Question 22

A Norwich Pharmacal order can only be sought against someone who:

A. is more than a mere ‘witness’ or bystander

B. has facilitated the wrongdoing

C. is associated with the wrongdoer

D. has committed a wrong

Answer 22

A. is more than a mere ‘witness’ or bystander

Question 23

In relation to both non-party disclosure (CPR 31.17), and also Norwich Pharmacal Orders, the likely costs order if the applicant succeeds in its application is…

A. That the respondent pays the applicant’s costs of the application, but the applicant pays the respondent’s costs of giving disclosure.

B. That the applicant pays the respondent’s costs of the application.

C. That the respondent (the unsuccessful party) pays the applicant’s costs.

D. That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.

Answer 23

D. That the applicant pays the respondent’s costs of the application and of giving the disclosure / information.

Question 24

A claimant in a construction dispute is pursuing a claim for £450,000 against a defendant contractor. The claim arose due to losses suffered when a building project was not completed on time. The case has been allocated to the multi-track and the judge has made a direction for standard disclosure by list of documents. One of the documents in the claimant’s file is a draft letter written at the time of the building project by the managing director of the claimant to the defendant. The draft letter states that the completion date for the building project could be pushed back indefinitely to allow the defendant to carry out a proper job. This letter was never sent and the managing director of the claimant wants to know whether she can prevent the other side from seeing it. Will the defendant be entitled to inspect the letter?

A. No, because it is a draft document that was written before the dispute arose so it is not subject to standard disclosure. .

B. Yes, because it is an open document between the two parties and so it is not covered by legal professional privilege.

C. Yes, because it is a document which supports the defendant’s case and is not covered by legal professional privilege.

D. No, because it is a document which supports the defendant’s case but it is covered by litigation privilege.

E. No, because it is a document which supports the defendant’s case but it is covered by legal advice privilege.

Answer 24

C. Yes, because it is a document which supports the defendant’s case and is not covered by legal professional privilege.

The letter appears to be adverse to the claimant’s case (and so supports the defendant’s case) as it suggests there is flexibility over the completion date so undermining an element of the original claim. As such it is subject to standard disclosure and does not fall under either litigation privilege or legal advice privilege. This letter is open to inspection by the defendant.

Question 25

A witness statement provided by the claimant includes a reference to a letter setting out Counsel’s advice to the claimant. Will the defendant be able to inspect the letter?

A. No, as Counsel’s advice is covered by litigation privilege.

B. No, as only the claimant has the right to decide whether or not to waive privilege over this document.

C. Yes, as a party may inspect a document that is referred to in a witness statement.

D. Possibly, depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.

E. No because it is a draft document that was written before the dispute arose so it is not subject to standard disclosure.

Answer 25

D. Possibly, depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.

A party can inspect a document referred to in a witness statement (CPR 31.14). This is subject to the usual rules on privilege (which prevent a right to inspect), but privilege may have been waived depending on the manner in which, and reasons for which, the advice is referred to in the witness statement.

Question 26

A claimant is pursuing an action for negligence against their solicitors in the High Court. The claim has been allocated to the multi-track and the court has ordered standard disclosure. One document being considered for disclosure is an email from the managing director at the claimant to the other members of the board of directors. The first 5 paragraphs report that month’s profit figures for the claimant’s business - the managing director has sent such monthly reports for many years. The claimant’s profitability is an issue in dispute in the proceedings. The remainder of the email reports back from a recent meeting with solicitors and sets out the contents of the advice that was given by the solicitors to the claimant at that meeting. Which of the statements below is the most accurate as to the claimant’s disclosure obligations?

A. The claimant will be required to disclose the document and it cannot be withheld from inspection or redacted because the claimant has waived privilege over the document.

B. The claimant will be required to disclose the document but can withhold inspection of the document on the grounds of legal professional privilege.

C. The claimant will be required to disclose the document and it cannot be withheld from inspection but parts that repeat legal advice will likely be able to be redacted as being privileged.

D. The claimant will not be required to disclose the document as it does not meet the test for standard disclosure.

E. The claimant will be required to disclose the document and make it available for the defendant to inspect unredacted.

Answer 26

C. The claimant will be required to disclose the document and it cannot be withheld from inspection but parts that repeat legal advice will likely be able to be redacted as being privileged.

Question 27

A claimant driver is bringing proceedings against a defendant driver following a road traffic accident. The defendant has admitted liability and the claim is proceeding in relation to quantum only. The accident was captured on video by another driver who provided a copy of the video to the claimant, but the claimant deleted this by error before the proceedings started and does not have the contact details of the party that originally captured it. The court has ordered standard disclosure.

A. Which of the following best explains why the claimant is not obliged to disclose this video to the defendant?

B. The identity of the ‘author’ of the video (the person that captured it) is unknown.

C. It is not something the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case.

D. The video is no longer in the claimant’s control.

E. The disclosure obligation does not extend to videos.

F. The video was created by a third party.

Answer 27

C. It is not something the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case.

The obligation to give standard disclosure extends to videos – these are ‘documents’ (CPR 31.4). If a document is or was in the claimant’s control, it does not matter that it was created by a third party or that the author is unknown. The disclosure obligation extends to documents which are no longer in the claimant’s control. However, in this case liability has been admitted therefore it does not appear that this document is something which the claimant wishes to rely on, nor is it supportive of the defendant’s case or adverse to either party’s case which is now proceeding only in relation to quantum.

Question 28

A claimant is preparing for trial when the existence of a document that should have been disclosed to the defendant comes to light for the first time. At the time of disclosure, the claimant had carried out a reasonable search and properly carried out its disclosure obligations, but this document had not been revealed and therefore had not been disclosed.

What should the claimant do?

A. Tell the court about the document.

B. Apply to the court for permission to disclose the document (late).

C. Present the case to the court at trial using the document but making clear that it has not previously been disclosed.

D. Disclose the document to the defendant.

E. Present the case to the court at trial without referring to the document

Answer 28

D. Disclose the document to the defendant.

The duty of disclosure continues during proceedings and the duty is to disclose the document to every other party (CPR 31.11). Simply not referring to the document at trial is not an option – it could be that the document is one that is helpful to the other parties, so this would be unfair. There is no need to apply to court to disclose the document. However, if the claimant wants to rely on the document, the claimant may need to apply to court for permission to do so (CPR 31.21) as a party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.