w6 Flashcards
What is the difference between disclosure and inspection in legal proceedings?
Disclosure is the act of stating to another party that a document exists or has existed. Inspection, on the other hand, is the act of looking at a document that has been disclosed. When a party has a right to inspect a document, they also have a right to request a copy of that document.
What factors determine the type of disclosure order made by the court?
The court decides what type of disclosure order to make based on the track to which the claim has been allocated. In small claims track and fast track cases, there are standard orders, while in multi-track cases, the court considers the disclosure report and other information to determine the most appropriate form of disclosure order.
What is the significance of a disclosure report in the determination of a disclosure order?
A disclosure report provides information about relevant documents, their location, storage, and estimated costs. It helps the court consider whether standard disclosure is too expensive and decide on the appropriate disclosure order. The report is filed and served by the parties before the first case management conference.
What are the different types of disclosure orders that a court can make?
A court can make various types of disclosure orders, including standard disclosure, alternative disclosure orders, specific disclosure, specific inspection, pre-action disclosure, and non-party disclosure. The specific type of order depends on the circumstances of the case and the track to which it has been allocated.
What is the duty of disclosure imposed by a disclosure order?
The duty of disclosure imposed by a disclosure order continues until the proceedings are concluded. It requires a party to disclose the existence of relevant documents to the opponent. The opponent can then inspect the disclosed documents, unless there are valid reasons for refusing inspection, such as lack of control, disproportionality, or privilege.
What are the key aspects and benefits of disclosure and inspection in legal proceedings?
Disclosure and inspection help clarify the issues in dispute, allow parties to assess the strength of each other’s case, encourage settlement, and provide the court with all the necessary facts and evidence to determine the claim justly and proportionately.
What are the sources of disclosure obligations in legal proceedings?
There is no automatic obligation to give disclosure in legal proceedings. The obligation comes from a court order, which can be given on allocation or at a case management conference. The type of disclosure order depends on the track to which the claim has been allocated.
What is the usual path to obtaining a disclosure order in different tracks of legal proceedings?
In the small claims track, the disclosure order is included in the directions given on allocation. In the fast track, the court usually gives directions for standard disclosure. In the multi-track, the parties complete a disclosure report and propose a disclosure order to the court at the case management conference.
When does a party have to disclose every copy of a document?
A party does not have to disclose every copy of a document unless the copies have changes, obliterations, or annotations that are material to the dispute. In such cases, all relevant copies need to be disclosed.
What is the procedure for disclosure and inspection?
The procedure for disclosure and inspection depends on whether the court orders standard disclosure or another type of disclosure. If the court orders standard disclosure, the procedure is prescribed by the CPR (CPR 31.10). If an order other than standard disclosure has been made, the procedure will be set out as part of the order. Additionally, any duty of disclosure continues until proceedings are concluded (CPR 31.11).
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What are the obligations and limitations of disclosing documents in legal proceedings?
A party must disclose documents that come within its control or were created after the date it originally gave disclosure if they fall within its disclosure obligations. However, a party may withhold inspection of a document if it is no longer in their control, allowing inspection would be disproportionate, or if the document is privileged. A party can redact irrelevant or privileged parts of a document when allowing inspection.
Under what circumstances can a document be used for collateral or ulterior purposes?
A document disclosed in legal proceedings can only be used for the purposes of those proceedings and not for any collateral or ulterior purpose, unless: 1) the document has been read to or referred to 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.
What is standard disclosure and what documents does it require a party to disclose?
Standard disclosure is the most common form of disclosure order in legal proceedings. It requires a party to disclose documents that are in their control and that they rely on, or that are adverse to their case, adverse to another party’s case, support another party’s case, or are required to be disclosed by a relevant practice direction. ‘Documents’ has a broad definition and includes anything that records information.
What is the concept of a reasonable search in the context of standard disclosure?
When an order for standard disclosure is made, a party must make a reasonable search for documents falling within the categories described in CPR 31.6(b) and (c). What constitutes a reasonable search depends on factors such as the number of documents involved, the nature and complexity of the proceedings, the difficulty and expense of retrieving documents, and the significance of any document likely to be found. The court must also consider the principle of proportionality.
What is the purpose of a disclosure list in standard disclosure?
In standard disclosure, each party makes a list of the documents they are disclosing and serves it on the other party. The list has three parts: 1) documents in control, inspection permitted; 2) documents in control, inspection not permitted (due to privilege); 3) documents no longer in control. When listing the documents in the second part, it is not necessary to list individually each document for which inspection is withheld. Instead, a generic description can be used.
What is the disclosure statement and what does it include?
Every list of documents must include a disclosure statement in the prescribed form. The disclosure statement sets out the extent of the search made, certifies the party’s understanding of its duty to disclose documents, and certifies that, to the best of the party’s knowledge, it has carried out that duty. The disclosure statement must also include details of any documents for which inspection is considered disproportionate.
What are the consequences of failing to disclose or permit inspection of a document?
A party may not rely on any document that it fails to disclose or permit inspection of, unless the court gives permission. Proceedings for contempt of court may be brought against a person who makes a false disclosure statement without an honest belief in its truth.
What types of privilege can allow a party to refuse inspection of a disclosed document?
A party can refuse to allow inspection of a disclosed document if it is privileged. There are various types of privilege, including legal advice privilege, litigation privilege, and without prejudice privilege. Legal advice privilege applies to confidential communications between a lawyer and a client for the purpose of giving or receiving legal advice. Litigation privilege applies to confidential communications made for the dominant purpose of obtaining legal advice, evidence, or information for use in litigation. Without prejudice privilege applies to documents created in a genuine attempt to settle a dispute.
What is the significance of control in the context of disclosure obligations?
A party’s duty to disclose documents is limited to documents that are or have been within their control. Control is defined widely and includes physical possession of the document, a right to possession of the document, or a right to inspect or take copies of the document. The duty of disclosure encompasses documents presently and formerly within a party’s control.
What is the definition of a document in the context of disclosure obligations?
A document is defined very widely and includes anything that records information. It can include digital recordings, emails, photographs, text messages, voicemails, metadata, and more. Electronic documents can be stored on various devices and locations. In many cases, the majority of documents are electronic.
What is the requirement for a reasonable search in standard disclosure?
In standard disclosure, a party must carry out a ‘reasonable search’ for documents falling within the categories described in CPR 31.6(b) and (c). What constitutes a reasonable search depends on factors such as the number of documents involved, the nature and complexity of the proceedings, the difficulty and expense of retrieving any document, and the significance of any document likely to be found. The court must also consider the overriding objective and the principle of proportionality.
What is the purpose of inspection in the context of legal proceedings?
Inspection in legal proceedings is concerned with examining documents that have been disclosed. It follows disclosure and allows a party to review the documents relevant to the case.
Under what circumstances can inspection of a document be refused?
Inspection of a document can be refused if the document is no longer in the disclosing party’s control, allowing inspection would be disproportionate, or the document is privileged. Privileged documents are not required to be listed individually but are described generically in a party’s list of documents.
