3 Disclosure and inspection before a claim commences

Question 1

Why and when does pre action disclosure occur?

Answer 1

When a potential claimant need to look at documents relating to a potential defendant to decide if a claim is viable

Question 2

What are the requirements of pre action disclosure? CPR 31.16

Answer 2

a) the application (potential claimant) and the respondent (potential defendant) MUST BE A LIKELY PARTY
b) paper must have been / likely be in the POSSESSION, CUSTODY or POWER of the potential defendant & MUST BE RELEVANT TO AN ISSUE LIKELY TO ARISE
c) must be desirable to see now, so that proceedings can be AVOIDED / DEALT WITH FAIRLY and or COSTS CAN BE SAVED
d) the documents the application is requesting, must be documentation that would need to be disclosed under Standard Disclosure (CPR 31.6)

Question 3

What documents must be disclosed under Standard Disclosure? CPR 31.6

Answer 3

a) the documents which he relies on
b) the documents which:
i) adversely effect his own case
ii) adversely effect any other party’s
case
iii) support another party’s case
c) the documents which he is required to disclose by a relevant PD

Question 4

What type of order may the court make with regard to disclose?

Answer 4

At an application the court may make an order to DISCLOSE and they may also make an order for the:
• inspection
• photographing
• preservation
• custody and
• detention of property

Court may also order samples or investigations to be carried out

Question 5

Why may a Court order samples or an investigation to take place with regard to disclosure?

Answer 5

If it appears to the court that property may become the subject matter of proceedings or any questions may arise

Question 6

When will the court NOT make an order for pre action disclosure?

Answer 6

The court will not make an order pre action disclosure is likely to be injurious to the general public

Question 7

What is meant by adversely effect, in reference to disclosure?

Answer 7

There is no set definition but it is to effect negatively

Question 8

How are the rules on disclosure different regarding PI or death claims? (Senior Courts Act 1981 section 34 and County Courts Act 1984 section 53)

Answer 8

The courts have the power to order disclosure of a document by a person who is not likely to be a party in the proceedings AND who appears to be likely in their POSSESSION CUSTODY or POWER any documents that are relevant to an issue arising out of a claim

Question 9

What are the 3 words that are considered for what documents can be requested from a respondent?

Answer 9

POSSESSION, CUSTODY AND POWER

Question 10

When is it “desirable” that documents be disclosed now?

Answer 10

1. So that proceedings can be avoided
2. Any proceedings can be dealt with fairly
3. So costs can be saved

Question 11

What type of interim application is a pre action disclosure?

Answer 11

A with notice application (as it can’t be a hurry because a claim has not begun yet)

Question 12

What must be served in an application for pre action disclosure? Part 23

Answer 12

a) an application notice
b) evidence
c) a draft of the requested order

Question 13

When may an application for pre action disclosure be granted?

Answer 13

If it is desirable to do so in the interests of justice

Question 14

Where can an application for pre action disclosure be served?

Answer 14

May be in the CC unless PD states otherwise

Question 15

If a claim has already began, where must an application notice be served?

Answer 15

In the CC where the claim started

Question 16

What are the required contents of an application for pre action disclosure?

Answer 16

1. Order sought and why
2. Claim information (title, ref number, full name of A - is this only if A is not a party?, address for service, including post code, request for hearing or not (and if this telephone or not)
3. It must be signed
4. If A wishes to rely on the contents of the application as evidence as evidence, it must be verified by a statement of truth

Question 17

What is the procedure for A filing a pre action disclosure application with the court?

Answer 17

A will complete the notice (notice, evidence, draft order) and file it with the court that proceedings are likely to begin in

Question 18

When is an application notice not required?

Answer 18

If a rule or PD allows an application to be made without notice or court dispense of the need for it

Question 19

What action will the court take upon receiving an application for pre action disclosure?

Answer 19

After it being FILED, the court inserts a date for the hearing which must be at least 28 days after the notice (must be within 28 days or must be over the 28 days?)

Question 20

What must A do once the court has inserted a hearing for pre action disclosure?

Answer 20

A must then serve the notice and other documentation on all R’s as soon as practicable unless the court orders not to. A must give R at least 3 days notice before the hearing (5 days if telephone hearing)

Question 21

When will it be decided if an application for pre action disclosure will be granted?

Answer 21

At the hearing

Question 22

What will happen if A does not give sufficient notice to R of the hearing?

Answer 22

The court may still allow hearing to take place

Question 23

Must A serve notice on R?

Answer 23

No the court may, if so A needs to file a copy of any written evidence as well

Question 24

When may an application be dealt with without a hearing?

Answer 24

• if parties agree to no hearing and the terms sought in the order; or
• the court does not consider a hearing to be appropriate

Question 25

What must the “evidence” in the interim application consist of?

Answer 25

1. Must include all material facts 2. Verified by statement of truth 3. Can be in a statement of case 4. Is often in a witness statement that is verified by a statement of truth

Question 26

What does 28 days notice not include?

Answer 26

The days of the notice and the day of the hearing

Question 27

What does the case of O’Farrel set out about giving notice, even on an informal basis?

Answer 27

That the modern use of mobile phones means there’s little excuse for not providing notice, even informally

Question 28

What must A do regarding the service of a draft order?

Answer 28

• attach it to a notice • take a digital copy to hearing • the order must set out: i) what R must do and must not do ii) must include any undertaking that A will pay any damages sustained by R unless the court orders otherwise

Question 29

Will a court proceed in a party’s absence of a hearing for pre action disclosure?

Answer 29

Court may proceed in their absence or they may relist the hearing. However, relisting is unlikely if it won’t change the order

Question 30

What must the court do if it dismisses an application / finds totally without merit?

Answer 30

The order must record this fact and the court must consider making civil restraint order

Question 31

What is an Norwhich Pharmacal Order (NPO) order and can A apply for one as pre action order?

Answer 31

A NPO is a type of order that allows the court to compel a non party, in order to identify a wrong doer. The compelled party must be a facilitator of the wrong doing and not a mere wittiness (car rental example) A potential claimant, A can apply for an NPO in order to identify a potential defendant

Question 32

When should a NPO be used?

Answer 32

In circumstances where a facilitator of wrong doing, has previously refused to identity potential defendant

Question 33

What type of NPO should be used if proceedings have not been issued?

Answer 33

This should be done in the form of a Part 8 claim (not Part 23)

Question 34

Can an NPO be made without notice?

Answer 34

Yes, if secrecy is required (i.e. in cases of fraud). If no fraud, then full and frank disclosure is required (14 days)

Question 35

An NPO must not be relied upon as a …

Answer 35

Fishing expedition (Ramilos)

Question 36

When courts have power of a disclosure an NPO is

Answer 36

Unnecessary

Question 37

For an NPO, what does A need to prove?

Answer 37

Only that there is a reasonable basis for wrong doing - does not need to prove the wrongdoing has been committed

Question 38

What is the three limb test set out in Mistui regarding an NPO?

Answer 38

1. Wrong doing carried out by wrong doer 2. There must a need for an order to be brought against a wrong doer 3. The person against whom the order is sought must be facilitator & be able to or likely able to provide the information necessary

Question 39

For what reasons may an NPO be dismissed?

Answer 39

• if C already has sufficient information • if A hasn’t provided reasonable basis of wrong doing • R is merely a witness • if contempt of court is more suitable