Disclosure

Question 1

What is disclosure? When does it take place?

Answer 1

Duty to inform opponent of the existence of all documents relevant to litigation (written docs, email, databases, photos etc.)

• generally before exchange of witness statements
• duty continues throughout litigation

Question 2

When is standard disclosure used?

Answer 2

Fast Track

Personal Injury multi track

Question 3

What is included in standard disclosure?

Answer 3

For Fast and PI multi track

Includes documents that:
- affect their cases adversely
- affect the other party’s case adversely, or
- support the other party’s case

This extends to any documents:
- have physical possession of doc
- have right to possession, right to inspect, or right to take copies
- had doc in their possession but no longer have it

Question 4

Duty of Lawyers in Disclosure

Answer 4

Under duty to:
- advise clients on disclosure obligations
- court and opponent

Should not act for client if they refuse to comply

If document is removed or destroyed under duty to inform court and other party of its existence and reason for destruction. (Court will draw an adverses interference against party)

Question 5

What is the duty to search for documents in disclosure?

Answer 5

Must be reasonable and proportionate
- assessed according to nature, value and importance of the case
- ease of retrieval of documents and cost

Question 6

What types of disclosure are there? Can these be changed?

Answer 6

Court has discretion to order:

• standard disclosure
• no disclosure
• on basis court directs
• on an issue by issue basis

Question 7

What is a disclosure statement?

Answer 7

Must be made by party (not solicitor) detaining extent of search made. Including:
- person signing understands their duty to disclose
- have carried out duty to best of their knowledge
- believe the extent of the search was reasonable
- explain why any particular search may not have been made

Question 8

What is a disclosure list?

Answer 8

Used in fast track and PI multi track cases

Includes:
- a list of documents in its control that they do not object to the other party inspecting
- a list of documents in its control that they object to the other side inspecting + reasons for objecting (ie privilege)
- a list of documents that are no longer in its control, stating when they were last in their control and where they are now

Question 9

What is the effect of a party signing disclosure statement they do not believe?

Answer 9

Held in contempt of court

Question 10

What is the Time Limit for Disclosure?

Answer 10

• generally 28 days from the date of directions order
• directions order made when case is allocated a track
• typically inspection to take place in 7 days (although often just send copies instead)

Question 11

What can a party do if they are not satisfied with other parties disclosure?

Answer 11

If unsatisfied with other parties disclosure they can challenge it.

May be because:
- documents are missing
- other party claims privilege when inappropriate
- not believe other party has done extensive search

options
- can apply for specific disclosure
- serve a Notice to Admit Facts
- apply for an unless order if opponent continues to disregard their obligations

Question 12

What are the rights to inspection of disclosed documents? What is the process for exercising this right?

Answer 12

Automatic Right to Inspection unless challenged by
- privilege
- the document no longer being in parties control
- it would be disproportionate to allow inspection

If party wants to exercise right to inspect they must give notice, other party must permit inspection within 7 days of receiving notice

Question 13

Disclosure requirements/process for multi-track cases (non PI)

Answer 13

• parties to prepare disclosure report to be filed at least 14 days before first Case Management Conference or with the Directions Questionnaire
• parties encouraged to agree on scope of disclosure requirements in the case (otherwise standard disclosure)

Question 14

Process for applying for specific disclosure?

Answer 14

1. should first make written request for documents to other party including:
   - description of docs. and extent of search sought
   - why it is reasonable and proportionate
   - how docs are relevant
   - grounds for believing docs are or have been in other parties control
   - what safeguards can be provided (in case of confidential info)

Question 15

Who may demand specific disclosure?

Answer 15

Court or other party

Question 16

What will an order for specific disclosure include?

Answer 16

• disclose certain docs or classes of docs specified in order
• prepare a supplemental list of docs
• carry out search to extent specified
• disclose any docs located by search

Question 17

What are the types of privilege that can apply to disclosed documents?

Answer 17

• legal advice privilege
• litigation privilege
• common intention privilege
• without prejudice privilege
• public interest immunity

Question 18

What is Legal Advice Privilege

Answer 18

• protects compulsory disclosure of all types of communication between a client and their lawyers in which advice is given/requested within relevant legal context
• documents must be directly related to the performance by solicitors of their professional duties as a legal advisor

Question 19

What is Litigation Privilege

Answer 19

Relates to communications with 3rd parties (experts and barristers) relating to preparation of pending or contemplated litigation.

• there must be at least a real likelihood of litigation not just mere possibility
• if a document has multiple purposes then only privileged if a court decides its dominant purpose is to prepare for litigation (ie. giving advice or gathering evidence)
• burden of proof rests with party seeking to assert privilege
• if privilege holder wishes to use document at trial, it must be exchanged with other side (losing privilege)

Question 20

What is Common Interest Privilege

Answer 20

May apply where there are multiple defendants or group actions. Parties may send docs to each other and claim privilege.

Requirements
- common interest must have been present at time of disclosure between parties
- privilege can only be waived if all interested parties agree (even if their relationship has broken down)

Question 21

What is Without Prejudice Privilege

Answer 21

• often applied to potential settlement agreements between parties

Question 22

What is Public Interest Immunity

Answer 22

Disclosure can be withheld if disclosure would harm the nation or administration of justice
- court to balance the risk with the value of disclosure may have for other party

Question 23

Loss of Privilege: who can waive it and when is it waived?

Answer 23

• privilege is clients and can be waived
• once copy is served the privilege is lost
• once waived cannot be regained

Question 24

Mistaken disclosure. Can it still be used

Answer 24

Other party can only use this with permission of the court

Court may prevent it being used if there has been obvious mistake

Court will also consider the interest of justice and overriding objective

Question 25

Process for Electronic Disclosure

Answer 25

Parties must complete electronic disclosure questionnaire at same time as disclosure list

Parties expected to discuss and agree extent of the search.

If they cannot agree then refer to the judge at the first Case Management Conference