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Flashcards in Disclosure Deck (19):
1

CPR 31.1

Scope of this Part

31.1

(1) This Part sets out rules about the disclosure and inspection of documents.

(2) This Part applies to all claims except a claim on the small claims track.

 

 

Small claims has .... directions

 

send to other side 14 days ahead. 

2

What is the Meaning of disclosure?

31.2  A party discloses a document by stating that the document exists or has existed.

3

What is the right to inspection?

Right of inspection of a disclosed document

31.3

(1) A party to whom a document has been disclosed has a right to inspect that document except where –

(a) the document is no longer in the control of the party who disclosed it;

(b) the party disclosing the document has a right or a duty to withhold inspection of it;

(c) paragraph (2) applies; or

(d) rule 78.26 applies.

(Rule 31.8 sets out when a document is in the control of a party)

(Rule 31.19 sets out the procedure for claiming a right or duty to withhold inspection)

(Rule 78.26 contains rules in relation to the disclosure and inspection of evidence arising out of mediation of certain cross-border disputes.)

(2) Where a party considers that it would be disproportionate to the issues in the case to permit inspection of documents within a category or class of document disclosed under rule 31.6(b) –

(a) he is not required to permit inspection of documents within that category or class; but

(b) he must state in his disclosure statement that inspection of those documents will not be permitted on the grounds that to do so would be disproportionate.

(Rule 31.6 provides for standard disclosure)

(Rule 31.10 makes provision for a disclosure statement)

(Rule 31.12 provides for a party to apply for an order for specific inspection of documents)

4

What is a document?

Meaning of document

31.4  In this Part –

‘document’ means anything in which information of any description is recorded; and

‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

 

CCTV, audio recording, something written on a gravestone, all documents. 

5

What is the first big complex rule in CPR 31

Disclosure

31.5

(1) In all claims to which rule 31.5(2) does not apply –

(a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;

(b) the court may dispense with or limit standard disclosure; and

(c) the parties may agree in writing to dispense with or to limit standard disclosure.

(2) Unless the court otherwise orders, paragraphs (3) to (8) apply to all multi-track claims, other than those which include a claim for personal injuries.

(3) Not less than 14 days before the first case management conference each party must file and serve a report verified by a statement of truth, which –

(a) describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;

(b) describes where and with whom those documents are or may be located;

(c) in the case of electronic documents, describes how those documents are stored;

(d) estimates the broad range of costs that could be involved in giving standard disclosure in the case, including the costs of searching for and disclosing any electronically stored documents; and

(e) states which of the directions under paragraphs (7) or (8) are to be sought.

(4) In cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report required by paragraph (3).

(5) Not less than seven days before the first case management conference, and on any other occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective.

(6) If –

(a) the parties agree proposals for the scope of disclosure; and

(b) the court considers that the proposals are appropriate in all the circumstances,

the court may approve them without a hearing and give directions in the terms proposed.

(7) At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure –

(a) an order dispensing with disclosure;

(b) an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;

(c) an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;

(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

(e) an order that a party give standard disclosure;

(f) any other order in relation to disclosure that the court considers appropriate.

(8) The court may at any point give directions as to how disclosure is to be given, and in particular –

(a) what searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;

(b) whether lists of documents are required;

(c) how and when the disclosure statement is to be given;

(d) in what format documents are to be disclosed (and whether any identification is required);

(e) what is required in relation to documents that once existed but no longer exist; and

(f) whether disclosure shall take place in stages.

(9) To the extent that the documents to be disclosed are electronic, the provisions of Practice Direction 31B – Disclosure of Electronic Documents will apply in addition to paragraphs (3) to (8).

6

What is the default disclosure?

Standard disclosure

7

May the court dispense with disclosure?

Disclosure

31.5

(1) In all claims to which rule 31.5(2) does not apply –

(a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;

(b) the court may dispense with or limit standard disclosure; and

8

What is a train of inquiry document?

Disclosure

31.5

(d) an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

 

Very expensive usually

Lots of paperwork. 

250 full lever arch files 

9

What is the most imporatnt rule in part 31?

Standard disclosure – what documents are to be disclosed

31.6  Standard disclosure requires a party to disclose only–

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

10

What is the rule about Mention of documents?

Documents referred to in statements of case etc.

31.14

(1) A party may inspect a document mentioned in –

(a) a statement of case;

(b) a witness statement;

(c) a witness summary; or

(d) an affidavit(GL).

(e) Revoked.

(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.

(Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)

 

 

Includes alluded to

 

Includes privilege 

11

What happens when there is inadvertent disclosure?

Restriction on use of a privileged document inspection of which has been inadvertently allowed

31.20  Where a party inadvertently allows a privileged(GL)document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

12

What happens when you get disclosure.. and there are intending to give you Sch 1 docs and within them they include maybe client's solicior explaining sol's take of merits of claim faced (other side's).

Herbert SMith Case Counsel

write advice

sent to clerk

send to instructing sols

bundled up 

sent to solicitors (opponent's).

31.20 

Restriction on use of a privileged document inspection of which has been inadvertently allowed

31.20  Where a party inadvertently allows a privileged(GL)document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

Issue interim app to seek to get permission to use. 

If you are the owner. Get an injunction to restrain them to stop acting for the party or not use the note that was sent. Al Fayed v Met Commissioner. Approved by CoA in Rawlinson. (See WB). 

Key ideas:

no duty of care to opponent, but duty to court to be honest. If the other side have lawyers you presume to think they do what they want to do. You can think they have done it intentinally. UNLESS. there has been an obvious mistake. Boundary of when you can read disclosed privileged material and when you can't. 

13

What is the rule on colateral use?

Subsequent use of disclosed documents and completed Electronic Documents Questionnaires

31.22

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

(3) An application for such an order may be made –

(a) by a party; or

(b) by any person to whom the document belongs.

(4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed.

 

 

Litigaiton about something else

Breach of undertaking is contempt. Disclosed for evidential purposes. Trials are conducted in public so implied undertaking is lifted as soon as docs come into public realm. or even just being referred. 

 

Opponents can agree. If app is made 

14

What are the 4 types of privilege

LEgal pro

Wprej correspondence

self incrimination

PI immunity

 

15

What are the 2 types of legal prof priv

Legal advice privilege

they come to see you and tell you about their situation. 

-id Legal advice (1/2 marks)

-requirements: confidential, between client and solicitor 

any client going to see any lawyer for any purpose 

litigation or not 

doesn't cover anyone who isn't a laywer

Accountant case: tax advice about the law.

Highlights not privleged unless gives away train of advice that you give your client.

No such thing as a privleged version of a non privileged document.

Can't send under cover of letter 

If originally not privileged doesn't becoe such because you've sent it to your solicitor. 

16

Litigation privilege

Comms between witness and expert on one hand and lawyer on the other. will be used to give advice to the client for purpose of litigaiton. 

 

Waugh v British Railway Board: board sent down an expert to iv all the witnesses, do the tech investigations, problems with tracks, blood stains, etc. Made a report on findings the best evidence on how it happened. contemporaneous. normal expert paperwork at bottom FOI of railway solicitor. lit not contemplated ... but board know when we kill him, we know it was in prospect. ONly protected if your purpose is dominant (litigation). they said accident prevention equal with litigation. so had to be disclosed 

17

Without Prejudice

Rationale 

 

Has to be a genuine attempt to settle. Letter headings "without prejudice" HOL said it's a useful indicator but not determinative. Sometimes ahve the word but not protected, and vice versa. 

Not protected if you pretend to be negotiating but you are clearly abusing the position of "without prejudice". If it can be said to be a bribe or blackmail or etc.

You can't draw adverse inferences as a judge from it if they are insisting on it. 

 

18

Confidential Documents

Someone could be ordred to divulge ... courts of JUSTICE we want to be fair. referred to in WB. 

-hold things in private.

-redact documents 

 

Implied waiver which documents to show the judge when sue solicitor 

19

Smith v SS Energy & Climate Change

2 stage test for granting pre-action disc.

 

have the jurisdictional conditions all been satisfied.

(6 bulllet points)

if they are

 

Junks all the old case. Kept all the old case law. 

Smith Jet airs Indiia approved it. The whole law on this has changed do not be misled

It is as it is in my lecture nots APA Ch 45