Disclosure and Inspection

Question 1

Disclosure Obligation

Answer 1

• Not automatic
• Arises if court makes an order

Question 2

Duration of Disclosure Obligation

Answer 2

Until proceedings conclude - must disclose immediately

Question 3

Docs party may rely on in proceedings

Answer 3

Must have been disclosed otherwise cannot rely on it unless:
1. Court Permission
2. Agreement; or
3. Referred to in public hearing

Question 4

When can a doc be redacted?

Answer 4

1. Info is completely unrelated to substance of doc (e.g. scribble of legal advice on unrelated doc)
2. Info is totally irrelevant (more than just sensititive)

Question 5

When is the court likely to make a disclosure order

Answer 5

Small: Allocation Notice (order to disclose docs intend to rely on 14 days before trial)
Fast: Allocation Notice (Standard Disclosure)
Intermediate: AN or CMC (standard disclosure)
Multi: CMC (no standard disclosure but will have regard to disclosure report and budgets)

Question 6

When do parties have to disclose a document under Standard Disclosure

Answer 6

1. Document
2. Control (possession or right to possession or inspect)
3. Rely or averse (not simply telling a story)

Question 7

Right of Inspection

Answer 7

Right to inspect unless:
1. Privileged
2. Lack of control including no longer in possession

Question 8

Where should you include docs on disclosure list?

Answer 8

1. Inspectable
2. Privileged
3. Lack of control (destroyed / no longer in possession)

Question 9

Formality requirements for disclosure list

Answer 9

Part 1, 2, 3
Signed by client
Disclosure Statement

Question 10

How to inspect docs?

Answer 10

Written notice specifying docs (OS must provide within 7 days)

Question 11

Legal Advice Privilege

Answer 11

1. Confidential (not attendance note of meeting with OS or court)
2. Lawyer and Client
3. Dominant purpose = legal advice

Question 12

Lititgation Privilege

Answer 12

1. Confidential
2. Lawyer, CLient or 3rd party
3. Dominant purpose = LA, evidence or information
4. Lititgation reasonably in prospect

Question 13

Without prejudice

Answer 13

Genuine attempt to settel

Question 14

How to waive privilege?

Answer 14

1. Agreement
2. Refer to doc in court doc
3. Accident
4. exchange or serve it

Question 15

When will court permit pre-action disclosure application?

Answer 15

1. Both likely to be parties
2. Subject to standard disclosure
3. Desirable to (a) end proceedings (b) assist ADR (c) save costs

Question 16

When will court permit Norwich Pharmaceutical Order?

Answer 16

1. Ultimate wrongdoer is not D
2. D more than witness adn likely to be able to identify UW
3. No other means to identify UW
4. Necessary and Proportionate

(bring CF against D using P8 procedure)

Question 17

When will court make an application for specific disclosure?

Answer 17

All circs, OO, failure to comply with order

Question 18

When will court permit non party disclosure?

Answer 18

1. Disclosable document
2. Necessary to (a) dispose fairly or (b) save costs