Disclosure and inspection Flashcards
1
Q
Where does the obligation to give disclosure in legal proceedings originate?
A
A court order
2
Q
Under which Civil Procedure Rule CPR and Practice Direction PD is disclosure addressed for the small claims track?
A
CPR 274 and 27A PD Appendix B
3
Q
Which CPR and PD govern disclosure for the fast and intermediate tracks?
A
CPR 282 and 28 PD 39
4
Q
Which CPR pertains to disclosure in multi-track cases?
A
CPR 315
5
Q
Which CPR rules cover broader disclosure points?
A
CPR 319 and CPR 3111
6
Q
What is the usual disclosure order in the small claims track?
A
File and serve copies of reliance documents 14 days before hearing
7
Q
What is the primary consideration for the court when making a disclosure order on the fast and intermediate tracks?
A
The overriding objective and necessity for just case handling
8
Q
Name five potential alternative disclosure orders the court can make on the fast and intermediate tracks excluding standard disclosure?
A
Dispensing with disclosure Order on reliance documents Specific disclosure request Issue-by-issue disclosure Documents advancing or damaging a case Any other appropriate order
9
Q
What is a mandatory requirement for parties in multi-track cases excluding personal injury claims before the first Case Management Conference CMC regarding disclosure?
A
File and serve a disclosure report not less than 14 days before the CMC
10
Q
What should parties in multi-track cases excluding personal injury claims do not less than seven days before the first CMC regarding disclosure?
A
Discuss and agree on a draft disclosure order
11
Q
What is the purpose of the disclosure report Form N263?
A
Explain relevant documents location electronic storage costs and desired directions
12
Q
What is the Electronic Documents Questionnaire EDQ Form N264 used for?
A
Providing information about electronic documents for disclosure
13
Q
What does the court consider at the Case Management Conference CMC regarding disclosure?
A
Cost of standard disclosure and the most appropriate disclosure order
14
Q
What are some examples of alternative disclosure orders the court might make at the CMC instead of standard disclosure?
A
Dispensing with search Disclosure on some issues Staged disclosure
15
Q
Is it necessary to disclose every copy of a document?
A
No only modified copies or if the original is unavailable
16
Q
Under which CPR is the procedure for standard disclosure prescribed?
A
CPR 3110
17
Q
What determines the procedure for disclosure when an order other than standard disclosure is made?
A
The specific terms set out in the court order
18
Q
Does the duty of disclosure end after the initial disclosure?
A
No it continues until proceedings are concluded
19
Q
What must a party do if they come into control of new documents relevant to the disclosure order after the initial disclosure?
A
Disclose those documents
20
Q
For what primary purpose can a party use a document that has been disclosed to them?
A
Only for the purposes of the current proceedings
21
Q
Name three exceptions to the rule that a disclosed document can only be used for the current proceedings?
A
Document read or referred to in public Court gives permission Disclosing party and owner agree
22
Q
What is the normal disclosure order on the small claims track?
A
File and serve reliance documents 14 days before hearing
23
Q
What is the key principle guiding the courts decision on the disclosure order for the fast and intermediate tracks?
A
Overriding objective and limiting disclosure to whats necessary
24
Q
In multi-track cases excluding personal injury what is the typical stage at which the court decides on the type of disclosure order?
A
At the Case Management Conference CMC after reviewing disclosure reports
25
Can the court deviate from standard disclosure?
Yes the court can make any appropriate disclosure order
26
What is the most common type of disclosure order a court can make?
Standard disclosure
27
Which Civil Procedure Rule CPR primarily governs standard disclosure?
CPR 31
28
According to CPR 316 what three categories of documents must a party disclose under standard disclosure?
Documents relied on Documents adversely affecting a case Documents required by practice direction
29
What is the definition of a document in the context of disclosure?
Anything which records information
30
Does the definition of document include electronic information?
Yes
31
To what extent is a partys duty to disclose documents limited?
To documents within their control
32
What are the three meanings of in a partys control for disclosure purposes?
Physical possession Right to possession Right to inspect or copy
33
Does the obligation to disclose encompass documents formerly within a partys control?
Yes
34
If a document only tells the story without supporting or undermining a case does it need standard disclosure?
No unless the disclosing party wishes to rely on it
35
What type of search must a party undertake for documents falling within standard disclosure?
A reasonable search
36
What factors determine the reasonableness of a document search?
Number of documents Complexity of proceedings Retrieval difficulty Significance of documents
37
What principle must the court consider when deciding what constitutes a reasonable search?
Proportionality
38
How is standard disclosure performed procedurally?
By creating and serving a list of documents
39
Into how many parts is a standard disclosure list typically divided?
Three
40
What is included in the first part of a disclosure list?
Documents in control inspection permitted
41
What is included in the second part of a disclosure list?
Documents in control inspection not permitted due to privilege
42
Is it necessary to individually list every privileged document in the disclosure list?
No a generic description is usually sufficient
43
What is included in the third part of a disclosure list?
Documents previously in control but no longer so
44
What must every disclosure list include?
A disclosure statement in the prescribed form
45
What does the disclosure statement set out?
Extent of the search Understanding of duty Certification of duty performance
46
Who must make or sign the disclosure statement?
The disclosing party
47
What is the role of a solicitor in ensuring compliance with the duty of disclosure?
To endeavour to ensure the client understands the duty
48
What is the consequence if a party fails to disclose a document or permit inspection without court permission?
The party may not rely on that document
49
What action may be taken against a person who makes a false disclosure statement without honest belief?
Proceedings for contempt of court
50
What are supplemental lists of documents?
Lists prepared for additional documents coming to light after the initial list
51
Does the duty of disclosure continue after the initial disclosure list is served?
Yes until proceedings are concluded
52
What follows disclosure in legal proceedings?
Inspection
53
Under what three circumstances does a party not have the right to inspect a disclosed document?
Document no longer in control Disproportionate inspection Document is privileged
54
Can Party A allow Party B to inspect a document no longer in Party As control?
No
55
If a disclosing party believes inspection of a document category is disproportionate what must they state?
In their disclosure statement that inspection is not permitted due to disproportionality
56
Is it common for inspection to be refused solely on grounds of disproportionality after disclosure?
No it is rare
57
Can inspection be refused on grounds of disproportionality if the document is relied upon or required by practice direction?
No
58
What is the legal concept for the right or duty to withhold a document from inspection?
Privilege
59
If a disclosed document is privileged must its existence still be disclosed?
Yes
60
How are privileged documents typically described in a partys list of documents?
Generically not individually
61
Name three important types of privilege?
Legal advice privilege Litigation privilege Without prejudice communications
62
What does redaction mean in the context of documents?
Blanking out parts of a document
63
Are clients generally permitted to redact non-privileged documents due to confidentiality?
No
64
In what two main circumstances may redaction of a document be permissible?
Clearly distinct privileged parts Totally irrelevant information
65
If a document contains both privileged and non-privileged parts what should be done?
The privileged part should be redacted
66
Is confidentiality the same as privilege?
No
67
Can confidential and commercially sensitive information that is irrelevant to the dispute be redacted?
Yes
68
Where is a redacted version of a document listed in a disclosure list?
In the first part inspection permitted
69
Where is the un-redacted version of a redacted document listed in a disclosure list?
Generically in the second part inspection refused
70
What is it called when a party deliberately allows inspection of a privileged document?
Waiver of privilege
71
Can a party selectively waive privilege over only part of a wholly privileged document?
No unless the remainder deals with entirely different subject matter
72
Can waiving privilege in one document lead to the loss of privilege in other related documents?
Yes if it would be unfair not to disclose them together
73
What is the principle once privileged always privileged?
Privilege in one proceeding generally remains in all
74
Who bears the burden of proving a document is subject to privilege?
The party claiming privilege
75
Apart from disclosed documents what other types of documents can a party inspect?
Documents referred to in statements of case witness statements affidavits experts reports
76
Is the right to inspect documents referred to in statements of case absolute?
No it is subject to privilege and court discretion
77
What is the procedure for a party wishing to inspect documents?
Send a written notice to the other side
78
Within how many days of receiving a notice for inspection must the other side allow it?
Seven days
79
Can a party request copies of documents instead of or in addition to inspection?
Yes
80
If copies are requested does the requesting party usually need to undertake to pay copying charges?
Yes reasonable charges
81
Within how many days of a request must copies of documents be provided?
Seven days
82
What is the consequence if a party fails to permit inspection of a document without court permission?
The party may not rely on that document
83
Under what three circumstances can a party withhold a disclosed document from inspection?
Document no longer in control Disproportionate inspection Document is privileged
84
Which CPR provision outlines the exceptions to the right to inspect a disclosed document?
CPR 3131
85
What are the three most important types of privilege in civil litigation?
Legal advice privilege Litigation privilege Without prejudice communications
86
Are common interest privilege privilege against self-incrimination and public interest immunity covered in this element?
No
87
Are these privileges primarily established by statute or common law?
Common law
88
What is a useful definition of legal advice privilege?
Confidential communication between lawyer and client for giving or receiving legal advice
89
Is it necessary for litigation to be contemplated for legal advice privilege to apply?
No
90
What is a key element for legal advice privilege to apply to a communication?
Confidentiality
91
Is a solicitors note of a conversation between opposing parties usually covered by legal advice privilege?
No there is no confidentiality between opposing parties
92
Does legal advice privilege currently extend to legal advice given by non-lawyers?
No
93
What is the dominant purpose test for legal advice privilege?
The primary reason for the communication was giving or receiving legal advice
94
What is the continuum of communication in the context of legal advice privilege?
Wider communications ancillary to the primary purpose of legal advice
95
Did the House of Lords case Three Rivers District Council v Bank of England No 10 concern legal advice privilege?
Yes regarding presentational advice
96
Can internal repetition of legal advice by a client within their company maintain privilege?
Yes if it is a true repetition of legal advice
97
Is legal advice given by in-house lawyers in a legal capacity usually privileged?
Yes
98
What is a useful definition of litigation privilege?
Confidential communication for obtaining legal advice evidence or information for reasonably contemplated litigation
99
Is confidentiality an essential element of litigation privilege?
Yes
100
Does litigation privilege only cover communications directly between a lawyer and client?
No it extends to communications with third parties for litigation purposes
101
What is the dominant purpose test for litigation privilege?
The primary purpose of creating the document was for reasonably contemplated litigation
102
What was the key finding in Waugh v British Railways Board regarding dominant purpose?
A dual purpose document requires litigation to be the dominant purpose for privilege
103
What does reasonably in prospect mean in the context of litigation privilege?
Litigation must be a real likelihood not a mere possibility
104
Was the general apprehension of future litigation sufficient for litigation privilege in USA v Philip Morris?
No specific litigation must be in prospect
105
What is a useful definition of without prejudice communications?
A document whose purpose is a genuine attempt to settle a dispute
106
Is it necessary for a document to be marked without prejudice for the privilege to apply?
No the court looks at the substance
107
Conversely will a document marked without prejudice always be privileged?
No it must be a genuine attempt to settle
108
Will the court generally see without prejudice documents unless the privilege is waived?
No
109
What does without prejudice save as to costs mean?
The court can see the document when considering costs
110
When a document is marked without prejudice save as to costs can the judge consider its contents when deciding costs?
Yes
111
In summary when can a party refuse inspection of a disclosed document?
Document not in control Disproportionate inspection Document is privileged
112
What is the key purpose of legal advice privilege?
To allow clients to seek legal advice in confidence
113
What is the key purpose of litigation privilege?
To facilitate preparation for reasonably contemplated litigation
114
What is the key purpose of without prejudice privilege?
To encourage genuine attempts to settle disputes
115
What type of disclosure or inspection order is sought after proceedings have started via CPR 3112?
Specific disclosure or specific inspection
116
What type of disclosure is sought from an intended opponent before proceedings have started via CPR 3116?
Pre-action disclosure
117
What does an order for specific disclosure require a party to do?
Disclose specified documents Search for documents Disclose documents found
118
At what stage of proceedings can an application for specific disclosure be made?
At any time after proceedings have been issued
119
When is an application for specific disclosure generally made?
After standard disclosure if further disclosure is needed
120
Name three common uses for an application for specific disclosure?
Opponent non-compliance Wanting documents earlier Wanting more disclosure
121
What three propositions guide the court when deciding on specific disclosure?
All circumstances Overriding objective Failure to adequately comply
122
If a party failed to adequately comply with a disclosure order will the court usually make a further order?
Yes to ensure proper compliance
123
Is specific disclosure limited to situations where the respondent breached a disclosure obligation?
No it can be ordered if standard disclosure is inadequate
124
What two things must an application for specific disclosure specify and include?
The order sought listing documents Evidence
125
What form does the supporting evidence for specific disclosure usually take?
A witness statement
126
What is specific inspection?
An order to permit inspection of a disclosed document where the discloser claims disproportionality
127
Is specific inspection used frequently?
No it is relatively rare
128
What is pre-action disclosure?
Disclosure of documents before proceedings have commenced
129
Name four conditions under which the court may order pre-action disclosure?
Respondent likely party Applicant likely party Standard disclosure would extend Desirable for fair disposal resolution or cost saving
130
If all pre-action disclosure conditions are met must the court order it?
No the court retains discretion
131
What two things must an application for pre-action disclosure specify and include?
The order sought listing documents Evidence
132
What else may a pre-action disclosure order require the respondent to specify?
Documents no longer in control Documents with withheld inspection rights
133
Who generally pays the costs of a pre-action disclosure application and compliance?
The applicant
134
In what situations might the court make a different costs order for pre-action disclosure?
Respondent non-compliance with pre-action protocol Modest request refusal
135
Is the disclosure stage in proceedings the only way someone might be obliged to disclose something?
No various types of disclosure order exist
136
What is the essence of an order for specific disclosure?
A directed search and or disclosure of certain documents
137
What are the courts main considerations when deciding on a specific disclosure order?
Circumstances overriding objective prior non-compliance
138
What is the focus of an order for specific inspection?
Permitting inspection of a disclosed document claimed disproportionate
139
What is the key feature of pre-action disclosure?
Obtaining disclosure from a likely opponent before proceedings
140
What CPR provision governs non-party disclosure after proceedings have started?
CPR 3117
141
What CPR provision relates to Norwich Pharmacal Orders often sought before identifying a defendant?
CPR 3118
142
For non-party disclosure what must be shown about the likely content of the documents?
Likely to support applicants case or adversely affect another partys case
143
What must be demonstrated about the necessity of non-party disclosure?
Necessary to dispose fairly of the claim or to save costs
144
Even if the conditions for non-party disclosure are met is the court obliged to make the order?
No the court has discretion
145
When can an application for non-party disclosure under CPR 3117 be used?
Only once proceedings have actually started
146
What two things must an application for non-party disclosure specify and include?
The order sought listing documents Evidence
147
What else must a non-party disclosure application require the respondent to specify?
Documents no longer in control Documents with withheld inspection rights
148
Who is the application notice for non-party disclosure served on?
The non-party respondent and any other party to the proceedings
149
Who is usually expected to pay the costs of a non-party disclosure application and compliance?
The applicant
150
Can the usual costs presumption for non-party disclosure be overturned?
Yes if the non-party acted unreasonably
151
Do the rules on pre-action and non-party disclosure limit other court powers to order disclosure from non-parties or before proceedings?
No CPR 3118 leaves the door open
152
What type of order helps a claimant sue an unknown defendant by compelling a non-defendant to disclose identity information?
Norwich Pharmacal order
153
In the Norwich Pharmacal Co case who was ordered to disclose the identity of patent infringers?
HMRC
154
If a Norwich Pharmacal Order is sought before substantive proceedings against the wrongdoer what is the usual claim procedure?
Issuing a claim form against the third party under CPR 8
155
If a Norwich Pharmacal Order is sought after substantive proceedings have started what is the procedure?
An interim application within those proceedings under CPR 23
156
Name the three conditions that must be satisfied for a Norwich Pharmacal Order?
A wrong was carried out Need order to sue wrongdoer Respondent more than mere witness can provide information
157
What two qualities must a Norwich Pharmacal order possess?
Necessary and proportionate
158
Who usually pays the costs of a successful Norwich Pharmacal order application and compliance?
The applicant
159
From whom might the successful Norwich Pharmacal order applicant potentially recover their costs?
The wrongdoer in the same or subsequent proceedings
160
In summary when may the court order a non-party to give disclosure?
Documents support case or harm another party Necessary for fair disposal or cost saving
161
What is the primary purpose of a Norwich Pharmacal order?
To identify the correct defendant to sue
162
What are the key requirements for obtaining a Norwich Pharmacal order regarding the respondent?
More than mere witness likely to have necessary information
163
Must a wrong have been committed by the respondent to a Norwich Pharmacal order?
No by an ultimate wrongdoer
