Disclosure and Inspection Flashcards
(76 cards)
1
Q
What is the primary aim of the topic of disclosure and inspection?
A
To put the topic in the context of dispute resolution and introduce the elements for detailed reading.
2
Q
What occurs during the disclosure stage in proceedings?
A
Parties exchange documents relevant to the dispute.
3
Q
What types of evidence are commonly exchanged after the initial document disclosure?
A
- Evidence of witnesses of fact
- Expert evidence
4
Q
What must a party disclose besides documents they wish to rely on?
A
Documents that are adverse to its position or support another party’s position.
5
Q
What is the purpose of disclosure in legal proceedings?
A
- Clarifies the issues in dispute
- Evaluates the strength of claims
- Encourages settlement
- Provides the court with necessary facts and evidence
6
Q
What are the two distinct concepts involved in the disclosure stage?
A
- Disclosure
- Inspection
7
Q
Define ‘disclosure’ in the context of legal proceedings.
A
Stating to another party that a document exists or has existed.
8
Q
Define ‘inspection’ in the context of legal proceedings.
A
The party to whom a document has been disclosed looking at that document.
9
Q
What is the general rule regarding inspection of disclosed documents?
A
If a document is disclosed, the other party must be allowed to inspect it.
10
Q
What does standard disclosure require a party to do?
A
Disclose the existence of documents to an opponent.
11
Q
What can justify a refusal of inspection?
A
- Documents are not in the disclosing party’s control
- Allowing inspection would be disproportionate
- Documents are privileged
12
Q
What are the elements that will be studied regarding disclosure and inspection?
A
- Sources and types of disclosure obligation
- Standard disclosure
- Inspection procedure
- Types of privilege
13
Q
What is a common order given for disclosure in small claims track?
A
Each party must file and serve copies of all documents they intend to rely on at least 14 days before the hearing.
14
Q
What are some types of disclosure orders the court can make?
A
- Dispensing with disclosure
- Require a party to disclose documents on which it relies
- Issue-by-issue disclosure
- Standard disclosure
- Any other appropriate order
15
Q
What is a disclosure report?
A
A document that explains relevant documents that exist, their locations, and estimated costs of giving standard disclosure.
16
Q
What must a party do if they disclose documents created after the original disclosure?
A
They must disclose those documents as well.
17
Q
What is the continuing obligation regarding disclosure?
A
Any duty of disclosure continues until proceedings are concluded.
18
Q
True or False: A party must disclose every copy of a document.
A
False
19
Q
Fill in the blank: The obligation to give disclosure comes from a _______.
A
[court order]
20
Q
What is the most common type of disclosure order?
A
Standard disclosure.
21
Q
What does CPR 31.6 require for standard disclosure?
A
- Documents on which a party relies
- Documents that adversely affect the party’s own case or another party’s case
22
Q
What is the purpose of the Electronic Documents Questionnaire (EDQ)?
A
To provide information about electronic documents.
23
Q
What happens at the Case Management Conference (CMC) regarding disclosure?
A
The court will consider the disclosure report to determine the appropriate disclosure order.
24
Q
What is standard disclosure?
A
A particular form of disclosure ordered by the court requiring a party to disclose specific documents
It is the most common type of disclosure to be ordered.
25
What does CPR 31.6 state about standard disclosure?
It requires a party to disclose documents on which they rely and those that adversely affect their or another party's case
## Footnote
It also includes documents required by a relevant practice direction.
26
What are the three key concepts of standard disclosure?
* Is it a document (CPR 31.4)?
* Is/was it in the party's control (CPR 31.8)?
* Does it fall within standard disclosure (CPR 31.6)?
27
How is 'document' defined under CPR 31.4?
Anything which records information, including:
* Digital recordings
* Emails
* Photographs
* Text messages
* Voicemails
* Metadata
28
What does it mean for a document to be 'in a party's control' according to CPR 31.8?
A document is in control if:
* It is in the physical possession of the party
* The party has a right to possession
* The party has a right to inspect or copy the document
29
What does standard disclosure require a party to disclose?
* Documents relied on
* Documents adversely affecting their own case
* Documents adversely affecting another party's case
* Documents supporting another party's case
* Documents required by a relevant practice direction
30
What is a reasonable search in the context of standard disclosure?
A party must make a reasonable search for documents falling into specific categories, considering:
* Number of documents
* Nature and complexity of proceedings
* Difficulty/expense of retrieval
* Significance of documents
31
What are the components of a disclosure list?
* Documents in control, inspection permitted
* Documents in control, inspection not permitted
* Documents no longer in control
32
What must every list of documents include?
A disclosure statement certifying the extent of the search, understanding of the duty to disclose, and compliance with disclosure obligations
33
What is the consequence of failing to disclose a document?
A party may not rely on any document not disclosed unless the court gives permission
## Footnote
This is outlined in CPR 31.21.
34
What limitations exist on a party's right to inspect disclosed documents?
Inspection can be limited if:
* The document is no longer in control
* Allowing inspection is disproportionate
* The document is privileged
35
What is privilege in the context of document inspection?
Privilege allows a party to withhold a document from inspection if it is protected under legal advice, litigation, or without prejudice communications
36
What does redaction mean?
Blanking out parts of a document to protect privileged or irrelevant information during inspection
37
What is waiver of privilege?
Deliberately allowing inspection of a privileged document, which may result in loss of privilege over the entire document or related documents
38
What is the principle of 'once privileged, always privileged'?
If something is privileged in one set of proceedings, it remains privileged in all proceedings unless lost through waiver
39
Who bears the burden of proof in disputes over privilege?
The party claiming privilege must establish it
40
What documents can a party inspect before the disclosure stage?
Documents referred to in a statement of case, witness statement, witness summary, affidavit, and expert's report, subject to privilege rules
41
What is the right to inspect a document in civil proceedings?
A party has a right to inspect a document that has been disclosed except where:
* The document is no longer in the disclosing party's control
* Allowing inspection would be disproportionate
* The disclosing party has a right or duty to withhold inspection
42
What must a party do to inspect documents?
A party must send a written notice of its wish to inspect documents to the other side, who must allow inspection within seven days of receipt.
43
What happens if a party fails to permit inspection of a document?
A party may not rely on any document in respect of which they fail to permit inspection unless the court gives permission.
44
What types of privilege are mentioned?
* Legal advice privilege
* Litigation privilege
* Without prejudice communications
45
What defines legal advice privilege?
A document which is a confidential communication between a lawyer and a client and was prepared for the dominant purpose of giving or receiving legal advice.
46
Is it necessary for litigation to be contemplated for legal advice privilege to apply?
No, it is not a necessary element of this privilege that litigation is contemplated.
47
What is the importance of confidentiality in legal advice privilege?
If the document is not confidential, privilege will not apply.
48
What is litigation privilege?
A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect.
49
What does 'dominant purpose' mean in the context of litigation privilege?
If there is more than one purpose behind the preparation of a document, the court will look at the dominant purpose.
50
What is the definition of without prejudice communications?
A document whose purpose is a genuine attempt to settle a dispute.
51
True or False: A document must be marked 'without prejudice' to enjoy privilege.
False.
52
What is specific disclosure?
An order for specific disclosure is an order that a party must disclose documents/classes of documents specified in the order or carry out a search to disclose documents located as a result of that search.
53
When can a party apply for specific disclosure?
After standard disclosure has occurred, where the applicant considers that further disclosure should be made by the other party.
54
What factors influence the success of an application for specific disclosure?
* All the circumstances of the case
* The overriding objective, including proportionality and reasonableness
* Whether the party against whom specific disclosure is sought has failed to comply with disclosure obligations
55
What must an application for specific disclosure specify?
The application must specify the order sought, including listing the documents sought in a schedule to the order.
56
What is the consequence of a party waiving privilege in a document?
Privilege may be lost in other documents.
57
What is the role of the court in the inspection process?
The court has a general discretion to refuse inspection.
58
What is an example of a situation where a court may order specific disclosure?
If the applicant shows that the documents concerned should have already been disclosed by the opponent.
59
What is the time frame for providing copies of documents requested?
Copies must be provided within 7 days of receipt of the request.
60
What is the primary focus of 'without prejudice' privilege?
Substance not form; the document need not be marked 'without prejudice' for the privilege to apply.
61
Fill-in-the-blank: A party can refuse to allow inspection of a disclosed document when that document is _______.
[privileged].
62
What does the term 'proportionality' refer to in the context of specific disclosure?
The reasonableness of making an order for specific disclosure considering the circumstances of the case.
63
What is the circumstance under which the court may order disclosure beyond standard disclosure?
When the applicant satisfies the court that the disclosure is 'inadequate' or more than standard disclosure is required
## Footnote
This includes situations where disclosure of documents may lead to further inquiries that advance the applicant's case or damage the respondent's case.
64
What must an application for specific disclosure specify?
The order sought, including a schedule listing the documents sought
## Footnote
The more specific the list, the higher the likelihood of application success.
65
What is specific inspection?
An order for a party to permit inspection of a disclosed document, despite claiming it would be disproportionate to allow inspection
## Footnote
This situation is rare in practice.
66
What is pre-action disclosure?
The court's power to order disclosure of documents before proceedings have commenced
## Footnote
Governed by CPR 31.16.
67
What conditions must be met for the court to grant pre-action disclosure?
* The respondent is likely to be a party to subsequent proceedings
* The applicant is also likely to be a party
* The respondent's duty by way of standard disclosure would include the documents sought
* Pre-action disclosure is desirable to dispose fairly of anticipated proceedings, assist in resolution, or save costs.
68
What is the general rule regarding costs for pre-action disclosure applications?
The party against whom the order is sought will generally be awarded the costs of the application and compliance
## Footnote
This is not absolute; the court can make different orders in certain situations.
69
What is non-party disclosure?
The court's power to order a non-party to disclose documents relevant to the proceedings
## Footnote
Governed by CPR 31.17.
70
What must be shown for the court to order non-party disclosure?
* The documents likely support the applicant's case or adversely affect another party's case
* Disclosure is necessary to dispose fairly of the claim or save costs.
71
What is a Norwich Pharmacal Order?
An order that requires a respondent, who is not the defendant, to disclose information allowing the claimant to sue the correct defendant
## Footnote
Example: A patent owner seeking to identify infringers through HMRC.
72
What conditions must be satisfied for a Norwich Pharmacal Order to be granted?
* A wrong must have been carried out by an ultimate wrongdoer
* The order is needed to enable action against the ultimate wrongdoer
* The respondent must be more than a mere witness and able to provide necessary information.
73
What is the significance of 'necessary' and 'proportionate' in relation to Norwich Pharmacal Orders?
A Norwich Pharmacal order must be necessary and proportionate in all circumstances
## Footnote
Referenced in Ashworth Hospital Authority v MGN Ltd.
74
What is the presumption regarding costs incurred from a Norwich Pharmacal Order?
Usually, the successful applicant will pay the respondent's costs, which may be recoverable from the wrongdoer later.
75
What is the role of the court during the disclosure stage in proceedings?
The court may issue various types of disclosure orders, including specific disclosure, pre-action disclosure, non-party disclosure, and Norwich Pharmacal Orders.
76
What must be included in a non-party disclosure application?
* Specify the order sought, including listing the documents sought
* Be supported by evidence
* Require the respondent to specify documents no longer under their control.
