Disclosure and Inspection

Question 1

Disclosure

Answer 1

stating to another party that a document exists or has existed

Question 2

obligation to disclose comes from

Answer 2

a court order

Question 3

When is the order for disclosure usually given?

Answer 3

on allocation or at a CMC

Question 4

usual order for disclosure in small claims track

Answer 4

at least 14 days before the date fixed for the final hearing, each party must file and serve on every other party copies of all documents on which he intends to rely at the hearing

Question 5

In the small claims track, directions for disclosure are given on

Answer 5

allocation

Question 6

in fast and intermediate track, the court will give directions for disclosure either

Answer 6

on allocation (which his usual for fast track cases) or list the case for a CMC

Question 7

usual disclosure in claim for personal injury

Answer 7

standard disclosure

Question 8

Factors the court will consider when deciding which disclosure order to make

Answer 8

the court will regard the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly

Question 9

in multi-track cases (other than PI cases) the parties must complete a disclosure report to be filed and served

Answer 9

not less than 14 days before the first CMC

Question 10

in multi-track cases, not less than 7 days before the first CMC, the parties must

Answer 10

consider the issues in the case and enter into discussions to seek to agree a draft disclosure order which they will then ask the court to make

Question 11

The disclosure report form

Answer 11

Form N263

Question 12

Where there are electronic documents to be disclosed, parties should consider also using

Answer 12

EDQ - Form N264

Question 13

in the multi-track, the court can make any order in relation to disclosure that it thinks is

Answer 13

appropriate

Question 14

Any duty of disclosure continues until

Answer 14

proceedings are concluded

Question 15

most common type of disclosure

Answer 15

standard disclosure

Question 16

The duty of disclosure is ltd to documents which are or have been

Answer 16

within a party’s control

Question 17

Standard disclosure requires a party to disclose documents which:

Answer 17

It relies on;
Adversely affect its own case;
Adversely affect another party’s case;
Support another party’s case; or
It is required to disclose by a relevant practice direction

Question 18

What kind of search is required under standard disclosure?

Answer 18

a reasonable search

Question 19

Standard disclosure is performed by each party

Answer 19

making a list of the required documents and serving it on the other party

Question 20

3 parts of the disclosure list

Answer 20

Part 1: Disclose and allow inspection

Part 2: Disclose but privileged (inspection refused)

Part 3: Had but no longer have

Question 21

Every list of documents must include a

Answer 21

disclosure statement

Question 22

A solicitor is required to ‘endeavour to ensure’ that the person making the disclosure statement

Answer 22

understands the duty of disclosure

Question 23

When would a supplemental list be required?

Answer 23

Supplemental lists may need to be prepared and served if additional documents falling within a party’s disclosure obligations come to light, or are created, after the disclosure list is served

Question 24

Inspection follows

Answer 24

disclosure

Question 25

3 most important types of privilege

Answer 25

Legal advice privilege Litigation privilege Without prejudice communications

Question 26

as a general rule, a party may inspect a document that is referred to in

Answer 26

a witness statement (CPR 31.14)

Question 27

The duty of disclosure continues

Answer 27

during proceedings

Question 28

confidentiality / commercial sensitivity alone does not justify

Answer 28

redaction

Question 29

if the information is totally irrelevant to the dispute, it can be

Answer 29

redacted

Question 30

waiver of privilege

Answer 30

a party can deliberately allow inspection of a privileged document if it considers that the document helps its case

Question 31

rule on privilege from Great Atlantic Insurance v Home Insurance

Answer 31

You cannot waive privilege over part of a wholly-privileged document. This will lead to waiver of privilege over the remainder

Question 32

rule on privilege from the Aegis Blaze

Answer 32

'Once privileged, always privileged'

Question 33

Burden of proof for privilege

Answer 33

Where there is a dispute over whether a document is subject to privilege, the burden of proof is on the party claiming privilege to establish it

Question 34

Written notice of wish to inspect

Answer 34

A party wishing to inspect documents must send a written notice of its wish to do so and the other side must allow inspection within 7 days of receipt of the notice

Question 35

Copies must provided within

Answer 35

7 days of receipt of the request

Question 36

A party may not rely on any document to which he fails to permit inspection unless

Answer 36

the court gives permission

Question 37

Parry v Newsgroup Newspapers

Answer 37

there is no confidentiality in notes of matters at which both sides are present

Question 38

Bank of Nova Scotia rule on legal advice privilege

Answer 38

if a client repeats legal advice provided by his lawyer, for example to other personnel within his company, then that repetition also has the benefit of privilege

Question 39

Dominant purpose in litigation privilege

Answer 39

"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"

Question 40

Litigation reasonably in prospect

Answer 40

Litigation must be a real likelihood rather than a mere possibility

Question 41

Without prejudice communications

Answer 41

A document whose purpose is a genuine attempt to settle a dispute

Question 42

Rule on without communications privilege (Rush and Tompkins v GLC)

Answer 42

a document marked 'without prejudice' may not be a genuine attempt to settle and would therefore fall to be inspected. The court will look to substance rather than form.

Question 43

The court has the jurisdiction to make an order for specific disclosure and / or inspection at

Answer 43

any time after proceedings have been issued

Question 44

Applications for specific disclosure must

Answer 44

specify the order sought and be supported by evidence

Question 45

Specific inspection

Answer 45

an order that a party permit inspection of a document which has been disclosed but the disclosing party alleges it would be disproportionate to allow inspection

Question 46

The court's power to order pre-action disclosure enables a party to

Answer 46

obtain disclosure of documents before proceedings have commenced

Question 47

The applicant for pre-action disclosure will generally have to pay

Answer 47

the respondent's costs

Question 48

non-party disclosure

Answer 48

The court has the power to order a person who is not a party to the proceedings to give disclosure of documents

Question 49

When would a Norwich Pharmacal order be given?

Answer 49

where the identity of the defendant is unknown

Question 50

Purpose of a Norwich Pharmacal order

Answer 50

it orders the respondent, who is not the defendant, to disclose information allowing the claimant to sue the right defendant

Question 51

Rule on Norwich Pharmacal orders from Ashworth Hospital Authority v MGN Ltd

Answer 51

A Norwich Pharmacal order must be necessary and proportionate in all the circumstances of the case