Disclosure and Inspection Flashcards
(35 cards)
What is the difference between disclosure and inspection?
Disclosure is informing the other party that a document exists or has existed. Inspection is allowing the other party to look at (or receive a copy of) the disclosed document. Disclosure does not always lead to inspection.
Where does the obligation to disclose come from?
From a court order. There is no automatic obligation to give disclosure.
What are the usual disclosure procedures by track?
- Small claims: Each party must file/serve documents they rely on 14 days before the hearing
- Fast/Intermediate: The court orders disclosure.
- Multi-track: Parties submit disclosure reports and proposed orders before the CMC.
What types of disclosure orders can the court make under
- No disclosure
- Disclosure only of relied-upon documents and specific requests
- Issue-based disclosure
- Disclosure of documents that may advance or damage a case
- Standard disclosure
- Any other order the court considers appropriate
What is a disclosure report?
A report stating what documents exist, where they are, how they are stored, estimated disclosure costs, and which disclosure order is sought.
What is the continuing duty of disclosure?
The duty lasts until proceedings are concluded (CPR 31.11) and includes newly acquired documents within the party’s control.
Can disclosed documents be used for other purposes?
No, unless:
- They are referred to at a public hearing
- The court gives permission
- The disclosing party agrees
What does standard disclosure require?
Disclosure of:
(a) documents relied on;
(b)(i) those adverse to own case;
(b)(ii) those adverse to another’s case;
(b)(iii) those supporting another’s case;
(c) any required by a practice direction.
What is a document?
Anything recording information — including emails, voicemails, texts, metadata, and digital files.
What does control mean?
A document is in a party’s control if it is/was in their physical possession, or they have/had a right to possess, inspect, or copy it.
What is a reasonable search?
It considers:
- Number of documents
- Complexity of the case
- Cost and difficulty of retrieval
- Significance of the documents
and must be proportionate.
What are the three parts of the disclosure list (N265)?
(a) Documents in control – inspection not opposed
(b) Documents in control – inspection withheld (usually privileged)
(c) Documents no longer in control
What is a disclosure statement
A signed statement explaining the extent of the search, confirming understanding of disclosure duty, and certifying compliance.
What are the consequences of failing to disclose or permit inspection?
The party may not rely on the document unless the court grants permission.
What are the consequences of making a false disclosure statement?
Proceedings for contempt of court may be brought.
When can inspection of a disclosed document be refused?
- The document is no longer in control
- Allowing inspection would be disproportionate
- The document is privileged
What is redaction and when is it permitted?
Redacting privileged or irrelevant confidential parts of documents is allowed. General commercial sensitivity is not a ground for redaction.
What is waiver of privilege?
When a party voluntarily allows inspection of a privileged document. Partial waiver may lead to full waiver if fairness requires
How does a party request inspection?
By written notice. The other party must permit inspection or provide copies within 7 days (copies require an undertaking to pay reasonable charges).
What is legal advice privilege?
Confidential communication between a lawyer and client, made for the dominant purpose of giving or receiving legal advice.
What is litigation privilege?
Confidential communication between lawyer/client or either and a third party, made for the dominant purpose of obtaining legal advice or evidence for use in reasonably contemplated litigation.
What is without prejudice privilege?
Communications genuinely aimed at settlement, protected regardless of the label used. “Without prejudice save as to costs” allows the court to consider them when deciding costs.
What are the requirements for litigation privilege?
- Confidentiality
- Dominant purpose is litigation
- Litigation is reasonably in prospect (not merely possible)
What is the test for waiver of privilege?
Partial disclosure can result in full waiver if the remaining parts/documents deal with the same issue and fairness requires disclosure.
