Disclosure and inspection-FS Flashcards
(30 cards)
What are the two core areas of disclosure
Standard disclosure, and inspection and privilege.
Under CPR 31.2, how is a document disclosed during the initial stage of proceedings?
By stating that the document exists or has existed, not necessarily by providing a copy.
What is the test for whether a document must be disclosed under standard disclosure?
The document must (1) be relied upon by the party, (2) adversely affect their case, (3) support the other party’s case, or (4) be required by court order or practice direction.
How is “document” defined under CPR 31 in the context of disclosure?
A document is anything on which information of any description is recorded.
What is the legal definition of a “copy” of a document under the CPR?
Any medium onto which information recorded in the document has been copied, whether directly or indirectly.
What does it mean for a document to be “in a party’s control” for disclosure purposes?
The party has or had physical possession, a right to possession, or a right to inspect or take copies.
Must a party disclose a document that was previously in their control but is no longer?
Yes, if it was in their control at any point, its existence must still be disclosed.
What factors determine whether a search for disclosable documents is “reasonable”?
Number of documents, complexity of the proceedings, ease and expense of retrieval, and likely significance of the documents.
What must be included in a disclosure statement if a reasonable search is not made for a document?
The fact the search wasn’t made, the category of the document, and the reason it was deemed unreasonable to search for it.
What must a party do before applying to the court for a document that the other party refuses to disclose?
They should first request the document in writing from the other party.
What is specific disclosure under the Civil Procedure Rules?
A court order requiring a party to disclose a specific document where disclosure is contested.
What is pre-action disclosure and when is it used?
Disclosure ordered before proceedings begin, when necessary for fair disposition of the case or cost savings.
What is non-party disclosure and what is the relevant legal test?
Disclosure requested from a third party when the documents are likely to support the applicant’s case or undermine the opponent’s case, and necessary for fair disposal or cost-saving.
What duty do solicitors have regarding electronic disclosure once litigation is contemplated?
They must notify clients to preserve disclosable documents, including electronic files that may otherwise be deleted.
How is electronic disclosure typically managed to ensure proportionality and completeness?
Through agreed keyword searches, and use of an electronic documents questionnaire to identify relevant data.
Under CPR 31.3(1), when does a party have the right to inspect a document disclosed by another party?
A party has the right to inspect a disclosed document unless: (a) the document is no longer in the disclosing party’s control, (b) the disclosing party has a right or duty to withhold inspection, or (c) paragraph 2 applies (disproportionate to allow inspection).
What legal basis allows a party to withhold inspection of a disclosed document?
A party may withhold inspection if they have a right or duty to do so based on legal professional privilege or if the communication is without prejudice
When a privileged document falls within the scope of disclosure, what must still be done according to the rules?
Its existence must be disclosed, typically in generic terms on the list of documents, but inspection may be withheld.
How should a privileged document be described in a party’s list of documents?
It should be described generically, not specifically (e.g., “correspondence with counsel” rather than identifying dates or content).
What is the definition of legal advice privilege under CPR principles?
A confidential communication between a lawyer and a client for the purpose of giving or receiving legal advice.
What is required for a document to be protected by litigation privilege?
It must be a confidential communication between a lawyer and client or a third party, made for the dominant purpose of obtaining legal advice, evidence, or information in relation to litigation which was reasonably in prospect.
What is the key difference between legal advice privilege and litigation privilege in terms of parties involved?
Legal advice privilege applies only to lawyer-client communications, while litigation privilege can also cover communications involving third parties.
What does “waiver of privilege” mean in civil proceedings?
It refers to a party’s deliberate disclosure and allowance of inspection of a previously privileged document.
What is the rule against “cherry-picking” in the context of waiving privilege?
Waiving privilege for part of a document typically waives privilege for the whole document, and possibly for related documents on the same issue.
