DR Disclosure and inspection Flashcards
(30 cards)
What is disclosure?
Stating (to another party) that a document exists or has existed (CPR 31.2)
What is inspection?
The party to whom a document has been disclosed looking at a document. Under CPR 31.5, where a party has a right to inspect a document, they also have a right to request a copy of that document, and this is commonly also referred to as inspection
Purposes of disclosure and inspection
- Help clarify the issues which are in dispute;
- Enable parties to evaluate the strength of the claim against them;
- Encourage settlement; and
- Ensure the court has all the facts and evidence before it in order to deal justly and appropriately with the case
Where does an obligation to give disclosure come from?
No automatic obligation - the obligation comes from a court order.
Order for disclosure usually given on allocation or at a CMC.
A party can also apply for an order for dislcosure at a later stage in the proceedings (less common)
How does the court arrive at an order for disclosure?
It depends on the track to which the claim has been allocated.
Small claims track - directions on allocation. Usual order: each party must file and serve on every other party copies of all documents on which they intend to rely on at hearing - at least 14 days before date fixed for final hearing
Fast track - directions on allocation. Usual order: each party to give’ standard disclosure’.
Intermediate and multi-track (other than PI): the parties must
a) complete a disclosure report otherwise be filed and served not less than 14 days before the first CMC (CPR 31.5(3))
b) not less than 7 days before the first CMC, consider the issues in the case and enter into discussions to seek to agree a draft disclosure ordered by which they will then ask the court to make. The proposal should meet the overriding objective and limit disclosure to that which is necessary to deal with the case justly (CPR 31.5(5))
What is standard disclosure (CPR 31.6)
Most common type of disclosure to be ordered - requires a party to disclose documents which:
a) it relies on;
i) adversely affect its own case;
ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents it is required to disclose by a relevant PD
subject to:
documents - as defined by CPR 31.4, and
limited to documents which are or have been in their control (CPR 31.8)
What is a disclosure report?
Report briefly explaining:
a) what relevant documents exist, or may exist;
b) where, and with whom, they are;
c) how any electronic documents are stored;
parties should also consider using the EDQ - Form N264 which provides info about electronic documents
d) an estimate of the broad range of costs that could be involved in giving standard disclosure in the case; and
e) which of the disclosure directions to be sought (CPR 31.5(7) and (8))
What does the court do at the CMC regarding disclosure?
Uses the disclosure report and any other info available to consider whether standard disclosure is too expensive and considers what disclosure order to make.
The court can make any order in relation to disclosure that it thinks is appropriate (CPR 31.5(7))
Does a party have to disclose every copy of a document?
Copies of documents need only be disclosed if:
a) they contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosre (CPR 31.9) + the copy itself will also need to be separately considered for privilege; OR
b) the party has never had the original or no longer has the original in its control
How long does the duty of disclosure last?
Any duty of disclosure continues until proceedings are concluded.
Subsequent use of disclosed documents
A party to whom a document has been disclosed may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purposes UNLESS
a) the document has been read to or referred to by the court at a hearing held in public (including pre-read and referred to in skeleton arguments) - court can make an order restricting or prohibiting use of a document read or referred to at a public hearing though
b) the court gives permission
c) the party who disclosed the document and the person to whom the document belongs agre
When might the court order the parties to give disclosure?
When giving directions on allocation, at a CMC, or on a party’s application
What obligation is there to file and serve a disclosure report in a personal injury claim
There is no obligation
The judge in a multi-track case is likely to consider at the first CMC…
What type of disclosure order, if any, to make.
Key considerations for standard disclosure
a) is it a document (CPR 31.4)?
b) is/was it in the party’s control (CPR 31.8)?
c) does it fall within standard disclosure (CPR 31.6)?
What is a document?
Anything which records information - including photos, voicemails, texts, metadata
What is the meaning of ‘in a party’s control’?
a) the document is (or was) in the physical possession of the party; or
b) the party has (or had) a right to possession of the document; or
c) the party has (or has had) a right to inspect or take copies of the document
Are documents that simply “tell the story” but don’t help or harm either side’s case disclosable?
No — not unless a party intends to rely on them. Mere relevance is not enough.
What rule defines whether a search for documents in standard disclosure is adequate?
CPR 31.7 — the reasonable search test.
Standard disclosure under CPR 31.6 lists five categories of documents. How many of these criteria must a document meet before it must be disclosed?
Just one.
If a document meets any one of the five categories — even if it only supports another party’s case or adversely affects your own — it must be disclosed.
It does not need to meet more than one criterion.
If an order for standard disclosure is made, what rule governs whether a search is adequate — and what four key factors must be considered?
CPR 31.7 governs what amounts to a reasonable search.
The four key factors are:
The number of documents involved
The nature and complexity of the proceedings
The cost/difficulty of retrieving documents
The significance of any document likely to be found
Bonus: The court also considers proportionality and may limit the search by transaction, type of document, or date.
If an order for standard disclosure is made, what obligation does it trigger — and how is that obligation defined?
It triggers the obligation to carry out a reasonable search for documents falling into CPR 31.6 categories (b)–(e).
A reasonable search is defined in CPR 31.7 and depends on:
Number of documents involved
Nature and complexity of proceedings
Difficulty or expense of retrieval
Likely significance of the documents
The court may limit the search scope based on proportionality.
Can a reasonable search be limited in scope? If so, how?
Yes — based on proportionality.
Limits may include:
Date range
Type of document
Specific transaction
How is standard disclosure performed?
Each party makes a list of the required documents and serves it on the other party - lists normally exchanged simultaneously
