Inspection Flashcards
(21 cards)
When does a party not have a right to inspect a document?
1) Document no longer in disclosing party’s control
2) Allowing inspection would be disproportionate, or
3) Disclosing party has a right to withhold inspection
When does a party have a right to withhold inspection?
If it is privileged
Could inspection be refused on the ground of disproportionality if the reason for disclosure is that a party wishes to rely on the document?
No
Are privileged documents still listed in list of documents?
Yes, generically. But not individually.
What are the main types of privilege?
1) Legal advice privilege
2) Litigation privilege
3) Without prejudice communications
What is redaction?
Blanking out parts of documents
Could a document be redacted solely because of confidentiality / commercial sensitivity alone?
No, that does not justify redaction
What is commercially sensitive meaning?
Commercial interests of a person or business, i.e. a director’s salary
When can a document be redacted / partly redacted?
1) If privileged
2) If irrelevant
What happens if part of a document is privileged?
Then that part can be redacted
Are confidentiality and privilege the same thing?
No
What is waivering?
It allows a party to deliberately allow inspection of a privileged document
What are the walls on waivering?
You can’t pick and choose parts of a privileged document to reveal to the other side of the court.
What is an effect of waivering one document?
It may automatically lead to privilege being lost in another document
Who is the burden of proof on to show that a document is subject to privilege?
On the party claiming privilege
What other documents does a party have a right to inspect other than those pursuant to a court order?
1) Any document referred to in:
- Statement of case
- Witness statement
- In witness summary
- An affidavit
Is privilege lost if a document is referred to in statement of case or witness statement?
No, although should be careful depending on how it is referred to as it could amount to a waiver
What is the procedure of inspection?
A party must send written notice of inspection to other side, who has 7 days to allow it
What if a party asks for copies?
Copies must be provided within 7 days of receipt of request
What is the effect of failing to permit inspection on the party that was supposed to allow it?
They will not be able to rely on it unless court gives permission
What is the meaning of once privileged, always privileged?
If privileged, will always be privileged even in future unconnected proceedings
