Topic 9 - Disclosure and Inspection

Question 1

What initiates an obligation to give disclosure?

Answer 1

A court order

This order is typically given during allocation or a case management conference.

Question 2

When is the usual order for disclosure in the small claims track?

Answer 2

At least 14 days before the final hearing

Each party must file and serve copies of all documents they intend to rely on.

Question 3

What disclosure orders can the court make in fast and intermediate track cases?

Answer 3

• Dispensing with disclosure
• Requesting specific disclosure
• Issue-by-issue disclosure
• Reasonable documents disclosure
• Standard disclosure
• Any other appropriate order

The court considers the overriding objective and limits disclosure to what is necessary.

Question 4

What is the process for disclosure in multi-track cases?

Answer 4

• Complete a disclosure report 14 days before CMC
• Discuss and agree on a draft disclosure order 7 days before CMC
• Court makes appropriate disclosure order

The process is complex due to potentially large amounts of documentation.

Question 5

What must a disclosure report explain?

Answer 5

• Relevant documents that exist
• Locations and ownership of documents
• Storage of electronic documents
• Estimated costs of standard disclosure
• Directions sought for disclosure

This is specified in CPR 31.5(7) and (8).

Question 6

What is a continuing obligation in terms of disclosure?

Answer 6

The duty of disclosure continues until proceedings are concluded

This includes disclosing documents created after initial disclosure.

Question 7

Under what conditions can a document disclosed be used for other purposes?

Answer 7

If it has been read in public, court permission is granted, or both parties agree

This is governed by CPR 31.22(1).

Question 8

Define ‘standard disclosure’.

Answer 8

A form of disclosure requiring a party to disclose documents relied on and those affecting their own or another party’s case

Standard disclosure is the most common type of disclosure ordered by the court.

Question 9

What is the definition of a ‘document’ under CPR 31.4?

Answer 9

Anything that records information, including digital recordings, emails, photographs, text messages, voicemails, and metadata

This definition encompasses a wide range of formats.

Question 10

What does ‘in a party’s control’ mean?

Answer 10

• Document is in physical possession
• Right to possession (e.g., documents held by an agent)
• Right to inspect or copy

Control includes documents currently or formerly within a party’s control.

Question 11

What does standard disclosure require a party to disclose?

Answer 11

• Documents relied on
• Documents adversely affecting their own case
• Documents adversely affecting another party’s case
• Documents supporting another party’s case
• Documents required by a practice direction

Disclosure is met if a document satisfies any one of these criteria.

Question 12

What is a ‘reasonable search’ in the context of disclosure?

Answer 12

A search proportional to the number of documents, complexity of the case, retrieval difficulty, and significance of documents

The court considers the overriding objective in determining what is reasonable.

Question 13

What does a disclosure list include?

Answer 13

• Documents under control available for inspection
• Documents under control withheld due to privilege
• Documents no longer in control

The list must also include a disclosure statement.

Question 14

What must a disclosure statement certify?

Answer 14

• Extent of the search made
• Understanding of disclosure duty
• Compliance with disclosure duty

The statement must be signed by the disclosing party or an appropriate officer if a company.

Question 15

What happens if a party fails to disclose a document?

Answer 15

They may not rely on that document unless the court gives permission

Proceedings for contempt of court may be initiated for false disclosure statements.

Question 16

What is the duty of disclosure for solicitors?

Answer 16

A solicitor is required to ‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure.

Question 17

What happens if a party fails to disclose a document?

Answer 17

A party may not rely on any document which he fails to disclose unless the court gives permission.

Question 18

What are the consequences of making a false disclosure statement?

Answer 18

Proceedings for contempt of court may be brought against a person if he makes a false disclosure statement without an honest belief in its truth.

Question 19

What are supplemental lists in the context of disclosure?

Answer 19

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

Question 20

What is the right to inspect documents?

Answer 20

A party has a right to inspect a document that has been disclosed.

Question 21

Under what conditions can inspection of a document be refused?

Answer 21

Inspection can be refused if:
* The document is no longer in the disclosing party’s control
* Allowing inspection would be disproportionate
* The disclosing party has a right or duty to withhold inspection.

Question 22

What does the term ‘privilege’ refer to in legal documents?

Answer 22

Privilege refers to a right or duty to withhold inspection of a document.

Question 23

What types of privilege are most commonly recognized?

Answer 23

• Legal advice privilege
• Litigation privilege
• Without prejudice communications

Question 24

What is redaction in legal documents?

Answer 24

Redaction means blanking out parts of a document to protect sensitive information.

Question 25

When can redaction of a document be permitted?

Answer 25

Redaction may be possible if: * There is a clear privileged part of a document * The information is totally irrelevant to the dispute.

Question 26

What is waiver of privilege?

Answer 26

Waiver of privilege occurs when a party allows inspection of a privileged document.

Question 27

What is the principle of 'once privileged, always privileged'?

Answer 27

If something is privileged in relation to one set of proceedings, it remains privileged in relation to all proceedings unless privilege is lost.

Question 28

Who bears the burden of proof in disputes over privilege?

Answer 28

The burden of proof is on the party claiming privilege to establish it.

Question 29

What documents can a party inspect beyond those disclosed?

Answer 29

A party can inspect documents referred to in a statement of case, a witness statement, or an affidavit.

Question 30

What is the procedure for a party wishing to inspect documents?

Answer 30

A party must send a written notice of its wish to inspect documents, and the other side must allow inspection within seven days.

Question 31

What is legal advice privilege?

Answer 31

Legal advice privilege protects confidential communications between a lawyer and a client prepared for the dominant purpose of giving or receiving legal advice.

Question 32

What is litigation privilege?

Answer 32

Litigation privilege protects confidential communications created for the dominant purpose of obtaining legal advice, evidence, or information for use in litigation that is reasonably in prospect.

Question 33

Can legal advice privilege apply to communications with in-house lawyers?

Answer 33

Yes, as long as the communication concerns advice given in a legal capacity.

Question 34

What must be established for a document to be considered privileged?

Answer 34

It must be confidential, a communication between lawyer and client, and created for the dominant purpose of legal advice or litigation.

Question 35

What is the dominant purpose in the context of document preparation for litigation?

Answer 35

The dominant purpose is to obtain evidence/advice for litigation in reasonable contemplation ## Footnote If there is more than one purpose behind the preparation of a document, the court will look at the dominant purpose.

Question 36

What does it mean for litigation to be 'reasonably in prospect'?

Answer 36

Litigation must be a real likelihood rather than a mere possibility ## Footnote A general apprehension of future litigation is insufficient.

Question 37

Define 'without prejudice communications'.

Answer 37

A document whose purpose is a genuine attempt to settle a dispute ## Footnote The privilege applies regardless of whether the document is marked 'without prejudice'.

Question 38

True or False: A document marked 'without prejudice' is always protected from being inspected by the court.

Answer 38

False ## Footnote A document marked 'without prejudice' may not be a genuine attempt to settle and may fall to be inspected.

Question 39

What is specific disclosure?

Answer 39

An order for a party to disclose specified documents or classes of documents ## Footnote This includes conducting searches and disclosing documents located as a result.

Question 40

When can an application for specific disclosure generally be made?

Answer 40

After standard disclosure has occurred ## Footnote This is when the applicant considers that further disclosure should be made.

Question 41

List common uses of an application for specific disclosure.

Answer 41

* Opponent has not complied with existing disclosure obligations * Applicant wants documents earlier than current directions * Applicant wants something more than current directions provide ## Footnote These uses help establish the need for further disclosure.

Question 42

What factors does the court consider when deciding on an application for specific disclosure?

Answer 42

* All circumstances of the case * Overriding objective including proportionality and reasonableness * Adequate compliance with disclosure obligations ## Footnote These factors help predict the likelihood of a successful application.

Question 43

What is specific inspection?

Answer 43

An order that a party permit inspection of a disclosed document alleged to be disproportionate for inspection ## Footnote This is not common practice as it is rare for a party to claim disproportionate inspection after disclosing a document.

Question 44

What is pre-action disclosure?

Answer 44

The court's power to order disclosure of documents before proceedings have commenced ## Footnote This is governed by CPR 31.16.

Question 45

What conditions must be satisfied for the court to grant pre-action disclosure?

Answer 45

* Respondent likely to be a party to subsequent proceedings * Applicant likely to be a party to those proceedings * Scope of pre-action disclosure cannot exceed standard disclosure * Desirable to fairly dispose of anticipated proceedings or save costs ## Footnote These conditions ensure that pre-action disclosure is warranted.

Question 46

Who generally bears the costs of a pre-action disclosure application?

Answer 46

The applicant generally has to pay the respondent's costs ## Footnote This is not absolute and may vary depending on compliance with pre-action protocols.

Question 47

What is non-party disclosure?

Answer 47

The court's power to order a non-party to give disclosure of documents ## Footnote Governed by CPR 31.17.

Question 48

What requirements must be fulfilled for the court to consider non-party disclosure?

Answer 48

* Documents likely support the applicant's case or adversely affect another party's case * Disclosure necessary to dispose fairly of the claim or save costs ## Footnote Even if conditions are met, the court has discretion to deny the order.

Question 49

What is a Norwich Pharmacal order?

Answer 49

An order that enables a claimant to obtain information to identify a defendant when unknown ## Footnote This order allows a claimant to sue the correct defendant.

Question 50

What are the conditions for the court to grant a Norwich Pharmacal order?

Answer 50

* A wrong must have been carried out by an ultimate wrongdoer * Need for an order to enable action against the ultimate wrongdoer * The respondent must have greater involvement than being a mere witness ## Footnote These conditions ensure that the order serves a legitimate purpose.

Question 51

What is a Norwich Pharmacal order?

Answer 51

A court order requiring a third party to disclose information to assist in bringing action against an ultimate wrongdoer ## Footnote This order is typically sought when direct information from the wrongdoer is not available.

Question 52

What are the two main conditions for obtaining a Norwich Pharmacal order?

Answer 52

1. The person against whom the order is sought must have more than mere witness involvement. 2. They must be able to provide the necessary information to enable the ultimate wrongdoer to be sued ## Footnote This means the third party must have some level of involvement, though not necessarily fault.

Question 53

What must a Norwich Pharmacal order be in all circumstances?

Answer 53

Necessary and proportionate ## Footnote This principle is highlighted in the case Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033.

Question 54

Who typically pays the costs incurred by the respondent in a Norwich Pharmacal order application?

Answer 54

The successful applicant ## Footnote This includes costs for giving the disclosure.

Question 55

True or False: A Norwich Pharmacal order can be obtained if information can be obtained in another way.

Answer 55

False ## Footnote There must be a need for the order to enable action against the ultimate wrongdoer.

Question 56

Fill in the blank: A Norwich Pharmacal order is aimed at assisting in bringing action against the _______.

Answer 56

[ultimate wrongdoer]

Question 57

What can an applicant do after paying costs incurred by the respondent in a Norwich Pharmacal order?

Answer 57

Recover those costs from the wrongdoer in subsequent proceedings ## Footnote This allows the applicant to seek reimbursement after the order is executed.