WS6: Disclosure and Inspection

Question 1

What is disclosure?

Answer 1

Stage in proceedings where parties exchange documents

Question 2

What disclosure is likely to be ordered on small claims track?

Answer 2

14 days before the hearing, file and serve documents you rely upon.

Question 3

What disclosure is likely to be ordered on fast track?

Answer 3

Standard disclosure

Question 4

What advice should a solicitor give a client about disclosure?

Answer 4

Preserve all documents
Don’t create unnecessary documents that might not be privileged
Policy for storage and organisation

Question 5

What kind of disclosure may be ordered on intermediate / multi track?

Answer 5

Standard disclosure or any other orders

Question 6

Multi-track: When must a disclosure report be filed and served?

Answer 6

Not less than 14 days before the first CMC

Question 7

Multi-track: When should parties consider issues in the case and enter into discussions to agree a draft disclosure order?

Answer 7

Not less than 7 days before the first CMC

Question 8

What is in a disclosure report?

Answer 8

Explanation of the following;

• What documents exist / might exist
• Where they are
• How any electronic documents are stored
• Estimate of the broad range of costs that could be involved in giving standard disclosure in the case
• Which of the disclosure directions should be sought

Question 9

When does a copy of a document need to be disclosed?

Answer 9

If it contains a modification, obliteration or any other marking or feature which itself satisfies standard disclosure

Question 10

How long does disclosure obligation last for?

Answer 10

Until proceedings are controlled

Question 11

What must be disclosed under standard disclosure?

Answer 11

Documents on which you rely
Documents which adversely affect your own case
Documents which adversely affect the other party’s case
Documents which support another party’s case

[Documents required by any practice direction]

Question 12

What is the three step test for standard disclosure?

Answer 12

1) Is it a document
2) Is it under your control?
3) Does it fall under standard disclosure?

Question 13

What will the court consider when ordering a client to make a ‘reasonable search’?

Answer 13

• Number of documents involved
• Nature and complexity of proceedings
• Difficulty and cost of retrieving any document
• Significance of any document likely to be found

Question 14

What are the three types of privilege?

Answer 14

Legal advice privilege
Litigation privilege
Without prejudice communication

Question 15

Define legal advice privilege

Answer 15

Confidential communication between solicitor and client for the dominant purpose of giving or receiving legal advice

50/50 purpose - not privileged

Question 16

What is the procedure for standard disclosure?

Answer 16

• Both parties make a list of documents they need and serve it on other party simultaneously
• On form N265

Question 17

Define litigation privilege? Why is this needed compared to legal advice privilege?

Answer 17

Confidential communication for the dominant purpose of obtaining legal advice, evidence, or information for use in the conduct of litigation “reasonably in prospect”

So that you can write to 3rd parties

Question 18

What is without prejudice privilege?

Answer 18

A genuine attempt to settle

Must look at substance rather than form

Question 19

When does redacting become relevant?

Answer 19

When a document is not privileged

Question 20

What is a solicitor’s duty in terms of disclosure?

Answer 20

Make sure that a client is fully aware of their disclosure duty

If any documents come to light after disclosure, ensure supplemental lists may need to be made

Question 21

What orders for disclosure can the court make under CPR 31.5(7)?

Answer 21

a) No disclosure
b) Documents on which you rely / documents which the other side have made a specific request for
c) Issue by issue
d) Reasonably advanced / reasonably damaged  no need to disclose things that hurt your case / advance the other
e) Standard disclosure
f) Any other order that the court deems appropriate

Question 22

What is the general rule about inspection?
What are the exceptions?

Answer 22

A party has a right to inspect a document that has been disclosed, unless:
- Document is no longer in control
- Inspection would be disproportionate
- Privileged

Question 23

How should you list a privileged document?

Answer 23

Say that it exists via a generic description, but that it can not be inspected

Question 24

What is the procedure for inspection?

Answer 24

A party wishing to inspect must send written notice of a wish to do so to the other side

Other side must allow inspection within 7 days of receipt of the notice

Any copies of documents must be provided within 7 days of receipt of the request

Question 25

When would an application for specific disclosure be made?

Answer 25

After proceedings have started

Question 26

What is an order for specific disclosure?

Answer 26

An order that a party must do one or more of the following: - Disclose documents - Carry out a search to the extent specified - Disclosure any documents located as a result of that search

Question 27

What will a court consider when faced with an application for specific disclosure?

Answer 27

all the circumstances of the case overriding objective any previous failures to comply with a disclosure order if initial disclosure was inadequate the case is of a nature where something more than standard disclosure is called for

Question 28

What should be included on an application notice for specific disclosure?

Answer 28

Application made by notice Specify the order sought List documents in the schedule to the order - as specific as possible. Supported by evidence

Question 29

What is specific inspection?

Answer 29

An order that a party must permit inspection of a document which has been disclosed, but inspection has been refused

Question 30

When might a court order pre-action disclosure? What is it?

Answer 30

Disclosure against a likely party to proposed proceedings Court may order this in order to a) dispose fairly of anticipated proceedings b) assist the dispute to be resolved without proceedings c) save costs

Question 31

What is the general rule on costs for non-party disclosure?

Answer 31

Applicant for pre-action disclosure will generally pay the costs

Question 32

When can non-party disclosure be ordered?

Answer 32

If documents are known to exist and they support an applicant's case / adversely affect the case of another party Can only be ordered once proceedings have started - no such thing as pre-action non-party disclosure

Question 33

What is the procedure for non-party disclosure?

Answer 33

Application procedure which - specifies order sought including listing documents sought Draft order Evidence Require respondent to specify documents which are no longer in their control / they have a right to withhold

Question 34

What is a Norwich Pharmacal order?

Answer 34

An order on a respondent to disclose the identity of the defendant, where the defendant is unknown

Question 35

What is the procedure for a Norwich Pharmacal order?

Answer 35

Applicant must issue a claim form supported by evidence draft disclosure order statement including background to application and why this specific information is needed

Question 36

What are the three conditions for a Norwich Pharmacal order?

Answer 36

A wrong has been carried out by a wrongdoer There must be the need for an order to enable action to be brought against the ultimate wrongdoer person against whom order is sought is more than a mere witness or bystander and can provide information necessary to enable ultimate wrongdoer to be sued.

Question 37

Can you redact a privileged document?

Answer 37

No - it won't be seen at all

Question 38

When can you redact a part of a document?

Answer 38

Clear and distinct part of the document which does attract privilege and remainder does not if information may be commercially relevant

Question 39

When can you waive part of a document?

Answer 39

Only when it deals with an 'entirely different subject matter'

Question 40

Why should you be careful when mentioning documents in a statement of case?

Answer 40

Parties have a right to inspect a document referred to in a statement of case - sometimes, it can amount to waiver.

Question 41

Where does the burden of proof lie in a privilege dispute?

Answer 41

Burden lies on the party seeking to assert the privilege

Question 42

When can a party inspect a document referred to in a witness statement?

Answer 42

It can generally inspect this subject to the rules on privilege, which may have been waived depending on how / why / for what reasons the document has been mentioned

Question 43

If a relevant document is discovered after standard disclosure, do you need permission to disclose? What should you do?

Answer 43

No need for permission Disclose document to defendant