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Dispute Resolution - 11 - Disclosure and Inspection - Coggle Diagram
Dispute Resolution - 11 - Disclosure and Inspection
Disclosure - overview and definition
Meaning:
Clearly identify and inform the other side of a
document's existence
Doesn't mean to show it to them - that is
inspection
Documents means anything that has information stored
Can include
media
- eg photographs, or
objects
(like a model of a building for an architecture lawsuit)
Obligation/duty to disclose
Parties have a
duty to disclose and permit inspection of
certain docs
Court considers parties' obligations for disclosure in context of
overriding objective
Dealing with cases
proportionately
in a fair, just, and
efficient
manner
Obligation continues throughout proceedings - 'cards on the table'
What
MUST
be
disclosed?
(
STARTING
POINT)
Any document
The party relies on; or
Might adversely affect its (own) case
Standard Disclosure (Common in Fast Track and Personal Injury Multi-track
)
What
MUST
be
disclosed?
(
STARTING
POINT)
Any document
The party relies on; or
Might adversely affect its own case; or
Might adversely affect the other party's case
Might support the other party's case
Legal duties of solicitors regarding disclosure
Must
advise clients of their disclosure obligations
Owe duty to court and opponent
Cease to act for client who is not willing to comply with disclosure
(but accidents don't count)
Must
Inform Court and opposing party is
document is removed or destroyed
, that the doc existed, and why it was destroyed
Court may draw adverse inference from failure to preserve
Specifics of Disclosure
Obligation for disclosure
Extends to
ANY DOCUMENTS IN PARTY'S CONTROL
Control means:
Party has physical possession of the doc
Party has a right to possession, to inspect, or take copies of the doc
Party had the document in their possession but no longer has it
But party
need only actually disclose documents relevant to the issues in question
Party must make
reasonable and proportionate search
for documents
Reasonable and proportionate depends on
Nature of case, its value, and importance
Ease of retrieval of documents and costs involved
Party verifies this by signing a disclosure list
Disclosed documents may be redacted
Eg to protect commercial secrets
Orders for Disclosure
Parties must file and serve a
Disclosure List
(remember, fast and PI multi-track)
List has 3 sections
A list of documents in control
they object to the party inspecting
(eg due to privilege)
A list of documents
no longer in its control
, stating when they were last in its control and where they are now
A list of documents in its control
they do not object to the other party inspecting
Also remember
Electronic Disclosure Questionnaire
, if relevant, must be done at same time
Disclosure statement
Each
party
(
not
legal representative
) must sign this statement
Remember, disclosure is party's obligation, not solicitor's
Certifies and declares:
They understand
duty of disclosure
They
have carried out duty of disclosure to best of knowledge
The
extent
of the search they made is
reasonable
Must explain why they didn't carry out a particular search
Lying leads to contempt of court - false disclosure statement without
honest belief in its truth
Automatic right to inspection of disclosed documents
How to exercise right:
Give notice to other party, who
must permit inspection within 7 days
(remember CPR is clear days)
Party may object to Inspections based on
Privilege
Document is no longer in the party's control; and
it would be
disproportionate
to allow inspection
Time limits for standard disclosure
28 days from date of Directions Order to serve
Disclosure List
(at latest)
Order is made when case is allocated to its track
Inspection should take place
within 7 days of list
being served
What if a party is
not content with an opponent's disclosure?
May be when:
Common sense dictates documents should appear in list
Party has calimed privilege when inappropriate
List is vague or inadequate
Other party has
not carried out extensive search
Options:
Apply for Specific Disclosure
Serve a Notice to Admit Facts
No later than 21 days before trial - if notice is served but facts not admitted, person disproven my have to pay other side's costs of proving fact
Apply for an
Unless Order
(if party keeps ignoring CPR obligations)
Request for information
Court may order, usually within Initial Directions Order, to order disclosure on
Standard basis
Dispensing with disclosure altogether
Disclosure on such a basis as it directs
Disclosure on an issue-by-issue basis
Must file:
Disclosure list
Disclosure statement
Reasons to
not disclose
(remember, not inspect, but DISCLOSE)
Must be a
very good reason
- eg
public interest immunity
(contains sensitive political or state info -> not in public interest to dicslose)
Disclosure in Small Claims cases
Limited to docs court considers
necessary and proportionate to resolve the case
Multi-track cases (non-personal injury)
Each party must prepare a
Disclosure Report
Filed
at least 14 days before first case management conference
; or
With directions questionnaire
Disclosure is similar to Standard Disclosure's requirements, BUT
Particular em
phasis on how any electronic documents are stored,
and
estimated costs of giving standard disclosure
Specific Disclosure - Court Order
Mentioned in bottom right; one of 4 options if party is unhappy with other party's disclosure
Court can make an order for specific disclosure (requiring party to
disclose
, or
search for and disclose
, docs that)
It has reason to believe may contain information that helps the applicant's case or damage the respondent's case; OR
Will lead to a train of inquiry which has either of the aboce consequences
Must ONLY BE DONE
AFTER
A
WRITTEN REQUEST
FOR DOCUMENTS TO
OTHER PARTY
HAS BEEN MADE
Can be done based on inadequate Standard Disclosure
Before requesting order:
Written request must contain
Description of docs and extent of search sought
Why it is reasonable and proportionate for the docs to be disclosed
per the overriding objective
Explanation of how docs are
relevant
Grounds for believing
docs are/have been in other party's control
What safeguards can be provided to
ensure confidential information
(eg trade secrets) are not put
at risk
Terms of Specific Disclosure Order; may require respondent to
Disclose certain documents or classes of documents per the order
Prepare a
supplemental
list of documents
Carry out a
search
per the
order's terms
and/or
disclose documents the search located
Pre-Action Disclosure Applications
Typically only available against person who is likely to become party to proceedings - remember PAP and
the specific conditions for requesting disclosure order
!
However, may be available against person who is not likely to become party to proceedings
IF the
case invovles
Freezing Injunctions
Search orderse
Applications for preservation of property
Requests for further information pursuant
Privilege and Withholding Disclosure/Inspection
(Only public interest exemption lets docs be withheld from DISCLOSURE)
5 types of privilege
Legal Advice Privilege
Litigation privilege
Common interest privilege
Without prejudice privilege
Public interest immunity
Legal advice privilege
- no inspection
Protects all types of communication between client and lawyer
where
advice is GIVEN OR REQUESTED in a relevant legal context
Protects only solicitor-client relationship
Document must be 'directly related to performance by solicitor of their professional duties as a legal advisor)
Litigation privilege
- no inspection
Applies only when litigation is pending or contemplated
Protects against inspectionof communciations with third parties relating to
pending or contemplated
litigation
It covers communications between a client, their legal advisers, third parties (including experts), and anyone else involved in preparing the case for litigation, as long as the communication is for the dominant purpose of the litigation.
Party relying on privilege
must prove it falls under Litigation Privilege
If a document has multiple purposes
, it will be privileged
ONLY if
the Court
decides its DOMINANT PURPOSE
is to
prepare for litigation
(giving advice, or obtaining or gathering evidence)
'Dominant purpose test' does not apply to Legal Advice Privilege
Privilege does not apply if party wishes to USE THE DOC AT TRIAL
Common Interest Privilege
- no inspection
Privilege can only be waived if all interested parties agree to waive it.
If the relationship between the parties breaks down, the privilege remains intact against third parties.
The common interest must be present at the time of disclosure between the parties.
The parties sharing documents must have a common interest, i.e., they are involved in the same action with shared objectives.
Parties can share documents with each other and claim these documents are privileged from inspection by other parties.
Common interest privilege applies when there are multiple defendants or group actions.
Without-prejudice privilege - no inspection
Used during
negotiations
If it is
without prejudice
, these communications and documents used here are privileged, and opponent cannot refer to them in action
The without
prejudice rule applies to communications made in a genuine attempt to settle a dispute
. The protection applies to these communications
whether or not they are explicitly marked as "without prejudice".
Public interest privilege - no disclosure OR inspection
Party may withhold disclosure on grounds of public interest immunity IF:
Disclosure would
harm the administration of justice
Disclosure would
harm the nation
Court must balance risk of disclosure with value it would have for other party
Loss of Privilege
Waiving Privilege
Client (not solicitor) may awive privilege
Once a copy of privileged doc is
served on other side
, privilege is gone for
that specific doc
Mistaken disclosure
Eg:
Solicitor does not indicate they object to inspection (when sending
Disclosure List
)
Accidentally sends doc to other side
Other side may
only use it with court permission
Court considers
interests of justice
and
overriding objective
in its decision
Court may prevent use if there's
obvious mistake in disclosure
E-Disclosure and the CPR
Relevant docs (inter alia)
Emails
Information in data bases
Deleted electronic docs
are ALSO relevant
Electronically stored docs
If relevant,
Electronic Disclosure Questionnaire
must be completed
at the same time
as the
Disclosure List
Questionnaire aims to help parties
Investigate
Categorise
And agree nature of documents held electronically
Court
expects parties to discuss and agree on extent of the search
This process typically applies to e-disclosure (or e-discovery) because electronic documents often involve significant complexities regarding the extent of the search. In cases involving large volumes of electronically stored information (ESI),
it is crucial for the parties to agree on the scope of what should be searched
, especially considering the
proportionality and cost implications
.
If they can't agree, refer to judge at first
Case Management Conference
Now a standard process in the Technology and Construction Court