Disclosure and Inspection of documents
- Created by: KG1999!
- Created on: 17-09-23 11:58
View mindmap
- Disclosure and inspection of documents
- Overview
- Consequences of not disclosing - unable to rely on doc unless court permits. Case could be struck out.
- Using disclosed docs - only for purposes of case unless it has been read/referred to during trial, court grants permission, owner provides consent
- Non-party disclosure - to enable them to resolve the case. If party is no longer in possession, person in possession will not hand over voluntarily or needed for evidence
- Pre-action disclosure - party can apply if they do not know whether or not to proceed without more info
- Steps to assess whether necessary
- 1. Is it a doc? if it contains usually information then yes. This can include electronic docs.
- 2. Should it be disclosed? Usually; docs relied on; adversely affect own case, adversely affect other party's case, support another party's case, disclosure by practice direction
- 3. What are docs in the party's control - physical possession, right to possession, right to inspect/take copies
- 4. Apply to facts - what issues are in dispute, how/why docs affect the case. Docs for cost, without prejudice correspondence and instructions on expert reports should be disclosed
- 5. Has copy been created? Only one copy to be disclosed UNLESS it features mods on which a party intends to rely on, affects one sides case. Then all copies should be
- 6. Redaction? Only is contains irrelevant confidential info. Should be disclosed in Part One. Other party has duty of confidentiality
- 7. Reasonable search and limits - consider number of docs, nature/complexity of proceedings, cost of retrieving docs, significance. If not searching as unreasonable, must state this.
- 8. Continuing duty - applies during proceedings. Must immediately notify other parties of any docs that come up.
- 9. Inspection? Those in SOC, witness statement/summary or affidavit. Unless no longer in control of party who disclosed, disclosing party has right to withhold i.e. public interest
- 10. Privilege? Legal advice priv = comms passing between party and legal adviser that are for obtaining legal advice. Litigation priv = comms between client or their sol and a third party for sole purpose of litigation
- 11. Privilege waived? If it is served on other side, can only be waived with client consent
- 12. Settlement communication without prejudice - usually discusses strength and weaknesses of cases so support or adverse either. Therefore subject to duty of standard disclosure.
- Disclosure List (N265)
- Part 1 docs = open to inspection, not privileged. List docs in date order, number and given concise description.
- Part 2 docs = privileged docs that are disclosable. List and state why object to inspection.
- Part 3 docs= no longer in possession. List each docs, when was last in control and what happened to the docs.
- Disclosure statement - CPR 31. Sets out extent searched for docs, notes their duty to disclose and compliance. Must be signed by client.
- Challenging docs list - if you believe docs have not been included you write to opponent and explain why deficient. If no resolve - make application for disclosure.
- Professional conduct
- Sols under a duty not to mislead the court. Must withdraw if they believe their client is looking to do so.
- Continuing obligation - must disclose if they only come out during trial (after docs listed)
- Mistakenly receiving privileged docs - whilst acting in their clients' best interests, they should not read. Delete email and sent one confirming this. Do not ask for client instruction on this either.
- Overview
Comments
No comments have yet been made