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Flashcards in Unit 12 - Disclosure and Inspection Deck (63)
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A party discloses a document by...

...stating that the document exists or has existed.


A party to whom a document has been disclosed has a right to inspect that document, except where:

The document is no longer in control of the party who disclosed it;

The party disclosing has a right/duty to withhold inspection;

Rule 78.26 applies;

Where a party considers it disproportionate to issues to permit inspection of documents within a category/class under r31.6(b), he is not required to permit inspection but must state that inspection is not permitted for that reason.


What are the two kinds of privilege?

LEgal advice priviliege
Litigation privilege


What is the test for determining legal advice privilege?

Was the communication made confidentially for the purpose of legal advice?


Name two difficulties arising in the determination of litigation privilege?

Determining the status of documents that come into existence for more than one purpose;

Deciding at what stage the purpose is obtaining advice on anctipated litigation, as opposed to obtaining information re an occurrence which may lead to litigation.


If a document was in existence before litigation, does it become privileged when handed to a solicitor?



Can the solicitor/legal adviser waive privilege?

No - it is the client's privilege.


What is the fundamental question re full/partial disclosure of a document?

WOuld it be unfair to allow the party making disclosure not to reveal the whole of the relevant information becasue it would risk the court/party only have a partial and potentially misleading understanding of the material?


Does a reference in an affidavit to a legal document amount to a waiver?

No - Tate & Lyle v Gov Trading Corp


Does showing privileged documents to a mediator waive privilege?



What is the purpose of the 'wihout prejudice' rule?

To protect a litigant from being embarrassed by an admission of acknowledgement made purely in an attempt to achieve a settlement.


In all claims to which r31.5(2) does not apply:

(a) an order to give disclosure is an order to give standard disclosure unless the court directs otherwise;

(b) the court may dispense with or limit standard disclosure; and

(c) the parties may agree in writing to dispense with or to limit standard disclosure.


Standard disclosure requires a party to disclose only:

(a) the documents on which he relies; and

(b) the documents which—
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.


The factors relevant in deciding the reasonableness of a search for documents are:

(a) the number of documents involved;
(b) the nature and complexity of the proceedings;
(c) the ease and expense of retrieval of any particular document; and
(d) the significance of any document which is likely to be located during the search.


Where a party has not searched for documents on that grounds that to do so would be unreasonable, what must he do?

State in his disclosure statement and identify the category/class of document.


A document has been in a party's control if:

(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it.


If a copy of a document has a modification which adversely affects/supports a party's case, is it treated as the same document?

No - it is treated as a separate document.


An order for specific disclosure is an order that a party must do one or more of the following things:

(a) disclose documents or classes of documents specified in the order;
(b) carry out a search to the extent stated in the order;
(c) disclose any documents located as a result of that search.


When can the court make an order for specific disclosure?

At any time.


What is the Norwich Pharmacal principle?

A person innocently caught up in the wrongdoing of another, so that they are more than a mere witness, can be compelled to disclose the identity of the wrongdoer so that proceedings may be brought against the proper defendant.


What are the three pre-requisites of Norwich Pharmacal?

○ “(i)a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;

○ (ii)there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and

○ (iii)the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrong-doer to be sued.”


Are there any documents which are privileged from disclosure?



TRUE or FALSE. Duty of disclosure is ongoing?



Standard disclosure uses which form?



CPR 31.6 sets out test for whether something is disclosable:

Does a party seek to rely on it?

Does the document support a party's case?

Does the document adversely affect a party's case?


What are the four ways of objecting to inspection?


Public interest immunity




TRUE or FALSE. Legal privilege vests in the solicitor.

FALSE. It vests in the client. Only they can waiver.


When does the without prejudice rule apply?

If there is a genuine risk of litigation, the document is proximate and is a genuine attempt to avoid litigation/settle.


If resolution attempts begin prior to litigation being considered, and then that litigation becomes a prospect, does WP apply to documents made at the start?



Documents 'without prejudice' would be disclosed in which part of the N265 form?

Section 1 - no objections to inspection. WP does not serve to prevent a party seeing the documents: it prevents the court seeing them.