Disclosure Obligation

Rebecca Mangan
Note by Rebecca Mangan, updated more than 1 year ago
Rebecca Mangan
Created by Rebecca Mangan almost 6 years ago
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Professional Qualification Civil Litigation (Disclosure) Note on Disclosure Obligation, created by Rebecca Mangan on 07/28/2015.

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Disclosure Obligation Obligation to give disclosure will arise from either a court order or the parties' agreement. Disclosure in the multi-track Under 31.5(7) in multi-track cases (other than PI), court has flexibility to make a range of disclosure orders with regard to the overriding objective and the need to deal with the case justly. The court will be looking to limit disclosure where possible within these constraints. The type of order which the court can make are: an order dispensing disclosure; an order that a party disclose the document on which it relies, and at the same time request any specific disclosure it requires from any other party; an order that directs, where practicable, the disclosure to be given by each party on an issue-by-issue basis; an order that each party disclose documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; an order that a party give standard disclosure; any other order in relation to disclosure that the court considers appropriate. It is difficult to generalise as to the extent of the parties' disclosure obligations as they depend on the precise order which is made, Disclosure in the fast-track and PI cases R31.5(1) the usual disclosure order is for 'standard disclosure' but the court may order; or the parties may agree, to limit this. In some circumstances where issues of the case demand it and where it is proportionate, fair and just to do so, the obligation to give disclosure may be greater than 'standard disclosure'. Standard Disclosure Under r31.6 'standard disclosure' requires a party to disclose: documents on which it relies; and documents which: affect its own case adversely; affect the other party's case adversely; support the other case; and documents which, in particular types of claim, are specified by the court. The question whether a document should be disclosed is determined by refer to the issues raised in parties' statement of case. Only those documents that have reference to the issues between the parties are disclosable. To meet the overriding objective, parties are encouraged to be both realistic and reasonable in determining which issues to proceed with. It is often at the stage of disclosure or later at the stage when witness statements of fact and expert reports are exchanged, that a part is able to determine more clearly those parts and in this way further restrict the amount of disclosure and documents to be referred to at trial. Further examination of the definition reveals that: the obligation is a wide-ranging one and clients will usually need specific guidance on the extent of their obligation; it does not include documents or classes of documents that are in effect documents that may simply lead a party on a 'train of enquiry'. Compiling List of Documents In relation to each document being considered, the following will need to be considered: Is the document in principle 'disclosable'? Does the client have the right (or duty) to withhold inspection? In the first part of the process the documents that have been revealed by the 'reasonable search' may be sorted into five categories.Documents are:1) Disclosable but disclosure is being withheld - there will not be many documents here. If a document is disclosable, few grounds will justify it NOT being contained within the list of documents being disclosed. One such reason could be a claim for 'public interest immunity' i.e. in proceedings involving sensitive political or state information. 2) Disclosable but inspection is being withheld - privileged documents. Client may waive privilege at a later stage. Thus draft (or final) witness documents may be withheld from inspection but will ultimately be made available to the opponents at the time when the parties have been ordered to 'exchange witness statements' in the court's directions order made after allocation. This decision will usually be after the order for 'disclosure by list'. 3) Disclosable and will be disclosed and inspection will be permitted - these are the documents that the opponent will be entitled to see once they exercise their rights of inspection. 4) Partly disclosable - part will be redacted - privileged or irrelevant commercially sensitive information can be 'blanked out' of a document that otherwise needs to be disclosed. Discretion should make clear it has been redacted. 5) Not disclosable - the search for documents in an action may reveal that they are not relevant to the issues of a case and/or do not fall within the ambit of the order to disclose. Most likely, it will be that they do not fall within the definition of 'standard disclosure'.

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