Chapter 11

Disclosure and Inspection of Documents

• Purpose: Litigation is conducted openly, requiring parties to share relevant documents to ensure fair outcomes.
• Definition of Disclosure: A party discloses a document by stating its existence. This involves providing a list of documents.
• Definition of Document: Any information recorded, including written documents, audiotapes, videotapes, photographs, and electronic documents (e.g., texts, emails, databases).
• Disclosure on Different Tracks: Small claims track doesn't follow Part 31; fast and intermediate tracks typically use standard disclosure; multi-track cases usually involve standard disclosure (except in Business and Property Courts)

Learning Outcomes

• Role of disclosure and inspection: Understands the significance of disclosing documents for litigation.
• Document Search: Includes a process for locating documents related to the case.
• Legal Professional Privilege: Documents protected from disclosure; details are beyond scope of these notes
• Effect of Inadvertent Disclosure: Awareness that accidental disclosure may affect a case.
• Completing Disclosure Forms: Procedures for completing the specific form. Understanding applications used for required disclosure.

Standard Disclosure

• Definition: Disclosing documents on which a party relies or that negatively or favorably affect their case.
• Control of Documents: Must be in possession, have right to possession, or right to inspect or copy.
• Electronic Documents: Requires efficient and effective management, and consideration of storage and accessibility.
• Exceptional Circumstances for Documents: Some documents may not have to be shown.

Procedure for Standard Disclosure

• Standard Disclosure is the Rule: Multi-track cases usually use standard disclosure.
• Menu of Options: Courts can allow dispensing with disclosure, issuing orders that include parties' reliance documents and disclosure request from other parties, directing disclosure on an issue by issue basis, directing standard disclosure, or other appropriate/needed directions from the court.
• Court Directions: Can be issued on a range of elements including document searches, document requests and format, timings, and disclosure stages.
• Meeting the Overriding Objective: Parties must discuss and agree a suitable plan for disclosure before the first case management conference, with due consideration to the case's complexity, parties’ finances and the case significance.

Disclosure of Copies

• Multiple Copies: Need for more than one if modifications/markings/features exist that affect any party.
• Example: Handwritten notes on an original document create a secondary document.

Duty to Search

• Reasonable Search: Search efforts are reasonable based on document volume, nature of case, ease of retrieval, and significance of the documents.
• Electronic Documents: Specific procedures for electronic documents; efficiently and effectively managing documents is important to minimize the associated cost of producing them.

Right of Inspection

• Right to Inspect: Each party has a right to inspect disclosed documents, excluding documents the party has right to control, and those where inspection is inappropriate due to proportionality issues.
• Time for Inspection: Request and inspection must be initiated within seven days of the initial notice.

Procedure for Standard Disclosure

• List of Documents: Using the correct form (N265).
• Order and Manner: List must be organized and clear.

Disclosure Statement

• Specific details are required.
• Individual Signature: The existence of documents that must be disclosed/described, and the understanding and execution of this duty.
• Company Disclosure: Must provide the identity of the person signing the statement and explain why they are appropriate for the task.

Continuing Obligation

• Ongoing Duty: Parties must notify other parties about any new documents relevant to the case.
• Post-Filing Obligations: If documents are identified after disclosure list has been submitted, prompt notification to other participants.

Withholding Inspection

• Privileged Documents: Legal professional client-lawyer communications, documents tending to incriminate, and those privileged on public policy grounds cannot be inspected.
• Legal Professional Privilege ( Advice Privilege): Communications between a party and their legal advisor for the purpose of obtaining advice.
• Legal Professional Privilege ( Litigation Privilege): Communications between a lawyer and third party concerned with litigation, aiming to obtain evidence or information to use in ongoing or reasonably contemplated litigation.
• Purpose: To allow client's complete confidence with their lawyer.

Applying for Specific Disclosure

• Seeking Further Disclosure: If a party believes the disclosure is insufficient, they can apply to the court for additional disclosure.
• Detailed Application: The application must outline the desired disclosure details and grounds for the application.
• Compliance with Overriding Objective: Courts will consider all circumstances in making a decision.
• Financial Penalties for Non-Disclosure: Courts can order compensation to the affected party for non-compliance.

Non-Party Disclosure

• External Parties: If the matter concerns a third party that is not a party to the proceedings, disclosure can be obtained.
• Evidence Obtaining Purposes: If the document is essential for the case presented in court, or if the document will aid in reducing costs of court proceedings, disclosure is ordered.

Disclosure Obligations and Solicitors' Duties

• Solicitor Responsibility: Lawyers need to advise on the disclosure obligations and ensure complete and correct completion of documents and their disclosure.
• Misleading the Court: A solicitor may run into legal issues if they fail to disclose the appropriate document as required, and or fail to act with complete integrity. This is a serious offense in the legal environment.

Inspection of Standard Disclosure Documents

• Inspection: The process of evaluating the documents provided by the other party, which includes an investigation to review the details.
• Scrutinizing the List: Look for omissions or inconsistencies in the provided data.

Failure to Disclose

• Consequences of Failing to Disclose: This can affect a party's ability to rely on withheld documents. If found to be an egregious failure, the affected party can file a petition for a case strikeout.

Subsequent Use of Disclosed Documents

• Restricted Use: Documents disclosed may only be used within the context of the current case and case-related proceedings.

Applying for Specific Disclosure

• Specific Disclosure: A party can apply for further disclosure if they believe the initial disclosure is inadequate.
• Application Grounds: A specific reason behind the lack of sufficiency with the original disclosure, is required for the application of this disclosure stage.