Civil Litigation SGS 12 Disclosure, Inspection and Privilege

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billsykes
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206420
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Civil Litigation SGS 12 Disclosure, Inspection and Privilege
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2013-03-27 07:41:40
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Civil Litigation
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Civil Litigation
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  1. James is claiming £10,000 damages from Abax Computers Ltd for breach of contract. James has conducted a reasonable search for documents and has discovered a number of documents.

    Which ONE of those documents is NOT a category of documents which James will be required to disclose under standard disclosure?

    Please select ONE of the following:

    [A] The documents on which he relies.

    [B] The documents which adversely affect his own case.

    [C] The documents that he can locate by a reasonable search.

    [D] The documents that support the defendant’s case.
    [C] The documents that he can locate by a reasonable search.

    [[C] is CORRECT. See CPR rule 31.6 defines what is meant by "standard disclosure". It includes all those things in answers A, B and D. Thus C is the correct answer as it is NOT a category of documents required to be disclosed under standard disclosure].
  2. James wishes to apply during the proceedings, against Ibex Software Ltd, who are not a party to the proceedings, for the disclosure of certain records. Which ONE of the following is CORRECT?

    [A] James may do so, but the application must be supported by evidence.

    [B] He may not do so as proceedings have already started.

    [C] He may not do so because Ibex is not a party to the proceedings.

    [D] He may only do so if Ibex is likely to become a party to the proceedings.
    [A] James may do so, but the application must be supported by evidence.

    [[A] is CORRECT. See CPR rule 31.17 which allows disclosure against a person not a party (as in this scenario). James would need to apply to the court. The application must be supported by evidence]
  3. Which ONE of the following factors is NOT a relevant factor in deciding whether James has made a reasonable search for documents to be disclosed under standard disclosure?

    [A] The number of documents involved.

    [B] The age of the documents.

    [C] The ease and expense of retrieval of any particular document.

    [D] The nature and complexity of the proceedings.
    [B] The age of the documents.

    [[B] is CORRECT. This is because the age of the documents is NOT a factor listed as a relevant factor. All the others (A, C and D) are listed factors - see CPR rule 31.7(2)]
  4. Which ONE of the following CORRECTLY describes the full extent of the duty on James to disclose documents?

    [A] James need only disclose documents in his physical possession.

    [B] James need only disclose documents which are or have been in his physical possession.

    [C] James need only disclose documents which are in his control.

    [D] James need only disclose documents which are or have been in his control.
    [D] James need only disclose documents which are or have been in his control.

    [[D] is CORRECT. See CPR 31.8(1)]
  5. Which ONE of the following documents is NOT privileged from production and inspection in the proceedings between James and Abax Computers Ltd? Please select ONE of the following:

    [A] A letter from James to his solicitor asking for legal advice before he entered into the contract with Abax Computers.

    [B] A letter from James’ solicitor to a witness for James, Miss Star, asking her to clarify her statement.

    [C] A letter written by James to Miss Star before proceedings were contemplated.

    [D] A letter written by the solicitors for Abax Computers to James’ solicitors offering a settlement and marked ‘without prejudice’.
    [C] A letter written by James to Miss Star before proceedings were contemplated.

    [[C] is CORRECT. This letter would NOT be privileged from inspection because the dominant purpose of the creation of the letter was not for this litigation, since at the time of writing the letter, no litigation was even contemplated. See CPR Rule 31.3 and the editorial notes at 31.3.13 White Book 2012]
  6. Which of the following is it CORRECT to state is/are NOT a ground(s) for disclosure to a court of the source of a journalist’s information?

    (i) That disclosure is necessary to an issue in the case.

    (ii) That disclosure is necessary in the interests of justice.

    (iii) That disclosure is necessary in the interests of national security.

    (iv) That disclosure is necessary for the prevention of crime.

    Please select ONE of the following:

    [A] (i) only

    [B] (i) and (ii) only

    [C] (iii) and (iv) only

    [D] (i), and (iv) only
    [A] (i) only

    [[A] is CORRECT. See s.10 of the Contempt of Court Act 1981. The source of a journalist's information need not be disclosed EXCEPT in the three situations listed in options (ii), (iii) and (iv) above]
  7. Which ONE of the following is CORRECT?

    [A] A minister’s certificate of immunity is conclusive in every case and the court should not exercise its right to inspect the material in question.

    [B] A minister’s certificate of immunity is only conclusive in cases where the certificate demonstrates a risk to national security and the court should not exercise its right to inspect the material in question.

    [C] A minister’s certificate of immunity is never conclusive, even in cases of national security.

    [D] A minister’s certificate of immunity is only conclusive in cases of national security and cases of communications between high-level government officials and the court should not exercise its right to inspect the material in question.
    [B] A minister’s certificate of immunity is only conclusive in cases where the certificate demonstrates a risk to national security and the court should not exercise its right to inspect the material in question.

    [[B] is CORRECT. See Balfour v Foreign and Commonwealth Office [1994]. In short, provided the minister's certificate demonstrates an actual/potential risk to national security, then the court cannot look behind it. If, however, the certificate raises immunity on grounds other than national security or that fall short of national security, then the court should exercise its right to inspect the material and should carry out a balancing act to decide whether the document should be disclosed or not]
  8. What is disclosure?
    Where a party says that a document exists or has existed.
  9. What is 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.
  10. In disclosure, what is a document?
    Anything on which information is recorded.

    (Electronic information, cctv, voice mail, meta data, anything – very wide)
  11. What does it mean when a party are in control of a document?
    The party:

    1. Are in physical possession of a document

    2. Have a right to possession of a document

    or

    3. Have a right to inspect/make copies of a document
  12. What is the standard of the duty to search for a document?
    Reasonable search

    This means the following is taken into account:

    The number of documents

    The nature and complexity of the docs

    The ease and expense of recovering the docs

    The significance of the docs
  13. What are the three parts of the list?
    1. I have: they're non-privileged docs

    2. I have: but they're privileged docs

    3. I no longer have: not in the parties possession (lost or destroyed)
  14. What types of privilege are there?
    Legal Professional Privilege

    Privilege against self incrimination (me and spouse)

    Public Interest Immunity (harmful to public interest)

    Without Prejudice Communications (settlement)
  15. Ok, so we've disclosed the documents. How do the other side inspect them?
    The other side needs to give notice that they wish to inspect the documents.

    The party must be allowed to inspect those documents within 7 days of notice being served.
  16. What is specific disclosure?
    Where a party whats to look at a specific document or where they thing the other side has more documents than they are letting on.
  17. How you obtain specific disclosure?
    You have to apply to the court. The judge will make one or more of the following orders:

    Disclosure of X documents specifically

    Allow applicant to search for document

    Disclosure of docs found as a result of that search
  18. What is the procedure for applying for specific disclosure?
    Part 23 Application:

    • Application Notice (What order you want and what grounds should the court grant it)
    • Evidence
    • Draft Order
    • Notice
  19. Shit! I've accidentally disclosed a privileged document to the other side. What did do?
    CPR 31.20

    The receiving party may use it but only with the consent of the court.

    You can apply for an injunction restricting the use of the document
  20. What is the 'mere witness rule'?
    NON-PARTY DISCLOSURE

    Where a party is person is not a party to proceedings they may still be compelled to disclose documents where the court thinks it necessary.

    Proceedings must have started to get non-party disclosure
  21. What is a Norwich Pharmacal Order?
    To compel disclosure of a potential parties identity.

    Different to the mere witness test: NPO - disclosing party must a have facilitated (employed the third party who was responsible for the accident - Jannet Nicolson)

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