Civil (5)

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What is the difference between disclosure and inspection?: Disclosure - telling the other side of existence of documents (CPR 31.2)

Inspection - actually seeing those documents unless there is a reason to withold inspection (CPR 31.3)
What are the first three questions to ask yourself in relation to standard disclosure?: 1. Is it a document?
2. Is it in the client's control?
3. Does it satisfy standard disclosure?
What is the definition of a document?: A document is defined as 'anything in which information is recorded' (CPR 31.4)
Does the defined term document include electronic documents?: Yes - 31A PD 2A.1
What is the definition of 'in the client's control'?: CPR 31.8 - was or is inn physical possession, has or had right to physical possession or has or had a right to inspect or take copies of it.
What is meant by does it satisfy 'standard disclosure'?: CPR 31.6. Disclose all docs relied on, which are (1) adverse to his case, (2) another party's case or (3) support another party's case, or (4) which a PD requires to be disclosed.
In relation to privilege - what three types of privilege must you know about?: 1. Legal advice privilege
2. Litigation privilege
3. Without prejudice privilege
What is Legal Advice Privilege?: A document which is a confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice
What is Litigation privilege?: - Confidential communication
- the lawyer and his client OR
- one of them and a third party
- dominant purpose
- legal advice, evidence or information
- litigation was reasonably in prospect
What is without prejudice privilege?: A document that is a bona fide attempt to settle a dispute
Who can waive privilege?: Privilege belongs to the client â€“ only the client can waive privilege.
How can privilege be wived?: 1. Agreement
2. Loss of confidentiality against the other side, e.g. the document becomes publicly available
3. Mentioning the document in a statement of case, witness statement (CPR 31.4)
4. Service on the other side
Can you waive privilege over part of a document?: No. You have to show the whole of it or none of it (Great Atlantic Insurance Co v Home Insurance Co (1981)).
Thinking about the SRA code of document, what should you do if you receive a privileged document from your opponent in error?: O (4.2) Duty to disclose all information material to the retainer.

IB (4.4) Where it is obvious that privileged documents have mistakenly been disclosed, do not tell your client the material information.
What documents can be redacted?: Documents that are not wholly privileged but contain some parts that are privileged or irrelevant.
Can commercially sensitive information be redacted?: Inspection should be allowed unless (1) privileged or (2) irrelevant to the issues in dispute and outside the scope of Standard Disclosure.
Which part of the List of Documents should redacted vs unredacted versions of documents be listed?: redacted - Part I
unredacted - Part II
What form is use when disclosing documents by list?: Form N265
Who signs disclosure statement when a company?: 1. a person must be identified as making the statement; and
2. why that individual is considered appropriate should be explained
(CPR 31.10(7))
What CPR deals with a notice to inspect documents and explains what happens?: CPR 31.15
Does a duty of disclosure continue during proceedings?: Yes CPR 31.11
What are the implications if a client refused to allow disclosure and inspection?: 1. client breach his disclosure statement and liable to proceedings for contempt of court (CPR 31.23).

2. Solicitor will breach duty not to deceive or mislead the court or be complicit in another person doing so (O (5.1) and (5.2)).
Might you ever have to cease to act for a client who adamantly refuses to allow disclosure and inspection?: Yes, must cease to act for the client (IB (5.5).
Parry v Newsgroup Newspapers: Open correspondence between solicitors/parties is NOT privileged â€“ it is not confidential.
Three Rivers District Council and others v Governor and Company of the Bank of England: Narrow definition of â€œclientâ€. Make sure the communication is between solicitor and client.
Balabel v Air India: Wider communications between solicitor and client that fall within the â€œcontinuum of communicationâ€ ancillary to the purpose of giving/receiving legal advice will be privileged.
Bank of Nova Scotia v Hellenic Mutual War Risks Association: Internally repeated legal advice within a client company retains the benefit of legal advice privilege
Waugh v BRB: Where a document has two purposes, litigation has to be the dominant purpose. If the purposes are equal, the document will not be privileged.
Re: Highgrade Traders: When establishing the purpose of the document, the commissioner of the document should be consulted (not the author if these are two separate people).
USA v Philip Morris: Litigation must be â€œa real likelihood rather than a mere possibilityâ€
Rush and Tompkins v Greater London Council: The court will look to the substance rather than the form of the document to decide whether the purpose of the document was a bona fide attempt to settle.
For the purpose of a question on disclosure/inspection, when should you shift speaking about disclosure to speaking about inspection?: Before you move on to discuss privilege.
What is the basic principle in the context of privilege?: 'Once privileged, always privileged' - The Aegis Blaze
The Aegis Blaze: Once privileged, always privileged
Open correspondence between solicitors/parties is NOT privileged â€“ it is not confidential.: Parry v Newsgroup Newspapers
Narrow definition of â€œclientâ€. Make sure the communication is between solicitor and client.: Three Rivers District Council and others v Governor and Company of the Bank of England
Wider communications between solicitor and client that fall within the â€œcontinuum of communicationâ€ ancillary to the purpose of giving/receiving legal advice will be privileged.: Balabel v Air India
Three Rivers District Council and others v Governor and Company of the Bank of England - spectacles: Presentation advice is covered by legal advice privilege. The fact that lawyers had been giving such advice through "legal spectacles" was the key consideration.
Presentation advice is covered by legal advice privilege. The fact that lawyers had been giving such advice through "legal spectacles" was the key consideration.: Three Rivers District Council and others v Governor and Company of the Bank of England
Internally repeated legal advice within a client company retains the benefit of legal advice privilege: Bank of Nova Scotia v Hellenic Mutual War Risks Association
Where a document has two purposes, litigation has to be the dominant purpose. If the purposes are equal, the document will not be privileged.: Waugh v BRB
When establishing the purpose of the document, the commissioner of the document should be consulted (not the author if these are two separate people).: Re: Highgrade Traders
Litigation must be â€œa real likelihood rather than a mere possibilityâ€: USA v Philip Morris
The court will look to the substance rather than the form of the document to decide whether the purpose of the document was a bona fide attempt to settle.: Rush and Tompkins v Greater London Council
Great Atlantic Insurance Co v Home Insurance Co: You cannot waive privilege over part of a document.
If a document is redacted, on what part of the list of documents do you list the redacted version?: The first part - because the document can be inspected.
Where are unredacted versions of documents listed?: On the second part of the document list.

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Number of cards 47

Created By shughes