Complete notes covering Workshop 9 of the University of Law's Dispute Resolution Module.
- Disclosure and Inspection
- The Disclosure List (N265)
- Professional Conduct Issues
DR WS 9
Disclosure and Inspection
An Overview of Disclosure
Disclosure is the process of providing your opponent with a list of relevant documents.
It is not inspection - this is a separate process where your opponent has a right to actually see certain disclosable
documents.
You are listing the documents, in your control, that could be relevant to your case – whether to your advantage or not
The other party then has the choice to select which documents they wish to view
Often the list you create will have identical documents the other party has e.g. an exchange of letters between the
parties’ solicitors – they will therefore not ask you to view these documents.
Main purpose: of the disclosure and inspection stage is to enable the parties to better evaluate the strengths of their
opponent’s case in advance of the trial.
Disclosure Report
A disclosure report is essentially a document which summarises the documents to be
disclosed in a particular case, where these are located, and provides estimates of the
likely costs involved in giving standard disclosure.
o It is verified by a statement of truth. (CPR 31.5(3))
It is made in Form N265.
For Multi-Track cases, CPR 31.5(3) requires all parties to file and serve a disclosure
report not less than 14 days before the first Case Management Conference.
Consequences of a CPR 31.21: Where a party fails to disclose or allow inspection of a document:
failure to disclose Unable to rely on the document:
o You may not rely on that document at trial unless the court permits this.
Case may be struck out:
o A party who fails to disclose a document that harms/is adverse to his case in response to
an order for specific disclosure may find that his case is struck out.
Contempt of Court
o Signing a false disclosure report failing to make full disclosure is also in contempt of
court (CPR 31.23)
Costs Penalties
Subsequent use of Party may only use documents disclosed for the purposes of the case in which it has been disclosed
disclosed documents unless:
Document has been read or referred to during public hearing (e.g. at trial); or
Court grants permission; or
Party who disclosed document and person to whom document belongs consents
Non-party disclosure Once proceedings have commended, a party can apply for disclosure to a non-party to enable them
to resolve issues in the case.
This is used where the party has indicated a document is no longer in his possession (Part 3
of list).
If the person who now has the document will not hand it over voluntary, the opposing
party who wants to see it can apply for an order for non-party disclosure under CPR31.17.
This application has to be supported by evidence and will only be granted if:
The documents in question are likely to support the applicant’s case or adversely
affect another party’s case; or
Disclosure is necessary either to save costs or to dispose fairly of the case
Pre-action disclosure Where party does not know whether or not to issue proceedings without more info – they can apply
against the intended defendant for pre-action disclosure under CPR 31.16.
In the exam, you are expected to analyse documents but ALSO to identify from Statements of Case which
documents should be INCLUDED.
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