#3368 - Disclosure N265 Crib Sheet - Civil Litigation

Disclosure – N265

1. 31.5 CPR Court will give directions for standard disclosure

   1. PD 31A, para 4.4 solicitor has a duty to ensure all necessary disclosure is made

      1. Outcome 5.1 never knowingly mislead the court

   2. 31.11 & PD 31, para 3.3 disclosure is a continuing obligation until proceedings are concluded

   3. 31.23 Breach of disclosure rules can lead to the court granting permission for proceedings for contempt of court to be brought

      1. Or they can be brought by the Attorney-General without court permission

2. Is it a 31.6 CPR document?

   1. 31.4 & PD 31B, para 5(3) documents are given a very wide definition; anything in which information of any description is recorded

   2. 31.6(a) is it a document on which the claimant relies?

      1. APPLY TO FACTS – Why does claimant rely or not rely on it?

   3. 31.6(b) Does the document

      1. Adversely affect client’s own case?

      2. Adversely affect another party’s case?

      3. Support another party’s case?

         1. APPLY TO FACTS

   4. 31.6(c) Does the document require disclosure by a relevant PD

3. Which part of Form N265 should the document appear?

   1. Part 1

      1. PD 31A, para 3.2 list documents in date order with a concise description, name & date

   2. Part 2

      1. 31.3(2) documents are within ‘control’ of the party but are privileged

         1. Does the document attract legal professional privilege?

            1. Does the document attract advice privilege

               1. Pre-litigation covering all communication between party & their lawyer where the lawyer is being asked something in his capacity as a lawyer to provide legal advice

            2. Does the document attract litigation privilege

               1. Covers lawyer & client communication with third parties & internal client communication where dominant purpose was to use in litigation & the litigation was in the reasonable contemplation of the parties

         2. Public policy?

         3. Privilege against self-incrimination?

   3. Part 3

      1. Documents which are no longer in the hands of the party in question

         1. State what has happened to them & what they are

4. How to label documents in N265

   1. Part 1

      1. What, by whom, to who, date

   2. Part 2

      1. If covered by advice privilege

         1. Correspondence, attendance notes, memoranda, instructions to counsel & counsel’s advice and similar documentation between the claimant’s solicitors and the claimants
            I object to your inspecting these documents because:
            As to the documents referred to above, these were created for the purpose of giving or receiving legal advice and are so covered by legal professional, advice privilege

      2. If covered by litigation privilege

   3. Correspondence between the claimants’ solicitor and witnesses, both expert and factual, including proofs, statements, reports, drafts and similar documentation
      I object to you inspecting these documents because
      As to the documents referred to above, these were created by the claimant’s solicitors from when this litigation was reasonably contemplated to date for the sole purpose of obtaining or collecting evidence to be used in this litigation and so are covered by legal professional, litigation privilege

5. Consider Redaction
   

Opponent’s Disclosure List

1. Are limits in the search reasonable and in line with agreement

   1. Check electronic disclosure

   2. Check dates

   3. Check keywords

2. Does the description help to identify document

   1. Part 1

      1. Is the date there

      2. To & From

      3. Brief description/format of document clear

   2. Part 2

      1. Correct privileges described

      2. Documents not too detailed or specific

3. Are there are...