0 [{"id":410382,"quiz_id":"20780","answer_id":null,"answerType_id":"0","created_at":"2018-03-17 11:32:28","updated_at":"2018-03-17 12:29:39","questionName":"You are advising John who was injured in an accident on a building site where he was working as an independent contractor. He has commenced proceedings against the owner of the site claiming damages for personal injuries and loss of earnings. John tells you that he has physical possession of a written expert's report on his injuries but his medical records are still held by his doctor and the hospital. He no longer has possession of his invoices as the computer database on which they were stored was stolen from his office last month. Which of these documents should you advise John that he is required to disclose? ","questionTimeSeconds":"0","questionTimeMinutes":"10","questionImagePath":null,"position":2,"explanation":"[A] is correct. In each example John either has the document in his current control or has had control in the past. In each example current or past control of the document is disclosed. Confidentiality and privilege are immaterial for the purposes of discovery \u2013 the only test is that set out in CPR 31.6 and all of these documents will be relevant. John does not of course physically have possession of the stolen computer database but he is nevertheless required to disclose its existence even though it is no longer available for inspection: CPR 31.3(1)(a). See CPR 31.2, 31.4 and 31.8. Note: when identifying these documents precision should be used e.g. \"a written expert's report\", \"medical records\" and \"invoices on a computer database\". It is not enough just to refer to documents vaguely e.g. as a report, books, records or database: see 31APD3.2.","question_score_id":null,"lang":null,"questionAudioPath":null},{"id":410385,"quiz_id":"20780","answer_id":null,"answerType_id":"0","created_at":"2018-03-17 11:37:59","updated_at":"2018-03-17 12:29:39","questionName":"Angus is an architect who is being sued by Anne for professional negligence in respect of a building Angus designed for Anne. Angus and his solicitor are preparing Angus\u2019s disclosure list. One of the documents on the list is a report by a building expert which was commissioned by Angus in the hope that it would support his defence. Unfortunately, the expert concludes that there were substantial flaws in Angus\u2019s design. Angus does not wish to use this report in the proceedings and, of course, does not want Anne to see it. What should you advise Angus in respect of disclosure and inspection of the report? ","questionTimeSeconds":"0","questionTimeMinutes":"10","questionImagePath":null,"position":1,"explanation":"[B] is correct [A] and [C] are wrong \u2013 the report must be disclosed under CPR 31.6 as it adversely affects Angus\u2019s case. The only thing Angus can do is avoid giving Anne the right to inspect the report. In order to do so he will have to claim that it is privileged from inspection on the grounds of legal professional privilege. Options [B] and [D] require students to know the difference between \u2018advice\u2019 privilege and \u2018litigation\u2019 privilege. [D] is wrong. The expert\u2019s report was not \u2018a communication between a solicitor and his client created for the sole or dominant purpose of giving or receiving legal advice\u2019 and so does not fall within legal professional \"advice\" privilege. Angus can, however, claim the right to withhold inspection on the grounds of litigation privilege as the report is: \u2018a communication between the client and a third party created for the sole or dominant purpose as either evidence for contemplated or pending litigation or in order to obtain legal advice for contemplated or pending litigation\u2019. ","question_score_id":null,"lang":null,"questionAudioPath":null},{"id":410384,"quiz_id":"20780","answer_id":null,"answerType_id":"0","created_at":"2018-03-17 11:36:49","updated_at":"2018-03-17 12:29:39","questionName":"Which ONE of the following considerations can the parties NOT take into account when deciding the reasonableness of a search for documents under Rule 31.6? ","questionTimeSeconds":"0","questionTimeMinutes":"10","questionImagePath":null,"position":0,"explanation":"[A] is the correct answer in that it is WRONG. [B], [C] and [D] are correct. All these factors and also the number of documents involved can be taken into account (see CPR 31.7(2) and (3), although note that the factors listed in 31.7.2 are not exhaustive). [A] is wrong. The existence of documents subject to legal professional privilege must be disclosed so [A] is not a relevant factor. ","question_score_id":null,"lang":null,"questionAudioPath":null}]

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You are advising John who was injured in an accident on a building site where he was working as an independent contractor. He has commenced proceedings against the owner of the site claiming damages for personal injuries and loss of earnings. John tells you that he has physical possession of a written expert's report on his injuries but his medical records are still held by his doctor and the hospital. He no longer has possession of his invoices as the computer database on which they were stored was stolen from his office last month. Which of these documents should you advise John that he is required to disclose?

Select the correct answer(s).  

(0/0)

Explanation

[A] is correct. In each example John either has the document in his current control or has had control in the past. In each example current or past control of the document is disclosed. Confidentiality and privilege are immaterial for the purposes of discovery – the only test is that set out in CPR 31.6 and all of these documents will be relevant. John does not of course physically have possession of the stolen computer database but he is nevertheless required to disclose its existence even though it is no longer available for inspection: CPR 31.3(1)(a). See CPR 31.2, 31.4 and 31.8. Note: when identifying these documents precision should be used e.g. "a written expert's report", "medical records" and "invoices on a computer database". It is not enough just to refer to documents vaguely e.g. as a report, books, records or database: see 31APD3.2.

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[B] John is only required to disclose the written expert’s report as he does not have possession of the other documents.

[D] John is only required to disclose the experts report and his medical records as he does not have any means of regaining possession of the stored invoices.

[A] John is required to disclose all of these documents.

[C] John is only required to disclose the invoices as the other documents are privileged and/or confidential

none

Angus is an architect who is being sued by Anne for professional negligence in respect of a building Angus designed for Anne. Angus and his solicitor are preparing Angus’s disclosure list. One of the documents on the list is a report by a building expert which was commissioned by Angus in the hope that it would support his defence. Unfortunately, the expert concludes that there were substantial flaws in Angus’s design. Angus does not wish to use this report in the proceedings and, of course, does not want Anne to see it. What should you advise Angus in respect of disclosure and inspection of the report?

Select the correct answer(s).  

(0/0)

Explanation

[B] is correct [A] and [C] are wrong – the report must be disclosed under CPR 31.6 as it adversely affects Angus’s case. The only thing Angus can do is avoid giving Anne the right to inspect the report. In order to do so he will have to claim that it is privileged from inspection on the grounds of legal professional privilege. Options [B] and [D] require students to know the difference between ‘advice’ privilege and ‘litigation’ privilege. [D] is wrong. The expert’s report was not ‘a communication between a solicitor and his client created for the sole or dominant purpose of giving or receiving legal advice’ and so does not fall within legal professional "advice" privilege. Angus can, however, claim the right to withhold inspection on the grounds of litigation privilege as the report is: ‘a communication between the client and a third party created for the sole or dominant purpose as either evidence for contemplated or pending litigation or in order to obtain legal advice for contemplated or pending litigation’.

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[D] Angus must disclose the report but can claim that it is privileged from inspection on the grounds of legal professional "advice" privilege.

[C] Angus does not need to disclose the report as it is privileged, being a communication between the client and a third party created for the sole or dominant purpose as evidence for contemplated or pending litigation

[B] Angus must disclose the report but can claim that it is privileged from inspection on the grounds of legal professional "litigation" privilege.

[A] Angus does not need to disclose the report as he will not be relying on it at trial.

none

Which ONE of the following considerations can the parties NOT take into account when deciding the reasonableness of a search for documents under Rule 31.6?

Select the correct answer(s).  

(0/0)

Explanation

[A] is the correct answer in that it is WRONG. [B], [C] and [D] are correct. All these factors and also the number of documents involved can be taken into account (see CPR 31.7(2) and (3), although note that the factors listed in 31.7.2 are not exhaustive). [A] is wrong. The existence of documents subject to legal professional privilege must be disclosed so [A] is not a relevant factor.

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

[A] The fact that the documents may be subject to legal professional privilege.

[B] The significance of any document which is likely to be found during the search.

[D] The nature and complexity of proceedings.