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The Royal Flush: Pre-Court Disclosure and what cards to throw down early

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Long gone are the days where our clients can hold their cards close to their chests and only provide disclosure in Court as a strategy for defending a claim.

As per the lyrics of Kenny Rogers’ country anthem in the Gambler “You gotta know when to hold ‘em, know when to fold ‘em”.

In Queensland, the Pre-proceedings PIPA regime essentially provides disclosure by the parties in an upfront manner since 2002. Likewise NSW now follows suit due to the Court decisions on preliminary discovery.

The upshot is that our clients need to disclose information in the early stages of a claim, or face costs implications, as more plaintiff lawyers are requesting preliminary discovery pursuant to rule 5.3 of the Uniform Civil Procedure Rules 2005 (UCPR). They often request incident reports, CCTV, contracts, maintenance records, slip tests, risk assessments, history of prior similar incidents and legal entities.

Wind back only a few years ago – we would often decline to disclose unless it assisted our defence. If the claimant’s solicitors persisted for disclosure of documents – then we would often tell them to subpoena our clients and that the information could not be disclosed due to privacy laws. If they kept asking for our client’s legal entity, rather than us helping them to sue our client, we would often strongly suggest to them that they had to do their own company searches.

Nowadays – our approach is to disclose documents early on if it would not be privileged, and is relevant, and we also give them the legal entity.

If you have relevant documents to disclose, the claimants can flush them out in an application in Court for an order for  order preliminary discovery pursuant to rule 5.3 of the Uniform

Civil Procedure Rules 2005 (UCPR). They will support this application with an affidavit of our responses to them.

Rule 5.3 of the UCPR states: Discovery of Documents from Prospective Defendant

(1) If it appears to the Court that:

(a) The applicant may be entitled to make a claim for relief from the Cour against a person (the prospective defendant) but, having made reasonable enquiries, it is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make a decision concerned; the Court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.”

Arguably, Rule 5.3 means that you only need to provide enough information so that the claimant’s lawyer can advise the claimant if they have grounds to claim compensation. However the Courts tend to allow claimants to seek a lot more. In favour of claimants, the Court of Appeal decision in O’Connor v O’Connor [2018] NSWCA 214 states that there  is “no requirement that an applicant for preliminary discovery establish even a prima facie case for relief; nor is it necessary that an applicant specify with precision the cause of action proposed”. It is therefore easy for them to succeed and obtain an order for disclosure. This does not however mean that they are entitled to everything however so always keep in mind if the documents are relevant. For example, if the claimant allegedly tripped on a mat, a request for all floor slip tests in the last 3 years is not relevant.

On a practical level – we find that if we press back on the request for preliminary discovery as a whole, but then provide some limited, directly relevant information, this will avoid an application in Court for discovery and/or subpoena.

The main advantages to this approach is that this information can be found via their own company search thus if we continue to resist and they make an application in Court then you may end up paying their costs if we are deemed to have taken an overly adversarial approach. Thus strategically, in some circumstances, we find that if we are more reasonable in providing information, the plaintiff’s solicitors may not issue a subpoena or make an application. If we provide some disclosure then we may be able to deny the claim in full and start commercial settlement negotiations. This may dissuade them from commencing proceedings or filing a summons.

Main takeaways:

  1. Choose your battles. If it relevant to the claim; and will be discoverable in Court – show it now and save yourself time and money and focus on how to achieve the best outcome rather than prolonging the inevitable.
  2. Ensure all correspondence relating to disclosure is respectful and reasonable as it may end up in the claimant’s solicitor’s affidavit in support of preliminary discovery.
  3. Citing the Privacy Act is unlikely to deter claimant lawyers.
  4. Only provide what is relevant to the incident.

The Royal Flush is considered the best hand in poker and whilst the claimant can flush out a lot more earlier on in the piece – these tips will help you have the winning hand. If you have any questions please do not hesitate to contact Marianne Emerson, Senior Consultant at Proclaim on 02 9287 1311 or memerson@proclaim.com.au

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