Order 29 - Discovery and Inspection of Documents Flashcards
29.01 Application and definition (to proceedings commenced/continued by writ - possession = PCP)
(1) Except where the Rules of this Order otherwise provide, the Order applies only— (a) to a proceeding commenced by writ; and
(b) to a proceeding re: r 4.07(1) order made
(2) In this Order “possession” means possession, custody or power.
29.01.1 Scope of discovery (scope - for/against parties/another parties’ case; exceptions - already/copy; reasonable search (nature, number, ease, signficance, anything))
(1) Unless Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in (3).
(2) (1) applies despite any other rule of law to the contrary.
(3) wo limiting rr 29.05, 29.07, for this Order, documents required to be discovered are any of the following of which party giving discovery is, after a reasonable search, aware at the time discovery is given—
(a) documents on which the party relies;
(b) documents that adversely affect the party’s own case;
(c) documents that adversely affect another party’s case;
(d) documents that support another party’s case.
(4) Notwithstanding (3)—
(a) if party giving discovery reasonably believes that document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document;
(b) a party required to give discovery who has, or has had in the party’s possession more than one copy, however made, of particular document isn’t required to give discovery of additional copies by reason only of fact that original/any other copy is discoverable.
(5) For (3), in making reasonable search a party may take account—
(a) the nature and complexity of the proceeding;
(b) the number of documents involved;
(c) the ease and cost of retrieving a document;
(d) the significance of any document to be found; and
(e) any other relevant matter.
29.02 Notice for Discovery (after pleadings close, form 29A)
(1) Where pleadings closed, parties, by notice for discovery served on other parties, may require the party served to make discovery of all documents which are/have been in that party’s possession and which, per Rule 29.01.1, are required to be discovered.
(2) Notice be in Form 29A. (3) notice served before pleadings closed deemed to have been served on day after pleadings closed.
29.03 Discovery after notice (42 days after service thereof)
Party upon whom notice for discovery is served shall make discovery of documents within 42 days after the later of (a) service of notice, (b) or deemed service per 29.02(3)
29.04 Affidavit of documents (29B) - identify, list, distinguish, privilege - classes
(1) An affidavit of documents shall be in Form 29B and shall—
(a) identify docs which are /have been in possession of making party;
(b) list documents in convenient order and describe each document or in case of a group of documents of same nature, shall describe group, sufficiently to enable document or group to be identified;
(c) distinguish documents which are in possession of making party from those that were but are no longer in that party’s possession, and shall as to any such document—
(i) state when the party parted with the document; and
(ii) the party’s belief as to what has become of it;
(d) where the making party claims that any document in possession is privileged from production, state sufficiently grounds of privilege.
(2) If a party required to give discovery in accordance with Rule 29.01.1 does not, in making a reasonable search as required by Rule 29.01.1, search for a category or class of document, the party must include in the affidavit of documents a statement of—
(a) the category or class of document not searched for; and
(b) the reason why.
29.05 order limiting discovery
To prevent unnecessary discovery, Court may, before/after any party required to make discovery per r 29.02 notice, order that discovery by any party shan’t be required/shall be limited to such docs/classes of doc, or to such of Qs in proceeding, as specified in order.
29.05.1 Order for general discovery (can be made at any stage)
At any stage of a proceeding, the Court may order any party to give discovery in accordance with Rule 29.01.1.
29.05.2 Order for expanded discovery (at any stage, beyond 29.01.1)
(1) At any stage, the Court may, by order, expand a party’s obligation to give discovery beyond that required by Rule 29.01.1.
(2) eg, an order under (1) may specify any document or class of document to which the expanded obligation relates.
29.06 Co-Ds and third party (can get copies of AoDs served)
(1) A D who has pleaded shall be entitled to obtain from the party making discovery a copy of any affidavit of documents served on—
(a) the plaintiff by any other defendant to the proceeding;
(b) any other defendant by the plaintiff.
(2) Where D has served CC joining another person with P as D to CC per r 10.03, (1), with any necessary modification, applies as if—
(a) the defendant were the plaintiff; and
(b) the plaintiff and the other person were the defendants.
(3) A TP who has pleaded shall be entitled to obtain from party making discovery a copy of any affidavit of documents served—
(a) by P on the D by whom the TP was joined;
(b) on the plaintiff by that defendant.
29.07 Order for discovery (can make order even if pleadings not closed)
(1) In a proceeding per Rule 29.01, notwithstanding that pleadings between any parties aren’t closed, Court may order that any of those parties make discovery of documents to any other of those parties.
(2) In a proceeding not within Rule 29.01, the Court may at any stage order any party to make discovery of documents.
(3) An order under (1)/(2) may be limited to such documents/classes of document, or to such questions in proceeding, as Court thinks fit.
29.08 Order for particular discovery (grounds to believe relevant document(s) in possession of party - serve affidavit)
(1) Applies to any proceeding in the court.
(2) Where, any time in proceeding, it appears to Court from evidence or from nature/circumstances of case or from any document filed in the proceeding that there are grounds for a belief that some (class of) document relating to any Q in proceeding may be/may have been in possession of party, Court may order that party to make and serve on any other party an affidavit stating—
(a) whether that document or any, and if so what, document(s) of that class is/has been in that party’s possession; and
(b) if it has been but is no longer in that party’s possession, when the party parted with it and that party’s belief as to what has become of it.
(3) Order may be made against a party per (2) even if that party has already made/been required to make affidavit of documents.
29.09 Inspection of docs referred to in affidavit of documents - 29C notice to produce (recipient of 29C then has 7 days to appoint time in further 7 days within which inspection can occur - can take copies)
(1) Party upon whom affidavit of documents is served per r 29.03 or per order made under rr 29.07 or 29.08 and a party to whom an affidavit of documents is supplied in accordance with r 29.06 may, by notice to produce served on party making affidavit, require that they produce documents in that party’s possession referred to in affidavit (other than any which that party objects to produce) for inspection.
(2) Party upon whom a notice to produce is served per (1) shall, within seven days after service, serve on party requiring production a notice appointing time within seven days after service of notice under this para when, and place where, documents may be inspected.
(3) A notice to produce under paragraph (1) shall be in Form 29C.
(4) Party to whom docs produced for inspection may take copies.
(5) For purpose of (4), taking a copy of document includes photocopying it, and if party to whom document is produced states that party wishes to have it photocopied, the party producing document shall at that party’s option either—
(a) allow other party to photocopy document at such agreed place; or
(b) supply the other party with a photocopy of the document.
(6) Unless Court otherwise orders, cost of photocopy of document supplied to party in accordance with paragraph (5) shall— (a) be borne by that party (receiver) in first instance and be ultimately a cost in proceeding; and (b) be in amount allowed in App A for copy docs.
29.10 Inspection of documents referred to in pleadings and affidavits (29C)
(1) This Rule applies to any proceeding.
(2) Where, in originating process filed by party or in any pleading, interrogatories or answers, affidavit/notice filed by a party, reference is made to document, any other party, by notice to produce served on that party, may require that party to produce it for inspection.
(3) Except as provided by (4), r 29.09, with any necessary modification, applies to production/inspection of doc per this Rule.
(4) A party upon whom a notice to produce is served under (2) shall not be required to produce a document for inspection where—
(a) the party claims that doc is privileged from production, and that party makes and serves on other party an affidavit in which party—
(i) makes that claim; and
(ii) states sufficiently the grounds of the privilege;
(b) the document is not in that party’s possession, and the party makes and serves on the other party an affidavit in which the party—
(i) states that fact; and
(ii) states to the best of the party’s knowledge, information and belief where the document is and in whose possession it is; and
(iii) where the document has been but is no longer in the party’s possession, when the party parted with it and the party’s belief as to what has become of it.
(5) A notice to produce under (2) shall be in Form 29C
29.11 Order for discovery (on failure to discover, failures to service notice of inspection times, objects produce, offers unreasonable inspection, objects to copying)
Where a party—
(a) fails to discover documents per with rr 29.03 and 29.04;
(b) fails to serve a notice appointing a time for inspection of documents as required by Rule 29.09 or 29.10;
(c) objects to produce any document for inspection;
(d) offers inspection unreasonable as to time or place; or
(e) objects to allow any document to be photocopied / to supply a photocopy of document—
the Court may order the party to do such act as the case requires.
29.12 Direction as to documents (re: video tape, audio tape, disc, film or other means of recording - give directions for making information available)
(1) Where party is entitled under Order to inspect document which consists of—
(a) video tape, audio tape, disc, film or other means of recording, Court may give directions— (i) for the screening or playing thereof; and (ii) for making/supplying transcript of copy of recording
(b) information which has been processed by or stored in computer, the Court may give directions for making the information available.
(2) On application per (1), Court may make an order for costs and expenses of party against whom an order giving directions is sought.
(3) Court can order giving directions on condition that party applying give security for costs/expenses of party against whom order made.
