Discovery & Information

Further Particulars

Any party to a proceedings may also, within the above time limits, by notice in writing require the other party to furnish such information as is reasonably necessary as to any specified matter arising upon a claim in a Civil Bill or a Defence or Counterclaim.  The request shall be in format specified in the Schedule of Rules or as modified.

A further and better statement of the nature of the Claim, Defence or  Counterclaim or  further and better particulars of any matter stated in pleadings, notice or written proceeding requiring particulars, may in all cases be ordered upon such terms as to costs and otherwise, as may be just.  The Judge may order in a case of failure to comply with the order, that the Claim or Counterclaim is to be stayed, dismissed, or struck out or that the Defence is to be struck out.

The party at whose instance particulars have been delivered under a Court Order shall, unless the Order otherwise requires, have the same length of time for pleading after the delivery of particulars that he had at the time of service of the notice of the application.  Save where the Rules otherwise provide, an order for particulars shall not, unless the order otherwise provides, operate as a stay on proceedings or give any extension of time.

If in the opinion of the Court, any party has not given sufficient particulars in any pleading, notice, or written proceeding requiring particulars, the Court may disallow to such party all or part of the costs in respect of the same.  In addition to such disallowance, it may award the costs and expenses occasioned by such insufficiency against such party.

Book Debts

In all proceedings for recovery of book or shop debts or other running accounts, the claimant shall furnish full particulars of his demand within a reasonable period before or at the time of the service of the Civil Bill. The Defendant may, at any time after service of a Civil Bill and upon delivery of a Defence, apply to the other party by notice in writing for copies of all and any accounts or documents upon which the action is founded.

Such copy shall be delivered within seven days after receipt of such notice on payment of the usual scrivenery charges.  The form of request is specified in the Schedule of Forms.

Corresponding provisions apply in respect of a Counterclaim; the defendant may make the requisite request.

A party who delivers copies shall immediately on notice in writing being given, allow the other party to inspect the originals of the relevant  accounts or documents as are in his possession.

Discovery

Where a request in writing for voluntary discovery has been made at least 14 days prior to the issuing of a notice of motion and no agreement in writing to make discovery has been received, any party may apply to the Court or County Registrar by notice of motion to be served at least two days before the hearing, for an order directing discovery on oath of documents which he has in his possession or power relating to any matter in question.

On hearing the application, the Judge may refuse or adjourn the same or if satisfied that discovery is not necessary or not necessary at that stage of proceedings, may make such order on such terms as to security for the cost of discovery or otherwise, either generally or limited to certain classes of documents, as he think fit.  The affidavit of discovery is in a prescribed form.

The affidavit to be made by the party against whom an order is made. It  shall specify which of the documents he objects to produce and shall be in the form in the schedule to the rules, with such variation as circumstances require.

Inspection and Production of Documents

The judge may at any time while a case is pending order production by any party upon oath of such documents in his possession or power relating to the matter in question as the Judge shall think right.  The Judge may deal with such documents when produced in such manner as he shall think just.

Every party with a cause or matter shall be entitled at any time by notice in writing to give notice to the other party in whose pleading or affidavit, reference is made to a document, to produce documents for the inspection by the party giving notice or his solicitor and to permit him to take copies of them.

A party who has not complied with such a notice, shall not be afterwards at liberty to put the document in evidence, unless he satisfies the Judge that such document relates only to his own title, where he is a defendant in the matter or that he has some other cause or excuse, which  the Judge shall deem sufficient for noncompliance.  In this case, the Judge may allow the document to be put in evidence on such terms as to costs or otherwise, as he shall think fit.

If a party served with a notice, omit to give notice of a time for inspection or objects to giving inspection, the Judge or the County Registrar may on application of party desiring it, make an order for inspection at such time and in such place and in such manner as he thinks right.

The application may be made by notice to be served not later than four clear days before the hearing.  It should be based on an affidavit showing of what documents inspection is sought and that they are in possession and/or power of procurement of the respondent party.

If a party fails to comply with an order for discovery or inspection of documents, he shall be liable to have his action dismissed for want of prosecution.  Similarly in the case of a defendant, he shall be liable to have his defence struck out and be placed in the same position as if he had not defended the matter.

Other Discovery Issues

In every cause or matter, the costs of discovery unless ordered otherwise by the Judge, be allowed, as part of the costs of the party seeking discovery either on a party and party basis or solicitor and client basis, where such discovery shall be certified by the Judge.

A person who is not a party to the cause or action before the Court who appears to the Court or County Registrar to be likely to have in his possession custody or power, any documents which are relevant to an issue or likely to arise out of the cause or action or is likely to be in a position to give evidence relevant to such issue, may by leave of the Court or County Registrar, upon application of any party be directed by order of the Court or County Registrar to answer such interrogatories or to make such discovery of such documents or permit inspection of documents.

The applicant must in advance of issuing a motion for such discovery, ensure that such discovery is first, requested to be made voluntarily.  The request for voluntary discovery must be made to the person against whom discovery is sought and other parties to the proceedings.

The provisions of the order relating to discovery shall apply as if the order of the Court or County Registrar had been directed to a party to the action.  However, the party who seeks the order must indemnify the non-party in respect of costs thereby reasonably incurred by such person. Such costs borne by the party shall be deemed costs of the party in the proceedings.

A party may call on the other party to the proceedings to admit any document saving all just exceptions.  In case of refusal or neglect to admit after such notice, the costs of proving such documents shall be paid by the party so neglecting or refusing, irrespective of the result of the cause or matter, unless the trial Judge shall certify that the refusal to admit was reasonable.  No cost of proving a document shall be allowed unless such notice shall be given to admit except where omission to give notice is certified by the Judge to have been a saving of expense.

Intermediate Applications to County Registrat

There are a range of side-bar applications and preliminary pre-trial stage applications which may be heard by the County Registrar.  See the separate chapter in relation to be jurisdiction of the County Registrar in such matters.

Applications which in the opinion of the Judge would be more conveniently and expeditiously disposed of in chambers than in open Court, may be heard by the Judge in chambers.  Applications in connection with any of the matters mentioned below may be made to the Judge by any party without notice on lodging with the County Registrar, a copy of the Civil Bill and an ex parte document in the prescribed form in filing an affidavit in support;

• production of any deed;
• appointment of a receiver over lands;
• possession, detention, preservation and inspection of property or thing;
• security from any person for any moneys in his possession;
• enforcing payment of monies to Court, pending litigation in the previous cases;
• sale of any goods and merchandise which are of a perishable nature including terms of the sale an payment of monies  into Court;
• taking of accounts, making of inquiries and directing or authorising of any other proceeding which the Judge may think proper;
• liberty to effect service in a special manner, directions as to service or to deem good any service effected;
• an  interim injunction;
• a conditional order of garnishee;
• an appointment of a receiver by equitable execution; and
• service outside the jurisdiction.

The orders which the Judge may make under the above jurisdiction,  may be either absolute in the first instance or conditional on no cause being shown to the contrary.  The Judge in any particular case may give such directions as he thinks fit or may order that notice of the application be given to any other party.