Discovery Compliance

Application and Order

Court rules contemplate that an application for  discovery be made after the pleadings (i.e. claim and defence) have been finalised.  Voluntary discovery is encouraged.  An application for discovery is not to be made later than 28 days after the action has been set down for trial, or listed for trial, if set down does not have the effect of listing trial.

A discovery order is not usually granted prior to the closing of the pleadings (claim, defence and any counterclaim) other than in exceptional circumstance. It may sometimes be necessary so that the pleadings do not need to be later amended. Discovery will not be allowed, simply to facilitate the plaintiff or defendant to draft his claim or defence.

The court application specify categories of document for which discovery is sought.  The application must be based on affidavit and confirm that discovery is sought for the purpose of   disposing fairly of the proceedings or saving cost.  Reasons must be given why each category of document as required. The former practice of seeking all relevant documents in the other party’s possession has been reformed.

In effect, the court may order a party to make discovery of documents in its possession if it is satisfied that they are relevant to the proceeding, it is necessary for fairly disposing of the matter or saving costs.

Voluntary Disclosure

The  rules require that voluntary discovery is to be requested in the first instance in writing.  It must specify the categories of document in relation to which discovery is sought, and the reason why each category is required.

The requirement to write to the other party may be dispensed with in cases of urgency where the parties consent or where it is appropriate for the court to deal with the matter.

The parties ought, if possible to agree to discover documents.  The agreement has the same effect as a court order. The High court rules provide that discovery must be made in the same manner and form, as if a High Court order had been made.

Application for Discovery

If a party fails or refuses to make discovery voluntarily, then an application may be made to the Master of the High Court for an order of discovery.  Application is made by way of a motion.  It  must specify the documents, categories of documents and relevance.

The affidavit must set out detail of the proceeding, details of the documents sought and the reasons why each category is required.  Stereotype or formulaic requests are not sufficient.

The application must confirm that voluntary discovery has been requested and  refused, or has not been given in the terms requested.  The relevant correspondence should be exhibited. Parties must swear that the documents are necessary to fairly dispose of matter and are relevant.

As with motions generally, the motion may be adjourned if  insufficient time is available to allow  the other party file a replying affidavit. When the matter is heard, Master will consider the pleadings and consider whether the order sought should be grant, refused or made in modified terms.

The court may make an award in relation to costs. Unless otherwise ordered, they become part of the cost of the party seeking discovery. However, if voluntary discovery is not made or made within the reasonable time provided, costs may be awarded at the discretion of the court.

Court Order

If the order itself is granted in the terms sought, then costs would generally follow to the successful party.  Similarly if it is refused, costs will be granted, to the successful party.  If granted in amended terms, it is likely to be reserved until the final hearing.

If an order is made by the court, it will specify the categories of documents and the periods in which discovery is to be made.  This may be six to eight weeks or longer, if a very substantial quantum of documents is involved.  The order will specify who is to make the affidavit.  The grant or refusal of the order may be appealed, within six days of the perfecting of the order or the refusal, if refused.

Failure to Discover

Failure to discover all relevant document is a contempt of court. The person concerned could be attached and committed to prison for deliberate failure to disclose. The court may also penalise the party who has failed to make discovery or full and proper discovery by striking out the claim or defence.

An application may made to the court for such an order where discovery has not been made.Where discovery has been made, which the other party believes is inadequate or incomplete, the other party may apply to court for further and better discovery

Privilege  From Discovery

Certain documents are immune (so called “privileged”)  from having to be disclosed . Documents passing between solicitor or lawyer and client for the purpose of seeking advice are privileged. So too, are communications in contemplation of litigation or after litigation has commenced which between  the lawyer and  third parties such as a witness expert etc for the purpose the advancing the litigation. The purpose is to enable parties communicate in the context of litigation without fear is having to disclose their discussions or harming their case .

Correspondence and communications made for the purpose of settlements (so called without prejudice statements) are protected from disclosure and from being compelled (in response to a question) in court. This is to protect for the overriding interest of promoting settlements and offers.

A challenge to privilege can be made to court, which will decide the position in the event of a dispute.

Failure to Comply

If a party fails to comply with an order to answer interrogatories, for discovery or inspection of documents, he is liable for attachment.  He shall also, if a claimant,  liable to have his action dismissed for want of prosecution and if a defendant, to have his defence struck out. Any party interrogating may apply to Court for an order to that effect and an order may be made accordingly.

Service of an order for interrogatories, discovery or inspection made against the party shall be sufficient when an application for attachment for disobedience.  A solicitor against whom an order against any party for interrogatories or discovery or inspection is served, who neglects without reasonable cause to give notice thereof to his client, shall be liable to attachment.

Any party at the trial of an action or matter may use in evidence any one or more of the answers or part of the answer of the opposite party to interrogatories without putting in the others or the whole of such answer.  This is provided that in such case, the Court may look at the whole of the answers and if it shall be of opinion that any others of them are so connected with those put in, that the latter answers ought not to be used without them, It may direct them to be put in.

In every cause or matter, the costs of discovery by interrogatories or otherwise, shall unless otherwise ordered by the Court, be allowed as part of the costs of the party seeking discovery, either as between party and party or solicitor and client, where and only where, the discovery shall be certified by the Court at the trial or if there is no trial, shall appear to the Court or to the Taxing Master, upon special grounds to be certified by such Taxing Master, to have been reasonably asked for.

Sanctions

The party’s lawyers have obligations to ensure that their clients appreciate the extent of the obligation imposed by a discovery order or agreement.  The lawyer, as an officers of the court, owes obligations to the court in relation to the proper conduct of discovery. The party’s lawyers must advise  in relation to which documents are relevant to the issues in the proceedings.

A number of sanctions are available against a party who has failed to make proper discovery or to make discovery at all.  The principal remedy is an application to have his pleadings struck out.  This may mean that his defence or claim are wholly negated, which may have the consequence that the party concerned is unsuccessful in the  proceedings.

A further or alternative sanctions against a party who has failed to make proper discovery or to make discovery at all, is  attachment for contempt of court.

If a person fails to discover documents, he may not offer them as evidence that without court consent.  The court will grant consent, only  if the other side has not been prejudiced and the failure to discover is inadvertent or due to a bona-fide mistake as to the whether the document fell within the scope of the order.

Striking out Pleading for Default

The party in whose favour discovery is to be made,  may apply to court to have the entire proceeding struck out, if the party who is to make discovery  has failed to make proper discovery or to make discovery at all.

The party in whose favour discovery is to be made,  may make an application for further and better discovery.

The court has discretion as to whether to grant any one of more of the above orders.  Striking out the claim or defence will usually determine the result of the case. Therefore, court may exercise a discretion not to do so.  If the failure to discover is not due to wilful default or negligence, then the court is unlikely to strike out proceeding.

Where the non-compliance is so serious that it prevents a fair trial, then the court is more likely to strike out the proceeding. Striking out is also more likely where the concealment has been deliberate. Generally, the courts are reluctant to strike out proceedings, unless the failure to make discovery is wilful.

The application to strike out is made by way of motion based on affidavit.  If a party has failed to make discovery when due, the issue of the motion may prompt the making of   discovery and the court may grant an extension. Alternatively, the motion may be adjourned.