Discovery Procedure

Request First Required

An application for an order of discovery shall not be made unless the applicant for the same has previously requested by letter, that discovery be made voluntarily,  a reasonable period of time for such discovery has been allowed and the party requested has failed, refused or neglected to make such discovery or ignored such request.

In a case where by reason of the urgency of the matter, the consent of the parties, the nature of the case or other circumstances which the Court considers appropriate, the Court may make such order as appears proper, without the necessity for such prior application in writing.  Discovery sought and agreed between the parties or any other person shall subject to the below, be made in like manner and form and have such effect as if directed by order of the Court.

In any case, in which discovery has been sought and agreed and has not been made within the time agreed, the party who has sought the same may make an application based on failure to provide discovery. When seeking discovery, the party requested must

• have been informed that such voluntary discovery was being sought pursuant to the Rules of Court;
• that the agreement to make disclosure would require it to be made in the like manner and form as would be made if directed by Court order; and
• that failure to make discovery may result in an application for attachment or striking out of pleadings.

The Court may if satisfied that it is proper to do so, make such order as is appropriate and such order as appears just in the circumstances.

An application for discovery shall be made not later than 28 days after the action has been set down or where not set down has been listed for trial.  The Court or party requested may order or agree, as the case may be to extend the time for the application for discovery in any case where it appears just and reasonable to do so.

The cost of an application for discovery in any case in which prior written consent has not been made or in which application has not been made within the time provided is at the discretion of the Court.

Court Application

Any party may apply to the Court by way of notice of motion for an order directing that the other party make discovery on oath of the documents which are or have been in his possession, power or procurement relating to the matter in question therein. Each notice of motion shall specify the precise category of documents in respect of which discovery is sought and shall be grounded on an affidavit of the person seeking an order of discovery.

The affidavit shall

• verify that the discovery of documents sought is necessary for fairly disposing of the matter or for saving costs;
• furnish reasons why each category of documents is required to be discovered, and
• where the discovery sought includes electronically stored material, specify whether such party seeks the production of any documents in searchable form and if so, whether for that purpose the party seeking discovery seeks the provision of inspection and searching facilities using any information and communications technology system owned or operated, party requested.

On hearing such application, the Court may either refuse or adjourn the same, if satisfied discovery is not necessary, or is not necessary at that stage of the matter. It may make an order for discovery either in terms of some or all of the categories of documents sought or limited to certain categories or class of documents within all or any of those categories, or otherwise as may be thought fit and on terms as to security for costs, discovery or otherwise and for this purpose may adjourn the application in part.

Amended Rules Prior Request

An order for discovery should not be made unless the court shall be of the opinion that it is necessary for the purpose of disposing fairly of the matter or for saving costs.

An order directing any party or other people to make discovery shall not be made unless the applicant has applied previously writing requesting that discovery be made voluntarily

• specifying the precise categories of documents in respect to which discovery is sought
• furnishing the reasons why the category of document is required to be discovered;
• where the discovery sought includes electronically stored information specifying whether the Applicant seeks the production of the documents in searchable form and if so, for that purpose the applicant seeks provision of inspection or searching facility using any information and communications technology system operated by the party requested.

A reasonable time for such discovery must be allowed. A motion may only be made if the person requested has failed, refused or neglected to make such discovery or has ignored the request.

In a case where by reason of urgency of the matter, the consent of the parties, the nature of the case or the circumstances, the court may make such order as it appears proper without the necessity for a prior application in writing.

Discovery sought and agreed between the parties or between the parties and any other person, shall be in like manner and form as if directed by an order of the court.

Sought, Agreed and Default

In any case, where discovery has been sought and agreed and has not been made within the time agreed, the party who has sought to same,  make application for attachment and striking out. This is provided that when seeking discovery,

• the party requested was informed that such  voluntary discover was being sought pursuant to the rules of court,
• the agreement to make discovery requires it to be in like manner and form as if directed by an order; and that
• the failure to make discovery may result in an application for attachment and striking out of pleadings.

If the court is satisfied that it is proper to do so, it may make such order as is appropriate and just in the circumstances.

An application for discovery as above shall be made not later than 28 days after the action has been set down, or if it is not set down after it is been listed for trial. The court may order or the party requested may agree to extend the time for the application of discovery in any case where it appears just and reasonable to so do.

The cost of an application to the court for discovery in any case in which written application has not been made within the time provided is at the discretion of the court.