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.
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.
Where a discovery ordered includes electronically stored information and the Court is satisfied that it is held in searchable form and can be provided in the manner hereinafter referred to without significant cost order that the document or classes of documents specified be provided electronically in the searchable form in which they are held by the party ordered to make discovery.
Alternatively, where the Court is satisfied that such documents or classes of documents or information, could not, if provided electronically, be subject to a search by the party seeking discovery without incurring unreasonable expense, the court may make a further order that the party ordered to make discovery make available for inspection and searching, facilities using its own information and communications technology system, so as to allow the party seeking discovery to avail of any search functionality available to the party ordered to make discovery.
The orders made may include provisions or restrictions and be subject to undertakings from parties as the court considers necessary, in order to ensure that documents, discovery of which have not been ordered are not accessed or accessible and otherwise to secure information and communications technology systems concerned.
An order may include a provision that the inspection and searching of documents shall be undertaken by an independent expert or persons agreed by the party or appointed by the Court in default of agreement.
Where the order makes provision for inspection and searching of documents in the manner above, the party seeking the order shall indemnify such independent expert in respect of all fees and expenses reasonably incurred by him. Fees and expenses shall form part of the costs of the action.
Documents of the same or of a similar nature and not in electronic form, when numerous, shall so far as possible be grouped together and numbered or otherwise sufficiently marked so as to be identifiable.
When inspection of any business documents is applied for, the court may instead of ordering inspection of the original document order that a print or copy of any entries be furnished and verified by the affidavit of some person who has examined it. The affidavit must state whether or not there are in the original documents, any alterations, erasures etc. Notwithstanding that a print copy is supplied, the court may order inspection of the print document from which the print copy is made.
Any party concerned by the effect of an order or agreement for discovery, may by notice of motion to each other party concerned, apply to the court for an order varying the terms of the discovery order or agreement. The court may vary the terms of order or agreement, if it is satisfied that further discovery is necessary for disposing fairly of the case or for saving costs or where the discovery originally ordered or agreed is unreasonable, having regard to the costs and the burden of providing the same.
The application shall not be made unless the applicant has previously applied by letter in writing to the other party, specifying the variation, furnishing the reasons it is sought and requesting agreement, and a reasonable time has elapsed and the party has failed, refused and neglected to agree on the variation.
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.