Inspection & Preservation

Preservation

Where a presumptive case of liability or a defence like to relieve liability wholly or partly is established,  the court may make an order for the preservation or taking into custody of the subject matter of the litigation or may order that the amount in dispute be brought into court or otherwise secured.

The court may, on the application of any party to the case upon terms as may be just, make any order for the detention, preservation or inspection of any property or thing being the subject matter of the claim cause or matter.

There goods of a perishable nature are the subject matter of the proceedings, the court may make an order for their sale on such terms as it thinks fit.

Taking & Detention

The court may make an order for the preservation and detention of property. This may include that any property shall be detained that will be offered in evidence in the proceedings.

The court may, on application of any party and upon such terms as may be just, order the detention, preservation or inspection of any property the subject of the cause or matter or in respect of which questions may arise therein.

It may authorise any person for that purpose to enter into any land or building in possession of any party to the claim, for all such purposes and may authorise that samples be taken or any observations  be made and experiments be done, which may be necessary or expedient for the purpose of obtaining full information and evidence. The court may also make such other orders as are necessary to give effect to the order for inspection.

Issues in Making Order

The power is exercised in the context of the party’s constitutional right of access to the court. The party should have the facilities to present its case to the court, including all advice and information which he or she wishes to present, either supporting his case or undermining that of his opponent.

The order for inspection and taking samples does not depend on the strength of the case of the party seeking the order. Inspection or the taking a sample should be facilitated if it can be achieved while at the same time protecting the interests of the opposing party. The inspection should be necessary or expedient by reason of the issues in the case. It should be limited to what the party seeking the order has shown to be necessary or expedient for his case or his defence to the opponent’s case.

The court may impose such conditions or restrictions on inspection as are necessary or expedient to protect the rights of the party against whom inspection is granted. A protocol may be agreed upon or ordered.

Courts may regulate the inspection process. Redaction is permissible but should not be excessive. Redaction should be intimated in advance of agreement or an order of discovery.

Non-Party

Where a non-party has access to information which is not reasonably available to the parties to proceedings and not procurable by discovery or interrogatories, the court may, unless it is satisfied it would not be in the interests of justice that the information concerned be disclosed, may make an order directing that the non-party to prepare and file a document recording information be served on the parties. Similar principles to those applicable to non-party discovery apply.

Court Inspection

A court hearing a matter may inspect any property or thing concerned concerning which any question may arise in the proceedings. This may involve the court inspecting property premises or ordering things to be brought into court or to a convenient location.

Order to Inspect Post-Discovery

As discovery is only made after the closing of the pleadings, documents listed are usually called to be produced at that stage. The court may make an order on an application for inspection, or the County Registrar or Master in the High Court may order it. The court must adjudicate claims of privilege.

Inspection must be necessary to allow for the fair disposal of the matter concerned. The fact that the party would like to know the contents of the documents is insufficient. It must be necessary for the purpose of disposing fairly of the claim.

Except in the case of documents referred to in the pleadings or affidavits of the parties against whom the application is made or disclosed in his affidavit or list of documents, such application shall be founded on an affidavit showing what documents are sought to be inspected, that the party applying is entitled to inspect them and that they are in the possession or power of the other party.

An order shall not be made if, and so far as the Court is of the opinion that it is not necessary either for disclosing fairly of the matter or for saving costs.

Misc Court Applications

Where inspection of any business books is applied for, the Court may, instead of ordering inspection of the original book, order a copy of the entries to be furnished and verified by affidavit of a person who has examined the original entries.

The Court may, on application of any party to a matter, make an order requiring any other party to state by affidavit whether any one or more documents, specified in the application, is or are or has at any time been in his possession or power, and if not in his possession, when he parted with the same, and what has become of them.

The application shall be made on affidavit stating that in the belief of the deponent, the party against whom the application is made has at some time had in his possession or power, the documents specified in the application and that they relate to matters in question in the case.

Cross-examination on Affidavit

The court has the power to allow cross-examination of deponents on affidavits of discovery. Exceptionally, parties may apply by notice to cross-examine parties on their affidavits.

The courts may, while a case is pending, order production by any party on oath of such documents in his possession and power relating to any matter in question as the court shall think right. The court may deal with such documents when produced in such manner as it shall think just.]