Making Discovery

1. In any cause or matter where relief by way of damages or otherwise is sought on the ground of fraud or breach of trust, the plaintiff may at any time after delivering his statement of claim, and a defendant may at or after the time of delivering his defence, without any order for that purpose, and in every other cause or matter any party may by leave of the Court, upon such terms as to security for costs or otherwise as the Court may direct, deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer: provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose; provided also that interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

2. A copy of the interrogatories proposed to be delivered shall be delivered with the notice of application for leave to deliver them, unless the Court shall otherwise order, and the particular interrogatories sought to be delivered shall be submitted to and considered by the Court.  In deciding upon such application, the Court shall take into account any offer which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents, relating to any matter in question.  Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs.

3.^[4] In adjudicating the costs of the cause or matter, inquiry shall at the instance of any party be made into the reasonableness of exhibiting such interrogatories. If it is the opinion of the Legal Costs Adjudicator or of the Court, with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, the costs occasioned by those interrogatories and the answers thereto shall be paid in any event by the party found to have behaved unreasonably.

4. Interrogatories shall be in the Form No 8 in Appendix C.

5. If any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly.

6. Any objection to answering any one or more of several interrogatories on the ground that it is or they are scandalous or irrelevant, or not bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.

7. Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous: and any application for this purpose may be made within seven days after service of the interrogatories.

8. Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the Court may allow.

9. An affidavit in answers to interrogatories shall be in the Form No 9 in Appendix C.

10. No exception shall be taken to any affidavit in answer but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court on motion.

11. If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be; and an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.

12.^[1] (1) Any party may apply to the Court by way of notice of motion for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession, power or procurement relating to any matter in question therein.  Every such notice of motion shall specify the precise categories of documents in respect of which discovery is sought and shall be grounded upon the affidavit of the party seeking such an order of discovery which shall:

(a) verify that the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs;

(b) furnish the reasons why each category of documents is required to be discovered, and

(c) where the discovery sought includes electronically stored information, 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 by the party requested.

(2) On the hearing of such application the Court may:

(a) either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or by virtue of non-compliance with the provisions of sub-rule (6), or

(b) make an order for discovery either in terms of some or all of the categories of documents sought or limited to certain documents or classes of documents within any or all of those categories, or otherwise as may be thought fit, and on terms as to security for the costs of discovery or otherwise, and for this purpose may adjourn the application in part;

(c) where the discovery ordered includes electronically stored information and the Court is satisfied that such electronically stored information is held in searchable form and can be provided in the manner hereinafter referred to without significant cost to the party from whom discovery is requested:

(i) further order that the documents or classes of documents specified in such order be provided electronically in the searchable form in which they are held by the party ordered to make discovery, or

(ii) where the Court is satisfied that such documents or classes of documents, or any information within such documents, could not, if provided electronically, be subjected to a search by the party seeking discovery without incurring unreasonable expense, further order that the party ordered to make discovery make available 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.

(3)      (a) Any order made under sub-rule (2)(c) may include such provision or restriction and be subject to such undertakings from any party or person as the Court may consider necessary to ensure that documents discovery of which has not been ordered are not accessed or accessible, and otherwise to secure the information and communications technology system concerned.

(b)  Such order may in particular include a provision that the inspection and searching of documents shall be undertaken by an independent expert or person agreed between the parties, or appointed by the Court in default of agreement (instead of being undertaken by the party seeking discovery), who may conduct such inspections and searches as may be required and report the results to the party seeking discovery.

(c)  Where such order makes provision for inspection and searching of documents in the manner referred to in paragraph (b), the party seeking the order shall indemnify such independent expert or person in respect of all fees and expenses reasonably incurred by him, and the fees and expenses so indemnified shall form part of the costs of that party for the purposes of Order 99.

(4)      (a) Documents of the same or 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.

(b) Parties providing discovery shall list documents or categories of information, and shall provide documents and information for inspection, in a manner corresponding with the categories in the agreement or order for discovery and, subject to any such agreement or order, in a sequence corresponding with the manner in which the documents or information have been stored or kept in the usual course of business by the party making discovery.

(5) An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

(6) An order under sub-rule (2) directing any party or under rule 29 directing any other person to make discovery shall not be made unless:

(a) the applicant for same shall have previously applied by letter in writing requesting that discovery be made voluntarily:

(i) specifying the precise categories of documents in respect of which discovery is sought,

(ii) furnishing the reasons why each category of documents is required to be discovered,

(iii) where the discovery sought includes electronically stored information, specifying whether the applicant seeks the production of any documents in searchable form and if so, whether for that purpose the applicant seeks the provision of inspection and searching facilities using any information and communications technology system owned or operated by the party requested, and

(b) a reasonable period of time for such discovery has been allowed, and

(c) the party or person requested has failed, refused or neglected to make such discovery or has ignored such request.

Provided that in any case where by reason of the urgency of the matter or the consent of the parties, the nature of the case or any other circumstances which to the Court seem appropriate, the Court may make such order as appears proper, without the necessity for such prior application in writing.

(7) Any such discovery sought and agreed between parties or between parties and any other person shall, subject to sub-rule (9), be made in like manner and form and have such effect as if directed by order of the Court.

(8) 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 same may make application pursuant to rule 21 provided that when seeking discovery the party requested was informed that:

(a) such voluntary discovery was being sought pursuant to Order 31, rule 12;

(b) agreement to make discovery would require it to be made in like manner and form and would have such effect as if directed by order;

(c) ailure to make the discovery may result in an application pursuant to rule 21;

and the Court may if satisfied that it is proper so to do, make such order under this rule, rule 19 or rule 21 as is appropriate or such other order as appears just in the circumstances.

(9)  An application for discovery whether under sub-rule (1) or (6) shall be made not later than twenty-eight days after the action has been set down or in matters which are not set down, twenty-eight days after it has been listed for trial provided that the Court may order or the party requested may agree, to extend the time for the application for discovery in any case in which it appears just and reasonable to do so.

(10) The costs of an application to Court for discovery in any case in which prior written application has not been made or in which application has not been made within the time provided, shall be in the discretion of the Court.

(11) Any party concerned by the effect of an order or agreement for discovery may at any time, by motion on notice 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 such order or agreement where it is satisfied that:

(i) further discovery is necessary for disposing fairly of the case or for saving costs, or

(ii) the discovery originally ordered or agreed is unreasonable having regard to the cost or other burden of providing discovery.

(12) An order under sub-rule (11) shall not be made unless:

(a)  the applicant for same shall have previously applied by letter in writing to the other party specifying the variations sought to the order, furnishing the reasons why each variation is sought and requesting that party’s agreement to the variations sought, and

(b)  a reasonable period of time for agreement has been allowed, and

(c)  the party or person requested has failed, refused or neglected to agree to such variation or has ignored such request.

(13) “documents”, for the purposes of this rule and rule 29, includes all electronically stored information, and the reference to “business documents” in rule 20 shall be construed accordingly.

13. The affidavit, to be made by a party against whom such order as is mentioned in rule 12(1), has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and it shall be in the Form No 10 in Appendix C.

14. The Court may at any time during the pendency of any cause or matter, order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

15. Every party to a cause or matter shall be entitled at any time, by notice in writing, to give notice to any other party, in whose pleadings, or affidavit or list of documents reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit copies thereof to be taken; and any party not complying with such notice shall not afterwards be at liberty to put any such documents in evidence on his behalf in such cause or matter, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice; in which case the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

16. Notice to any party to produce any documents referred to in his pleadings or affidavit or list of documents shall be in the Form No 11 in Appendix C.

17. The party to whom such notice is given, shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit or list as is mentioned in rule 13, or if any of the documents referred to in such notice have been set forth by him in any such affidavit or list, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof, at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of bankers’ books or other books of account, or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground.  Such notice shall be in the Form No 12 in Appendix C.

18. (1)  If the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit; and, except in the case of documents referred to in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit or list of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party.

(2)  An order shall not be made under this rule if and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs.

19. If the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

20. (1)^[2] Where inspection of any business documents is applied for, the Court may, instead of ordering inspection of the original document, order a print or copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the print or copy with the original entries, and such affidavit shall state whether or not there are in the original documents any and what erasures, interlineations, or alterations.  Provided that, notwithstanding that such print or copy has been supplied, the Court may order inspection of the documents from which the print or copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document, the Court may inspect the document for the purpose of deciding as to the validity of the claim for privilege.

(3) The Court may, on the application of any party to a cause or matter at any time, and whether an affidavit or list of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been in his possession or power; and, if not then in his possession, when he parted with the same, and what has become thereof.  Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the cause or matter, or to some of them.

21. If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment.  He shall also, if a plaintiff be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the Court for an order to that effect, and an order may be made accordingly.

22. Service of an order for interrogatories or discovery or inspection made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order.  But the party against whom the application for attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

23. A solicitor, upon whom an order against any party for interrogatories or discovery or inspection is served under rule 22, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment.

24. Any party may, at the trial of a cause, matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer; provided always 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 last-mentioned answers ought not to be used without them, it may direct them to be put in.

25.^[5] In every cause, or matter, the costs of discovery, by interrogatories, or otherwise, shall save as otherwise agreed between the parties or 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 as between legal practitioner and client.

26. In any action against or by a sheriff or county registrar in respect of any matters connected with the execution of office of sheriff, the Court may, on the application of either party, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made by the officer actually concerned.

27. This Order shall apply to infant plaintiffs and defendants and to their next friends and guardians ad litem.

28. This Order shall not authorise an order for discovery or inspection being made against an informant suing on behalf of the State or the People, and every such informant shall be entitled without an order for that purpose to deliver interrogatories at any time before issue joined.

29. Any person not a party to the cause or matter before the Court who appears to the Court to be likely to have or to have had in his possession custody or power any documents which are relevant to an issue arising or likely to arise out of the cause or matter or is or is likely to be in a position to give evidence relevant to any such issue may by leave of the Court upon the application of any party to the said cause or matter be directed by order of the Court to answer such interrogatories or to make discovery of such documents or to permit inspection of such documents.  The provisions of this Order shall apply mutatis mutandis as if the said order of the Court had been directed to a party to the said cause or matter provided always that the party seeking such order shall indemnify such person in respect of all costs thereby reasonably incurred by such person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order 99.

30. ^[3] (1) Without prejudice to—

(a) the preceding rule and

(b) any rule of law under which the non-party would be entitled or have a duty to withhold disclosure of information,

where a person not a party to the cause or matter before the Court (in this rule, the “non-party”) has access to information which is not reasonably available to a party to the cause or matter, and which the Court is satisfied would not have been procurable by means of discovery made, or answers to interrogatories given by the person under rule 29, the Court may, on the application of a party by motion on notice to the non-party, and unless it is satisfied that it would not be in the interests of justice that the information concerned be disclosed, make an order directing the non-party who has access to the information to—

(a) prepare and file a document recording the information; and

(b) serve a copy of that document on the parties to the cause or matter.

(2) An application under sub-rule (1) shall be supported by an affidavit sworn by or on behalf of the moving party, which shall set out the grounds on which the moving party believes that:

(a) the information sought is not reasonably available to the moving party;

(b) the information would not have been procurable by means of discovery made, or answers to interrogatories given by the person under rule 29;

(c) the information sought is reasonably available to the non-party against whom such an order is sought;

(d) the information sought is likely to support the case of the moving party or adversely affect the case of one of the other parties to the cause or matter; and

(e) disclosure of the information sought is necessary in order to dispose fairly of the claim or to save costs.

(3) The non-party may deliver and file an affidavit in reply.

(4) The Court may make an order under sub-rule (1) only where—

(a) the information of which disclosure is sought are likely to support the case of the moving party or adversely affect the case of one of the other parties to the cause or matter; and

(b) disclosure of the information sought is necessary in order to dispose fairly of the claim or to save costs.

(5) An order under sub-rule (1) shall–

(a) specify the information or the classes of information which the non-party must disclose; and

(b) require the non-party, when making disclosure, to specify any such information–

(i) which is no longer in the non-party’s control; or

(ii) in respect of which the non-party claims an entitlement or duty to withhold disclosure.

(6) An order under sub-rule (1) may—

(a) require the non-party to indicate what has happened to such information which is no longer in the non-party’s control; and

(b) may include directions as to the time and manner of disclosure of the information.

(7) The moving party seeking an order under sub-rule (1) shall indemnify the non-party in respect of all costs thereby reasonably incurred by that person and such costs borne by the said party shall be deemed to be costs of that party for the purposes of Order 99.

(8) An order under sub-rule (1) shall not be made unless:

(a) the moving party shall have previously applied by letter in writing requesting that disclosure be made voluntarily; and

(b) a reasonable period of time for such discovery has been allowed; and

(c) the non-party requested has failed, refused or neglected to make such disclosure or has ignored such request.

(9) Notwithstanding sub-rule (8), in any case where by reason of the urgency of the matter or the consent of the moving party and the non-party against whom such order is sought, the nature of the case or any other circumstances which to the Court seem appropriate, the Court may make such order as appears proper, without the necessity for:

(a) the prior application in writing mentioned in sub-rule (8), or

(b) the issue and service of the notice of motion mentioned in sub-rule (1), provided that in any such case, a non-party affected who has not been heard by the Court before the making of such order may apply to the Court by motion on notice to the moving party to set aside or vary such order.