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The new Practice Note, SC Eq 11, commenced on 26 March 2012 and
applies to all new and existing Supreme Court proceedings in the
Equity Division. The Practice Note essentially provides that the
court will not permit disclosure of documents until after the
parties have prepared and exchanged their written witness
statements, unless there are exceptional circumstances. The changes
reflect a desire on the court's part to achieve the just, quick
and cheap resolution of the real issues in dispute by improving the
evidentiary value of the written evidence filed.
Previous practice was that discovery was to be completed prior
to the parties preparing their evidence, having regard to the
relevant documents available to all of the parties. The object of
the Practice Note is to make litigation less oppressive for the
court, practitioners and clients by providing more focus on witness
statements through the limiting of discovery. By delaying
disclosure until the parties have exposed the real issues in
dispute through the exchange of evidence, the classes of documents
sought by parties are likely to be far less oppressive, enabling a
more efficient discovery process.
The Application
As a result of the Practice Note, any party seeking discovery
will now need to make a formal application with a supporting
affidavit that must include:
The reasons why disclosure is necessary for the resolution of
the real issues in dispute;
Articulate the documents, or classes of documents, sought with
a degree of specificity with express reference to the pleadings;
and
The likely cost of such disclosure with reference to the likely
number of documents or folders, the likely number hours, and the
likely resulting cost.
An order for disclosure will only be ordered where it is
'necessary' for the resolution of the real issues in
dispute. To date, no application has been successful and the
applicants in those applications have ultimately conceded that
disclosure was not 'necessary'.
Parties rarely give enough attention to identifying the classes
of documents sought by way of discovery and likewise, parties do
not give proper consideration to those classes when producing
documents. The result is that parties over seek and over produce
resulting in significant and unnecessary cost and delay.
The court conceded that if a disclosure order is made at the
conclusion of evidence, if necessary, the parties would be
permitted the opportunity to file additional evidence, but there
might be restrictions placed on the scope of that evidence.
Subpoenas and Notices to Produce
Under the Uniform Civil Procedure Rules, leave is not always
required to issue a subpoena to relevant third parties. It appears
that as a result of the Practice Note, parties may need to seek
leave of the court before issuing a subpoena if they wish to do so
before serving their evidence.
If notices to produce and subpoenas are issued prior to all
parties having served their evidence they may be set aside as an
abuse of process. Particularly in circumstances where the documents
sought by subpoena or notice to produce would have previously
fallen within the scope of discovery.
