District Court Rules

ORDER 45B

DISCOVERY AND INSPECTION OF DOCUMENTS

1 Application of this Order

1. This Order does not apply to debt claims (unless an order has been made giving leave to defend) or to small claims.

2 Request for inspection or copies of documents listed in claim notice or defence

2. (1) A respondent may, at any time after service of a claim notice on him or her and before delivery of an appearance and defence make a request to the claimant in writing for copies of all or any of:

(a) the correspondence or other documents listed in the statement of claim;

(b) any other document referred to in the statement of claim.

(2) A claimant may, at any time after service of an appearance and defence on him or her make a request to the respondent in writing for copies of all or any of:

(a) the correspondence or other documents listed in the appearance and defence;

(b) any other document mentioned in the appearance and defence.

(3) The party to whom a request under sub-rule (1) or (2) is made must within seven days after receipt of the request:

(a) provide copies of such of the documents requested as are in his possession or power of procurement on payment of the reasonable charges for copying them; or

(b) produce such of the documents requested as are in his possession or power of procurement for inspection by the party who made the request, or by his or her solicitor, and permit him or her to take copies.

(4) If so agreed by the parties:

(a) copies of documents may be provided in electronic form or such other form as is agreed or directed; and

(b) inspection may be permitted of electronic copies of documents or of documents in electronic form.

(5) A party who fails to comply with a request under sub-rule (1) or (2) may not afterwards put any such document in evidence on his or her behalf,

unless the Court is satisfied that there was a sufficient reason for not complying with the request, in which case the Court may allow the document to be put in evidence on such terms as to costs and otherwise as he or she thinks just.

3 Application for discovery following request

3. (1) Where a party wishes to have discovery of documents in addition to those which may be produced under rule 2, the party must first make a request in writing for voluntary discovery within a period of 21 days from the date of the request.

(2) The request must specify the precise documents or categories of documents in respect of which discovery is sought; provide the reasons why each category of documents is required to be discovered and explain why discovery of the documents sought is necessary for disposing fairly of the claim or for saving costs.

(3) If the party requested fails, refuses or neglects to make discovery or ignores the request, the party seeking discovery may apply to the Court by notice of motion supported by an affidavit for an order directing the party requested to make discovery on oath of the documents which are or have been in his possession or power of procurement, relating to any matter in question in the civil proceeding.

(4) The notice of motion and a copy of any affidavit must be served not less than four clear days before the return date.

(5) On hearing the application, the Court may, having regard to the value of the claim:

(a) refuse or adjourn the application, if satisfied that discovery is not necessary, or not necessary at that stage of the proceeding; or

(b) make such order on such terms as to the security for the costs of discovery or otherwise, and either generally or limited to certain classes of documents, as he or she thinks just.

4 Order for discovery without motion in urgent cases or by consent

4. Despite rule 3, 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 for discovery by any party as appears proper, without the necessity for a prior application in writing.

5 Affidavit

5. The affidavit to be made by a party against whom an order for discovery has been made must specify which, if any, of the documents scheduled in the affidavit he or she objects to produce, and must be in accordance with Form 45B.01, Schedule C.

6 Order to produce documents for inspection

6. (1) The Court may at any time while civil proceedings are pending order the production by any party to the civil proceedings, on oath, of such of the documents in his possession or power, relating to any matter in question in the civil proceedings, as the Court thinks right; and the Court may deal with such documents, when produced, in the manner the Court considers just.

(2) If a party served with a request under rule 2(1) or (2) omits to provide copies or notify a time for inspection, or objects to allowing inspection, the Court may, on the application of the party desiring it, make an order for inspection at such time and in such place and in such manner as the Court directs.

(3) An application under sub-rule (2) must be made by motion on notice to be served not later than four clear days before the return date and supported by an affidavit showing of what documents inspection is sought and that they are in the possession or power of procurement of the other party.

7 Failure to comply with order for discovery

7. (1) If a claimant fails to comply with an order for discovery or inspection of documents, he or she is liable to have his or her claim dismissed for want of prosecution.

(2) If a respondent fails to comply with an order for discovery or inspection of documents, he or she is liable to have his or her appearance and defence, if any, struck out, and to be placed in the same position as if he or she had not defended.

8 Costs of discovery

8. In every civil proceeding, unless otherwise ordered by the Court, the costs of discovery are part of the costs of the party seeking discovery, either as between party and party or between solicitor and client, where, and only where, discovery is certified as necessary by the Court.

9 Application to children

9. This Order applies to any claimant or respondent who is a child, and to the next friend or guardian ad litem of any such party.

10 Inspection of document by Court

10. Where an application is made for the production or inspection of a document and:

(a) a claim is made that the document is privileged from production, or

(b) an objection to production is made on any other ground,

the Court may inspect the document for the purpose of deciding the validity of the claim or objection.

11 Discovery after directions

11. If the Court gives directions concerning discovery or inspection of documents, no party may, without further order, serve a request for discovery on any other party except in accordance with those directions.

12 Discovery or interrogatories by non-party

12. (1) This rule applies where the Court is satisfied, on the application by notice of motion of a party, that a person who is not a party to the civil proceedings (in this rule, the ‘non-party’) is likely to have or to have had in his or her possession or power of procurement documents which are relevant to an issue arising or likely to arise out of the claim or proceeding or is or is likely to be in a position to give evidence relevant to such an issue.

(2) On an application mentioned in sub-rule (1), the Court may direct an order to a non-party to answer interrogatories set out in the order or to make discovery or to permit inspection of documents specified in the order.

(3) An order may not be made on an application under sub-rule (1) unless the Court is satisfied that:

(a) where relevant, the moving party has sought the documents or, as the case may be, the evidence, which is the subject of the application, from a party to the civil proceedings; and

(b) the documents or, as the case may be, the evidence, which is the subject of the application, is not available from a party to the civil proceedings.

(4) Before issuing of a notice of motion under sub-rule (1), the party seeking discovery from the non-party must first send a request for voluntary discovery in accordance with rule 3, the request being made to the non- party and copied to the other parties to the proceedings.

(5) The party seeking an order under this rule must indemnify the non- party in respect of all costs reasonably incurred by the non-party in answering interrogatories or in making discovery and the costs borne by the party seeking the order must be costs of that party in the civil proceedings.

(6) The provisions of this Order apply with any modifications necessary to an order directed to a non-party as if it had been an order directed to a party to the civil proceedings.

[SI 17/14]

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