When running your case, you may need further information that is contained in documents (electronic or hard copy) that are in the possession or control of your opponent or a third party. Discovery (or disclosure) does have its challenges in practice, not least of which may be due to the sheer number of documents, many of which are stored electronically, in some proceedings, and the scale of discovery, which can create disproportionate costs to the client/s. The scope of discovery has also been altered with new developments in case law and legislation. Originally discovery was to avoid costs! It requires a balancing act between conducting litigation with an “open misere” along with the costs associated with discovery, without diminishing attempting to achieve what is fair and just. Lets review some simple tips on how to obtain documents by way of Notice to Produce.
Firstly, and of utmost importance, is that it is essential that lawyers, for both parties, cooperate with each other so that the clients disputes are determined efficiently, cost effectively and with civility in order to facilitate the just, quick, cheap resolution of proceedings. This applies equally to discovery + Notices to Produce.
Best practice is always to take all reasonable steps to obtain documents by informal correspondence with the other party’s lawyer/s and if production is refused informally, then proceed to obtain a court order, if possible.
A letter making a request for informal discovery should specify the classes of documents that are sought to be discovered. The classes of documents should be specified as precisely as possible but it would appear to be appropriate to describe the class of document by reference to the fact in issue to which the documents relate or by description of the nature of the documents and the period within which they were brought into existence. Such a letter should, set out the basis upon which it is said that there are “special reasons” for making for an order for discovery, as referred to in r 21.8 of the UCPR. The letter making the request would normally require a satisfactory reply within a reasonable period of time, say 21 days.
Notice To Produce (r 21.10 UCPR)
A Notice to Produce is a form of discovery by serving a Notice to Produce on another party to the proceedings and this may be done without first requiring a party to give discovery by serving a list in compliance with r 21.3 UCPR
A party in proceedings is entitled to serve on any other party a Notice to Produce for inspection of (limited to these..) any “document or thing’ referred to in any originating process, pleading, affidavit or witness statement filed or served by the other party or any other specific ‘document or thing‘ that is clearly identified in the Notice to Produce and is “relevant to a fact in issue” (r 21.10 UCPR).
In personal injury claims in which there appears to be a proper basis for seeking production and inspection of documents under r 21.10 beyond documents referred to in the pleadings, affidavits and witnesses’ statements filed and served by the party to whom the Notice to Produce is directed, it is advisable to firstly seek the documents in correspondence with your opponent, and if production is informally refused, then to proceed to obtain a court order with consideration of ‘special reasons’ (below), if possible.
It should be noted, however, that the availability of this type of discovery by way of Notice to Produce, in personal injury claims is similarly limited (r 21.8 and r 21.12 UCPR) as is obtaining an order for discovery. The other party is only required to comply with such a Notice to Produce (and discovery) in personal injury claims (other than in relation to documents referred to in any originating process, pleading, affidavit or witness statement filed or served by that party) if the court orders compliance for ‘special reasons‘.
Any Notice to Produce under r 21.10 must identify the documents to which it refers with reasonable precision and identifies them by their relationship to a stated subject matter.
What are ‘special reasons‘?
- They may include such things as a young or badly injured plaintiff in a case where there were no eyewitnesses
- documents are in the possession of the other party and are necessary to enable an expert to prepare a report.
- an inability to obtain the requisite factual material without the exercise of the discretion
- that the applicant is in a position of some disability or disadvantage;
- the complexity of the subject matter is such that without the exercise of the discretion, real prejudice will result to the applicant;
- that in order to achieve the just, quick and cheap resolution of the real issues in the proceedings, the discretion should be exercised
- relevance must be satisfied
- you need to show something unusual or different to take the matter out of the ordinary course
If making an application for orders for discovery or seeking an order in respect to a Notice to Produce (outside the scope of pleadings etc) in personal injury matters, it will be by way of Notice of Motion, supported by affidavit material setting out the steps that have been taken to obtain the documents that are considered likely to be in the possession of the party from whom discovery / Notice to Produce is sought and dealing with matters that are relied upon to establish that there are “special reasons” for an order to be made.
PRACTICAL NOTE: Strictly speaking, formal non-compliance may require the Notice to Produce to be set aside but if in fact the Notice to Produce is reasonably specific, and the documents to which it relates are obviously relevant to facts in issue, there is no practical utility (just, quick, cheap considerations) in disputing the validity of the Notice and forcing the party seeking production either to apply for an order under r 21.3 UCPR or issue a subpoena or further Notice to Produce ( r 33.3 or r 34.1 UCPR)
Review: Supreme Court Practice Note – Common Law – No. 5
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