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Pretrial Discovery in Scotland, England and Canada
Published online by Cambridge University Press: 21 May 2009
Extract
Discovery is the broad name for interlocutory skirmishing whose object is to secure information concerning the particular case at issue. While documentary and oral discovery concurrently exist as of right in other jurisdictions, such as Canada and the US, the scope of this pre-trial procedure is narrower in Britain where the general availability of oral interrogatories is precluded. Like discovery in England and Wales, Scots law farmer restricts the procedure by making the ‘Specification of Documents procedure’ subject to the Court's discretion. This article explores some of the differences from a comparative viewpoint and attempts to evaluate the Scottish practice.
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References
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5. Civil Jurisdiction and Judgements Act 1982, s. 28 in any proceedings brought or likely to be brought in another contracting State or England and Wales, or Northern Iceland, within the scope of the 1968 Brussels Convention, die Court of Session shall have the like power to make an order under 1972 s. 1 as if proceedings are brought in mat court Criminal Justice (Sc) Act 1987: s. 28(4) provides for discovery in relation to die reciprocal enforcement of English orders for the recovery of proceeds under The Drug Trafficking Offences Act 1986. Law Reform (MP)(Sc) Act 1985: s. 19 provides for die disclosure of names of would be witnesses or defenders in civil proceedings.
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8. Parliamentary Debates (HL Deb. Vol 329, col 219 – 220).Google Scholar Separate, and arguably concur-rent provision is made for the inspection of bankers' books by the Bankers' Books Evidence Act 1879, s.7.
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19. Vast leeway to discover nearly everything there is to know about a case occurs in the USA; Rule 26(b)(l), Federal Rules of Civil Procedure, explains what is discoverable: ‘In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to die claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence’. Haydock, R.S. and Herr, D.F., Discovery: Theory, Practice and Problems (1983) p. 13.Google Scholar
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21. McGown v. Erskine 1978 SLT (Notes) 4 (Outer House).Google ScholarMacPhaiL, Sheriff op. cit. n. 6, at 25.05Google Scholar prefers this view, considering that the purpose of the 1972 Act is to ‘abolish entirely the mystique of restricted recoverability’.
22. 1988 SLT 687, Ct of Session (Inner House, 2nd Div.).
23. Idem p. 698; 1972 Act s. 1(2).
24. Referring to Moore v. Greater Glasgow Health Board 1979 SLT 42; 1978 S.C. 123, Ct of Session (1st Div.).
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38. See CCR Ord. 14 for County Court rules. Discovery is not available in criminal cases: Re Skegness Magistrates' Court [1985] RTR 49.
39. Peruvian Guano Case (1882) 11 QBD 55 per Bowen LJ. For a more recent decision see: Drennan v. Brooke Marine (1983), The Times (20 June). Relevancy is very wide in the USA: the term relevant encompasses any matters ‘that bears on or that reasonably could lead to other matter that could bear on any issue that is or may be in the case’. Oppenheimer Fund Inc. v. Sanders 437 US 340,351 (1978).
40. Where discovery is automatic under Ord. 24 r. 2 or Ord. 25 r. 8, it should take place within 14 days of the close of pleadings, and inspection should occur within seven days thereafter but, as explained, the time limits are almost never complied with. The power to order discovery under Ord. 24 rr. 3 and 7 may be ordered at any stage of the action, and whether or not a party is obliged to give automatic discovery.
41. Rafidain Bank v.Agom Universal Sugar Trading Co. Ltd [1987] 3 All ER 859.
42. An agreement by the parties is implied into every High Court action that they will use documents disclosed on discovery only for die purposes of the action, and not for any other purpose; Home Office v. Harmon [1982] 2 WLR 338. Cf., Sybron v. Barclays Bank (1984)Google Scholar, The Times (9 March), where a plaintiff brought an action against former employees for breach of fiduciary duty, and on discovery letters were found which implicated other employees in the tort, and the court gave leave for such letters to be used in an action begun against those others even though, without discovery in the first action, there would have been no evidence against those others.
43. RHM v. Bovril [1982] 1 WLR 661, CA.
44. Elliott, D.W., Elliott and Phipson: Manual of the Law qf Evidence, 12th edn. (1987) p. 141. A party who obtains disclosure of documents by discovery may make no use of them except for the purposes of the action: Riddick v. Thames Board Mills [1977] QB 881 (CA), even if they notionally become public property after being read out in court: Home Office v. Harmon [1983] 1 AC 280 (HL).Google Scholar
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48. Norwich Pharmacol Co. v. Customs and Excise Commissioners [1973] 2 All ER 943, [1974] AC 133, [1973] 3 WLR 164, [1974] RPC 101, per Lord Redd at pp. 947–948 (All ER).Google Scholar
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52. See Plummer v. May (1750) 1 Ves. Sen. 426,27 ER 1121; Fenton v. Hughes (1802) 7 Ves. Jun.287,32 ER 117.
53. 1854,17 & 18 Vict. c. 125.
54. Norwich Pharmacol Co. v. Customs and Excise Commissioners, ibid., n. 48 supra.
55. Idem per Lard Redd at [1973] 2 All ER 943 at p. 948.
56. Maguire, , op. cit. n. 36, at p. 61.Google Scholar
57. Discovery under s. 33 is restricted, it will not be ordered of documents for which privilege is properly claimed by the defendant The court can also restrict disclosure to the plaintiff's legal, medical or other professional advisers, preventing the plaintiff from seeing mem; s. 33(2)(b). This latter point seems anomalous given the general protection afforded medical practitioners (medical mal-practice claims must meet a relatively stringent burden of proof).
58. Dunning v. United Liverpool Hospital [1973] 1 WLR 586.Google Scholar Applications are made under Ord. 24 r. 7A by Originating Summons supported by an affidavit setting out the grounds for believing bom mat he and the defendant will be parties to subsequent proceedings, and that the other party has relevant documents.
59. Maguire, , op. cit n. 36, at p. 59.Google Scholar In addition to a s. 33(1) application, application may be made for delivery up of goods pursuant to s. 4 of the Torts (Inference with Goods) Act 1977. See also: Rogers, D.G. Fletcher, Pre-Action Discovery (1991).Google Scholar
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63. EMI Ltd. v. Farwar [1977] FSR 146.Google Scholar The scope for such ancillary orders has been reduced in Rank Film Distributors Ltd. v. Video Information Centres [1981] 2 All ER 76, [1982] AC 380 (HL)Google Scholar where defendants were excused from answering questions which might tend to expose them to criminal prosecution for conspiracy and fraud. Orders similar to an Anton Pillar order have been made in Scotland: British Phonographic Industry Ltd v. Cohen et al. 1983 SLT 137Google Scholar under s. 1(1) Administration of Justice (Scotland) Act 1972. However, in certain proceedings relating to intellectual property, provision has been made for withdrawal of the privilege against self-incrimination. Thus these last two decisions have been reversed in effect by legislation in England (Supreme Court Act 1981 s. 72 and in Scotland by s. IS of the Law Reform (Miscellaneous Provisions (Scotland) Act 1985).
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68. British Steel Operations v. Granada Television [1981] 1 All ER 417.
69. In Bekhor v. Bilton [1981] 2 WLR 601 the Court essentially affirmed the right to make discovery orders on an application for a Mareva injunction.
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76. Armak Chemicals Ltd. v. Canadian National Railway Co et al. (1982) 37 OR (2d) 713 (Ontario HCJ).Google Scholar
77. Brazil, W.D., ‘Civil Discovery: Lawyers's Views of its Effectiveness, its Principal Problems and Abuses’, ABF Res. J. (1980) p. 789 at p. 848 (a Chicago study of 180 practitioners).Google Scholar
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79. In the USA, a deposition is a sworn statement made by a deponent before a notary or other officer authorized to administer oaths. The deponent may be a party or any person who has information. The deposition is usually conducted orally, the attorney who requested the deposition typically examining and cross-examining the deponent, with the opposing attorney in attendance. The questions and answers are usually transcribed and later prepared in transcript form. A deposition may be conducted using written questions submitted by the requesting attorney and read to the deponent by the officer. Interrogatories are written questions submitted to a party to be answered in writing under oath: Haydock, and Herr, , op. cit n. 19, at p. 12.Google Scholar
80. Wright, , loc. cit. n. 37, at pp. 562–563.Google Scholar
81. (1981) 34 BCLR 7,26 CPC 13 (BCSC).
82. Idem p. 12.
83. Idem pp. 10–11.
84. Alberta Rotes of Court, Rule 186(2). ‘Documents’ includes recordings of sound, photo-graphs, films, charts, graphs and all records of any kind, Rule 186(1).
85. Rule - Belt Ltd. v. Shenkmen Corp. Ltd. et al. (1977) 18 OR (2D) 276,4 CPC 256 (Ontario, Master).Google Scholar
86. Legal Education Society of Alberta (LESA), Alberta Bar Admission Course 1985–86, Civil Procedure, 1985, p. 140.Google Scholar
87. Wright, , loc. cit n. 37, at p. 566 m. 60.Google Scholar
88. Alberta Rules of Court, Rule 200 (or former employees who appear to have some knowled-ge of the matters on issue).
89. Ontario Rules of Court, Rule 31 — Examination for Discovery. See: Carthy, J.J., Millar, W.A. Derry and Cowan, J.G., The Ontario Annual Practice 1988/89 (1988).Google ScholarS.E. Lyons & Son Ltd. v. Nawoc Holdings Ltd. et al. (1978) 20 OR (2D) 234, 7 CPC 10 (Master) AFFD 23 OR (2D) 727 (HCJ).Google Scholar Where mere is no agreement between the parties as to the method by which undertakings should be answered, a party is entitled to require the witness to answer undertakings orally notwithstanding the delivery of a letter which provided answers to the undertakings.
90. Ontario Rules of Court, Rule 31.03(4).
91. Alberta Rules of Court, Rules 295, 703(3)(b).
92. Alberta Rules of Court, Rule 200(2)(3) provides for a limitation on the right to examine employees or former employees to prevent abuse. Nichols & Shepherd Co. v. Shedadunk [1912] 2 WWR 1002;Google ScholarHellafa v. Royal Bank [1940] 1 WWR 6 (Sask).Google Scholar
93. McGregor v. C.P.R. [1938] 3 DLR 687 (Alberta CA). City of Edmonton v. Jwrelek [1972] 2 WWR 561 (Alberta SC, Trial Division).
94. Scott Transport Ltd. v. Bondyetal. [1973] 2 OR 159 (HCJ).Google Scholar
95. Stepps Investment Ltd. v. Security Capital Corp. Ltd. (1973) 2 OR (2D) 648 (HCJ).Google Scholar
96. (1988) 57 ALR (2d) 15, [1988] 2 WWR 665 (Alta. QB).
97. However, the court seems to have relied upon the following passage from a earner decision in Pelican Oil & Gas Co. Ltd. v. Northern Alberta Natural Gas and Development Co. Ltd. [1918] 1 WWR 957 at p. 963Google Scholar (Alta. CA).‘… [I]f for any other reason it appears to be just and convenient, the Court or Judge may permit the whole or any part of the examination of such employee to be used in evidence’.
98. Skoye v. Baillie et al. [1971] 1 WWR 144 (Alberta CA per Johnson, JA at 145).
99. Idem
100. LESA supra a 86 at p. 155.
101. A LEXIS search in November 1991 covered all Session Cases and Scots Law Times reports since 1950, as well as all unreported Court of Session (Inner House since 1982 and Outer House since 1985) decisions. Only 65 cases were found mat mentioned the procedure (using the following parameter: Commission w/2 diligence w/4 recovery or specification documents). This raw figure suggests mat die procedure is little used.
102. For instance, in Boots The Chemist Ltd v. GA Estates Ltd. and Another 1991 Lexis Report, Court of Session (Outer House), die Court said that: ‘If the defenders had been anxious to discover the details of die pursuers's claim they could have done so by way of enrolling for commission and diligence for recovery of documents. They did not do so’.
103. Wright, , loc. cit. n. 37, at pp. 565–566Google Scholar citing Jolowicz, J.A., ‘Some 20th Century Develop-ments in Anglo-American Civil Procedure’, Studi in Onore di Enrico Tullio Liebman (1979) pp. 217,255, reprinted in 7 Anglo-American LR (1979) p. 163;Google ScholarZuckerman, A., ‘Can an Enlarged Law of Discovery Make Civil Trials Redundant?’, 4 Oxford J. Legal Studies (1984) p. 250.CrossRefGoogle Scholar
104. C.f., Kaplan, B., ‘An American Lawyer in die Queen's Courts: Impressions of English Civil Procedure’, 69 Michigan LR (1971) p. 821, at p. 828.CrossRefGoogle Scholar
105. Idem.