This short article is intended to give a brief guidance on the principles that apply to discovery in a court action and to allow clients to learn more about a matter that is extremely important in relation to the action that we are dealing with on their behalf. It is emphasised that this is for guidance only and you should always contact the solicitor handling your case for advice.
What is meant by discovery?
Discovery is the duty imposed on all parties to litigation, to disclose documents which are, or have been in their possession, custody, power or control, and which relate to the matters that are in issue between the parties. Further, the parties must produce these documents to the other party for inspection. All documents must be produced if they are relevant and even if they are not favourable to that party's case.
In the case of Andrews v Northern Ireland Railways Co. Ltd., [1992] NI 1, Mr Justice Carswell, said,
"Discovery of documents is a practice which originally developed in the courts of equity, based on the principle that it was against conscience for a party to obtain forensic success through withholding relevant material in his possession. It is now followed, with increasing frequency, amounting almost to universality, in civil actions in all divisions of the High Court, after a process of some compromise and accommodation."
The Courts will distinguish between documents that are discoverable, that is those that are to be disclosed to the other side, and documents which are not, that is, documents that are privileged. In the Andrews case, Mr Justice Carswell went on to quote a section of the judgment of Mr Justice Hovers, in the case of Seabrook v British Transport Commission [1959] 2 All ER 15, which further explains the Courts attitude to discovery. In that case Mr Justice Havers said at page 19,
"The practise with regard to discovery and the production and inspection of documents, and the objections which can be made on the ground of privilege, are really a reconciliation between two principles. The first principle is that professional legal advice and assistance is at times essential in the interests of justice, and without the assistance of some protection it could not be obtained safely or effectually. Accordingly, the principle has become established that confidential communications passing between a person and his legal advisers are absolutely privileged. On the other hand, there is another principle of law that it is in the interests of justice that all material and relevant documents should be before the Court to enable it to arrive at a true and proper conclusion, and also that an Order that all parties should not be taken by surprise. The practise which has developed is, as I have said, a reconciliation between those two principles."
In determining whether documents are discoverable, or whether they are privileged, it is vital that all classes of documents are produced to the solicitor, to allow the solicitor to give objective and proper advice on their production. The solicitor is then obliged to prepare a List of Documents setting out the categories of documents in an agreed format, which is produced to the other parties to the action, and to the Court. If the client has any doubt about a document and whether it should be produced or not, it is essential that the document is put before the solicitor and advice is obtained on it.
In the leading case of Waugh v British Railways Board, [1979] AC 521, which was heard by the House of Lords, it was said that to attract privilege, the dominant purpose of the preparation of the document must have been that of submission to a legal advisor for the use in relation to anticipated or pending litigation.
It is important to note that stamping a document as privileged, or without prejudice, does not automatically invest it with privilege, and it is essential that advice be obtained on these points.
If the client is an employer, then the client may possess some of the following documents:
• The claimant's personnel file
• Training documents
• Health & Safety Policy
• Risk Assessment
• Maintenance documents concerning a machine on which perhaps the claimant was injured
• Statement of wages
• Accident Report Form or Accident Book Entry
• Form NI2508 - Report of an Injury or Dangerous Occurrence
• Witness statements
• Sickness Certificates, or
• a medical report based on a medical examination of the claimant by the employer
If the client is the owner of a public premises, again many of the documents listed above may be in the client's possession, and there may also be a diary, documents showing repairs and maintenance to a public area, perhaps a cleaning schedule and the like.
These lists are intended to be illustrative, and are not exhaustive, and of course there is an obligation on all parties to check carefully if they have any documents that are relevant to the matter. In a road traffic accident case, a driver may have made a note in his diary as an aide memoir perhaps.
It is important to realise that the Courts take a very serious view of a party to an action that does not properly comply with his obligations on discovery. The Courts have a number of sanctions available to them, and at worst can strike out a plaintiff's case, or the defendant's defence, and on many occasions can penalise the defaulting party in additional costs.
If at any time during the course of your action you find a document that you believe may be of relevance to the matter, then always contact the solicitor dealing with your case to obtain advice on it.