Discovery and inspection of documents and interrogatories
Order 32 | Circuit Court

1. Where a request in writing for voluntary discovery has been made at least fourteen days prior to the issuing of the notice of motion and no agreement in writing to make discovery in the terms requested has been received within such period, any party may apply to the Court or to the County Registrar by notice of motion to be served not less than four clear days before the hearing thereof, for an order directing any other party to any proceeding to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the proceeding, or 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 may think fit. Such affidavit of documents shall be in accordance with Form 31 of the Schedule of Forms annexed hereto.

2. The affidavit to be made by a party against whom such order as is mentioned in the last preceding Rule has been made shall specify which, if any, of the documents therein mentioned he objects to produce and it shall be in the form in the Schedule of Forms hereto with such variations as circumstance may require.

3. It shall be lawful for the Judge at any time during the pendency of any cause or matter to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the Judge shall think right; and the Judge may deal with such documents, when produced, in such manner as he shall think just.

4. Every party to a cause or matter shall be entitled at any time by notice in writing, to give notice to any party, in whose pleading or affidavit reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his Solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf, unless he satisfy the Judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse, which the Judge shall deem sufficient for not complying with such notice; in which case the Judge may allow the same to be put in evidence on such terms as to costs and otherwise as he shall think fit.

5^{. [1]} If the parties served with notice under rule 4 omit to give notice of a time for inspection, or object to give inspection, the Judge or the County Registrar 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 he thinks right. Such application shall be made by motion on notice to be served not later than four clear days before the hearing thereof and founded upon an affidavit showing of what documents inspection is sought and that they are in the possession or power of the other party. Where, on an application for an order for inspection, privilege is claimed for any document, the Judge or the County Registrar, as the case may be, may inspect the document for the purpose of enabling him to determine the validity of the claim for privilege.

6. If any party fails to comply with any order for discovery or inspection of documents, he shall be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended.

7. ^[2] (1) The costs of every application for discovery shall be in the discretion of the County Registrar.

(2) In every cause or matter, the costs of making discovery shall, unless otherwise ordered by the Judge, be allowed, as part of the costs of the party seeking discovery, either as between party and party or solicitor and client, where, and only where, such discovery shall be certified by the Judge.

8. This Order shall apply to infant plaintiffs and defendants, and to their next friends and guardians ad litem.

9.^[3] Subject to rules 10 and 11, a party (the “interrogating party”) may at any time after delivering his or her Civil Bill or Defence, as the case may be, and prior to the service of Notice of Trial, without the prior leave of the Court, deliver interrogatories in writing for the examination of any other party to the proceedings (the “interrogated party”).

10. (1) Interrogatories addressed to one party only and answers to such interrogatories must be copied to every other party.

(2) Where the interrogated party is a body corporate or an unincorporated body of persons, the interrogatories shall be answered by the secretary or such other person as is nominated by the interrogated party, but where the interrogating party requires a particular other officer, member, or employee of the interrogated party to answer particular interrogatories, he or she shall apply by motion on notice to the interrogated party for an order permitting such a requirement.

(3) Interrogatories shall be in the Form No. 57A in the Schedule of Forms and shall include a brief statement of the reasons why answers to each interrogatory or group of interrogatories are necessary for disposing fairly of the cause or matter or for saving costs.

(4) Without limiting the grounds on which objection may be made, interrogatories:

(a) must be confined to questions as to facts in issue in the proceedings or facts reasonably relevant to establish facts in issue in the proceedings, but excluding questions concerning the evidence by which any fact might be proved;

(b) must be confined to questions of fact the answer to each of which is likely to be within the knowledge of the person required to answer having, where appropriate, made any reasonably necessary inquiries;

(c) must be confined to questions of fact which are amenable to answer by an affirmative, negative, or short statement of fact without narrative;

(d) must be confined to questions of fact which are necessary either for disposing fairly of the cause or matter or for saving costs.

11. Notwithstanding rule 9, a party may not, without an order of the Court or County Registrar:

(a) deliver interrogatories exceeding 20 in number to any other party; or

(b) deliver more than one set of interrogatories to the same party.

12. (1) The interrogated party shall, within 21 days of delivery or such other time as is agreed or directed by the Court or the County Registrar, deliver to the interrogating party and file a notice setting out the grounds of any objection to any interrogatory which shall include, where relevant, details of any other means by which the interrogated party is willing to address the matter raised in the interrogatory concerned (including, without limitation, by delivering further particulars, by making an admission, or by producing documents).

(2) The interrogated party shall, at the same time, deliver to the interrogating party and file an affidavit, answering those interrogatories which the interrogated party is willing to answer, and verifying any facts relied on in any notice of objection delivered, and a copy of any such notice shall be exhibited to the affidavit.

13. Grounds of objection to an interrogatory shall be set out concisely. Such grounds may include that the interrogatory does not comply with the requirements of rule 10, or is not sufficiently material at that stage, or is not bona fide for the purpose of the proceedings, or any other proper ground of objection.

14. An affidavit in answer to interrogatories shall be in the Form No. 57B in the Schedule of Forms and shall include the text of each interrogatory prior to the answer or other response thereto.

15.(1) Where:

(a) the interrogating party does not accept the sufficiency of the answers provided (including, where relevant, any proposal to address by other means a matter raised in an interrogatory), or does not accept any objection made, or

(b) the interrogated party fails or omits to answer any interrogatory,

 the interrogating party may apply to the Court or the County Registrar, within 14 days of the delivery of the interrogated party’s affidavit and any notice of objection (or, as the case may be, within 14 days after the expiry of the time allowed for such delivery), by motion on notice to compel the delivery of answers, or further answers, or for any other appropriate relief.

(2) Such application shall be grounded upon an affidavit.

16. The interrogated party may rely on the affidavit in answer in opposing any such application, but is at liberty to deliver and file a further affidavit on the application.

17. On the hearing of an application under rule 15, the Court or the County Registrar may:

(a) make an order requiring the interrogated party to answer or answer further, as the case may be, either by affidavit or by viva voce examination, as the Court or the County Registrar directs,

(b) determine that the interrogated party is not required to answer:

(i) any interrogatory which does not comply with the requirements of rule 10;

(ii) any interrogatories which have been delivered unreasonably or vexatiously, or which are prolix, oppressive, unnecessary, or scandalous;

(iii) any interrogatories the imposition of a requirement to answer which might prejudice a fair hearing of the issues between the parties,

 and may make such further or other order on the application as is just, including an order for the delivery of fresh interrogatories, an order for the delivery of further particulars, or an order for the production of documents.

18. The Court or the County Registrar may determine that the interrogated party is not required to answer an interrogatory notwithstanding that the question concerned might be admissible on the oral cross-examination of a witness.

Non-party discovery or interrogatories

19. Any person not a party to the cause or action before the Court who appears to the Court or to the County Registrar to be likely to have or to have had in his or her possession, custody, or power any documents which are relevant to an issue arising or likely to arise out of the cause or action, or is or is likely to be in a position to give evidence relevant to any such issue, may by leave of the Court or the County Registrar, upon the application of any party to the said cause or action, be directed by order of the Court or the County Registrar to answer such interrogatories, or to make discovery of such documents, or to permit inspection of such documents, provided that, in advance of the issuing of such notice of motion, such discovery shall be requested to be made voluntarily in accordance with the provisions of Rule 1 hereof, the request for voluntary discovery being made to the person against whom discovery is sought and the other parties to the proceedings. The provisions of this Order shall apply mutatis mutandis as if the said Order of the Court or the County Registrar had been directed to a party to the said cause or action, provided always that the party seeking such order shall indemnify such person in respect of all costs thereby reasonably incurred by such person, and such costs borne by the said party shall be deemed to be costs of that party in the proceedings.”

4. The Forms 57A and 57B in the Schedule shall be inserted in the appropriate sequence in the Schedule of Forms annexed to the Circuit Court Rules.