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(b)
Non-party pre-trial disclosure
(i)
The present position
The traditional view has been that the law enables non-party documents to be obtained
prior to trial only in very limited circumstances.
(a)
By section 42(1) of the HCO, such disclosure has been provided for in
connection with personal injury and death claims. In such cases, after
commencement of the proceedings but before the trial, disclosure may be
ordered against someone who appears likely to have or to have had in his
possession, custody or power any documents which are relevant to an issue
arising out of the claim.
(b)
The Norwich Pharmacal jurisdiction
may also be regarded as an exceptional
instance of the court ordering non-party disclosure. While on one view, such
claims represent independent proceedings based upon the suit for discovery in
equity, functionally, it involves the court ordering a person who innocently
facilitated or became "mixed up in" a tort to give disclosure with a view to
enabling a potential plaintiff to identify and sue the wrongdoer in question. So
viewed, the jurisdiction involves a potential plaintiff obtaining non-party
disclosure prior to starting proceedings against the potential defendant.
(c)
Another specialised form of non-party disclosure may be obtained against non-
parties, usually banks, on the Banker's Trust line of cases in aid of a proprietary
claim and/or in aid of Mareva or Anton Piller relief.
(d)
One might add to this list the court's power to authorise parties to obtain entries
of bank records under section 21 of the Evidence Ordinance, Cap 8, generally
referred to as the "bankers' books" jurisdiction.
Notes
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133; See generally HA §4-
11 to §4-18.
Bankers Trust Co v Shapira [1980] 1 WLR 1274, CA. See generally HA §4-19 to §4-21.
See HKCP 2002, 38/13/2-8.
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