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The courts have nonetheless managed to improvise a way to use the subpoena duces
tecum to secure pre-trial non-party disclosure in some cases. This has been done by
directing that the return day for the subpoena should be treated as the day when the
trial begins, with the business of that day being limited to the reception of documents
produced under the subpoena. This approach was first suggested by Lord Donaldson
MR in Williams v Williams [1988] QB 161 at 169, and fully analysed and established
by Sir Donald Nichols V-C in Khanna v Lovell White Durrant [1995] 1 WLR 121. As
part of the court's power to case manage a trial, it can order the trial to be split with
particular issues to be tried first. It can accordingly order the receipt of documents
produced in response to the subpoena to be dealt with in advance of everything else
falling to be dealt with at the trial. It can also direct, if appropriate, that a different
judge from the judge conducting the main trial may be responsible for this first part of
the trial.
(ii)
The consultation response
Proposal 28 also sought consultees' views on widening the availability of post-
commencement, pre-trial, non-party disclosures. The response
was very much in
favour of both proposals, with some qualifications, particularly the need to define
clearly the scope of the power.
Notes
Khanna v Lovell White Durrant, at p 125.
The respondents were mostly the same as in relation to pre-action disclosures. Additionally, the
High Court masters were expressly in favour of non-party pre-trial disclosures.
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