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(iii)
Recommendations
Despite his conclusions in the Khanna case, the (then) Vice-Chancellor stated that the
question of non-party pre-trial disclosure would merit further consideration by the
Supreme Court Procedure Committee and by the Rules Committee.
The improvised
application of the subpoena duces tecum procedure, while helpful, does not provide
express guidance as to the principles governing such disclosure or proper procedural
safeguards for the person served.
The Working Party recommends that section 42(1) of the HCO be amended to widen
the scope of such disclosure to encompass all types of cases (and not merely personal
injury and death claims). The procedure to be followed when seeking such orders
should be as laid down by O 24 r 7A in respect of section 42(1) orders, with any
necessary or desirable modifications. Order 24 r 13, which provides that the order
shall not be made unless the court is satisfied that the order is necessary either for
disposing fairly of the cause or matter or for saving costs, would apply.
In relation to applications for pre-commencement disclosure against potential
defendants, the Working Party has recommended
that disclosable documents should
be limited to those "directly relevant" with a view to discouraging speculative "fishing
expeditions". The Working Party is of the view that a less restrictive and a more
flexible approach appears warranted in relation to disclosures sought (by either
plaintiff or defendant) before trial from non-parties who are not themselves potentially
to be made defendants or third parties. The issues will generally be defined with some
clarity in the pleadings and other filed documents so that the relevance of and need for
the documents sought will be evident. A flexible approach to relevance, as adopted in
relation to issuing a subpoena duces tecum, should be adopted.
Notes
The court rejected the submission that the position is already covered by O 38 r 13 which empowers
the court to order any person, including a non-party, to ‘attend any proceedings in the cause or
matter,' and produce documents which appear to the court to be necessary ‘for the purpose of that
proceeding.' The scope of the rule was held to be confined to documents necessary for the purpose
of the particular interlocutory or other proceeding at which the person was required to attend and so
inapplicable for production in advance for use at the trial.
Recommendation 77 above.
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