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Section 16: Discovery
Proposal 25
Automatic discovery should be retained, but the Peruvian Guano test of relevance should no
longer be the primary measure of parties' discovery obligations. Subject to the parties'
agreeing otherwise, a primary test restricted to directly relevant documents, namely, those
relied on by the parties themselves, those adversely affecting each party's case and those
supporting the opponents' case, should be adopted instead.
Proposal 26
In making disclosure, the parties should be free to reach agreement as to the scope and
manner of making discovery. Where no agreement is reached, they should be obliged to
disclose only those documents required under the primary test, ascertainable after a
reasonable search, the reasonableness of such search being related to the number of
documents involved, the nature and complexity of the proceedings, how easily documents
may be retrieved and the significance of any document to be searched for.
Proposal
25 (for adopting "standard discovery") and Proposal
26 (for prescribing a
"reasonable search" standard) should not be adopted, retaining the existing Peruvian Guano
principles as the primary measure of the parties' discovery obligations.
A practice direction should be issued and the timetabling questionnaire designed with a view
to encouraging the parties to achieve economies in the discovery process by agreement; and
to encouraging the courts, in appropriate cases, to give directions with the same aim.
Proposal 27
subject to an inter partes request, with further discovery requiring the court's order, along
the lines of the system adopted in New South Wales.
Proposal
27 (for adopting a system of discovery based on disclosure of the documents
referred to by the parties plus a limited number of requested documents) should not be
adopted.
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