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Proposal 28
Parties should be empowered to seek discovery before commencing proceedings and
discovery from non-parties along the lines provided for by the CPR.
The HCO should be amended to broaden the jurisdiction of the court under section 41 to
order disclosure before commencement of proceedings to encompass all types of cases (and
not merely cases involving personal injury and death claims).
Such jurisdiction should be exercisable where it is shown by the applicant that he and the
respondent are both likely to be parties to the anticipated proceedings and that disclosure
before the proceedings have been started is necessary to dispose fairly of the anticipated
proceedings or to save costs.
Orders for pre-action disclosure should relate to disclosure and inspection of specific
documents or classes of documents which are "directly relevant" to the issues in the
anticipated proceedings, being documents which would be likely to be relied on by the
parties themselves or documents directly affecting adversely or directly supporting any
party's case in the anticipated proceedings, the procedure for such applications being that
prescribed by O 24 r 7A, subject to any necessary modifications.
Section 42(1) of the HCO should be amended so that the court's jurisdiction to order post-
commencement, pre-trial disclosure from persons who are not parties to the proceedings
applies to all types of cases (and not merely to personal injury and death claims).
The requirements to be met and procedure to be followed when seeking orders referred to in
Recommendation 78 should be as laid down by O 24 r 7A in respect of section 42(1) orders
and by O 24 r 13, with any necessary or desirable modifications.
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