K13. Discovery
K13.1. The nature of the problem
| 404. |
In many jurisdictions, the practice of
discovery, particularly in larger, more complex cases, has given rise to serious
complaint. It is said to be a major source of litigation expense. (Note 350) It lengthens trials and is amenable to use as an oppressive weapon by richer
litigants to delay, harass and exhaust the financial resources of poorer opponents.
(Note 351) Lord
Woolf shared these concerns, stating :- |
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"The scale of
discovery, at least in the larger cases, is completely out of control. The principle of
full, candid disclosure in the interests of justice has been devalued because discovery is
pursued without sufficient regard to economy and efficiency in terms of the usefulness of
the information which is likely to be obtained from the documents disclosed." (Note 352) |
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| 405. |
Nonetheless, Lord Woolf, (Note 353) along with many others, (Note 354) affirms the need for a discovery procedure as part of a fair and effective civil
justice system. If such a procedure - requiring the parties (subject to necessary
limitations) to inform and show each other relevant documents bearing on the issues in
dispute - did not exist, there would often be difficulty ensuring that justice is done. A
party denied access to crucial documents in the control of the other side may in practice
find it impossible to proceed. Discovery is therefore an important means for establishing
a greater equality of arms between parties with unequal resources. |
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| 406. |
Criticisms and reforms have focussed most
strongly on the scope of the obligation to make disclosure. At present in Hong Kong (and
prior to the CPR in England and Wales), the test of whether a document must be disclosed
is the Peruvian Guano test of relevance, covering every document which
"relates to the matters in question in the action". (Note 355)
This derives from Compagnie Financiere du Pacifique v Peruvian Guano
Company (1882) 11 QBD 55, and in particular, the following passage from the judgment
of Brett LJ :- |
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"It seems to me
that every document relates to the matters in question in the action, which not only would
be evidence upon any issue, but also which, it is reasonable to suppose, contains
information which may - not which must - either directly or indirectly
enable the party requiring the affidavit either to advance his own case or to damage the
case of his adversary. I have put in the words 'either directly or indirectly', because,
as it seems to me, a document can properly be said to contain information which may enable
the party requiring the affidavit either to advance his own case or to damage the case of
his adversary, if it is a document which may fairly lead him to a train of inquiry, which
may have either of these two consequences ...... In order to determine whether certain
documents are within that description, it is necessary to consider what are the questions
in the action: the Court must look, not only at the statement of claim and the plaintiffs'
case, but also at the statement of defence and the defendants' case." (Note 356) |
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| 407. |
This test is thought to be unnecessarily wide,
catching too many documents in the great majority of cases. As Lord Woolf puts it :- |
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"It distinguishes
between direct and indirect relevance. It is the inclusion in the test of documents which
are indirectly relevant which causes most of the present problems." (Note 357) |
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"The result of the
Peruvian Guano decision was to make virtually unlimited the range of potentially relevant
(and therefore discoverable) documents, which parties and their lawyers are obliged to
review and list, and which the other side is obliged to read, against the knowledge that
only a handful of such documents will affect the outcome of the case. In that sense, it is
a monumentally inefficient process, especially in the larger cases. The more
conscientiously it is carried out, the more inefficient it is." (Note 358) |
Notes
| 350 |
WIR, p 164-5, §§3, 4,
8 and 9. <back> |
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| 351 |
GTC, p 107, citing the
ALRC; see also Mr Justice Ipp, op cit (1995) 69 ALJ 790 at 793-4. <back> |
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| 352 |
WIR, p 8, §10. <back> |
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| 353 |
WIR, p 167, §18.
<back> |
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| 354 |
Eg, GTC, p 106 and
112. <back> |
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| 355 |
As reflected in HCR O
24 rr 1, 2, 3 and 7. See HKCP 2001, 24/2/10. <back> |
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| 356 |
At 63-64. <back> |
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| 357 |
WIR, p 167, §16.
<back> |
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| 358 |
WIR, p 167, §17.
<back> |
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