Day 157 - 18 Jul 95 - Page 56
1 provide the parties with the relevant
2 documentary material before the trial so as to
3 assist them in appraising the strength or
4 weakness of their respective cases and thus to
5 provide the basis for the fair disposal of the
6 proceedings before or at the trial. Each party
7 is thereby enabled to use before the trial or to
8 adduce in evidence at the trial relevant
9 documentary material to support or rebut the
10 case made by or against him, to eliminate
11 surprise at or before the trial relating to
12 documentary evidence and to reduce the costs of
13 litigation."
14
15 My Lord, I put it in a slightly different way, in a more
16 compact form, though your Lordship may find Halsbury more
17 appealing. I would submit that the purpose of discovery is
18 to compel each party to an action, a civil action, to
19 disclose to the other documentary material which may enable
20 that other party, directly or indirectly, to adduce
21 evidence at trial which is relevant to the pleaded issues.
22
23 My Lord, I do not submit, as we have seen repeatedly
24 throughout the currency of this case, that the process of
25 discovery comes to an end as soon as the trial begins.
26 That would be a nonsense. But throughout the trial, if it
27 continues through the trial, it has the same character of
28 compelling parties to disclose documents which may lead
29 them to adduce or, indeed, not to adduce evidence before
30 the court. Once that evidence has been given, a mere
31 record of what it is can no longer perform the function
32 envisaged by the process of discovery.
33
34 My Lord, perhaps what puts the nail in the coffin, so as
35 far as this part of the Defendants' submissions is
36 concerned, are the terms of Ord. 68 itself or, rather, the
37 effect of Ord. 68, rules 1 and 5. One only has to
38 contemplate what would happen if the Defendants were right
39 in principle, and this would not be anything to do with the
40 respective means of the parties at all. Suppose you had
41 parties of equal means and one of them chose to demand a
42 transcript as his right under Ord. 68, r. 1, on payment of
43 the proper fee, and the other one said: "Well, I am not
44 going to do that; I do not have to bother because once he
45 has them, I can get every single one of them by the process
46 of discovery during the course of the case".
47
48 Then take Rule 5, why would there be any need for a rule
49 providing specifically for the supply out of public funds
50 of transcripts of the trial to impecunious respondents in
51 the Court of Appeal if the impecunious respondent were
52 entitled to say: "Well, no need for any of that, thanks
53 very much, Lord Chancellor; I can get these transcripts off
54 the appellant. I can simply apply for discovery of them".
55 Discovery, of course, the rule about discovery -----
56
57 MR. JUSTICE BELL: Discovery would mean that he can inspect them
58 and obtain photocopies at his own expense.
59
60 MR. RAMPTON: Yes, but that would be infinitely cheaper than
