Day 146 - 03 Jul 95 - Page 26


     
     1   MR. JUSTICE BELL:  I have read the whole bundle.  I have
     2        resisted the temptation to read it again in anticipation of
     3        your submissions, Mr. Atkinson.
     4
     5   MR. ATKINSON:   I certainly think you ought to have all of the
     6        pleadings in that file.  I have a slight query as to
     7        whether you might be missing one or two simply because
     8        Mrs. Brinley-Codd -----
     9
    10   MR. JUSTICE BELL:  You check by all means and I will look and
    11        see.
    12
    13   MR. ATKINSON:   At the moment, I am not intending to go into the
    14        pleadings in any depth.  If the Defendants make certain
    15        points then I can always deal with them by way of reply.
    16        It is easier if your Lordship has out our letter of 3rd
    17        February 1995 because that, in essence, summarises the
    18        application.
    19
    20   MR. JUSTICE BELL:  Let me just see if I have it in my bundle.
    21        The 3rd February, you say?
    22
    23   MR. ATKINSON:   That is right.
    24
    25   MR. JUSTICE BELL:  No, I have not got it there.  I think someone
    26        ought to check my correspondence bundle which I have not
    27        marked and make sure -- I thought Mr. Stiles was putting in
    28        everything as I received it but I may not have handed it to
    29        him.  Yes.
    30
    31   MR. ATKINSON:   So there are two applications.  The first
    32        application is for an order that the Defendants give
    33        discovery in relation to the counterclaim pursuant to
    34        Ord. 24 r. 3.  The order that would be sought would be that
    35        it would be done in the form of a list supported by an
    36        affidavit.  If there is a problem with it being done by a
    37        way of list, then, no doubt, that can be discussed, but the
    38        affidavit is something that we are seeking.  My Lord, it
    39        may be helpful if you just read through that letter of 3rd
    40        February?
    41
    42   MR. JUSTICE BELL:  Yes.
    43
    44   MR. ATKINSON:   I think just for the benefit of the Defendants,
    45        if not for the court,  I will just read out the terms of
    46        Ord. 24 r. 3 which is on page 439 of the White Book.  I do
    47        not know if Defendants have a copy I will read it
    48        out. "Subject to the provisions of this rule and of rules 4
    49        and 8 ..."   If I just stop there, rule 4 is not relevant;
    50        it is an order for the determination of an issue before 
    51        discovery and Ord. 24 r. 8 is the rule about discovery not 
    52        being ordered and the discretion of the court if it is felt 
    53        it is not necessary.  So, subject to those rules, "the
    54        Court may order any party to a cause or matter (whether
    55        begun by writ, originating summons or otherwise) to make
    56        and serve on any other part a list of the documents which
    57        are or have been in his possession, custody or power
    58        relating to any matter in question in the cause or matter,
    59        and may at the same time or subsequently also order him to
    60        make and file an affidavit verifying such a list and to

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