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
