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

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