Day 146 - 03 Jul 95 - Page 27


     
     1        serve a copy thereof on the other party."
     2
     3        I will just read the rest simply for completeness: "Where a
     4        party is required by rule 2 to make discovery of documents
     5        fails to comply with any provision of that rule", that is
     6        the ordinary rule for automatic discovery, "the Court on
     7        application of any party to whom discovery was required to
     8        be made, may make an order against first-mentioned party
     9        under paragraph (1) of this rule or, as the case may be,
    10        may order him to make and file an affidavit verifying he
    11        list of documents he is required to make under rule 2, and
    12        to serve a copy thereof on the applicant."
    13
    14        Then: "An order under this rule may be limited to such
    15        documents or classes of documents only, or to such only of
    16        the matters in question in the cause or matter as may be
    17        specified in the order."
    18
    19        My Lord, this application takes place against this
    20        background and it is fair that I should say this.  There
    21        has been no list provided or affidavit provided by either
    22        side.  It hardly need be said that any order or direction
    23        by your Lordship to the Defendants would equally apply to
    24        our side.  The reason so far that no list has been provided
    25        is that it is our view at the moment that there are no
    26        discoverable documents arising in relation to the
    27        counterclaim, other than those which we see as being
    28        privileged.  But that is something that if we were asking
    29        the Defendants to do an affidavit we would have to do the
    30        same ourselves obviously.
    31
    32   MR. JUSTICE BELL:  Is there any reason why, if this application
    33        is successful, you should not provide a list as well?
    34
    35   MR. ATKINSON:  No, I am not seeking to.  In fact, we would have
    36        to I think under the normal procedures.  The second thing,
    37        just as a caveat there, is that at the moment we do not, in
    38        our view, have a fully particularised case from the
    39        Defendants as to the Plaintiffs' alleged malice in relation
    40        to the counterclaim.  There may be some documents that are
    41        relevant and ought to be discovered in relation to that,
    42        but that would have to wait, in our view, the Defendants
    43        providing for us further and better particulars of their
    44        reply to our Defence to Counterclaim.  That is the second
    45        application, my Lord.  At the moment the position would be
    46        the same there.  We would simply do a list and if the
    47        documents were privileged we would claim it in the normal
    48        way.
    49
    50   MR. JUSTICE BELL:  Can I understand, as I read it (a) deals with 
    51        publication. 
    52 
    53   MR. ATKINSON:   Yes, my Lord, the counterclaim with the defence
    54        of justification.
    55
    56   MR. JUSTICE BELL:  It is only in relation to publication of the
    57        various items you have put under the Roman numerals or
    58        little numbers in brackets?
    59
    60   MR. ATKINSON:   Yes.

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