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.
