Implied Undertaking impliedly undertakes to the court that he will not use th

Implied undertaking impliedly undertakes to the court

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Implied Undertaking “… impliedly undertakes to the court that he will not use th em…for a collateral or ulterior purpose without the leave of the court or consent of the party providing such discovery” . To encourage full and proper discovery; and . To balance against the already very serious invasion of the privacy of a party required to give discovery . Test: where the use of the information is “not reasonably ne cessary for the proper conduct of the action” . Circumstances when implied undertakings do not apply 2. Restrictions imposed by Court Order
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O. SOLICITOR’S DUTIES A solicitor:- (1) has a duty to his client, as well as to the Court, as an officer of the Court (2) should explain the duty and nature of discovery an d the implied undertaking to his client (3) should advise his client not to destroy or withhold disclosable documents (4) should ensure that full and proper disclosure of all relevant document is made (5) has a continuing duty on discovery
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P. NON-COMPLIANCE OF DISCOVERY OBLIG ATIONS 1. If a deficient list is served – apply for further and better List O24 r 3(1) and (2), 5(3) RHC and RDC 2. If some documents are missing – apply for specific discovery O24 r7(1) and (3) RHC and RDC 3. If no list has been served – apply for general discovery O24 r3 (1), RHC and RDC 4. If a party generally failed to comply with an order for discovery: (a) apply for an “unless order” (b) apply to dismiss action or strike out defence O24 r16(1) (exceptio nal) (c) party/solicitor liable for committal [O24 r16(2) & (4)] (rare)
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Pre-action Discovery Against person likely to be a party to a subsequent proceedings S.41(1) HCO S.47B(1) DCO O24 r7A(1) Against non- party - Norwich Pharmacal Discovery C. Main Types of Discovery For Actions Begun by Writ Post Action Discovery Against non- parties S.42(1) HCO S.47B(2) DCO O24 r7A(2) Against parties General or Automatic Discovery O24 r1 Discover y by Order of Court Document s Referred to in Pleadings Affirmatio n etc O24 r10 Others, e.g. - Runnin g down action - Person al injurie s action - Third party procee dings Order for General Discovery O24 r3(1) Order for Specific Discover y O24 r7(1) & (3) Order for Further & Better List of Document s O24 r3(1)& (3)
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II. INTERROGATORIES
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INTERROGATORIES? 1. A way of discovering facts (as oppose d to documents) 2. Written questions served on the other party, regarding facts which are within th e other party’s knowledge and which are relevant to the dispute. 3. Answering party is required to give an swers on oath
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O26 RHC AND RDC “(1) A party to any cause or matter may in a ccordance with the following provisions of th is Order serve on any other party interrogato ries relating to any matter in question betwe en the applicant and that other party in the cause or matter which are necessary either- (a)for disposing fairly of the case or matter; or (b)for saving costs.” =>Interrogatories must (i) relate to a matter in question (ii) be necessary either for disposing fairly of th e case or matter or for saving costs
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DIFFERENT RULES IN CFI AND DC CFI: Interrogatories may be served on a party t wice, without order
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  • Spring '16
  • Complaint, Pleading, High Court of Justice, Discovery

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