Discovery (as it is still known in Jersey) is arguably the most important stage in the court process whereby each party to a dispute is required to disclose to all other parties all those documents which are relevant to the proceedings and which they have in their "possession, custody or power". In Jersey, the principle which underpins this process is that a party's litigation is conducted in a "cards on the table" manner so that neither party is able to take their opponent by surprise when the matter comes to trial.
After pleadings have closed, the court will set a timetable for disclosure and will direct that each party will list the documents which are or have been in their "possession, custody or power". Under Rule 6/17(1) of the Royal Court Rules 2004, the court may order "any party to any proceedings to furnish any other party with a list of the documents which are or have been in his or her possession, custody or power relating to any matter in question in the cause or matter and to verify such list by affidavit". The obligation in Jersey is somewhat wider than the position under Part. 31 of the Civil Procedure Rules whereby under standard disclosure a party is required to disclose only:
1. the documents on which he relies; and
2. the documents which
- adversely affect his own case;
- adversely affect another party's case; or
- support another party's case; and
3. the documents which he is required to disclose by a relevant practice direction.
It is worth nothing that in Jersey, the definition of documents is extremely wide-ranging and includes not only hard copy documentation such as letters, faxes, etc., but also anything on which information is recorded e.g. compact discs, USB drives, video or a computer's hard drive.
There will always be concerns by the parties as to which documents are deemed to be relevant for the discovery process and whether a party has a good reason not to produce a document. The test for relevance is that as laid down in Victor Hanby Associates Ltd. v. Oliver  JLR 337 which states that:
"the material sought had to relate to matters pleaded in the forthcoming action, and the test was satisfied if the documents contained information which may - not which must - have enabled the party requiring disclosure to advance his case or to damage that of his adversary".
It should be noted that a client is required to produce documentation which is adverse to his own arguments, but it is important to remember that the Advocate has a further duty to the court, namely to ensure that no relevant document has been withheld from disclosure. In the recent case of Alhamrani v. Alhamrani  JRC 090, the court made it clear that:
"...the principal role and obligation of any solicitors and advocates ... is to do their best to ensure that those engaged in the primary document-gathering exercise have an understanding of what it is that they are supposed to be looking for and of the nature and extent of the obligation on a party to make discovery of documents; to satisfy themselves as best they can that the ensuing exercise is carried out effectively (which, to some extent, will depend on the nature and extent of the client's organisation); to bring a critical eye to the assessment of the materials with which they are supplied for the purpose of discovery; and to be astute to detect whether there appear to be other potentially discoverable documents or classes of document that may exist but have not yet been located or produced to them by their client".
If a party believes the disclosure provided is incomplete it can apply to the court for an order for specific discovery. It must make out a prima facie case that a party has not complied with the original discovery order and that they have failed to produce relevant documentation which is in their possession (as per the rule laid down in Trustcorp v. Barclays Bank  JLR n24). If the court is satisfied that there has been a breach of the original order then the court will go on to decide whether an order for specific discovery is necessary for the fair disposal of the case.
Discovery is possible against a non-party to the litigation, but it is available in only the rarest of circumstances, the exception being that discovery is the only means of obtaining the necessary information to proceed against a wrongdoer whose acts were facilitated by a non-party. The leading on the authority in this area is IBL Limited v. Planet Financial and Legal Services Limited  JLR 294 which stated that:
"...as a general rule no independent action for discovery would lie against a person against whom no reasonable cause of action could be alleged or who could be called as a mere witness in the substantive trial; the rule did not apply where (a) without discovery of the information in the possession of the person against whom discovery was sought no action could be begun against a wrongdoer; and (b) such person had himself, albeit innocently, been involved in the acts of the wrongdoer so as to facilitate them. In such circumstances, although he might have incurred no personal liability, he was under a duty to assist the person who had been wronged by giving him full information and disclosing the identity of the wrongdoer".
This was tested in the recent case of Macdoel Investments Ltd v. The Federal Republic of Brazil  JLR 201 where the Appellants argued that since the identity of the wrongdoer was known, that the kind of relief envisaged in IBL v. Planet was not available to the Plaintiff. The Court of Appeal held however that their power to make a Norwich Pharmacal order was not restricted to certain "types of case" and that the "determinative question in an individual case would be whether justice required the requested disclosure to be ordered".
The obligation for discovery does not stop with the exchange of lists and continues throughout the proceedings and if further documentation comes to light at any stage during the proceedings they must be disclosed to the other party. Ultimately however, it is the court who retains a discretion whether or not to order a party to make disclosure and whether it is required in the interests of justice.
This article first appeared in the autumn 2008 issue of Appleby Jersey's Resolution newsletter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.