ROYAL COURT OF
The purpose of this practice direction
is to provide guidance to parties on how to approach the obligation to produce
documents relevant to a dispute in the Royal Court. This process is known as
discovery process has two stages, discovery (when relevant documents are
identified) and "inspection" (when those documents or copies of them
are made available to the other parties). Attention is also drawn to Practice
Direction RC 17/08, Discovery of Documents held in Electronic Form, which
should be read together with this practice direction.
This practice direction applies where
discovery is required by the procedural rules of the Royal Court or where the
Court orders discovery in respect of any proceedings before it. It does not apply to any application for
documents to be processed or disclosed by an injunction order, or where the application
is for a legal entity to produce documents.
As soon as a party is aware that
litigation is contemplated, that party must immediately take all reasonable
steps to ensure that potentially discoverable documents are preserved.
As soon as a party retains a legal
representative, that legal representative must inform its client of the need to
preserve all potentially discoverable documents.
The party and its legal advisers in
either case shall take all reasonable steps to ensure that no potentially discoverable
document is destroyed pursuant to any document retention policy or otherwise in
the ordinary course of business.
Where an order for discovery is made it
is the duty of all parties to ensure that a party identifies all relevant
which it has or used to have in its
where it has or has had a right to
possession of the document;
where it has or has had a right to
inspect or take copies of a document; or
where it has the right to compel someone
else to provide a document to that party.
A "document" for these purposes
includes any medium by which information is recorded and is retrievable. So, for example, while written letters
or hardcopy documents are documents, so also are photographs, emails,
spreadsheets and other electronic files.
Relevance is usually determined by the
issues identified in the written pleadings of the parties. If a document is relevant it must be
produced whether or not it assists a party’s case.
The starting point is that the discovery
obligation is absolute and extends to all relevant documents falling within
paragraphs 6 to 8 above. However,
the obligation to provide documents may be dispensed with or limited by the
Court or by the written agreement of the parties. Any written agreement of the parties
must be produced to the Court and is subject to Court approval.
In giving discovery, a party is required
to make a reasonable search for documents.
What is meant by reasonable is determined having regard to:-
The overriding objective;
The number of documents involved;
The nature and complexity of the
The ease of retrieval of any particular
The significance of any document which
may be located during the search;
The likely expense of carrying out any
The factors set out in paragraph 10 will
also be taken into account in deciding whether or not to limit discovery.
In providing discovery a party need not
disclose more than one copy of a document where any copy only contains
identical relevant information. A
copy of a document that contains a modification, obliteration or other marking
or feature relevant to any issue in dispute shall be disclosed as a separate
The form of each party’s list of
documents shall be in accordance with the specimen list attached as Appendix 1.
The list must identify the documents in
a convenient order. Normally
documents should be
in date order,
numbered consecutively and
Documents may be disclosed in bundles in
a list provided the following practice is adhered to:-
the bundles must be documents of the
same nature (e.g. invoices, bank statements);
the documents within a bundle must be
the nature of the documents within a
bundle must be concisely defined;
the date range of the documents within
each bundle must be stated.
The list must set out the basis of any
claim not to disclose documents identifying
The category of ‘privilege’ claimed i.e. any reason relied upon in
support of an assertion that documents should not be disclosed,
all grounds in support of such a claim;
all documents or categories of documents
to which the claim to privilege
Where more than one basis of a claim to
privilege is relied upon the list must identify separately each claim and the
information required by paragraph 16 of this practice direction.
If a party claims that inspection of any
document should not be permitted or copies should not be provided, the list of
documents must set out the reasons why.
The affidavit verifying the list of
documents must include a statement setting out the extent of the search that
has been carried out to locate documents.
Where the person swearing the affidavit is
not the advocate with overall responsibility for the case or for the discovery
process, the affidavit must contain a written endorsement from the advocate
with overall responsibility for either the case or for the discovery process,
that the advocate concerned is satisfied that his or her client’s discovery
obligations have been met.
The obligation of discovery continues
until the proceedings come to an end.
After a party has prepared and served a list of documents, if the
existence of further documents comes to the attention of that party, a
supplemental list verified by affidavit must be served as soon as possible.
The parties may agree in writing or the
Court may direct that discovery or inspection or both may take place in stages.
Where a party wishes to inspect a document
that party must give the party who has given discovery written notice of his
wish to inspect. Inspection should
be permitted within 7 days after the date upon which the party who made discovery
received a notice to inspect unless the Court orders otherwise.
A party may also request a copy of any
document discovered, provided that party meets the reasonable copying costs.
Copies should be normally be provided within 7 days. The parties may agree for copies to be
provided electronically provided that the relevant requirements of the practice
direction in relation to electronic discovery are adhered to.
party who obtains discovery from any other party is taken to have undertaken to
the Royal Court and to all other parties only use the documents disclosed to
him for the purpose of conducting his own case and not for any other purpose. An order of the Court is required to depart
from this undertaking in order to use documents for any other purpose. Any party
found to have misused documents obtained through the discovery process
may face adverse consequences or sanctions imposed by the Court including being
restrained by injunction
Direction shall come into force on 1st June 2017 and replaces Practice Direction RC 05/04
which is repealed
of Documents pursuant to an Order of the Court
as in action)
1. The following is a list of the documents of the [plaintiff/defendant]
relevant to the matters in question in this action
a. which the [plaintiff/defendant] has or used to
have in its physical possession;
the [plaintiff/defendant] has or has had a right to possession of the document;
the [plaintiff/defendant] has or has had a right to inspect or take copies of a
the [plaintiff/defendant] has the right to compel someone else to provide a
document to that party.
is served in compliance with the order herein dated the
[plaintiff/defendant] has in his physical possession, has a right to possession
of, has a right to inspect or take copies of or has the right to compel someone
else to provide to the [plaintiff/defendant] all the documents listed in
3. The [plaintiff/defendant] used
to have in his physical possession, used to have a right to possession of, used
to have a right to inspect or take copies of or used to have the right to
compel someone else to provide to the [plaintiff/defendant] all the documents
listed in Schedule 2.
4. The [plaintiff/defendant]
has also identified in schedule 2 the date or dates on which the [plaintiff/defendant]
either last had each of the documents or last had any right to each of the
5. The [plaintiff/
defendant]) objects to produce the documents listed in Schedule 3 on the ground
that (stating the grounds of objection).
Here list in a convenient order usually in
date order, all relevant documents in your physical possession, where you have
a right to possession of, or have a right to inspect or take copies of or have
the right to compel someone else to provide any the document(s) to you in each
case with a short description of each document or bundle sufficient to identify
Here list the relevant
documents you used to have or used to have a right to, also setting out when
you last had the document or a right to it and why you no longer have the
document or a right to it.
Here list those relevant documents or
categories of documents in your physical possession, where you have a right to
possession of, or have a right to inspect or take copies of or have the right
to compel someone else to provide any the document(s) to you where you object
to producing any document or category of documents.
You should also set
out the reason why you object to producing any document or category of
Dated the day of
, 20 .
NOTICE TO INSPECT
Take notice that the documents listed
Schedule 1 may be inspected at (the office of the advocate/solicitor of the
above-named (plaintiff) (defendant) (insert address) or as may be) on the day of ,
20 , between the hours
of and (or by mutual arrangement).
To the defendant, (plaintiff) C.D. and his
Served this day of
, 20 , by
, advocate/solicitor for the (plaintiff) (defendant).