I need to make discovery

Discovery is the process where the person starting the case and the person defending the case share all the documents that are relevant to the case with each other.

This step of the court process is compulsory. This means both sides will need to hand over information and evidence about the case so all parties will know what they are facing at trial. Providing each other with documents may also help the parties reach an agreement or remove some of the issues in the case.

Order 29 of the County Court Civil Procedure Rules 2018 sets out the rules that you will need to follow to make discovery.

Affidavit of documents

The process of discovery involves making a list of the relevant documents that you, or the other side, may want to use as evidence. This is called an affidavit of documents.

The County Court Civil Procedure Rules 2018 requires an affidavit of documents to be prepared on form 29B. An affidavit of documents is a list of all documents which are, or have been, in the hands of a party and are relevant to any of the issues in the case. Anything that is relevant to the case will need to be listed.

Inspection

The parties will ask to see or obtain a copy of some or all of the documents listed in the affidavit of documents. To do this, you should serve notice to produce form 29C on the other party that lists the documents you want to access. At this stage, access to the documents should be provided unless there is a legitimate reason to object.

Consequences for failing to participate in discovery

There can be serious consequences if you do not make discovery. Under the County Court Civil Procedure Rules 2018 it is possible that you may lose the right to continue your case if you do not comply with an order for discovery.

Subsequent documents

Both parties will need to continue this process of sharing documents throughout the life of the case. Any new documents that are relevant to the case must be shared with the other party. Even if the discovery process has already happened.

Generally, the parties will not be allowed to use a document if they have not shared the document with the other party before the trial.

The information on this page relates to proceedings in the Commercial or Common Law Divisions. If your matter is in the Criminal Division, visit our Criminal Division page.

For an explanation of common legal terms and phrases, please see our glossary.

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Page last updated: 28 November 2018