1. Black, R. QC, An Introduction to Written Pleading (1982) p. 16.Google Scholar

2. Civil Service Building Society MacDougall, v. 1988 SLT 687 at pp. 689–690, Ct of Session (Inner House, 2nd Division) per Lard Justice-Clerk Ross.Google Scholar

3. Maxwell, D., The Practice of the Court of Session (1980) p. 284.Google Scholar

4. Mclnalty v. John Wyeth & Brother Ltd, Court of Session (Outer House): Lexis Report, 30 April 1991.

5. Civil Jurisdiction and Judgements Act 1982, s. 28 in any proceedings brought or likely to be brought in another contracting State or England and Wales, or Northern Iceland, within the scope of the 1968 Brussels Convention, die Court of Session shall have the like power to make an order under 1972 s. 1 as if proceedings are brought in mat court Criminal Justice (Sc) Act 1987: s. 28(4) provides for discovery in relation to die reciprocal enforcement of English orders for the recovery of proceeds under The Drug Trafficking Offences Act 1986. Law Reform (MP)(Sc) Act 1985: s. 19 provides for die disclosure of names of would be witnesses or defenders in civil proceedings.

6. MacPhail, Sheriff LD., Evidence: Revised Version of a Research Paper on the Law of Evidence in Scotland (1987) 25.02.Google Scholar

7. British courts do not normally go behind the four cornets of an Act English courts will not use travaux preparatoires, such as parliamentary debates, reports of commissions and the like, as an aid to interpretation of a statute. See: Jowitt's Dictionary of English Law, 2nd edn. (1977) p. 1798;Google ScholarLexique de Termes Juridique, 8e édition (1990) p. 483:Google Scholar ‘Droit Constitutiormel, Travaux préparatoires: Ensemble des documents officiels (rapports des commissions spécialissées, procés-verbaux des défeats au sein des Assemblées, communiqu…) qui précedènt l'établissement de la règie de droit 7egrave;crit et qui permettent de mieux connaître la volontè du Pouvoir qui a posè la narme’.

8. Parliamentary Debates (HL Deb. Vol 329, col 219 – 220).Google Scholar Separate, and arguably concur-rent provision is made for the inspection of bankers' books by the Bankers' Books Evidence Act 1879, s.7.

9. MacPhail, , op. cit. n. 6.Google Scholar

10. Gibson v. British Insulated Callenders' Construction Co. Ltd. 1973 SLT 2 (HL), per Lord Diplock at p. 7.Google Scholar

11. Idem per Lord Kilbrandon at pp. 9 and 11.

12. Idem citing Lord President Cooper's ‘Selected Papers’ at p. 193.

13. Maxwell, , op. cit n. 3, at p. 284.Google Scholar

14. MacPhail, , op. cit. n. 6, at 25.05.Google Scholar

15. Boyle and Another v. Glasgow Royal Infirmary and Associated Hospitals 1969 SLT 137, 1969 S.C. 72 Ct of Session (1st Div.).Google Scholar

16. Moore v. Greater Glasgow Health Board 1979 SLT 42; 1978 S.C. 123 at p. 131Google Scholar, Ct of Session (1st Div.). Lord Cameron said that the effect of s. l(2)(a) is to ‘bring into operation at a stage prior to the lodging of the open record and subsequent to the commencement of proceedings the same mechanism which hitherto had only operated at the stage of adjustment’.

17. In Thorne v. Strathclyde Regional Council 1984 SLT 161 (Outer House)Google Scholar a petition for inspection of property was made under s. l(2)(b) of the 1972 Act (i.e., before proceedings had commenced). The ‘well-settled’ principles Of Moore were applied and the petition was granted even though the avernments in the petition were not yet formally tabled in a summons nor were there any formal defences.

18. MacPhail, L.D., Sheriff Court Practice (1988) p. 531.Google Scholar

19. Vast leeway to discover nearly everything there is to know about a case occurs in the USA; Rule 26(b)(l), Federal Rules of Civil Procedure, explains what is discoverable: ‘In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to die claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence’. Haydock, R.S. and Herr, D.F., Discovery: Theory, Practice and Problems (1983) p. 13.Google Scholar

20. Baxter v. Lothian Health Board 1976 SLT (Notes) 37, (Outer House).Google Scholar

21. McGown v. Erskine 1978 SLT (Notes) 4 (Outer House).Google ScholarMacPhaiL, Sheriff op. cit. n. 6, at 25.05Google Scholar prefers this view, considering that the purpose of the 1972 Act is to ‘abolish entirely the mystique of restricted recoverability’.

22. 1988 SLT 687, Ct of Session (Inner House, 2nd Div.).

23. Idem p. 698; 1972 Act s. 1(2).

24. Referring to Moore v. Greater Glasgow Health Board 1979 SLT 42; 1978 S.C. 123, Ct of Session (1st Div.).

25. Civil Service Building Society v. MacDougall supra n. 2 at p. 690 per Lard Justice-Clerk Ross.Google Scholar

26. See Parliament House Book: Court of Session, Rules of Court 1965, Ch. TJ. s. 7 and Sheriff Court Rules.

27. Fagan v. Fagan 1991 SLT (Sh. Ct) 2, referring to Rule of Court 264 (c).

28. Maxwell, , op. cit n. 3, at p. 289.Google Scholar

29. In the USA, the boundaries of discovery are wide and without definite parameters. Analogies are used instead: ‘The exactitude of discovery, the lawyer's tool for fact finding, prop-erly lies somewhere between die acuity of the surgeon's scalpel and the carpenter's hammer. Ideally, the lawyer probes for facts with the precision and delicacy of a cardiologist incising the aorta to receive a by-pass vehicle. Realistically, the lawyer's fact finding search shares a closer pro-pinquity with the carpenter's trade and pounds much more bluntly’: Roesberg v. Johns-Manville Corp., 28 Fed. R. Serv. 2d 1170,1183 (E.D. Pa, 1972).Google Scholar

30. See Yau v. Ogilvie and Co 1985 SLT 91 where recovery was restricted by the right of lien of the solicitor.Google Scholar

31. Santa Fe International Corporation v. Napier Shipping SA 1985 SLT 430 at 432.Google Scholar See Maher, G., ‘Professional Privilege’, JLSS (1990) pp. 108–112 and 138–142.Google Scholar

32. MacPhail, , op.cit n.6, at 25.21.Google Scholar

33. Forsyth v. Pringle Taylor & Lomond Lowson (1906) 14 SLT 658.Google Scholar

34. MacPhail, , op. cit n. 6, at 25.23.Google Scholar

35. Maxwell, , op. cit. n. 3, at p. vii.Google Scholar

36. Maguire, S., ed., Bar: Civil and Criminal Procedure Textbook, 13th edn. (1991) p. 58.Google Scholar

37. Wright, E.W., ‘Controlling Discovery Abuse: A Microcosm of Procedural Reform’, 66 Can. Bar Rev. (1987) p. 551 at p. 569.Google Scholar Cf., SirJacob, Jack, Supreme Court Practice (1979 edn.).Google Scholar

38. See CCR Ord. 14 for County Court rules. Discovery is not available in criminal cases: Re Skegness Magistrates' Court [1985] RTR 49.

39. Peruvian Guano Case (1882) 11 QBD 55 per Bowen LJ. For a more recent decision see: Drennan v. Brooke Marine (1983), The Times (20 June). Relevancy is very wide in the USA: the term relevant encompasses any matters ‘that bears on or that reasonably could lead to other matter that could bear on any issue that is or may be in the case’. Oppenheimer Fund Inc. v. Sanders 437 US 340,351 (1978).

40. Where discovery is automatic under Ord. 24 r. 2 or Ord. 25 r. 8, it should take place within 14 days of the close of pleadings, and inspection should occur within seven days thereafter but, as explained, the time limits are almost never complied with. The power to order discovery under Ord. 24 rr. 3 and 7 may be ordered at any stage of the action, and whether or not a party is obliged to give automatic discovery.

41. Rafidain Bank v.Agom Universal Sugar Trading Co. Ltd [1987] 3 All ER 859.

42. An agreement by the parties is implied into every High Court action that they will use documents disclosed on discovery only for die purposes of the action, and not for any other purpose; Home Office v. Harmon [1982] 2 WLR 338. Cf., Sybron v. Barclays Bank (1984)Google Scholar, The Times (9 March), where a plaintiff brought an action against former employees for breach of fiduciary duty, and on discovery letters were found which implicated other employees in the tort, and the court gave leave for such letters to be used in an action begun against those others even though, without discovery in the first action, there would have been no evidence against those others.

43. RHM v. Bovril [1982] 1 WLR 661, CA.

44. Elliott, D.W., Elliott and Phipson: Manual of the Law qf Evidence, 12th edn. (1987) p. 141. A party who obtains disclosure of documents by discovery may make no use of them except for the purposes of the action: Riddick v. Thames Board Mills [1977] QB 881 (CA), even if they notionally become public property after being read out in court: Home Office v. Harmon [1983] 1 AC 280 (HL).Google Scholar

45. Simpson, S., ‘Discovery Before Commencement of Pleadings’, 54 Australian LJ (1980) p. 205 at p. 207.Google Scholar

46. Idem.

47. See Darthez v. Lee (1836) 2 Y & C Ex. 5 at 13,14,160 E.R. 289; Wilmot v. McCabe (1831) 4 Sim. 263,58 E.R. 99.

48. Norwich Pharmacol Co. v. Customs and Excise Commissioners [1973] 2 All ER 943, [1974] AC 133, [1973] 3 WLR 164, [1974] RPC 101, per Lord Redd at pp. 947–948 (All ER).Google Scholar

49. Simpson, , loc. cit. n. 45, at p. 207.Google Scholar Story, Equity Pleading (1857) s. 311 states mat every bill for relief was in fact a bill of discovery, since it asked from the defendant an answer upon oath, as to all the matters charged in the bill and sought him a discovery of all such matters.

50. Simpson, , loc. cit. a. 45, at pp. 207–208.Google ScholarWigmore, , Evidence (1940) Vol. 6, p. 380.Google Scholar

51. Mayor and Commonality and Citizens of London v. Levy (1803) 8 Ves Jun 398, Obiter per Lord Eldon, at 411,32 ER 408.

52. See Plummer v. May (1750) 1 Ves. Sen. 426,27 ER 1121; Fenton v. Hughes (1802) 7 Ves. Jun.287,32 ER 117.

53. 1854,17 & 18 Vict. c. 125.

54. Norwich Pharmacol Co. v. Customs and Excise Commissioners, ibid., n. 48 supra.

55. Idem per Lard Redd at [1973] 2 All ER 943 at p. 948.

56. Maguire, , op. cit. n. 36, at p. 61.Google Scholar

57. Discovery under s. 33 is restricted, it will not be ordered of documents for which privilege is properly claimed by the defendant The court can also restrict disclosure to the plaintiff's legal, medical or other professional advisers, preventing the plaintiff from seeing mem; s. 33(2)(b). This latter point seems anomalous given the general protection afforded medical practitioners (medical mal-practice claims must meet a relatively stringent burden of proof).

58. Dunning v. United Liverpool Hospital [1973] 1 WLR 586.Google Scholar Applications are made under Ord. 24 r. 7A by Originating Summons supported by an affidavit setting out the grounds for believing bom mat he and the defendant will be parties to subsequent proceedings, and that the other party has relevant documents.

59. Maguire, , op. cit n. 36, at p. 59.Google Scholar In addition to a s. 33(1) application, application may be made for delivery up of goods pursuant to s. 4 of the Torts (Inference with Goods) Act 1977. See also: Rogers, D.G. Fletcher, Pre-Action Discovery (1991).Google Scholar

60. Shell Pensions Trust v. Pell Frischmann [1986] 2 All ER 911 QBD; Maguire, , op. cit a 36, at p. 65.Google Scholar

61. Smith, A. Hill,‘Using New Methods of Discovery’, NLJ (June 11,1981) p. 619.Google Scholar

62. Anton Pillar KG v. Manufacturing Processes Ltd and others [1976] Ch 5,1 All ER 779,2 WLR 162, RPC 719, FSR 129, CA.Google Scholar

63. EMI Ltd. v. Farwar [1977] FSR 146.Google Scholar The scope for such ancillary orders has been reduced in Rank Film Distributors Ltd. v. Video Information Centres [1981] 2 All ER 76, [1982] AC 380 (HL)Google Scholar where defendants were excused from answering questions which might tend to expose them to criminal prosecution for conspiracy and fraud. Orders similar to an Anton Pillar order have been made in Scotland: British Phonographic Industry Ltd v. Cohen et al. 1983 SLT 137Google Scholar under s. 1(1) Administration of Justice (Scotland) Act 1972. However, in certain proceedings relating to intellectual property, provision has been made for withdrawal of the privilege against self-incrimination. Thus these last two decisions have been reversed in effect by legislation in England (Supreme Court Act 1981 s. 72 and in Scotland by s. IS of the Law Reform (Miscellaneous Provisions (Scotland) Act 1985).

64. HillSmith, , loc. cit. n. 61 at p. 619.Google Scholar

65. [1980] 2 All ER 347 (QBD), [1980] 1 QB 756.

66. Arab Monetary Fund v. Hashim and others (17 February 1990) Chancery Div., Lexis Report.

67. (17 February 1990) Chancery Div., Lexis Report

68. British Steel Operations v. Granada Television [1981] 1 All ER 417.

69. In Bekhor v. Bilton [1981] 2 WLR 601 the Court essentially affirmed the right to make discovery orders on an application for a Mareva injunction.

70. White, R.B., The Art of Discovery (1990) p. 1.Google Scholar

71. Idem p. 7.

72. Friedenthal, J.H., ‘A Divided Supreme Court Adopts Discovery Amendments to the Federal Civil Procedure’, 69 California LR (1981) p. 806 at pp. 816 and 817.Google Scholar

73. Kalp (Toriel) v. Orus Construction Ltd. et al. (1978) 9 CPC 37 (Ontario HCJ).Google Scholar

74. Somers v. Kingsbury (1923) 54 OLR 166 at p. 170 (Ont. App. Div.), per Middleton, J.dissenting.Google Scholar See Wright, , loc. cit n. 37, at p. 571.Google Scholar

75. Malofy v. Andrew Merrilees Ltd. et al. (1982) 37 OR (2d) 711 (Ontario Div. Ct).Google Scholar

76. Armak Chemicals Ltd. v. Canadian National Railway Co et al. (1982) 37 OR (2d) 713 (Ontario HCJ).Google Scholar

77. Brazil, W.D., ‘Civil Discovery: Lawyers's Views of its Effectiveness, its Principal Problems and Abuses’, ABF Res. J. (1980) p. 789 at p. 848 (a Chicago study of 180 practitioners).Google Scholar

78. Glaser, W.A., Pretrial Discovery in the Adversary System (1968) p. 117.Google Scholar

79. In the USA, a deposition is a sworn statement made by a deponent before a notary or other officer authorized to administer oaths. The deponent may be a party or any person who has information. The deposition is usually conducted orally, the attorney who requested the deposition typically examining and cross-examining the deponent, with the opposing attorney in attendance. The questions and answers are usually transcribed and later prepared in transcript form. A deposition may be conducted using written questions submitted by the requesting attorney and read to the deponent by the officer. Interrogatories are written questions submitted to a party to be answered in writing under oath: Haydock, and Herr, , op. cit n. 19, at p. 12.Google Scholar

80. Wright, , loc. cit. n. 37, at pp. 562–563.Google Scholar

81. (1981) 34 BCLR 7,26 CPC 13 (BCSC).

82. Idem p. 12.

83. Idem pp. 10–11.

84. Alberta Rotes of Court, Rule 186(2). ‘Documents’ includes recordings of sound, photo-graphs, films, charts, graphs and all records of any kind, Rule 186(1).

85. Rule - Belt Ltd. v. Shenkmen Corp. Ltd. et al. (1977) 18 OR (2D) 276,4 CPC 256 (Ontario, Master).Google Scholar

86. Legal Education Society of Alberta (LESA), Alberta Bar Admission Course 1985–86, Civil Procedure, 1985, p. 140.Google Scholar

87. Wright, , loc. cit n. 37, at p. 566 m. 60.Google Scholar

88. Alberta Rules of Court, Rule 200 (or former employees who appear to have some knowled-ge of the matters on issue).

89. Ontario Rules of Court, Rule 31 — Examination for Discovery. See: Carthy, J.J., Millar, W.A. Derry and Cowan, J.G., The Ontario Annual Practice 1988/89 (1988).Google ScholarS.E. Lyons & Son Ltd. v. Nawoc Holdings Ltd. et al. (1978) 20 OR (2D) 234, 7 CPC 10 (Master) AFFD 23 OR (2D) 727 (HCJ).Google Scholar Where mere is no agreement between the parties as to the method by which undertakings should be answered, a party is entitled to require the witness to answer undertakings orally notwithstanding the delivery of a letter which provided answers to the undertakings.

90. Ontario Rules of Court, Rule 31.03(4).

91. Alberta Rules of Court, Rules 295, 703(3)(b).

92. Alberta Rules of Court, Rule 200(2)(3) provides for a limitation on the right to examine employees or former employees to prevent abuse. Nichols & Shepherd Co. v. Shedadunk [1912] 2 WWR 1002;Google ScholarHellafa v. Royal Bank [1940] 1 WWR 6 (Sask).Google Scholar

93. McGregor v. C.P.R. [1938] 3 DLR 687 (Alberta CA). City of Edmonton v. Jwrelek [1972] 2 WWR 561 (Alberta SC, Trial Division).

94. Scott Transport Ltd. v. Bondyetal. [1973] 2 OR 159 (HCJ).Google Scholar

95. Stepps Investment Ltd. v. Security Capital Corp. Ltd. (1973) 2 OR (2D) 648 (HCJ).Google Scholar

96. (1988) 57 ALR (2d) 15, [1988] 2 WWR 665 (Alta. QB).

97. However, the court seems to have relied upon the following passage from a earner decision in Pelican Oil & Gas Co. Ltd. v. Northern Alberta Natural Gas and Development Co. Ltd. [1918] 1 WWR 957 at p. 963Google Scholar (Alta. CA).‘… [I]f for any other reason it appears to be just and convenient, the Court or Judge may permit the whole or any part of the examination of such employee to be used in evidence’.

98. Skoye v. Baillie et al. [1971] 1 WWR 144 (Alberta CA per Johnson, JA at 145).

99. Idem

100. LESA supra a 86 at p. 155.

101. A LEXIS search in November 1991 covered all Session Cases and Scots Law Times reports since 1950, as well as all unreported Court of Session (Inner House since 1982 and Outer House since 1985) decisions. Only 65 cases were found mat mentioned the procedure (using the following parameter: Commission w/2 diligence w/4 recovery or specification documents). This raw figure suggests mat die procedure is little used.

102. For instance, in Boots The Chemist Ltd v. GA Estates Ltd. and Another 1991 Lexis Report, Court of Session (Outer House), die Court said that: ‘If the defenders had been anxious to discover the details of die pursuers's claim they could have done so by way of enrolling for commission and diligence for recovery of documents. They did not do so’.

103. Wright, , loc. cit. n. 37, at pp. 565–566Google Scholar citing Jolowicz, J.A., ‘Some 20th Century Develop-ments in Anglo-American Civil Procedure’, Studi in Onore di Enrico Tullio Liebman (1979) pp. 217,255, reprinted in 7 Anglo-American LR (1979) p. 163;Google ScholarZuckerman, A., ‘Can an Enlarged Law of Discovery Make Civil Trials Redundant?’, 4 Oxford J. Legal Studies (1984) p. 250.CrossRefGoogle Scholar

104. C.f., Kaplan, B., ‘An American Lawyer in die Queen's Courts: Impressions of English Civil Procedure’, 69 Michigan LR (1971) p. 821, at p. 828.CrossRefGoogle Scholar

105. Idem.