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(a)
Pre-action disclosure
(i)
The present position
The law is generally cautious about ordering disclosure of documents by someone
who is merely a potential defendant to an action which has not yet been commenced.
A plaintiff is expected to know what case he has against a defendant before he starts
the proceedings. The discovery he gets is bounded by the pleaded issues. He is not
permitted to "fish" for a case by first getting a potential defendant to disclose
documents so that he can see if he has a viable claim. If orders for pre-action
disclosures were too readily available, persons and corporations might find themselves
harassed by fishing applications. On the other hand, it is undoubtedly true that in
some cases, a plaintiff with a potentially meritorious claim may be shut out from
asserting it in a sustainable form without pre-action disclosure of key documents.
Section 41 of the HCO presently provides for pre-action disclosure in cases where the
plaintiff is suing for personal injury or in respect of someone's death. The section
gives the court power to order disclosure and production of documents to the applicant
(and his expert and professional advisers) where:-
(a)
the applicant appears likely to be a party to subsequent proceedings in which a
claim in respect of a personal injury or death will be made;
(b)
the person against whom the order is sought is likely to be made a party to such
proceedings; and,
(c)
that potential defendant is likely to have or to have had in his possession,
custody or power documents relevant to that claim.
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