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To obtain pre-trial non-party disclosure pursuant to these exceptions, the plaintiff has
to meet the peculiar requirements of each category, there being no general jurisdiction
to order such disclosure.
In contrast, there is a general power to compel the attendance of non-party witnesses
to produce specific documents at the trial by having the court issue a subpoena duces
tecum ordering such attendance. Should it not be possible generally to obtain
disclosure of such documents before the trial
Judicial opinion has been much in favour of permitting such disclosure. Thus, in
O'Sullivan v Herdmans Ltd [1987] 1 WLR 1047 at 1056, Lord Mackay (with whom
the other members of the House of Lords agreed) pointed to the unsatisfactory aspects
of having to wait until the relevant witness could be called to answer his subpoena
duces tecum and to the merits of allowing the parties access to the document
beforehand :-
"To force the defendants to refuse to deploy their full position in cross-examination until the
stage is reached at which these documents would be available to them under a subpoena
duces tecum would not be in any way in the interests of justice. Further the early production
of these documents may well affect the course of the litigation before the trial. It may lead
the defendants to consider a settlement of the action and it certainly will enable the medical
advisers and the legal advisers of the defendants to appreciate the real issues in the case when
they are preparing for trial. The interests of justice are, in my opinion, served by the
promotion of settlements rather than the prolongation of litigation and by the possibility of
early, complete preparation for both parties to a trial rather than by obliging one party to
delay its full preparation until after the trial has actually started."
However, under the rules as they stand, a subpoena duces tecum must be issued in one
of two prescribed forms.
These forms require the witness to attend and bring the
documents for production "on the day fixed for the trial" or on the day fixed for giving
evidence. There is no provision for an earlier return date and so no obligation to
attend in advance of the trial.
Notes
O 38 r 14, requiring use of Forms 28 or 29 in Appendix A.
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