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DISCOVERY



Discovery means to compel the opposite party to disclose what he has in his possession or power.  How do you compel them?
There are two types of discovery:
1     Discovery of Facts
2     Discovery of Documents.
Discovery of Facts is done by way of interrogatories.  Interrogatories mean to question or inquire.  You issue a list of interrogatories to the opponents.  Interrogatories can only be issued with leave of the court.  It is important to know the purpose of interrogatories which is twofold
(A)       So that you can know the nature of the case of the opponent;
(B)         To elicit facts that support your own case – you can do it directly obtaining admissions or by impeaching or destroying the case of the opponent.

GENERAL RULES RELATING TO DISCOVERY BY INTERROGATORIES


1.         You can only issue interrogatories with leave of the court;
2.         Interrogatories may be administered in writing only;
3.         The proposed interrogatories should be submitted to the court and served with the sermons.
4.         You can only deliver one list of interrogatories for every order of leave sought. You have to seek the leave of the court each time for each new list of interrogatories.
5.         Interrogatories must be on questions of fact only and not on conclusions of law.
6.         In proceedings where the government is a party and you issue interrogatories then the Applicant must state the officer who should answer the questions.
7.         If you serve a corporation with a list of interrogatories, then you must also specify the officer whom you want to answer those questions
8.         Interrogatories and the Affidavit in answer to the interrogatory must be in the prescribed form
9.         When the courts grant leave to issue interrogatories it will normally state the time period within which they must be answered.  If you do not answer to interrogatories you will be held as if you were in default.

HOW COURT EXERCISES DISCRETION TO ALLOW OR DISALLOW INTERROGATORIES
The General Rule is that the court will always allow interrogatories, which will assist in the Administration, and dispensation of justice and also those that will shorten litigation, save expenses and time.  The court will also only allow interrogatories that are relevant to the matters in issue.
Examples of cases where court has allowed interrogatories.

Model Farm Dairies Case

This was an action for allegedly supplying infected milk and the question posed in the interrogatories was “to the best of your knowledge, were you a carrier of the typhoid germ in the material year?  Here the court held that that was relevant because it was directly asking about the issue coz the milk was actually infected.

NASH CASE.

An action for enforcement of security.  The defence of the defendant was that the plaintiff was an unregistered money lender and the list of interrogatories issued to the Plaintiff were to the effect that the money lender give a list of all the people he had lent money, the amount lent, the security given and the interest charged.  The Plaintiff challenged that they did not want to answer that question but the court held that the interrogatory was held except the court modified and said that they were not supposed to give the name of the borrowers.

Turner v. Goulden

This was an action against a valuer for negligence and the interrogatory sought to know the basis of the valuation.  The valuer challenged that he should not be made to answer that question but the court held that it was relevant and it was allowed.

Lowe v. Goodman

This was an action for false imprisonment and malicious prosecution and the question sought to be asked was what was the information that you received that caused the arrest and prosecution.  The court held here that it was relevant.

INTERROGATORIES THAT ARE NOT ALLOWED

1.            Interrogatories that seek facts that are confidential and privileged are not allowed.
2.            Facts that are injurious to public safety and security;
3.            Facts that are scandalous, irrelevant and lack bona fide;
4.            Interrogatories which are really in the nature of cross examination;
5.            Interrogatories on questions of law;
6.            Interrogatories, which are fishing in nature.
7.            Interrogatories that are administered unreasonably that are vexatious and oppressive.

Read Examples of case where interrogatories have been disallowed
1.            Kennedy Case
2.            Heaton Case
3.            Oppenhein Case  - interrogatories were way too many;
4.            Lord Hunting Field Case;
5.            Rofe Case

 
 
 

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