Day 082 - 01 Feb 95 - Page 06

     
     1        on discovery?  There are really two points.  The first is
     2        this:  I would welcome some assistance on what the word
     3        "power" means and covers in order 24 which is the order
     4        which deals with discovery of documents and uses the words
     5        "possession, custody and power".
     6
     7   MR. MORRIS:  Right.
     8
     9   MR. JUSTICE BELL:  It may be that Mr. Rampton will be able to
    10        give me help on that by reference to authority, but you
    11        have to be prepared because I have not reached a conclusion
    12        yet on whether a document is within the power of a party in
    13        a situation where that party can ask for it for someone
    14        else and expect his request to be met.  Do you understand?
    15        It is a pretty basic point and I probably need some help on
    16        that.  So, that is the first point.
    17
    18        The second point is this:  By and large, when we have been
    19        discussing discovery in the past, we have treated discovery
    20        as if it did not just mean one party telling the other side
         what documents were or had been in his possession, custody
    22        or power, whether by list or affidavit, but also as if
    23        discovery treated production of those documents for
    24        inspection.  In fact, they are two different
    25        considerations, if you read the relevant rules.  You need
    26        not stand up.
    27
    28        I have, so far as I am aware, dealt both with relevance and
    29        whether the production of the documents is necessary for
    30        the fair disposal of the case or the saving of costs when
    31        the issue has arisen.  But discovery, that is, providing
    32        you with information as to whether McDonald's do have or
    33        ever have had the documents is one consideration and
    34        production for inspection is another, if you read the
    35        rules.
    36
    37        In fact, there is a decision of the Court of Appeal.
    38        I would be grateful if Mr. Rampton in due course would tell
    39        me whether anything has been said since which casts doubt
    40        on it, it is called Dolling-Baker v. Merrett and Another.
         It is reported at 1990 1 WLR, page 1205.
    42
    43   MR. RAMPTON:  My Lord, is that 1990 volume I?
    44
    45   MR. JUSTICE BELL:  Yes.
    46
    47   MR. RAMPTON:  There is a recent authority, just the other day;
    48        whether it adds anything to the Dolling-Baker case, I do
    49        not know.
    50 
    51   MR. JUSTICE BELL:  I am afraid I have not made a copy for you, 
    52        Mr. Rampton, because I thought by the time we got to this 
    53        you would have refreshed your memory of it anyway.
    54
    55   MR. RAMPTON:  My Lord, I will or Mr. Atkinson will.  My Lord, is
    56        this for the Defendants?
    57
    58   MR. JUSTICE BELL:  Yes, if you could hand that.  It is just one
    59        copy.  (Same handed)
    60