Day 147 - 04 Jul 95 - Page 07
1 volume 1.
2
3 MR. MORRIS: Have we got the right year?
4
5 MR. RAMPTON: Just be quiet a moment.
6
7 MR. JUSTICE BELL: It is the 1995 one, but very often the notes
8 keep the same references. So what you want is Order 32.
9
10 MR. RAMPTON: No, my Lord, I have made a mistake. It is
11 Order 59/1A I want, actually, where there is a list of, for
12 the Court of Appeal's purposes, at page 948, what is to be
13 regarded as a final judgment or order and what is to be
14 regarded as an interlocutory judgment or order.
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16 MR. JUSTICE BELL: Yes.
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18 MR. RAMPTON: 948, my Lord. This is the body of the rule. It
19 is not the notes. My Lord, it is worth looking, perhaps,
20 at subrule (5) on page 949:
21
22 "(a) an order for discovery of documents made in an action
23 for discovery only" is a final order; judicial review;
24 originating summons; winding up; nullity of marriage.
25
26 MR. JUSTICE BELL: Can you give me the reference again?
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28 MR. RAMPTON: Page 949, subrule (5) of Order 59, r.1A. As
29 I recall, this rule is of relatively recent origin, because
30 of confusion which existed in lawyers' minds about what was
31 to be regarded as interlocutory and what as final. If one
32 looks at (5), one sees a list of -----
33
34 MR. JUSTICE BELL: So you would say that an application for an
35 interlocutory order is an interlocutory application?
36
37 MR. RAMPTON: Yes, my Lord, particularly because of what is said
38 in subrule (6)(p):
39
40 "....the following judgments and orders shall be treated as
41 interlocutory -
42 (p) subject to paragraph (5)(a)" -- which is the one about
43 an action for discovery, which of course this is not -- "an
44 order for or relating to the discovery or inspection of
45 documents, including an order under Order 24, rule 7A(1)
46 for the disclosure of documents before the commencement of
47 proceedings."
48
49 By the use of the word "including", it means "not limited
50 to". So an application for discovery in the course of
51 proceedings which are not proceedings for discovery is an
52 interlocutory application.
53
54 My Lord, my understanding from my, as it were, childhood at
55 the bar, is that the broad distinction between
56 interlocutory and final in relation to a trial is that
57 everything in a sense which consists of what one might
58 called procedural applications like discovery,
59 interrogatories, further and better particulars and
60 pleadings, are interlocutory until the judge has made a
