Rules of Court 2021

Status:

Published in Subsidiary Legislation Supplement
on 01 Dec 2021

ORDER 11

PRODUCTION OF DOCUMENTS

Scope of Order and Court’s power (O. 11, r. 1)

1.—(1) This Order sets out the basic requirements of the parties’ obligations to produce and exchange documents and does not affect —

(a)	any agreement that the parties or any set of parties may make to broaden the scope of such obligations; or
(b)	the Court’s power to allow a broader scope of discovery where it is in the interests of justice to do so.

(2) In exercising its power in this Order, the Court must bear in mind, in addition to the Ideals, the following principles:

(a)	that a claimant is to sue and proceed on the strength of the claimant’s case and not on the weakness of the defendant’s case;
(b)	that a party who sues or is sued in court does not thereby give up the party’s right to privacy and confidentiality in the party’s documents and communications.

(3) The Court may allow a broader scope of discovery where the Court determines that it is in the interests of justice to do so.

(4) It will be in the interests of justice to allow such broader scope of discovery where it could aid in disposing fairly of the proceedings.

(5) Where there is an application for a broader scope of discovery, paragraph (2) does not apply and the Court must have regard only to the Ideals and to paragraph (4).

Order for production (O. 11, r. 2)

2.—(1) The Court may, at a case conference, order that the parties in an action must within 14 days after the date of the case conference, exchange a list of and a copy of all documents in their possession or control, which fall within one or more of the following categories:

(a)

all documents that the party in question will be relying on;

(b)

all known adverse documents;

(c)

where applicable, documents that fall within a broader scope of discovery —

(i)	as may be agreed between the parties or any set of parties; or
(ii)	as ordered by the Court.

(2) In this Order, “known adverse documents” includes documents which a party ought reasonably to know are adverse to the party’s case.

(3) A copy of any document may be in paper form or, if in an electronic form, in a common electronic format that the other party can use.

(4) To comply with an order made by the Court under paragraph (1), it is not necessary for the parties to exchange documents common to them that are in their possession or control to avoid duplication and to save costs.

(5) The parties may not rely on any document that was not exchanged or produced under this Order.

Production of requested documents (O. 11, r. 3)

3.—(1) The Court may order any party to produce the original or a copy of a specific document or class of documents (called the requested documents) in the party’s possession or control, if the requesting party —

(a)	properly identifies the requested documents; and
(b)	shows that the requested documents are material to the issues in the case.

(2) If the requested documents are not in the party’s possession or control, the Court may order that party to file an affidavit stating this, as well as whether that party had such possession or control previously and if so, when that party parted with possession or control and what has become of the requested documents.

(3) Except in a special case, if the Court orders the parties to file and serve affidavits of evidence in chief of witnesses after pleadings have been filed and served but before any exchange of documents, the Court must not exercise its power under this Rule before the parties comply with the Court’s order.

Court’s power to order production of documents (O. 11, r. 4)

4. Subject to Rules 5, 8 and 9, the Court may, of its own accord and at any time, order any party or non‑party to produce a copy of any document that is in the person’s possession or control.

No order for production of certain documents (O. 11, r. 5)

5.—(1) Except in a special case, the Court must not order production of any document that merely leads a party on a train of inquiry to other documents.

(2) The Court must not order the production of any document that is part of a party’s private or internal correspondence, whether in paper form or in an electronic format (including electronic mail, short message service or any instant messaging service), wherever such correspondence may be stored unless —

(a)	it is a special case; or
(b)	such correspondence are known adverse documents.

(3) Subject to any written law, the Court must not order the production of any document which is subject to any privilege or where its production would be contrary to the public interest.

Continuing duty to produce (O. 11, r. 6)

6. Where the Court makes an order under Rule 2, 3 or 4, the party required to produce the documents remains under a duty to produce any of those documents within 14 days after that document comes into the party’s possession or control at any time in the course of the proceedings.

Non‑compliance with production order (O. 11, r. 7)

7. If any party fails to comply with any order made by the Court under this Order, the Court may —

(a)	order that the action be dismissed or that the defence be struck out and judgment be entered accordingly;
(b)	draw an adverse inference or make any such order as the Court deems fit;
(c)	punish that party for contempt of court if the order has been served on that party’s solicitor, but it is open to that party to show that that party was not notified or did not know about the order; or
(d)	order that that party may not rely on any document that is within the scope of the order unless the Court approves.

Privileged documents (O. 11, r. 8)

8.—(1) A document which was at any time subject to any privilege must not be relied on unless the party entitled to the privilege consents or the Court approves.

(2) Such a document does not lose its privilege or confidentiality even if it was disclosed or taken inadvertently or unlawfully by anyone.

Confidential documents (O. 11, r. 9)

9.—(1) A party who is required by any order made by the Court under this Order to produce documents may not withhold or object to the production of any document on the ground that the document is confidential.

(2) A confidential document does not lose its confidentiality even if it was disclosed or taken inadvertently or unlawfully by anyone.

Use of documents in other proceedings (O. 11, r. 10)

10.—(1) Any document produced under this Order or by compulsion of law in the court proceedings must not be relied on in other proceedings by the other parties or non‑parties unless the party who produced the document consents or the Court otherwise approves.

(2) The party who used or produced any document in a case may apply to the Court to prohibit the use of such documents for any purpose other than for that case.

Production before action or against non‑parties (O. 11, r. 11)

11.—(1) The Court may order the production of documents and information before the commencement of proceedings or against a non‑party to identify possible parties to any proceedings, to enable a party to trace the party’s property or for any other lawful purpose, in the interests of justice.

(2) The Court must not order a document to be produced if its production cannot be compelled in law.

(3) A non‑party is entitled to all reasonable costs arising out of such an application.

Inspection of original of document produced (O. 11, r. 12)

12.—(1) If a party requests to inspect the original of any document produced, the party who produced the document must arrange a mutually convenient time and place for the inspection to take place.

(2) Such inspection must take place within 14 days after the request unless the parties otherwise agree.

(3) If the party who produced the document fails to comply with paragraph (1) or (2), the requesting party may apply to the Court to compel that party to do so.

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