13.—(1) The Court may, at any time, on the application of any party to any proceedings (called in this rule the applicant), make an order requiring any other party (called in this rule the respondent) to make an affidavit stating whether any document specified or described in the application, or any class of documents so specified or described —
(a)
is or has at any time been in the respondent’s possession, custody or power; and
(b)
if not in the respondent’s possession, custody or power, when the respondent parted with it and what has become of it.
(2) Upon making an order under paragraph (1), if a document or class of documents is stated by the respondent in the respondent’s affidavit to be in the respondent’s possession, custody or power, the Court may order the respondent to exhibit a copy of the document, or a copy of each document in the class of documents, in the affidavit.
(3) An application for an order under this rule must be made by summons in Form 24 and be supported by an affidavit stating the belief of the deponent that —
(a)
the respondent has, or at some time had, in the respondent’s possession, custody or power, the document or class of documents specified or described in the application; and
(b)
the document mentioned in sub-paragraph (a), or a document in the class of documents mentioned in sub-paragraph (a), falls within one of the following descriptions:
(i)
a document on which a party relies or will rely;
(ii)
a document that could —
(A)
adversely affect a party’s case; or
(B)
support a party’s case;
(iii)
a document that may lead the applicant to a train of inquiry, resulting in the applicant obtaining information that may —
(A)
adversely affect a party’s case; or
(B)
support a party’s case.
(4) Before an application under paragraph (1) is filed, the applicant must serve a written request in Form 25 on the respondent —
(a)
seeking discovery of the document or class of documents mentioned in paragraph (1); and
(b)
setting out, in respect of each such document or class of documents, the reasons for requesting for discovery.
(5) The respondent must serve a notice in Form 26 within 14 days after the respondent is served with the written request, stating —
(a)
the document or class of documents the respondent is willing to provide discovery of, and in what mode the respondent is willing to provide such discovery; and
(b)
the document or class of documents the respondent is not willing or not able to provide discovery of.
(6) Unless otherwise agreed by the parties, the document or class of documents mentioned in paragraph (5)(a) must be provided or made available to the applicant within 28 days after the date the respondent is served with the written request.
(7) No application may be made under paragraph (1) unless —
(a)
the time specified in paragraph (5) for serving the notice has elapsed, and the respondent has not served the notice;
(b)
the time specified in paragraph (6) for providing or making available the document or class of documents mentioned in paragraph (5)(a) has elapsed, and the respondent has not provided or made available the document or class of documents; or
(c)
the respondent has stated that the respondent is not willing or not able to provide discovery of any document or class of documents specified in the written request.
(8) In deciding whether to grant an order under paragraph (1), the Court must take into account —
(a)
the extent of discovery that the respondent has stated that the respondent is willing to provide under paragraph (5)(a); and
(b)
any offer made by the respondent to give particulars or make admissions relating to any matter in question.
(9) The Court must not make an order under paragraph (1) if, and so far as the Court is of the opinion that, the discovery is not necessary either for disposing fairly of the matter or for saving costs.
(10) The Court must not make an order under paragraph (1) against the respondent before the respondent has filed the respondent’s affidavit of evidence-in-chief, unless in the opinion of the Court there are exceptional circumstances necessitating the making of the order.