CAN AN ENLARGED LAW OF DISCOVERY MAKE CIVIL TRIALS REDUNDANT?

Abstract

Discovery in England has provided the battleground for many a fierce contest of principle. Whether an order of discovery can be made against a third party (Norwich Pharmacal Case [1973] 2 All ER 943), whether such third party is obliged to divulge information imparted to him in confidence (British Steel v Granada Television [198I] i All ER 417), the extent to which public interest curbs discovery (Burmah Oil Case [1979] 3 All ER 700) are all instances of the importance and diversity of the issues that fall to be considered in discovery proceedings. There has also been in recent years an expansion of the instruments in aid of discovery, with the development of the Anton Piller order, enabling one party to seize and secure evidence in the hands of another, and the Mareva injunction, employed to obtain information as well as to prevent disappearance of funds. On the other hand, there have been moves to restrain the ambit of the use to which information obtained by discovery could be put (Home Office v Harman [1982] I All ER 532). It is a measure of the shortcomings of Mr J. B. Levine's Discovery (A comparison between English and American civil discovery law with reform proposals) (Clarendon Press, Oxford 1982) that the only mention of these matters is a brief reference to the first. One suspects that this is mainly due to the fact that discovery has been largely regarded as a technical procedural topic, of interest principally to the litigation solicitor and barrister, as bearing treatment only in the White Book or similar procedural manual but, otherwise, as of no general or profound interest. The reason for this dismissive outlook lies mainly in the failure to recognize the intimate connection between the purpose of the civil trial of fact and the procedures employed in the course of it, and in the resulting failure to appreciate that problems of the kind mentioned above are thrown up by this inevitable connection. True, our starting-point has to be the existence of some right of access to evidence, a right which may be regarded as akin to the constitutional right of access to the courts, for the value of the latter would be greatly diminished unless it was supported by facilities to obtain evidence and secure its availability at the trial. The more important facilities are the subpoenas ad testificandum and duces tecum, and the various processes of discovery, whether of documents or oral information. But these are only procedural instruments which the law makes available for achieving certain aims. In contrast, the length to which these procedures may be taken, that is to say the amount and type of information extractable and the extent of the classes of people from whom information may be