Order 9 discovery is a process between parties. Where the documents are held by someone else, the National Court Rules 1983 offer two other routes.
Order 3 Rule 1
Where, on application by any person, it appears to the Court that —
(a) the applicant has a prima facie case for relief in proceedings against any person (“the person concerned”); and
(b) the applicant, having made reasonable inquiries, does not know the name, or does not know the description, of the person concerned, or is otherwise unable to identify the person concerned sufficiently for the purpose of commencing proceedings; and
(c) some person has or may have knowledge of facts, or has or may have any document, recording or thing, tending to assist in the ascertainment of the name or description or other identification of the person concerned,
the Court may order that person (d) to attend before the Court or an officer of the Court and be orally examined on any matter relating to identification; and (e) to produce any document, recording or thing in his possession, custody or power relating to it.
It is confined to identifying a prospective defendant. It is not a general power to obtain evidence from strangers before suing, and it will not assist a party who knows perfectly well whom to sue but wants their documents.
All three conditions must be met, and paragraph (b) requires reasonable inquiries to have been made already. An applicant who has not searched the companies register, the land register or the obvious public sources will fail on that limb.
Sub-rule (3) — “description” includes the place of residence, place of business, occupation and sex of the person concerned.
Where paragraphs (a) and (b) are satisfied and it appears that a corporation has or may have any document, recording or thing tending to assist in identification, the Court may order the corporation or any officer of the corporation to produce it.
This is the route to, for example, a transport operator’s records identifying the driver of a vehicle, or an internet service provider’s records identifying an account holder in a cybercrime-related civil claim.
Rules 2 to 4
2(1) A person may apply by originating summons without making any person a defendant.
2(2) The order must be served personally on the person ordered to attend or produce.
3(1) The order shall not require a person to attend or produce on any day unless a sum sufficient to meet his reasonable expenses of complying is paid or tendered at the time of service, or not later than a reasonable time before that day.
3(2) For a corporation, that sum may be paid to any person apparently in the service of the corporation and apparently of or above the age of 16 years.
4 Where a person incurs expense or loss exceeding the sum paid, the Court may order the applicant to make it good.
Order 3 proceedings are one of the recognised categories of ex parte originating summons. The person to be examined is not made a defendant; they are simply served with the order.
The conduct money provisions matter. A stranger dragged into someone else’s dispute should not be out of pocket, and Rule 4 allows them to recover more if the sum paid proves insufficient.
Order 11 — documents from a stranger
Order 11 provides for summonses to give evidence and to produce documents. A summons may be directed to a person who is not a party, requiring them to attend and produce specified documents.
Unlike Order 3, this is available after proceedings have commenced, and it is not confined to identifying a defendant. See summonses to produce documents and summoning a witness.
Two limits are worth stating plainly.
It must identify the documents. A summons framed as a request for “all documents relating to the matter” is a fishing expedition, and is liable to be set aside.
It must not be used against a party to get round Order 9. Where documents are obtainable by discovery from a party, that is the process to use — with the Rule 3 protection against unnecessary discovery and the Rule 14 requirement of necessity.
Conduct money applies here as well: a non-party summoned to produce should not bear the cost of complying.
Where else documents come from
| Source | Mechanism |
|---|---|
| A party, after close of pleadings | Notice for discovery — O 9 r 1 |
| A party, at any stage | Order for general or particular discovery — O 9 rr 5, 7 |
| A party who referred to the document | Notice to produce — O 9 r 9 |
| A stranger, before suit, to identify a defendant | Order 3 |
| A stranger, after commencement | Summons to produce — Order 11 |
| Evidence abroad | Depositions and letters of request — Order 11 |
| A person who may have property or a thing in issue | Interim preservation — Order 14 Div 2 |
Before applying under Order 3, exhaust what is available without a court order: the companies register and business names register at the Investment Promotion Authority under the Companies Act 1997, the register of titles under the Land Registration Act (Chapter 191), and the Court’s own records. Order 3(1)(b) requires reasonable inquiries, and those are the first place the Court will look.
Sources
- National Court Rules 1983 — O 3 rr 1–4; O 9 rr 1, 3, 5, 7, 9, 14; O 11; O 14 Div 2
- Companies Act 1997; Land Registration Act (Chapter 191)
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.