ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Lawal Ijaodola and Eleanor Higginson, Slaughter and May
before the hearing. In some cases, the court may order that costs should be determined by way of detailed assessment. 4.7 Application/Motion Timeframe The timeframe for the court to deal with an appli- cation will vary depending on several factors, including the nature and complexity of the appli- cation, the court’s availability, and whether the application is deemed urgent. Interim applications can be made at any stage of the proceedings. However, they should be made without delay as soon as it is appropriate to do so. To assist the court, where possible, applica- tions should be made in time to be heard at any pre-scheduled hearings. In some cases, applications are decided “on the papers”, meaning the court reviews the written submissions and decides whether to grant the application without holding a hearing. This pro- cess can be quicker, but timelines still vary. Discovery is commonly referred to as “disclo- sure” in England and Wales, and is available in civil cases. There are detailed rules governing disclosure, which vary depending on the nature of the case and on which court is hearing the case. Broadly, there are two main disclosure regimes. • Under the regime that has been in force for some time, there are a range of disclosure options. However, in practice, courts tend to order litigants to provide “standard disclo- sure”. This requires the litigants to disclose 5. Discovery 5.1 Discovery and Civil Cases
the existence of all documents within their control on which they rely, which adversely affect their own or their opponent’s case, or which support their opponent’s case. • In contrast, under a relatively new regime (which applies to disputes heard in the Business and Property Courts), litigants are encouraged to provide a relatively limited number of key documents at an earlier stage in the litigation process, and will only be permitted to have more extensive disclosure if the court considers it appropriate. Any order for extended disclosure must be reasonable and proportionate. The disclosure process is carried out by the liti- gants and their legal representatives, who must comply with directions from the court. Litigants are expected to work together to ensure that dis- closure is kept within sensible limits; failure to do so may result in adverse cost consequences. Where there are disputes about the adequacy or scope of disclosure, litigants can apply to the court for directions. 5.2 Discovery and Third Parties It is possible to apply to the court to obtain dis- closure from a non-party. The applicant must demonstrate that such disclosure is necessary to fairly resolve the case or reduce costs. In certain circumstances, litigants can apply to the court for a “Norwich Pharmacal” order, which compels a third party who has become mixed up in a wrongdoing and is in possession of relevant information to disclose specific documents or information. It is often used before formal pro- ceedings are commenced, in situations where a litigant needs to identify appropriate defend- ants, obtain evidence or trace assets, and can- not proceed without the information held by the third party.
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