Discovery in United Kingdom

History

Discovery, in law, the revealing or disclosing of any matter. The English common law courts were originally unable to compel a litigant before a trial to disclose the facts and documents on which he relied. In equity, however, a different rule prevailed, there being an absolute right to discovery of all material facts on which a case was founded. Now the practice is regulated by the Rules of the Supreme Court, 1883, Order 31.

Discovery is of two kinds, namely, by interrogatories and by affidavit of documents, provision being also made for the production and inspection of documents. Where a party to a suit can make an affidavit stating that in his belief certain specified documents are or have been in the possession of some other party, the court may make an order that such party state on affidavit whether he has or ever had any of those documents in his possession, or if he has parted with them or what has become of them. A further application may then be made by notice to the party who has admitted possession of the documents for production and inspection. Copies also may be taken of the more important documents.

There is also discovery of facts obtained by means of interrogatories, i.e. written questions addressed on behalf of one party, before trial, to the other party, who is bound to answer them in writing upon oath. In order to prevent needless expense the party seeking discovery must first secure the cost of it by paying into court a sum of money, generally not less than five pounds. (1)

Discovery And Inspection of Documents

Meaning of Discovery

The following is an old definition of Discovery [1]: A bringing to light; making known for the first time; disclosure; also, that which is found out, revealed, disclosed. 1. Finding a previously unknown country or land. Spoken of as the ” right of discovery ” or of ” original discovery.” The English possessions in America were not claimed by right of conquest, but by right of discovery. According to the principles of international law, as then understood, the Indian tribes were regarded as the temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nations by which any portiqn of the coimtry was first discovered. The Europeans respected the right of the natives as occupants, but asserted the ultimate dominion to be in themselves; and exercised, as a consequence, a power to grant the soil while it was yet in the possession of the natives. See Occupancy. 2. In the law of patent rights, refers to something that had existed unknown, until brought to light and utilized. The Congress shall have power to secure for limited times to inventors tne exclusive right to their discoveries. This does not apply to the discovery of a fundamental truth or abstract principle, in which no one can have an exclusive right; nor to a power of nature, in which the invention is in the application to useful object. The discovery must be reduced to practice,- be embodied in some practical method for rendering it useful. In its naked, ordinary sense, a discovery is not patentable. A discovery of a new principle, force, or law, operating, or which can be made to operate, on matter, will not entitle the discoverer to a patent. He controls his discovery through thp means by which he has brought it into practical action, or their equivalent. It is then an ” invention,” although it embraces a discovery. Every invention may, in a certain sense, embrace more or less of discovery, for it must always include something that is new; but it by no means follows that every discovery is an invention. See further Invention; Patent; Principle; Process, 3; Secure; Telephone. 3. In the law regulating the granting of new trials and rehearings, refers to evidence brought to light or obtainable after trial or hearing, and which, could it have been presented upon that occasion, would likely have changed the result. whence (the word(s) which follow it are derivatives from the same root word) “after-discovered ” and ” newly-discovered ” evidence. The unconsidered evidence must be such as reasonable diligence, on the part of the party asking for the rehearing, could not have secured at the former trial; it must be material to its object,not merely eumulative, corroborative, or collateral; and be such as ought to produce important results on its merits. See Audita Querela; Review, 2, Bill of. 4. In the law of limitation of actions, refers to information had of the fact that a mistake was made or fraud perpetrated. In cases of fraud and mistalie a court of equity does not allow the statute of limitations to run until the discovery thereof. This rule has been incorporated into the statute law of many of the States. See further Fraud; Limitation, 3; Mistake; Rescission. 5. In the law of bankruptcy, refers to the disclosure made, or to be made, by the debtor of the nature, kind, amount, situs, etc., of his assets. See Bankruptcy. 6. In equity practice, the disclosure by the defendant of matters important to enable the plaintiff to maintain his rights. Procured by a – Bill of discovery. Every bill in equity may be deemed such, since it seeks a disclosure from the defendant, on oath, of the truth of the circumstances constituting the plaintiff’s case as propounded in his bill. But that which is emphatically called a bill of discovery is a bill which asks no relief but simply the discovery of facts resting in the knowledge of the defendant, or the discovery of deeds, writings, or other things in his possession or power, in order to maintain a right or title of the party asking it in some suit or proceeding in another court. Not entertainable: where the subject is not cognizable in any court; where the court cannot, in this manner, aid the other court; where the plaintiff is under disability, or has no title to the character in which he sues; where the value in suit is trivial; where the plaintiff has no interest in the subject-matter or no title to the discovery required, or where an action will not lie; where some other person than the plaintiff has a right to call for the discovery; where the policy of the law exempts the defendant from discovery; where the defendant is not bound to discover his own title; where the discovery is not material to the suit; where the defendant is a mere witness; or where a discovery would criminate him. At common law, discovery could not be had before trial; hence the resort to chancery. At present it ia had, in effect, by bills of particulars, by attachments in execution, by affidavits of defense, by inspection of books and documents, by examination of one’s adversary before trial, and by other means specially provided by statute. For want of the power of discovery at law, courts of equity acquired a concurrent jurisdiction with other courts in all matters of account. See Creditor’s Bill; Fishing.

Resources

Notes and References

1. Concept of Discovery provided by the Anderson Dictionary of Law (1889) (Dictionary of Law consisting of Judicial Definitions and Explanations of Words, Phrases and Maxims and an Exposition of the Principles of Law: Comprising a Dictionary and Compendium of American and English Jurisprudence; William C. Anderson; T. H. Flood and Company, Law Publishers, Chicago, United States)

Resources

Notes and References

1. Encyclopedia Britannica (1911)

See Also

• Disclosure and inspection of documents
• Evidence

Further Reading