Discovery - Definition - Law Dictionary Home Dictionary Definition discovery

Definition :

Discovery, revealing or disclosing matter. The Courts of Common Law were originally unable to compel a litigant to disclose any fact resting merely within his knowledge, or discover any document in his power, which would aid in the enforcement of a right, the repelling of an unjust demand, or the redress of a wrong; an infirmity which the equity judges cured by compelling such a party to disclose the fact, or discover the document, upon his oath, in his answer to a bill of complaint, filed by the opposite party, called a bill of discovery, which was an original bill.

Sir James Wigram, V.C., in his work, entitled Points in the Law of Discovery, epitomized the two cardinal principles on this subject in the two following propositions:

(1) It is the right, as a general rule, of a plaintiff in equity to exact from the defendant a discovery upon oath as to all matters of fact, which, being well pleaded in the bill, are material to the plaintiff's case about to come on for trial, and which the defendant does not by his pleading admit.

(2) The right of a plaintiff in equity to the benefit of the defendant's oath is limited to a discovery of such material facts as relate to the 'plaintiff's case,' and does not extend to a discovery of the manner in which the 'defendant's case' is to be exclusively established, or to evidence which relates exclusively to his case.

As to the grounds on which discovery might be obtained by bill in Equity, see further Dan. Ch. Pr., 5th Edn. 1408.

The Common Law Courts obtained a power of discovery by (English) 14 & 15 Vict. c. 99, s. 6, and (English) C. L. P. Act, 1854 (17 & 18 Vict. c. 125), s. 50.

By (English) R. S.C. 1883, Ord. XXXI., it is provided that any party may, without filing any affidavit, apply to a judge for an order directing any other party to the action to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question in the action (r. 12), but the judge will not order discovery if he is of opinion it is not necessary either for disposing fairly of the cause or matter or for saving costs. In commercial causes (see COMMERCIAL Court) it is the usual practice for the solicitors on each side to exchange lists of documents, and for an affidavit to be dispensed with. The second branch of discovery is by interrogatories (q.v.), that is, a party to an action is asked by leave of the Court certain questions of fact relevant to the issue and within his knowledge, and is required to answer them by affidavit (rr. 1-11).

As a general rule discovery cannot be obtained in an action to recover penalties [Martin v. Treacher, (1886) 16 QBD 507; Saunders v. Weil, (1892) 2 QB 321; and compare Derby Corporation v. Derbyshire County Council, 1897 AC 550]; nor by a landlord in an action to enforce a forfeiture [Mexborough v. Whitwood Urban District Council, (1897) 2 QB 111]. A party can object to make discovery of any document which may tend to incriminate him; see National Asscn. of Operative Plasterers v. Smithies, 1906 AC 434. Communications between solicitor and client are privileged, but not communications to others (Jonesv. G. C. Ry., 1910 AC 4). See further the titles INTERROGATORIES and INSPECTION; and consult Bray or Ross on Discovery: Ann. Prac