“ ORDER 34A
PRELIMINARY DISCOVERY

        (a)     in the case of a natural person—the name, place of residence, occupation and sex; and

        (b)     in the case of a corporation—the registered office and place of business;

Privilege

“2. An order made under this Order does not operate to require the person against whom the order is made to produce any document that, on the ground of privilege, the person could not be required to produce—

        (a)     in the case of an order under rule 3 or 5—if the applicant had commenced a proceeding against the person;

        (b)     in the case of an order under subrule 6 (1) or (2)—if the applicant had made the person a party to the proceeding; or

        (c)     in the case of an order made under rule 9—if the person had been served with a subpoena for production of the document at the trial of the proceeding.

Discovery to identify defendant

“3. (1) If an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called ‘the person concerned') and it appears that a person—

        (a)     has or is likely to have knowledge of facts; or

        (b)     has or is likely to have, or has had or is likely to have had, possession of any document or thing;

tending to assist in the ascertainment, the Court may make an order under this rule.

“(2) An order may require the person who is the subject of the order or, in the case of a corporation, an appropriate officer to—

        (a)     attend before the Court to be examined in relation to the description of the person concerned;

        (b)     produce to the Court any document or thing that is, or has been, in the person's possession relating to the description of the person concerned;

        (c)     make and serve on the applicant a list of the documents or things that are, or have been, in the person's possession relating to the description of the person concerned; or

        (d)     produce for inspection by the applicant any document or thing that is, or has been, in the person's possession relating to the description of the person concerned.

“(3) An order may direct that the examination by the Court be held before a Registrar.

Conduct money

“4. Rule 27 of Order 39 applies in relation to an order for attendance under rule 3 as if the order were a subpoena.

Discovery from prospective defendant

“5. If—

        (a)     it is reasonable to believe that the applicant has, or may have, the right to obtain relief from a person whose description has been ascertained;

        (b)     having made reasonable inquiries, the applicant has not gained sufficient information to enable a decision to be made whether to institute a proceeding to obtain the relief;

        (c)     it is reasonable to believe that the person—

              (i)     has, or is likely to have; or

              (ii)     has had, or is likely to have had;

possession of a document relating to the question whether the applicant has the right to obtain the relief; and

        (d)     inspection of the document by the applicant would assist in making the decision;

the Court may order the person to produce the document to the applicant.

Applicant who is party to a proceeding

“6. (1) Rule 3 applies, with any necessary modification, in relation to an applicant who is a party to a proceeding and proposes to make, in the proceeding, a claim—

        (a)     that is against a person who is not a party; and

        (b)     that could properly have been made in the proceeding had the person been a party.

“(2) Rule 5 applies, with any necessary modification, in relation to an applicant who is a party to a proceeding and who proposes to make, in the proceeding, a claim against a person who is not a party—

        (a)     that it is reasonable to believe is a claim that the applicant has, or may have, the right to make against the person; and

        (b)     that could properly have been made in the proceeding had the person been a party.

Service of application and supporting affidavit

“7. (1) An application for an order under rule 3 or 5 shall be served personally on the person the subject of the intended order unless a Judge orders otherwise.

“(2) An application under this Order shall be supported by an affidavit—

        (a)     stating the facts on which the applicant relies; and

        (b)     specifying or describing the documents or class of documents in respect of which an order is sought.

“(3) A copy of the supporting affidavit shall be served on every person on whom the notice of motion is served.

Order for inspection, preservation etc. of property

“8. When making an order under this Order, the Court may make a further order in relation to the subject-matter of the proceedings or property that relates to the subject-matter or as to which any question arises in the proceedings, providing for any of the following matters:

        (a)     the inspection, observation, measurement, photocopying, preservation, custody or detention of the subject-matter or other property;

        (b)     taking samples;

        (c)     carrying out experiments;

        (d)     making, playing or screening any kind of recording of sight or sound;

        (e)     making and reproducing or displaying other instrumental recordings or tracings.”.

Substitution