Disclosure and discovery

Australia

Australia

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.  

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.  

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged. 

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders. 

Last modified 19 Jul 2019

Austria

Austria

The Austrian Code of Civil Procedure (Zivilprozessordnung) explicitly lists the following five types of evidence:

  • documentary evidence;
  • witness testimony;
  • expert evidence;
  • inspections; and
  • the hearing of the parties.

Each party must offer all evidence necessary to substantiate the statements included in its respective pleadings. Documentary evidence is normally adduced to the court by the submission of the document and a reference made to it in the party’s written or oral argument. The Austrian Code of Civil Procedure is based on the legal institute of the free evaluation of evidence (Freie Beweiswürdigung), which means that Austrian courts enjoy wide discretion with regards to the assessment of the evidence. The court may not, however, admit evidence which it considers irrelevant to the matters in dispute or which appears to have been submitted with the intention of delaying the proceedings. 

A party may request the court to order disclosure of a certain document, which is in the possession of the opponent, so that the document becomes available in the proceedings. Thus, a party wishing to adduce a certain document as evidence in legal proceedings may request the court orders its opponent to present that document to the court. The requesting party must state the contents of the requested document as precisely and completely as possible, and must also indicate all facts and matters which are to be proven by the document. The requesting party also must prove that the document is in the possession of the opposing party.

If the court orders disclosure, the obligation to present the document is definite and cannot be avoided by the opposing party. The party opposing disclosure may, however, refuse to present the document by invoking one of the grounds for refusal listed in Section 305 of the Austrian Code of Civil Procedure, e.g. if the content concerns matters of family life, if the disclosure of the document would be disgraceful to the party or third parties or would involve the risk of criminal prosecution, etc. The refusal to present a document can also be justified in specific circumstances, such as in the case of commercially sensitive information, which can be claimed by the party opposing disclosure.

On the other hand, Section 304 of the Austrian Code of Civil Procedure lists certain grounds which, if present, are determinative in favor of disclosure, e.g. if the party opposing disclosure has referred to the document in the proceedings, committed itself under civil law to the delivery or presentation of the document, or if the document concerned is a joint document. 

In accordance with the jurisprudence of the Austrian courts, no discovery/disclosure process exists. Furthermore, even evidence obtained through illegal means is, in principle, admissible in the proceedings save where it was obtained in violation of constitutionally guaranteed fundamental rights.

Last modified 19 Jul 2019

Bahrain

Bahrain

There is no principle of disclosure in Bahrain similar to common law jurisdictions. Parties substantiate their claims using the evidence on which they wish to rely. If a party makes a non-specific request for discovery of documents or information, the request will not be accepted by the court. Further, the court may, at its own discretion, order a party to submit any additional evidence it deems relevant. 

However, it is possible for a party to request the court to order, or the court on its own power may order, the opposing party to disclose documents that are defined in a specific request. The party requesting the disclosure must demonstrate that it has a legitimate interest in the documents for the purpose of the case. The submission of documents can only be requested once legal proceedings have commenced. However, in practice, orders for disclosure are rare.

Last modified 19 Jul 2019

Belgium

Belgium

For civil proceedings in Belgium, there is no formal discovery or disclosure process. Each party bears, in principle, the burden of proving its allegations and will attach to its written pleadings the list of documents on which it relies. Copies of such documents shall be provided to the other party and, shortly before the hearing, each party provides a bundle with all the evidence upon which it relies to the court. 

Each party also has a duty of good faith which implies a certain degree of cooperation in the production of evidence. A party who has reason to believe its opponent possesses a document that is relevant to the court’s decision may solicit the production of said document by its opponent, if needed, with the intervention of the court. 

Where there are strong indications that a third party has in its custody a document establishing a relevant fact, the court may order that this document, or a copy thereof, be sent to the other party and filed with the court. 

There is no opposition or appeal against a judgment ordering a party or third party to produce a document. Where a party fails to comply with the judgment without a legitimate reason, the court may order the party or third party to pay damages. Altering or destroying evidence that is ordered by a court to be produced is a criminal offence under Belgian law (art. 495 bis Criminal Code). 

The court has authority to take measures aimed at ensuring that evidence is properly gathered and preserved. For this purpose, the court may order the appointment of an expert, or the production of a witness statement or any other kind of document. Such measures can be taken following a party’s request, or at the court’s own initiative.

Last modified 19 Jul 2019

Brazil

Brazil

Under the Brazilian Code of Civil Procedure, parties must ordinarily rely on their own evidence. However, a party can request the disclosure of documents or objects if there are grounds for believing that documents are in the other party’s possession and that such evidence is relevant to the case. The other party must be granted five business days to reply to such requests. Also, where the court considers the analysis of a document or object necessary for reaching a decision, it may order the party in possession of such evidence to submit it for analysis. 

If a relevant object(s) or document(s) is in possession of a third party, they may be ordered to present it to court. Furthermore, if a party or the third party refuses to comply with the disclosure order without an acceptable reason, the court may issue a search and seizure order.

Last modified 19 Jul 2019

Canada

Canada

For proceedings that are defended, parties will enter the discovery phase once the exchange of pleadings is complete. Discovery in Canada includes the production of relevant documents and oral examinations for discovery. 

The scope of discovery is defined by the pleadings insofar as the pleadings set out the relevant issues in the litigation. Thus, if a document is relevant to an issue identified in the pleadings, it should be produced (subject to certain exceptions, such as any privilege that might attach to the document) even if the document might be unhelpful to the party producing it. Quebec has a different starting point for discovery. Specifically, a party to a Quebec proceeding need only disclose those documents on which it intends to rely at trial, unless the opposing party specifically requests further production.

If a party refuses to produce a document that another party believes is relevant to the issues in the proceeding, the latter party may bring a motion for production of the document. A court will order such production where the relevant documents are not protected by privilege and where the request for production is “proportional.” As an example of the principle of proportionality, a court could refuse to order a party to spend considerable time and resources to produce a large volume of documents where such documents are only marginally relevant to the issues in the proceeding. 

In addition to producing relevant documents, the parties will participate in oral examinations for discovery. During such oral examinations, each party puts forth a witness to be questioned under oath by the other parties (or the other parties’ respective lawyers where such parties have lawyers) about the matters that are relevant in the litigation. Examinations for discovery, among other things, allow the parties to:

  • learn about the other parties' cases;
  • obtain helpful admissions; and
  • assess the credibility and the demeanor of the witnesses giving evidence on discovery. 

Where a party to be examined for discovery is an individual, the witness on such examination will be the individual.  

Where the party to be examined for discovery is a corporation, the corporation’s witness (typically, but not always, an employee of the corporation) should be the person with the greatest knowledge of the matters that are relevant in the litigation. 

Absent agreement of the parties or a court order, each party only produces a single witness that is examined for discovery by the other parties. Quebec is the exception to this general rule: under its Civil Code of Procedure, a party may examine more than one witness for each opposing party. As a matter of practice, parties in Quebec will attempt, among other things, to determine the number and identity of witnesses to be examined in the course of negotiating a case protocol. If the parties cannot agree to the terms of a case protocol, they may seek the court’s intervention. 

More often than not, the witness produced by a party for examination for discovery will also be a witness for that party at trial.  

Where a witness being examined does not know the answer to a relevant question, they may be asked to give an undertaking to seek out the answer. Similarly, a witness being examined may be asked to undertake to produce any relevant documents that have not yet been produced.

Unlike some other jurisdictions, witnesses being examined for discovery in a Canadian proceeding may refuse to answer a question on the bases, among others, of relevance (i.e. the question does not relate to any of the issues raised in the pleadings) or privilege. If the witness refuses to answer an arguably proper question, the examining party may bring a motion to compel the witness to do so. Likewise, if the witness refuses to provide an undertaking to produce additional relevant documents, the examining party may bring a motion to compel such production. 

Parties to a Canadian proceeding require leave of the court to examine a non-party for discovery.

Last modified 19 Jul 2019

Chile

Chile

The general rule in Chilean civil litigation is that parties submit their own evidence. Nevertheless, the eventual plaintiff may request a Court to grant a pre-trial submission of evidence to the eventual defendant, though this pre-trial request is confined to the cases invoked by the law (affidavits; exhibition of an object or document, such as accounting books, testaments, public documents, property titles, among others; and, private document signature recognition). 

Furthermore, pre-trial requests of evidence may also involve personal inspection by the judge, expert opinions or interrogations, given that there are serious circumstances that advice granting the pre-trial request or that certain elements or situations could easily disappear. 

All pre-trial requests must state which civil claim the plaintiff will file and a brief explanation of the arguments and basis of the claim to be filed and the necessity of the pre-trial request.

Last modified 14 Jan 2020

China

China

In the PRC, although parties must substantiate their cases with evidence, in principle they are free to determine what evidence they want to use. A court may, however, order a party to submit certain additional evidence if it considers it necessary. Failure to comply with the court’s order may cause the court to draw adverse inferences. Further, whilst there is no concept of legal privilege in the PRC, any evidence containing state secrets, personal information or business secrets will not be publicly presented during an open hearing.

Under the PRC Civil Procedure Law, a party may request the court to investigate and collect evidence on its behalf if the party and its representative are unable to collect it for objective reasons, including because: (i) it is archived by state authorities and the party has no right of access to it; or (ii) it contains national secrets, trade secrets or personal information. The court is also empowered to investigate and collect evidence which the court deems necessary. Procedurally, if a party requests the court to investigate and collect evidence on its behalf, the requesting party should submit a written application stating:

  • basic information of the person to be investigated (name, address, workplace, etc.);
  • the evidence to be investigated and collected;
  • the reasons for making the request; and
  • the facts to be proved by the evidence.

Pursuant to Article 95 of Interpretation of the Supreme People’s Court on Application of the PRC Civil Procedure Law (the SPC Interpretation on Civil Procedure), the request for collection of evidence should be rejected if the evidence requested is unrelated to the facts to be proven, meaningless for proving the facts or the court considers that it is unnecessary to investigate it.

It should be noted that, in practice, courts rarely grant requests for collection of evidence. This is partly due to the vaguely defined concept of objective reasons, which leaves the discretion to the court, and partly due to the fact that such requests will place additional burdens on the courts, which already struggle with heavy caseloads.

Under the law of the PRC, interim relief for evidence preservation is available both during and prior to the commencement of legal proceedings if evidence is at risk of being destroyed or may become difficult to obtain at a later date. A party can apply to the competent court for evidence preservation, and the court can also take preservation measures on its own initiative. The party requesting the evidence preservation will usually be required by the court to provide security in case such evidence preservation causes losses to other related parties.

Last modified 19 Jul 2019

Finland

Finland

In a civil law case, each party shall present the evidence it deems necessary in the case. The court may not request disclosure of evidence of its own initiative. However, the court may order a party or a non-party to bring an object or a document in its possession to court where so requested by a party to the case, provided that the object or document could be of evidential significance in the case. This procedure is not intended to facilitate fishing expeditions and therefore the party requesting the submission must carefully define the document or group of documents that the request covers. After hearing the other party and / or the party the request is directed at, the court will decide on whether to permit the request. Where the document requested includes, for example, commercially sensitive information of a company or other privileged information, the court may oblige a party to produce a redacted copy of the document.

Last modified 19 Jul 2019

France

France

In France, the parties are free to choose the evidence in support of their respective claims. Each party must substantiate its claims and satisfy its burden of proof. Evidence is usually given in written form, including by way of affidavit.

Despite the above, the French Code of Civil Procedure allows for pre-action disclosure when there is a legitimate reason to preserve or to establish the evidence on which the resolution of the dispute depends (pursuant to Article 145 of the French Code of Civil Procedure). The collection of evidence in such circumstances will most likely be done via an ex parte court order appointing a bailiff to preserve or establish such evidence.

During the course of the proceedings, if a party wishes to force another party to produce certain evidence, it may request the court to order production of such evidence provided it can demonstrate that the evidence is relevant to the case. This gives rise to a discussion between the parties that is separate from the merits. If a party refuses to comply with a court order for the production of evidence, the court is entitled to draw any conclusion it deems appropriate based on the circumstances.

Last modified 19 Jul 2019

Germany

Germany

German law does not recognize the common law concept of extensive pre-trial disclosure or discovery. The taking of evidence is administered by the court. German courts can only rely on five methods to gather evidence: visual inspection, hearing witnesses, experts and the parties, and the production of private or public deeds. The procedure for production of deeds is rarely used, as the conditions for such disclosure are relatively difficult to satisfy and the court can only order the production of a specific document (section 421 seqq. ZPO).

The court can order a party to provide specific disclosure at the request of the other party or of its own volition. A request by a party to produce a document shall:

  • specify the document or record;
  • set out the facts the document or record is intended to prove;
  • specify, as comprehensively as possible, the contents of the document or record;
  • elaborate the grounds on which it is being alleged that the opponent has possession of the document or record; and
  • set out the substantive grounds on which the other party is obliged to produce the document or record.

Last modified 19 Jul 2019

Hong Kong, SAR

Hong Kong, SAR

In civil proceedings in Hong Kong, a party generally has a duty to disclose to the other party all documents relevant to the case that are within their custody, power or control, even if some of the documents are not favorable to their case. The disclosure process is usually undertaken after the pleadings have been filed as this is the time at which the points of dispute between the parties have crystallized. However, the court may also order disclosure prior to the commencement of proceedings where an applicant is able to satisfy the court that they need to obtain such disclosure in order to determine whether or not a cause of action exists against a potential defendant.

Each party to a civil action must disclose the relevant documents it possesses in the form of a list (known as the list of documents). Except for documents that are privileged, all other documents must be provided to the other party on request or made available for the other party’s inspection. A party may refuse to disclose privileged documents to the other party. If there is a dispute as to whether a document is privileged, the court will make a final decision.

Last modified 19 Jul 2019

Hungary

Hungary

In principle, each party is responsible for obtaining and disclosing the documents upon which it intends to rely. US-style discovery of documents is not recognized under Hungarian law.

The court may order disclosure of specific documents by the other side or a third party, upon the request of a party to the proceedings. The court will only order disclosure of documents that a party is obliged to disclose under applicable civil law rules (for example, an employer is obliged by the Labor Code to give the employee a copy of their labor contract). Civil law does not have specific rules setting out which documents must be disclosed, so this rule can be difficult to interpret in practice. 

Requests for disclosure must be specific and confined to documents necessary to evidence a specific statement made by the disclosing party (e.g. it would be permissible to request disclosure of warehouse records for a specific day, in order to prove the date of delivery claimed by the plaintiff, but it would not be permissible to request disclosure of all the warehouse records on the grounds they might contain evidence relevant to the case).

Requests for disclosure may be rejected for reasons of confidentiality / privilege or because the documents are not relevant to the dispute.

If the party cannot obtain the document because it is in the possession of an official authority, the court is obliged to obtain the document on the party’s behalf.

Last modified 19 Jul 2019

Italy

Italy

There is no obligation of discovery set forth in Italian law. This means that the parties are not obliged to share relevant documents, unless an order to this effect is issued by a judge. Such orders can only be made when another party specifically requests a document to be disclosed and the judge deems such a disclosure necessary. No such order can be issued by the court on its own initiative.

An interested party wishing to request the disclosure of specific documents must file the request within the three consecutive terms set by the judge to file supplemental written submissions and evidence requests (namely, a first term of 30 days from the date of the first hearing or any subsequent date that the judge deems appropriate, then a term of a further 30 days and a last term of 20 days). Each document request should:

  • specifically identify the document(s) requested;
  • prove that the party making the request has no access to the requested document(s) and that there are no other possible ways to get access to it; and
  • explain why that document is relevant and material to the case.

A party receiving a document request is not obliged to disclose the document requested. In practice, disclosures only occur when the documents requested do not harm the disclosing party's case.

Last modified 19 Jul 2019

Ireland

Ireland

As soon as parties become aware of the possibility of Irish litigation should protect and preserve any relevant evidence. The discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Discovery is usually undertaken once the pleadings have closed.

Each party makes a written request to the counterparty for voluntary discovery of documents relevant to the dispute (which the counterparty has or previously had in its possession, power or procurement). The request sets out the categories of documents being sought (and states the reasons why each category is required). If the opponent refuses the request or disputes the scope, the party applies to the Court for an order for discovery. The parties then each swear an affidavit of discovery which lists all relevant, privileged and non-privileged documents, following which non-privileged documents are disclosed.

Last modified 27 May 2021

Japan

Japan

In Japan, the parties are free to determine which evidence they want to rely on in proceedings. In limited cases, Japanese courts have authority to order parties to disclose documents based on their relevance to the case. Parties seeking an order for disclosure must specify:

  • the description of the documents;
  • the name of the individual believed to hold relevant documents;
  • the summary of the documents;
  • the matters to be proved by such documents; and
  • the legal basis to request the disclosure.

US-style discovery proceedings do not exist in Japan and, therefore, the ability to obtain potentially beneficial evidence from an uncooperative opposing party is generally limited. Fishing expeditions are prohibited.

Last modified 19 Jul 2019

Kuwait

Kuwait

Generally, discovery is not part of the civil procedure in civil law jurisdictions including Kuwait. Therefore, if a party requests general discovery, the request is unlikely to be granted by the judge or, any discovery will be conducted in a cursory fashion. As such, there is no principle of full disclosure in Kuwait and the parties may substantiate their claims with evidence they choose to use.

However, it is possible for a party to request the judge to order (or the court on its own volition may order) the opposing party to submit certain specified documents or to produce evidence. The submission of documents can only be requested during legal proceedings. The procedure, if ordered by the court, is expressly not meant to facilitate fishing expeditions. The party requesting the submission should have a legitimate interest and the request should cover a narrowly defined group of documents.

Furthermore, the court can, at its own discretion, give an interim judgment asking a party to submit certain additional evidence which the court considers essential to the case.

Last modified 19 Jul 2019

Mexico

Mexico

Mexico does not provide for discovery in the same manner as common law jurisdictions. Evidence production operates on the principle that each party must present the judge with all evidence upon which they rely on to support their allegations.

The judge, however, has the authority to:

  • order the production of evidence at any time, if such evidence is regarded as essential in order to draw a conclusion on the content of the dispute;
  • call on any party to the proceedings or any third party,
  • consider any object or document belonging to the parties to the dispute or to third parties, in order to learn the truth, as long as the evidence in question is recognized by law and relates directly to the disputed facts.

A judge may also repeat or extend the evidentiary phase, as required at their discretion.

If either party objects to the inspection or production ordered by a judge, or refuses to answer questions during their testimony, or refuses to produce the object or document requested, the judge has the power to infer that the counterparty’s allegations are true.

Last modified 19 Jul 2019

Netherlands

Netherlands

In the Netherlands, although parties must substantiate their statement with evidence, in principle they are free to determine what evidence they want to rely on. A court may, however, order a party to submit certain additional evidence. Refusing to provide this additional evidence could impact a party’s position, as the court may draw adverse inferences from the party’s refusal.

Further, it is possible to request documents to be submitted. The submission of documents can be requested prior to or during legal proceedings. The procedure is not meant to facilitate fishing expeditions. The party requesting the submission should have a legitimate interest and the request should cover a narrowly defined group of documents. Furthermore, the requested documents have to relate to a legal relationship in which the applicant is a party. The request is not limited to hard copy documents; it can also entail any (electronic) documents held on electronic devices. After hearing the counterparty, the district court will decide on the request. Legal professional privilege applies to communications from attorneys and certain other professionals. Parties cannot usually be required to disclose privileged documents.

Last modified 19 Jul 2019

New Zealand

New Zealand

In New Zealand, each party to civil litigation will have to provide discovery to the other parties.  The High Court Rules impose an obligation on parties to the litigation to co-operate to ensure that the process of discovery and inspection are proportionate to the subject matter of the proceeding and, where possible, practical arrangements are adopted to reduce the scope and burden of discovery. 

A statement of claim or statement of defence must be served together with initial disclosure, which must contain all the documents referred to in the pleading and any additional principal documents relied on to prepare the pleading. 

Subsequent to the exchange of pleadings, the parties must then go through the discovery process.  Discovery orders must be discussed at the first case management conference. 

There are two types of discovery orders available: 

  • Standard discovery; or
  • Tailored discovery.

Standard discovery requires each party to disclose the documents that are or have been in that party’s control and that are: 

  • documents on which the party relies; or
  • documents that adversely affect that party’s own case; or
  • documents that adversely affect another party’s case; or
  • documents that support another party’s case.

Tailored discovery is generally ordered where the parties agree a reduced scope of discovery than standard discovery.  Parties are encouraged by the Court to agree on tailored discovery orders. 

In limited circumstances, discovery may be ordered prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.  

Discovery can also be ordered against third parties, where they are believed to hold relevant documents, but the party applying for that discovery order must bear the reasonable costs of the third party in complying with the discovery order. 

The discovery process involves the exchange of affidavits of documents, that list the documents to be discovered in various sections and in accordance with the court electronic discovery protocol.  Privileged documents must be listed, but cannot be inspected. 

Last modified 20 Dec 2019

Norway

Norway

Civil proceedings in Norwegian courts do not entail an expansive discovery process. However, each party to civil proceedings in Norway is under a general duty to present such evidence as is necessary to establish a proper and complete factual basis for the court’s decision. That general duty includes an obligation requiring each party to disclose the existence of material evidence that is not in the other party’s possession where there is good reason to believe that the other party is not aware of such evidence. Failure to adhere to this general duty is a criminal offence.

In practice, disclosure of documents is achieved through a process of documentary requests. In that regard, each party to civil proceedings has a right to request the other party to produce specific and narrow categories of documents. A request for documents must be specifically identified and so-called fishing expeditions are prohibited. If a party refuses to produce documents in response to such requests, it may be compelled to do so by the courts. Both parties and others may be compelled to respond to a request by the other party or the court as to whether it is aware of evidence and to carry out necessary investigations for that purpose. However, the court may not request disclosure of evidence of its own initiative.

As regards those documents that fall within sufficiently specific and narrow categories requested, as stated above, each party is under an obligation to disclose those documents that are relevant, and which the other party to the proceedings may not be aware of. That obligation extends not only to documents supportive of a party’s case, but also to documents that are detrimental to it. Such documents must be disclosed if they are in a party’s possession or if a party is able to access them through a third party it controls. However, parties are exempted from their disclosure obligations with respect to privileged information communicated with their lawyers (including in-house counsel). In addition, there are other categories of documents that may be exempted from production, including documents containing commercially sensitive information.

Last modified 19 Jul 2019

Poland

Poland

Under Polish law, parties are free to determine which evidence they want to use. All supporting material relating to facts that are relevant to the determination of a case constitute evidence. The court has discretion to assess the credibility and probative value of evidence, based on comprehensive consideration of the available material. The parties are obliged to present evidence in order to establish facts from which they draw legal effects. The court may also admit evidence which has not been presented by a party (e.g. evidence introduced in expert opinion or the deposition of a witness). In principle, however, the parties have the onus of submitting the evidence upon which they wish to rely.

Fishing expeditions are prohibited. Where a party wishes to obtain a specific document from the other party, it must submit a request to the court identifying the specific document along with the facts and circumstances that it may prove. The court may order the other party to disclose the document if it is satisfied that such specific document:

  • exists (a party may claim that the requested document does not exist);
  • is in the other party’s possession; and
  • evidences a fact which is relevant to the case.

In addition, a court may order any person to produce a specific document that is in their possession and which evidences a fact that is relevant to the case, unless the document contains privileged or confidential information. The obligation to disclose a specific document may not apply where the party in possession of the document:

  • is entitled to refuse to testify as a witness regarding the facts included in a document; or
  • holds a document on behalf of a third party which could, for the same reasons, object to the production of the document.

Should a party fail to produce a specific document ordered to be produced by the court, the court will not impose a penalty on the non-disclosing party. However, during its assessment of the reliability and validity of evidence, the court will also assess the significance of a party’s refusal to present evidence or a party’s interference with the taking of evidence despite the court’s decision.

Last modified 19 Jul 2019

Qatar

Qatar

When filing a claim, claimants in the Qatari courts are only required to produce documents that support their claim. However, a litigant is entitled to request that its opponent be obliged to produce relevant documents if:

  • it is permitted by Qatari law;
  • the document is joint between the parties (i.e. relates to mutual obligations and rights between them); or
  • if its opponent relies on it at any point in the proceedings.

There are often evidentiary difficulties for a party seeking disclosure of a document as it has to prove that the document exists and that it is in the possession of its opponent.

Last modified 19 Jul 2019

Romania

Romania

The evidence is primarily presented by the parties in their written submissions (the claimant in the statement of claim and the defendant in the statement of defense). From the evidence presented, the judge may accept only the evidence considered admissible and necessary to determine the litigation. However, the court’s role is inquisitorial (i.e. the court is actively involved in investigating the facts of the case) and the judge may therefore order the parties to produce any evidence which it deems necessary, regardless of whether or not the parties object to such disclosure.

The parties must each produce all evidence in support of their claim. If important documents are not disclosed by the opposing party, or they are held by a third party, the court can (on its own initiative or at a party’s request) order those parties to disclose them. If the parties refuse to disclose these documents, or if it is proven that they hid or destroyed such documents, the court may consider the affirmations of the interested parties with regard to those documents as being proven.

After the judge allows the evidence presented by the parties with their written submissions, the parties may agree to engage in a separate evidence production process whereby each party produces the evidence that it considers necessary to determine the litigation. The court supervises the process in the sense that it resolves any objections, incidents or additional requests raised during the production of evidence. This procedure is a faster alternative for the production of evidence, although, in practice, it is rarely used.

Last modified 19 Jul 2019

Russia

Russia

In Russia, there is no extensive disclosure more typical of common law jurisdictions. Although parties must substantiate their statements with evidence, the parties are free to determine which evidence they would like to use.

The proceedings do not include court-ordered disclosure or discovery as a separate stage. Nonetheless, courts may request additional documents from the parties to the proceedings or third parties. If a party to litigation is unable to obtain the necessary evidence, it may ask the court to order the provision of evidence by another party or third parties (e.g. state authorities, banks, etc.). However, fishing expeditions are not allowed and the requesting party should indicate the following in its application: what specific evidence it seeks; the location of the evidence; relevance to the dispute; and why it cannot obtain such evidence.

State commercial courts favor documentary evidence. While witnesses of fact are admissible, they are rarely used. The parties may provide the court with reports of expert witnesses or ask the court for a court-appointed expert to conduct their expert review.

Last modified 19 Jul 2019

Saudi Arabia

Saudi Arabia

Disclosure and discovery in Saudi Arabia is more akin to other civil law jurisdictions, and therefore differs from the approach taken in Anglo-Saxon jurisdictions. Sharia law requires the claimant to prove their claim rather than obliging the defendant to disclose or build evidence. A judge may ask either party to disclose documents, but this request is not in the form of an order that implicates penalties in case of non-cooperation.

The claimant may submit any form of evidence. However, evidence under Sharia law is divided into different categories and levels. The judge has the right to decide whether disclosure or evidence will be accepted or not.

Last modified 19 Jul 2019

Spain

Spain

In Spain, parties substantiate their claims with the evidence they choose to use. Judges are likely to reject a party’s request for general, non-specific discovery. However, a party may request the judge to order (or the court on its own volition may order) the opposing party to submit certain documents or produce evidence. The submission of documents can only be requested during legal proceedings. The procedure, if ordered by the court, is expressly not intended to facilitate fishing expeditions. The party requesting disclosure should have a legitimate interest in such disclosure and the request should cover a narrowly defined group of documents.

It is also possible for the court, at its own discretion, to give an interim judgment asking the party to submit certain additional evidence which the court considers essential for the case.

Last modified 19 Jul 2019

Sweden

Sweden

In Sweden, the parties must present evidence to substantiate their claims but are free to determine which evidence they want to rely on. Practically everything is admissible and will be evaluated freely by the court, which will also decide the weight to give to each piece of evidence. The court will typically make no investigations of its own or assess evidence other than that which the parties have presented.

It is possible to request documents to be produced by the other party or third parties, but fishing expeditions are not permitted. The requesting party should identify the specific documents – or a narrowly defined category of documents – it is seeking and it must have a legitimate interest in seeking them. Furthermore, the applicant must show that the requested documents are relevant to the matter in dispute. The request is not limited to hard copy documents and can entail any (electronic) device holding information. After hearing the opposing party, the court will decide on the request. Attorneys and certain other professionals may refuse disclosure on the grounds of protecting legal professional privilege, and documents containing trade secrets may also be exempt from being disclosed. The court may only order a party to produce documents when they are requested by the other party, and thus a document production order cannot emanate from the court’s discretion.

Last modified 19 Jul 2019

Thailand

Thailand

There is no discovery or disclosure process under Thai law. However, if one of the parties is aware of a specific document that the opposing party has in its possession that is relevant to the proceedings, it can apply for and obtain a subpoena from the court for that specific document.

The party applying for the document request must show that the specific document relates to the issue in dispute. The court will often require the applicant to provide the title and subject matter of the document and its date of issue.

The court may also order a party to adduce a specific document at its discretion.

Last modified 19 Jul 2019

UK - England & Wales UK - England & Wales

UK - England & Wales

Subject to some very narrow exceptions, each party to civil litigation in England and Wales will have to give disclosure to the other parties. The rationale behind this is that, in order for justice to be done between opposing parties, all relevant material must be out in the open. Privileged documents must be disclosed (i.e. stated to exist or have existed) but other parties do not have a right to inspect them. 

From January 1, 2019, new disclosure rules are being applied to existing and new proceedings in the Business and Property Courts in London, Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester and Newcastle for a period of two years (although certain proceedings such as competition claims and claims within the Intellectual Property and Enterprise Court fall outside the scope of the new rules). 

The new rules envisage a more bespoke approach to disclosure, tailored to fit the specific needs of the individual case, with much of the work involved in data mapping being carried out in the run-up to the case management conference, and set out in a document called the Disclosure Review Document.  There are express obligations (referred to as the Disclosure Duties) upon the parties and their legal representatives in relation to the preservation of documents and compliance with any order for disclosure as well as specific provisions of the rules.   

Generally, when parties serve their statements of case they will be required to provide Initial Disclosure to the other parties by providing them with copies of key documents. Depending upon the nature of the dispute, the parties may regard this as sufficient. In more complex matters, there is the option for the parties to request Extended Disclosure by choosing a model for disclosure from a range of graduated options, including:

  • Model A: Disclosure confined to known adverse documents (no search required);
  • Model B: Limited disclosure (no search required);
  • Model C: Request-led, search-based disclosure;
  • Model D: Narrow, search-based disclosure, with or without Narrative Documents; and
  • Model E: Wide search-based disclosure. 

Any order for Extended Disclosure (if any) will be made at the case-management conference and a party must comply within the time ordered by serving various forms and lists and producing the documents over which no claim is made to withhold production.

The provisions of Part 31 of the CPR continue to apply to cases that fall outside the scope of the new disclosure rules. The concept of standard disclosure requires the parties to disclose the existence of all documents which are, or have been, in their control and on which they rely in support of their case as well as those which adversely affect their own case, adversely affect another party’s case or support another party’s case (together with any documents required to be disclosed by a relevant practice direction). In many commercial cases, the court is able to select an appropriate type of disclosure from a broader menu of options (which include disclosure on an issue by issue basis). In practice, the parties will often seek to agree between themselves a workable approach to disclosure, including their plans for handling disclosure of electronic documents, and then seek the court’s approval.  

Under both sets of rules, the disclosure order is usually made at the case management conference, after the close of pleadings, when the points of dispute between the parties have crystallized. In certain circumstances, pre-action disclosure, or disclosure at a different stage, may also be ordered.

Last modified 19 Jul 2019

UK - Scotland

UK - Scotland

There is no obligatory disclosure of documents in court proceedings in Scotland. Litigants need only disclose documents that they seek to rely on to prove their case. The court also has the discretion to order a party to submit certain additional evidence.

Parties seeking further documents held by the other side or by any third party must apply to the court for a disclosure order specifying the document or category of documents that they require. The order will only be granted if the documents specified are relevant to the case. Requests for disclosure that amount to fishing for evidence are not permitted in Scotland.

A party contemplating litigation in Scotland may want to see, or at least preserve, relevant information that will be of assistance in pursuing a claim before commencing proceedings. A statutory procedure exists to apply for disclosure of documentation before proceedings are commenced. In order to obtain such material, an applicant must satisfy the court that it has a prima facie case, proceedings are likely to be commenced, and the documents that are pursued will assist in further specifying or detailing the pleadings.

It is possible to obtain an order for recovery of documents and / or property without the knowledge of the party holding the material – often by way of undertaking a dawn raid – where there is a risk that prior warning would cause documents or property to destroyed or amended, raising concerns as to whether recovery could be made.

Last modified 19 Jul 2019

United Arab Emirates

United Arab Emirates

In the DIFC courts each party is required to submit to the other parties:

  • all documents available to it on which it relies, including public documents and those in the public domain, except for any documents that have already been submitted by another party (but not documents which adversely affect its case or support another party’s); and
  • the documents which it is required to produce by any DIFC court rule.

The default position under the ADGM court rules is similar in that parties must give to all other parties standard disclosure, which includes all the documents on which a party will rely upon at trial, except for documents that have already been submitted by another party (but not documents which adversely affect its case or support another party’s). This default position can vary depending on the type of proceedings, the agreement of the parties or direction from the court.

After the initial stages, the parties are then given the opportunity to provide Requests to Produce Documents to their opponent (in the DIFC) or to make an application for specific disclosure to the court (in the ADGM), in which they are required to precisely identify the documents requested and explain (among other things) why they are relevant and material to the outcome of the case (DIFC), or would assist the fair and efficient trial of the proceedings (ADGM).

In circumstances where production of documents is disputed, in both the DIFC and ADGM, applications can be made to the court to rule on whether such production should take place. The court will usually be guided by whether the document in question is relevant to the issues in dispute (and meets other requirements, such as existence and proportionality of the request). The court will then issue orders for production.

The DIFC court rules allow a DIFC court to, at any time, request a party to produce to the court and to the other parties any documents that the court considers to be relevant and material to the outcome of the case on the court’s own initiative. A similar rule does not appear in the ADGM court rules. That said, an ADGM court could make such an order based on its general management powers which allows an ADGM court to make any order, give any direction or take any step it considers appropriate for the purpose of managing the proceedings and furthering the overriding objective of the ADGM court rules.

In addition, both the DIFC and ADGM court rules allow for disclosure to be ordered against non-parties to proceedings where the court is convinced that:

  • the disclosure produced as a result of the order is likely to support the applicant’s case, or adversely affect the case of one of the other parties to the proceedings; and
  • the disclosure is necessary in order to dispose fairly of the claim.

Last modified 19 Jul 2019

United States

United States

Civil discovery tools are similar across federal and state courts in the US. Discovery is broad in scope and designed to allow parties to obtain all information related to any claim or defense in the litigation. The court is not typically involved in the discovery process, but may be asked to resolve a discovery dispute between the parties. It is not necessary that the information be admissible at trial. As a result, the scope of discovery is significantly broader than the scope of evidence that may ultimately be presented at trial. Discovery typically consists of a combination of the following:

  • Initial disclosures: Parties are usually required to exchange certain fundamental information early in the case without a request from the other side. Such disclosures include a list of key witnesses, relevant documents, damage calculations, and identification of any insurance available to cover any part of a party’s liability.
  • Requests for production: Parties may serve requests for production of another party’s documents, records, emails, electronically stored information, and other data related to the case. This is often a costly process in complex litigation.
  • Requests for inspection: If particular premises in one party’s control are relevant to the case, any other party may request to inspect those premises. For example, such requests might be used to obtain access to a manufacturing plant where an allegedly defective product was manufactured.
  • Interrogatories: Parties may serve written questions, to which the other party is required to provide written responses verified under oath.  
  • Physical and mental examinations: If a party claims a physical or mental injury as the basis for a claim, other parties may request that the individual submits to examination by an independently retained physician or other medical practitioner.
  • Requests for admission: Parties may serve requests asking another party to admit certain, specified facts contained in the request.
  • Expert reports: If a party retains an expert witness, that witness must prepare a report summarizing the expert’s opinions and conclusions, which must be provided to all other parties.
  • Depositions on written questions: An individual may be placed under oath outside the presence of a judge for the purpose of responding orally to written questions prepared by one of the parties.
  • Depositions on oral examination: An individual may be placed under oath outside the presence of a judge for the purpose of responding to questions posed by an adversary’s attorney. Most attorneys prefer depositions on oral examination to those on written questions, as the latter do not provide the ability for counsel to ask follow-up questions of a witness. Depositions may be taken of witnesses of fact and, in many jurisdictions, of expert witnesses. Corporate parties can be compelled to produce a designated individual with authority to respond to questions on the corporation’s behalf.

Discovery may also be obtained from third parties. However, such discovery is typically limited to production of documents, inspection of premises, and depositions, and to information that cannot be obtained from any of the parties to the litigation.

As noted above, discovery in the US is often very broad. Nevertheless, any party may seek entry of a protective order to limit the scope of discovery to ensure that it remains proportionate to the complexity and significance of the case, or to preclude discovery that would impose an undue burden on the party.

Last modified 19 Jul 2019

Australia’s courts operate under the common law legal system. Australia has a federal system of government, with legislative power divided between the federal branch of government and six state and two territory governments (for ease, we refer collectively to the states and territories as the state or states). Australia’s courts are similarly divided into eight separate state jurisdictions and a federal jurisdiction, which each operate on a parallel but independent hierarchy of courts. State and federal courts broadly have jurisdiction over the application of legislation enacted by the state and federal parliaments respectively. The High Court of Australia is the ultimate court of appeal in Australia for all court systems. There are also tribunals created by specific legislation under state and federal jurisdictions.

In each state or territory of Australia, specific legislation imposes a time period before the end of which proceedings must be commenced for a claim or dispute. 

The specific legislation is: 

  • Limitation Act 1985 (ACT)
  • Limitation Act 1981 (NT)
  • Limitation Act 1969 (NSW)
  • Limitation of Actions Act 1974 (QLD)
  • Limitation of Actions Act 1936 (SA)
  • Limitation Act 1974 (TAS)
  • Limitation of Actions Act 1958 (VIC)
  • Limitation Act 2005 (WA) 

These time periods vary from state to state and depend upon the type of claim. A failure to issue proceedings before the relevant time period expires is likely to result in that claim becoming time barred. 

In most Australian states, actions in simple contract or tort must be brought within six years of either the date of breach (contract) or the date on which loss was incurred (tort). 

The limitation period may be extended in some circumstances, for example where someone with legal incapacity (such as a minor or a person of unsound mind) has entered into a contract. Some jurisdictions also permit for the limitation period to be extended at the court’s discretion.

The process of litigation is broadly similar across Australian courts. Proceedings are initiated by a claim or application, which must be filed in the relevant court and served on all parties to the proceeding. Parties will then exchange pleadings (such as statements of claim, defenses, counterclaims, and replies) which define the parameters of the dispute between the parties and the specific issues which are to be proved by each party. Timeframes for the progression of litigation are found in the civil procedure rules applicable in each jurisdiction. Generally, a defense must be filed within 28 days of service of a statement of claim. 

For proceedings in the Federal Court, parties are required to file a genuine steps statement, which outlines the steps taken to make a sincere and genuine attempt to resolve the dispute prior to commencing litigation. Superior courts in the states may also require a party to litigation to provide details of attempts made to resolve a dispute before proceedings were commenced.  

Once the exchange of pleadings is complete, parties will generally undertake the discovery (also known as the disclosure) process, and then go on to prepare their evidence for a final hearing of the dispute. It is common, particularly in complex litigation, for the parties to be obliged to attend court at regular intervals for directions hearings, in which orders are given to manage the conduct and timeframes of the case up until its final hearing. 

Timeframes for each stage of proceedings vary greatly with the complexity and case management style of an individual matter and the specific jurisdiction in which the case is commenced. Each superior court in the states has in place specific practice notes or directions for the conduct of commercial disputes with the aim of ensuring that those commercial disputes are resolved in the most cost-effective and time-efficient manner possible. Generally, across all jurisdictions, parties will have 28 days from receipt of a claim to put on a defense. As noted above, the timetable from that point of time will depend on the nature of the dispute.  

A straightforward commercial contract dispute will normally, court resources permitting, be resolved within 12 months. 

Most state and federal courts require a corporate entity to be represented by a lawyer (which could include a lawyer employed by a company). Some jurisdictions dealing with small claims / employment issues may allow a company to appear by its director. Individuals may appear on their own behalf in most jurisdictions without a lawyer.

In Australia, the discovery process is designed to allow parties to civil litigation to obtain from an opponent all documents relevant to the issues in dispute. Australian courts strictly prohibit “fishing expeditions” through discovery. Discovery is usually undertaken after the close of pleadings (although in some courts in some states this may not be permitted until after evidence is complete) when the points of dispute between the parties have crystallized. Discovery may however be ordered, in limited circumstances, prior to the commencement of proceedings where an applicant is able to satisfy the court that he or she needs to obtain discovery in order to find out whether or not a cause of action exists against a potential defendant.  

The practice of disclosure varies between those jurisdictions which mandate a general right of discovery and those in which the right is more limited. In the Northern Territory and the states of South Australia and Queensland, parties have a mandatory duty of disclosure which is discharged by the exchange of lists or copies of discoverable documents. In Tasmania, Victoria and Western Australia, a party may, by written notice to another party, require that party to make general discovery. In the Federal Court of Australia and New South Wales, the right to discovery is limited and requires an order of the court and will usually be limited to specific categories.  

There have been recent attempts by some of the states’ superior courts to more tightly control the disclosure process. For example, the preparation of disclosure plans (which identify the categories of documents to be disclosed and how they will be disclosed), and the courts ordering that discovery being provided after the exchange of written evidence with a view to limiting the number of documents to be exchanged. 

In the Federal Court and most state courts, discovery can be ordered to be made by non-parties to the dispute where the court is satisfied as to the likelihood of the non-party having relevant documents. Courts in Australia will also generally permit the issuing of subpoenas to produce documents to non-parties to litigation and this process will be more straightforward than seeking non-party disclosure orders. 

Default judgment can be applied for in proceedings in any court where a defendant does not:

  • file a defense within the specified timeframe after a statement of claim has been served; or
  • fails to make an appearance at a hearing.

Once a default judgment is ordered against a defendant, a defendant can, in limited circumstances, seek to challenge the granting of judgment by default. The defendant will need to file an application or motion to set aside the default judgment within a specified period of time and show cause for why (usually lack of notice of the claim or that notice was given of intent to defend but that notice was not brought to the attention of the court which granted the default judgment) the judgment should be set aside.

Judgments of civil courts in Australia can be appealed to a superior court. Civil procedure legislation in each jurisdiction sets out the rules and procedure for appeals. Ordinarily, it will be necessary to seek leave from the superior court to appeal. The Court of Appeal in each state, and the Full Federal Court, are the ultimate courts of appeal for each of those jurisdictions. Cases that emanate from the Federal Circuit Court are appealable to the Federal Court and then the Full Federal Court, whereas matters emanating from a State Magistrates Court are appealable to the Supreme Court and the Court of Appeal. Decisions made by the District Court (County Court in certain states) are appealable to the Supreme Court and decisions of the Supreme Court can be appealed to the state’s Court of Appeal. The High Court of Australia hears appeals from courts of appeal (sometimes referred to as the full court) in all jurisdictions, and has limited original jurisdiction (which predominantly relates to constitutional matters). 

Parties generally, depending on the jurisdiction, have 28 days from the date of judgment or final order, to lodge an appeal in a civil matter to the relevant appeal court. Appeals will generally, because of the limitation of introducing new evidence in most civil appeals, be resolved more quickly than matters at first instance. Most appeals of civil matters will be heard and judgment given within six to eight months from commencement of the appeal. 

All superior Australian courts have a wide power and discretion to grant both interlocutory orders and interlocutory injunctions. An interlocutory application, generally speaking, is an application which seeks any order other than a final judgment. 

As in other jurisdictions, interlocutory injunctions are a species of interlocutory orders. Where those orders are sought on an urgent and temporary basis until a more extended form of relief is sought, they are often referred to as interim orders. 

Interlocutory orders (including interlocutory injunctions) can require a party to undertake or refrain from a particular act, and can be granted before proceedings have commenced, once they are on foot and after judgment has been entered. Applications for these types of orders may be made by self-represented litigants or through legal representation. 

The categories of non-urgent interlocutory orders that an applicant may seek are many and varied and include, by way of example, applications for security for costs, discovery (including preliminary discovery before proceedings have been commenced), the filing of expert evidence or orders for particulars, The evidence required to obtain non-urgent interlocutory orders will turn on the type of orders sought, although at the very least substantive interlocutory applications usually require a sworn affidavit to be filed. 

The kinds of relief that can be sought by way of an urgent interlocutory injunction are equally varied. This is because the orders have the purpose of preserving the status quo until the rights of the parties can be determined finally, and the types of matters that can be heard by the court are vast. Common urgent interlocutory injunctions include applications for the preservation of property, the freezing of assets and applications to search premises to preserve evidence.

An applicant for an interlocutory injunction (either urgent or not) must prove that: 

  • there is a serious question of law to be tried;
  • the balance of convenience favors the granting of the injunction; and
  • an award of damages (at the conclusion of the proceeding) would not be an adequate remedy. 

It is possible for urgent interlocutory injunction applications to be heard by the court ex parte, without the opposing party’s involvement. Any orders given ex parte will generally operate only for a limited period of time until the matter can be brought to a hearing. The duration of any ex parte order will ordinarily be limited to a period terminating on the return date of the summons, which should be as early as practicable (usually not more than a day or two) after the order was made, when the respondent will have the opportunity to be heard. For this reason appeals of ex parte interlocutory injunctions are not usually made to a superior court. The applicant will then bear the onus of satisfying the court that the order should be continued or renewed. A party seeking an interlocutory injunction will ordinarily be obliged to give an undertaking to pay any damages by the defendant suffered as a result of the injunction in the event that the claim for final relief at trial fails. 

The decision to grant an interlocutory injunction can be appealed on an urgent basis to a relevant appeal court. The appeal court will usually list the matter before a single judge to assess the urgency (often the same or the day following the day on which the appeal is lodged) and set a timetable based on the information provided at that first listing. 

Australian state and federal courts can grant interim freezing orders, which restrain a defendant from disposing of property prior to judgment. These orders are a species of interlocutory orders. Such applications may be filed at the Supreme Court or Federal Court. A freezing order is normally obtained ex parte without notice to the respondent, before service of the originating process, because notice or service may prompt the feared dissipation or dealing with assets. A freezing order or an ancillary order may be limited to assets in Australia or in a defined part of Australia, or may extend to assets anywhere in the world, and may cover all assets without limitation, assets of a particular class, or specific assets. It would therefore be possible for a freezing order to encompass bank accounts as well as assets such as real property, art, securities or motor vehicles. Such orders would, however, normally allow for access to funds for reasonable expenses, living costs and payments in the ordinary course of a defendant or third party’s business. A court may also order a freezing order against a third party, where it can be established that there is a risk that a judgment or prospective judgment may be unsatisfied as a result of a third party’s power, possession or influence over the assets in question. The power to issue a freezing order is a function of courts’ authority to prevent an abuse of the court process by the frustration of court-ordered remedies. A freezing order will be made only to preserve the status quo for the purpose of resolving a substantive cause of action brought by the plaintiff, and not as a stand-alone remedy.

The criteria for the issue of a freezing order is similar to the ordinary principles for the grant of interim relief, as discussed above, although the potentially serious impact on a defendant’s property rights raises the threshold for the granting of a freezing order. This may be overcome by an undertaking as to damages given by the applicant of the freezing order, where the applicant undertakes to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person affected by the operation of the order. The High Court of Australia described freezing orders as 'a drastic remedy which should not be granted lightly.' Broadly and generally, an applicant must show that: 

  • the applicant has a good arguable case (in the substantive cause of action);
  • the refusal of a freezing order will give rise to a real risk that any judgment pronounced in the action will remain unsatisfied, or that the recovery of any judgment will be prejudiced by reason of the removal by the defendant of assets from the jurisdiction, or their dissipation within it; and
  • the balance of convenience favors the making of the order.

Australian courts have wide discretion to award costs orders against either party to cover the opposing party’s costs of litigation. The general rule is that costs follow the event. This means that the unsuccessful party will be liable to pay the litigation costs of the successful party. The aim of this rule is to achieve a just outcome by shifting the costs burden on to the party which is found to have either unjustifiably brought another party before the court or given another party cause to have recourse to the court to obtain their rights. 

Where each litigant has enjoyed some success in the proceedings, courts may modify the general rule to make costs orders that reflect the litigants’ relative success and failure. Courts may depart from the general rule by requiring a successful party to bear their own costs where there is good cause to do so. Such an outcome may be justified where, for example, a successful plaintiff is awarded only nominal damages, or a party succeeds only due to late and substantial amendments to their case. 

Of particular strategic importance is the rule that generally a court will not award costs to a successful party which has obtained relief no more favorable than had already been offered by his or her opponent in settlement discussions. This rule is designed to encourage the early resolution of litigated disputes. 

Costs orders are subject to a costs assessment process administered by the courts. It is unusual that a party will be able to recover all of its actual legal costs through this process. On a standard assessment, parties may recover approximately 60% to 75% of their actual costs. A higher rate of assessment, on an indemnity basis, may be employed where a party has engaged in unreasonable conduct in the proceeding. 

All courts in Australia will charge fees for commencing civil proceedings (often referred to as a filing fee). Some jurisdictions, particularly superior courts, will also charge additional fees including but not limited to daily hearing fees (calculated by reference to the length of the trial), filing fees for notices of motions/applications and the issuing of subpoenas to third parties. These fees are set by the courts and are published on their websites. They are usually reviewed on a yearly basis. By way of example, the current (2019) rate for commencing proceedings in the Federal Court of Australia is AUD4,045 for corporations and the hearing fee for a five-day trial is AUD19,730 for corporations.

In all Australian jurisdictions, a representative proceeding, or class action (as it is more commonly known in Australia) may be commenced by or against any one person as a representative of numerous persons (the minimum number required is generally seven people) who have the same interest in the proceeding and the claims brought give rise to a substantial common issue of law or fact. It is possible to commence a class action against multiple defendants and there is no requirement for every group member to have a claim against every defendant.  

An overarching consideration of the courts in hearing a representative proceeding is whether it involves less delay, expense, and prejudice to the parties than alternative forms of trial. If not, the court may discontinue the proceedings. 

The Federal, New South Wales, Victorian and, most recently, Queensland jurisdictions contain further statutory provisions in relation to representative proceedings, which are arguably more liberal and plaintiff-friendly than other jurisdictions. These jurisdictions allow representative proceedings to be brought where seven or more people have claims which arise out of the same or related circumstances and give rise to a substantial common issue of fact or law. Over 90% of all class actions filed in Australia from 1992-2009 were filed in the Federal Court of Australia. 

When a representative proceeding is commenced, all potential plaintiffs who fall within a class become members of the class, whether they are aware of the claim or not. Members can then opt out of the proceedings before a date set by the court. All class members who do not opt out will be bound by the judgment of the court or by any approved settlement. 

It is important to note that, although some states have yet to formally abolish the law of champerty and maintenance, outside of the US, Australia has one of the most developed class action industries, with a variety of large, class action plaintiff law firms and with many litigation funders having been active in the jurisdiction for over 20 years. This active funding industry has seen a continued increase in the number of class actions being commenced in Australia. 

Cameron Maclean

Cameron Maclean

Partner
DLA Piper Australia
[email protected]
T +61 8 6467 6013
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