5.1: Purpose of this Part (Disclosure of Information)
5.10: Subsequent disclosure of records
5.25: Appropriate questions and objections
5.6: Form and contents of affidavit of records

Case Summary

The Defendants, MEC, applied to compel further document production and Questioning responses from the Plaintiff, NEP. Master Farrington referred to Rules 5.1, 5.6 and 5.10, and noted that the requirement for document production to produce relevant and material documents and records, whether or not they help a party’s case, subject to exceptions such as privilege. The Affidavit of Records confirms what documents exist and that production obligations have been met. Further, counsel plays an important role in the production process and must ensure that the client clearly understands its production obligations. In this case, the Plaintiff’s production was large and the Plaintiff had a continuing obligation to produce records as its damages claims were linked to ongoing remediation efforts. The Defendant sought unredacted portions of a witness’ notebook, further proof of damages and documents which the Defendant said were required by its damages expert. Master Farrington considered the rationale for the disclosure, and declined to order further production of most of the requested records.

With respect to the Questioning issues, Master Farrington observed that it was fundamental to our legal system that “questioning by a party adverse in interest be permitted to continue without interruption within reason for the purpose of discerning the facts in the litigation”. The Defendant was entitled to know the factual basis for the allegations made in the Statement of Claim and was entitled to test the witness’ understanding freely and without interruptions. It was not permissible for counsel for the Plaintiff to use an interruption as a way of coaching the witness on how to answer the question. Master Farrington stated that objections should be measured, and only made when necessary. Master Farrington noted further that the questioning party was entitled to have a useful transcript, and with all the unfounded objections, the Defendant was denied that right. The Court observed that, in large cases, it may be pragmatic to make each individual question subject to a specific costs award, but declined to order costs for each question in this Application. In the result, Master Farrington held that counsel for the Plaintiffs was overly obstructive during Questioning.

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