The Plaintiff in the underlying Action applied for the production of records and the Defendants made a Cross-Application concerning the production of records. The parties in the dispute were direct competitors and the subject matter of the dispute deal with intellectual property. The Defendants through their Cross-Application sought to protect some of their confidential information.

Nixon J noted that the purpose of the Part 5 of the Rules was to encourage the early disclosure of records, discourage conduct that unnecessarily delays proceedings or increases their costs, and to facilitate the resolution of issues in dispute. His Lordship stated that the Court had broad authority inherent in Rule 5.1 to enforce these obligations. In accordance with the principles in Rule 5.1, and as set out in Rule 5.6, the parties to civil litigation bear an onus to provide all relevant and material records in their possession. Pursuant to Rule 5.10, the parties bear an ongoing obligation to disclose relevant and material records. Records and property are distinct matters. Pursuant to Rule 6.26, an application is needed if a litigant wants to inspect property and the Courts are liberal in giving orders for the inspection of property.

Ultimately Nixon J determined that there were relevant and material records that had not been disclosed and that must be produced. His Lordship ordered that the Defendants produce a further and better Affidavit of Records and that some of the production be made on a “counsel’s eyes-only basis” to protect highly secret and confidential design records and financial data that could create a significant business risk.