There are a few more minor stages before the pleadings close and the case is set down for trial. It is then that a further process begins - disclosure (which was prior to Lord Woolf's reforms termed "discovery" which is the term still used in the United States). Under the Rules of the Supreme Court, prior to Lord Woolf's reforms, each party to the action ( hence in this example each company) was required by law to produce a list of all relevant documents in their 'possession, power, custody or control'; relating to the issue in dispute between the parties. These lists of documents were exchanged. The lists were in two parts, one listing documents which were 'discoverable' and the other listing documents which exist but which the party claims were 'privileged'. A privileged document would be, for example, a copy of a legal Opinion which would set out the chances of success in the litigation.

Before photocopiers existed each party's solicitors would meet and go through the list of documents that the other had provided with the actual documents in front of them. One solicitor would say 'I would like a copy of these documents from your list'. The other solicitor would then employ a scribe who would hand copy the requested documents. The copies, and the bill for the wages of the scribe charged out at a standard rate, would be handed over. It was a practice within the profession that this bill had to be paid immediately between solicitors. Each client was thus presented with a bill for copying well before the case went to trial

The cost of preparing a large number of documents was considerable and this acted as a check upon a solicitor asking for too many documents - he only asked for those that he considered to be necessary for his case. Having looked at these copy documents he could ask for other documents on the list and these would be copied and supplied. Additionally as he looked at documents these might refer to other documents not included in the list. If a discoverable document referred to another document then, subject to privilege, this further document was discoverable and the solicitor could require the scribe to copy it.

Click here to continue