Digest 5

A. General Overview 

1.   The disclosure regime in the Family Justice Rules 2024 (FJR 2024) provides for the disclosure of information (previously known as interrogatories in the FJR 2014) and disclosure of documents (previously known as discovery in the FJR 2014). 

2.   The rules on disclosure under the FJR 2024 seek to reduce the time and costs expended in the disclosure process.

3.   In general, the disclosure regime is guided by the six Objectives and the following principles:

a.   An applicant is to sue and proceed on the strength of the applicant’s case and not on the weakness of the respondent’s case; and

b.   A party who sues or is sued in court does not thereby give up the party’s right to privacy and confidentiality in the party’s documents and communications.

4.   The court may allow a broader scope of disclosure where the court determines that it is in the interests of justice to do so. It will be in the interests of justice to allow such broader scope of disclosure where it could aid in disposing fairly of the proceedings.

B. Mandatory Disclosure of Documents

5.   As a baseline, it is mandatory for all parties to disclose the following documents in their possession or control:

a.   All documents that the party will be relying on to substantiate the matters alleged or set out in the affidavit or which are referred to in the affidavit; and

b.   All documents specified in the Form to be used, and any practice directions, for those proceedings.

6.   All parties must disclose the above documents without any order for disclosure being made against the party. If a party fails to disclose the above documents, the court can make the appropriate orders, including drawing an adverse inference against the non-disclosing party.

7.   The term “control” has a wide meaning and the obligation to disclose documents would include, for example, documents in the party’s custody or power. 

8.   The parties may agree between themselves to disclose documents falling within a broader scope. 

9.   Where the party is unable to or refuses to disclose any document which is mandatory to be disclosed, the party must specify, in the party’s affidavit, the reason or reasons for not disclosing the document. The reasons for not disclosing the document will be considered by the court when making the appropriate orders in relation to the non-disclosure. 

C. Application for Disclosure

10.   A requesting party may apply for the disclosure of documents or information in a party’s possession or control, but the court will not order the disclosure which:

a.   is in the possession or control of the party seeking disclosure of the document or in the knowledge of the party seeking disclosure of the information, as the case may be, except in a special case;  

b.   merely leads a party on a train of inquiry to other documents or information, except in a special case; or

c.   subject to any written law, is subject to any privilege or where its disclosure would be contrary to the public interest.

11.   Except in a special case, the requesting party:

a.   must not file a summons for disclosure before the other party has filed and served an affidavit on the requesting party; and 

b.   may only file one summons for disclosure in relation to each affidavit.

12.   The requesting party must file the summons for disclosure within 14 days after the date on which the affidavit was served on the requesting party.

13.   There is no requirement for a requesting party to first issue a request before filing a summons for disclosure. Nonetheless, should parties wish to engage in a voluntary disclosure process, they may do so and follow the procedure set out in paragraph 92 of the Family Justice Courts Practice Directions. However, please note that should a requesting party wish to file a summons for disclosure subsequently, the timeline of 14 days must still be adhered to.