Leaky building discovery and inspection
Discovery is the process by which all parties to the dispute must make available to the other parties all documents in their possession that may be relevant to the leaky building dispute and that are not subject to privilege (we discuss this further below), even if those documents are damaging to that party's case.
Discovery represents a very serious obligation upon all parties. That's why you may have to swear an affidavit stating that you've disclosed all the documents you have in your possession; and if you no longer have them in your possession, where they are now. Your solicitor will guide you as to what is considered relevant or not.
Leaky home purchase
The circumstances surrounding the purchase of your leaky home or property will often be considered relevant and for this reason we ask you to sign a document called an 'Authority to Uplift', which will enable us to obtain the file held by the solicitor that acted for you in the purchase. We will also require documents personally being held by you.
Your solicitor will also decide whether documents in your purchase file, or in your possession, are subject to solicitor / client or litigation privilege. If a document is privileged then it does not have to be disclosed to the other side (although a party can choose to do so if it assists their case).
Leaky home litigation documentation
Examples of documents that are subject to privilege are letters of advice from us to you in relation to your litigation. Once litigation commences (and often for a period beforehand) most documents generated will be privileged. An exception is documents that relate, for example, to how your leaky home or leaky building is being repaired and how much it is costing - all of which might come into being after litigation has commenced.
Practically, discovery is undertaken by your solicitor preparing a list of all documents which is then verified as an affidavit by you as explained above. The defendants will also provide lists of documents. Inspection of the party's listed documents then takes place - usually by one solicitor attending at the office of the other parties' solicitors, reading the documents and then requesting copies of some, or all of the documents.
Discovery is a very important part of the leaking buildings litigation process. It can also be time consuming, which in turn means expensive. It assists all of the parties in understanding the facts of the case. Often, as a result of discovery, the parties will realise that there are other people who may be liable and who should be part of the litigation.
These people will then be joined as defendants (or if the defendants join them, they are known as 'third parties'). They will then have to undergo the discovery process. Also, once discovery has taken place, your solicitor will have a better understanding of your case and will be able to guide you as to its strengths and weaknesses accordingly.
Leaky Building Litigation Process
1. Commencing leaky building proceedings
2. Discovery and inspection
3. Interrogatories
4. Interlocutory applications
5. Evidential witness statements
6. Mediation / Judicial Settlement
7. Conference
8. The leaky building trial
9. Leaky building legal costs
10. Role of leaky building experts
11. Damages
