When Napoleon invaded Italy in 1796 an immediate objective was to steal shoes. His army was poorly supplied and the soldiers were often barefoot. Given the success he achieved by speed and manoeuver, arguably the stealing of the shoes was necessary. Napoleon thought so, and who, now, would second-guess him?

However, what if he had had to seek permission to steal the shoes, beforehand?

That is, metaphorically, what an applicant for discovery in the High Court must do.

In High Court litigation a party to an action will not get discovery from his/her opponent even of relevant documents without demonstrating that the documents are necessary to conduct the litigation.

The Statutory Instrument specifies that the applicant depose that:

…the discovery of documents sought is necessary for disposing fairly of the cause or matter or for saving costs.”

This is a staggeringly bad idea. It implies that is possible to be complicit in, effectively, suppressing documents, and be ACTING FAIRLY.

It also implies that it is open to debate that, when a party has furnished copies of incriminating documents to the other party, there would not be a saving in costs in the litigation (by dint of the rapid capitulation of the miscreant or the economy with which his wrongdoing may be proved).