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The benefits of a system of discovery will only outweigh the disadvantages if substantially greater control over the scale of discovery is exercised than at present.

The solution, therefore, lies in finding a satisfactory form of control and then ensuring that it is enforced.'There are no prizes for guessing that these statements emanated from Lord Woolf's report 'Access to justice'.

They express concerns held generally within the profession.

According to Lord Woolf, the solution lies in ensuring that: '.

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the jurisdiction to order full discovery, on what is now the normal standard of reference, is only exercised in the very small minority of cases in which it can be shown to be justified'.Lord Woolf's proposals for achieving this will involve the division of relevant documents into four categories whose discovery will depend on the type of case before the courts, ie, in Lord Woolf's terminology, whether a fast or multi-track case.These proposals are radical and will involve a considerable change of mind-set for all litigators.

Whether they will ever be implemented in this form remains to be seen, but Lord Woolf, with a broad range of support behind him, has clearly signalled that 'something must be done' and it is unlikely that the case for change will go unanswered.

But what if his proposals stall? To some extent Lord Woolf's observation that the court has existing powers to limit the worst excesses of discovery may already have been anticipated by some judges, who are arguably implementing their own small revolution in advance of the earthquake he is contemplating.The starting point is the Lord Chief Justice's practice direction 'Civil litigation: case management' issued on 24 January 1995, applicable to Chancery and Queen's Bench Division actions, where the judiciary gave notice that it intends to assert greater control over High Court litigation and, in particular, over the discovery process.The practice direction gives no clues as to how the court might limit discovery, but as Lord Woolf has commented, there is scope for restricting the extent of discovery within the existing Supreme Court Rules.

In this respect, there have been a number of judicial pronouncements -- the most recent in a judgment of the Master of the Rolls in Taylor v Anderton and the Police Complaints Authority [1995] 1 WLR 447, handed down on 13 January 1995, which suggest that guidance can be found within the existing discovery framework.

A common thread running through these judgments is that a closer analysis and a stricter application of ord 24 procedures could lead to a curbing of some of the more common abuses of the discovery process.

Particular areas whic h might merit attention are the 'relevance' test and the discovery and inspection processes.

The following extract from Lord Woolf's speech in R v Chief Constable of the West Midlands Police, ex p Wiley [1994] 3 WLR 433, helps to set the context: 'It is important .

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to remember that while the obligation to make discovery is the wide one contained in RSC ord 24, r 3(1) is subject to the important proviso set out in RSC ord 24, r 8 that the court: "shall in any case refuse to make .

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an order if .

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that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs" and the similar restrictions contained in ord 24, r 13 as to inspection.'Lord Woolf's speech in Wiley acknowledges the width of the relevance test as contained in the classical exposition given by Brett LJ in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1888) 11 QB 55, a test which has partly contributed to the current problems.

In his interim report Lord Woolf described Brett LJ's test as '.

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a sophisticated one, more readily applied to the limited number of documents which were being considered by the Court of Appeal in Peruvian Guano than to the vast bulk of documents which have to be considered by parties and their advisers in connection with the complex litigation of the present time...It is the inclusion in the test of documents which are indirectly relevant which causes most of the present problems.'It is unlikely that the existing ord 24 contains a complete cure for this problem.

However, even with that framework, there are signs that the courts can and will tighten up on the question of what documents are relevant for the purposes of ord 24.

In Dolling-Baker v Merrett [1990] 1 WLR 1205, which foreshadowed the views of Lord Woolf, a defendant successfully appealed a specific discovery order.

It covered a wide range of documents (including pleadings, witness statements, experts reports and nine days' worth of transcripts of evidence) created in concluded arbitration proceedings where similar matters were in issue.Despite the width of Brett LJ's interpretation of the relevance test, Parker LJ felt that there were many documents covered by the order, and particularly the transcripts, which could not conceivably be relevant to the issues in the case.

He also applied ord 24, rr.7 and 8 strictly.

Whilst conceding that there was good reason to suppose that certain witness statements and the transcripts of those witnesses' evidence arising from the arbitration proceedings could be relevant in the Peruvian Guano sense, such that a more limited form of discovery order might be justified, the plaintiff had failed to make out a case sufficient to enable the judge to frame an acceptable order.

Although the court felt that the scope of the discovery application which had given rise to the order under appeal was unusually wide, such an application might seem all too common from the practitioners' viewpoint.

One lesson which can be drawn from Dolling-Baker is that, in the light of the practice direction, a court is likely to scrutinise a specific discovery application very carefully, with particular reference to the matters in issue and the case the applicant makes on oath in an effort to justify his or her request for more documents.

Discovery and inspection is the second area the courts may focus upon in the wake of the practice direction.

Lord Woolf's speech in Wiley, primarily concerned with the scope of claims to public interest immunity, makes clear that the court needs to be convinced th at it requires a party to list particular documents and then to produce them for inspection to the other side.

This is clear from ord 24.

In Dolling-Baker, Parker LJ highlighted the distinction between rr.7 and 8, where the party objecting to the listing of documents in discovery must satisfy the court that an order is not necessary; and rr.11 and 13 where the party applying for production of documents must satisfy the court that an order for their production is necessary, his opponent having listed documents.

In Dolling-Baker, Parker LJ considered the question of production on the basis that his rulings on relevance were wrong.

The applicant for production must satisfy the court that it is appropriate to make an order.

The court took into account the fact that many of the documents sought by the plaintiffs were prepared for use in an earlier arbitration.

Therefore, there was an implied obligation on the parties not to disclose or use them for any other purpose except with the consent of both parties or with the order or leave of the court.

The court had to take that implied obligation into account, but if it were satisfied that disclosure and inspection were necessary for the fair disposal of the action before it, then that consideration would prevail.

In Dolling-Baker, the court considered whether there were less costly ways by which the plaintiff could obtain the information it sought through the documents.

The court resorted to the plaintiff's skeleton argument and focused upon certain findings of fact made in the parallel arbitration which the defendant indicated to the court that he was prepared to admit.

This enabled the court to conclude that it was not necessary for discovery or production of the documents concerned since they were no longer necessary for disposing fairly of issues in the action.A similarly restrictive approach was adopted in Taylor v Anderton and the Police Complaints Authority [1995] 1 WLR 447, in which Sir Thomas Bingham MR gave the leading judgment on appeal from Owen J.

Taylor was concerned with an application for production of three reports and associated working papers of the Police Complaints Authority.

The reports had been prepared prior to the proceedings, which included claims for malicious prosecution brought in the wake of an aborted trial of the plaintiff, who sued with the benefit of legal aid, for offences of dishonesty.

The defendant had served on the plaintiff statements and documents obtained by the PCA's investigating team, but objected to the production of the reports on the basis that they would be inadmissible in evidence, were irrelevant to any pleaded issue and were unlikely to suggest any new train of enquiry.Taylor was also concerned with public interest immunity issues.

However, the court's first consideration was whether it was appropriate for the court to make an order for production of the reports pursuant to ord 24, r 11.

Only if it did would public interest immunity claims come into play.

Curiously, the defendants had not objected to listing the reports, despite having argued that they were not relevant, and had not relied on ord 24, r 8.

They did, however, resist production and relied on r 13, arguing that production was not necessary for fair disposal of the action or for saving costs.

In dealing with this, the Master of the Rolls focused upon the meaning of the expression 'disposing fairly of the cause or matter' in r 13.

This was the 'crucial consideration': 'Those words direct attention to the question whether inspection is necessary for the fair determination of the matter, whether by trial or otherwise.

The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection.

It is, I think, of no importance that a party is curious about the content of the documents or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it.

That .

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is the test.'As to saving costs, the Master of the Rolls disagreed with Owen J that disclosure might lead to the refutation of some of the allegations in the pleadings, resulting in a huge saving to the Legal Aid Board.The Court of Appeal would only go as far as to express serious reservations about the necessity for producing these reports, since the judges had not read them and were not well versed in the minutiae of an exceptionally complex case.

The matter was, therefore, remitted to the trial judge for reconsideration if the application were repeated in the light of the court's judgment.The court's ruling is unsatisfactory and uncharacteristically superficial.

The judgment failed to explain how Sir Thomas Bingham's 'fair disposal' test was determined against the plaintiff, and many of the factors canvassed were more appropriate to a Peruvian Guano relevance test, despite the defendants conceding the point by listing the reports.However, bearing in mind the judgment was handed down 12 days before the practice direction was issued, it is difficult to resist the suggestion that the court was putting down a marker as to how production applications might be determined in the future.

The courts have highlighted the distinction between discovery in listing documents and the inspection in producing them.

To date it has been an artificial distinction in practice but the courts may be encouraged by the interim report and the practice direction, and therefore receptive to objections at an earlier stage.

Ord 24 certainly permits such objections.Irrespective of a document's relevance in Peruvian Guano terms, a litigant is likely to receive a more sympathetic hearing if he or she objects to producing documents on the basis of Sir Thomas Bingham MR's test in Taylor.

This could be seen as a back-door restriction on the Peruvian Guano relevance test.

It remains to be seen how the point will be developed in cases decided subsequent to 24 January 1995.The absence of reported decisions on how the practice direction will be applied make these conclusions tentative.

However, a first decision will be eagerly awaited.