In calling this talk “The ISM Code: the road to discovery?”, I have put a question mark at the end, because it is too early for anyone to be certain. However I have little doubt that it will prove to be such a road. But, you may ask, “what do you mean by discovery?”. To the litigant “discovery” is, of course, the process by which you hope to get your opponent to prove your case from his own documentation. The Woolf reforms of the civil justice system are expressly designed to limit the process of discovery as being both expensive and time wasting. What price then the IMO’s International Safety Management Code as an engine of discovery?

The vice of the normal general order for discovery is that the party giving it is the sole judge of what needs to be disclosed. Some will comply properly by disclosing all documents which assist their own or their opponent’s case or could put their opponent on to the track of evidence which might be relevant. Others will take a much more limited view of their obligation. This may not involve deliberate dishonesty. It is a well known fact of judicial life that, if you ask counsel to estimate the length of a case, he will make a very full estimate of the time which he requires, but will add little time for his opponent who, almost by definition, needs little time to elaborate a non-existent case. So too with discovery. Since the opponent has no case, there is little that need be disclosed on the footing that it may assist him. Yet others, with a firm eye on the expense of their professional time, will make little effort towards deciding what is and is not truly discloseable. Instead they will list everything in sight and leave it to the other party to do what should have been their own work in the course of inspection. In my day at least an application for specific discovery was a great rarity and usually only arose when one relevant document referred to another which had not been disclosed and whose contents were unknown. It was usually an unproductive exercise.

For reasons which I will try to indicate later, my belief is that, while the Woolf reforms will rightly limit the scope of general discovery and, in particular, will put paid to the tactics of presenting your opponent with a haystack and inviting him to look for the