The Court held that a notice to produce under UCPR r 21.10 is not an order of the court and therefore cannot constitute an 'interlocutory order' or 'order for production' for the purposes of s 87(1) of the Civil Procedure Act 2005, meaning the certificate regime under s 87 is not enlivened by such a notice. Where documents called for by a notice to produce are privileged (including as tending to prove culpable conduct), the recipient's only obligation under UCPR r 21.11 is to serve a notice stating the documents are privileged. The Court further held that s 87 CPA and ss 128/128A of the Evidence Act are designed to protect persons actually compelled to give incriminating evidence, and refused to permit a contrived course whereby defendants would not oppose an order for production and then seek a certificate, characterising this as artificial and outside the protective purpose of the provisions.
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