Privileged

communications.

Public documents.

How

discovery obtamed.

dical officer before litigation commenced or was formally threatened, to report to them upon the nature of the injuries, and it was held that such reports were privileged; and the Court distinguished the case from the one previously referred to, upon the principles laid down in Woolley v. North London Railway Co., ubi supra; and see further as to the production of documents in the possession of the opposite party relating to the matters in dispute, and to an inspection of which the party applying would not have been entitled at Common Law on the ground of their being the private documents of the opposite party (Chartered Bank of India v. Rich, 4 B. & S. 73; Woolley v. Pole, 14 C. B. N. S. 538; Daniel v. Bond, 9 C. B. N. S. 716; Hill v. Great Western Railway Co., 10 C. B. N. S. 148); in which latter case, which was an action for wrongful dismissal, the plaintiff was held entitled to have an inspection of all minutes or entries in the company's books having any reference to the plaintiff's employment; and see Rayner v. Ritson, 6 B. & S. 888. Communications between attorney and client privileged (Hopper v. Gumm, 2 John & H. 602). So are the opinions of counsel (Jenkins v. Bushby, L. R. 2 Eq. 547); and the reports of an accountant employed by the party's solicitor (Walsham v. Stainton, 2 H. & M. 1). Private and confidential letters from a stranger are not, however, privileged (Hopkinson v. Burghley, L. R. 2 Ch. 447). As before mentioned there was no power at Common Law to enforce the production of one part of an agreement which had been originally interchangeably executed. The Court will, however, under the present section enforce production in such a case (Steenan v. Harnett, 5 Ir. Jur. O. S. 112).

An order will not be made for the production of documents of a public nature, and relating to public business, as for instance, reports made in the discharge of the duties of their respective offices by Government officials to the Crown, or its representatives, when such production would be against public policy (M'Elveney v. Connellan, 17 Ir. C. L. R. 55). As to obtaining the production of a police charge, sheet, and summons, see Smith v. Whelan, 10 Ir. C. L. R. Ap. 17; and see further, the 73rd G. O. 1854.

In order that a party may obtain discovery under the present section he must, as directed above, make an affidavit stating that some one particular document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession of the opposite party. The application must be upon notice (Madden v. Byrne, 6 Ir. Jur. N. S. 18). The affidavit upon which it is grounded must be made by the party (Herschfield v. Clark, 11 Ex. 712). In the case, however, of a corporation aggregate it may be made by the attorney (Kingsford v. The Great Western Railway Co., 16 C. B. N. S. 761). The affidavit must describe the document, and show that it is in the possession of the opposite party (Evans v. Louis, L. R. 1 C. P. 656; Thompson v. Dobson, 2 H. & N. 412). It will be sufficient for the applicant to pledge his belief as to the existence of the document in question, but the document in question must not be privileged (Crommelin v. Irish Society, Ir. R. 2 C. L. 501). The affidavit must also show that the party is entitled to inspection of the document, and the Court will not, therefore, in an action against an attorney for negligence make an order for the production of his books upon a mere suggestion of belief that they contain entries relating to the matters complained of (Evans v. Louis, ubi supra; and see Cox v. Brockett, 18 C. B. N. S. 241). The affidavit should, therefore, show that the document in question is material to substantiate the case of the applicant (see Riccard v. Inclosure Commissioners, 4 El. & Bl. 329).

The Court refused to order a defendant to answer on affidavit what documents he had in his possession where he had furnished the plaintiff with the abstract of an account, and informed him that it was taken from a particular book, which contained all the entries relating to the matters in dispute between them (Bray v. Finch, 1 H. & N. 468). But interrogatories may, in general, be administered as to whether the party interrogated has in his possession any documents relating to the matters in dispute (Adams v. Lloyd, 3 H. & N. 351); but see Crommelin v. Irish Society, Ir. R. 2 C. L. 501. A plaintiff obtaining inspection, does so upon an implied understanding, not to make public any information so obtained, or to communicate it to persons strangers to the suit (Williams v. Prince of Wales Insurance Co. 23 Beav. 338). As to obtaining an inspection by witnesses, see Boyd v. Petrie, L. R. 3 Ch. 818.

The costs of the application are in the discretion of the Court. In general they will be made costs in the cause. The costs of inspection are also in the discretion of the Court (Stilwell v. Ruck, 10 Ex. 468; Smith v. Gt. W. R. Co., 6 E. & B. 405).

deliver writ

gatories to

opposite party. 17 & 125, s.51.

is Vict. c.

56. In all causes in any of the superior Courts, by order Power to of the Court or a Judge, the Plaintiff may, with the writ of ten interro summons and plaint, and the defendant may, with the appearance and defence, or either of them, by leave of the Court or a Judge, may, at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought (w), and require such party, or in the case of a body corporate any of the officers of such body corporate (x), within ten days, to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions (xx), as to which a discovery may be sought within the above time, or such extended time as the Court or a Judge shall allow, shall be deemed to have committed a contempt of the Court, and shall be liable to be proceeded against accordingly.

(w) By the above section of the Act the parties to an action are enabled Interrogato deliver interrogatories to the opposite party upon any matter as to which tories. discovery may be sought. Formerly the only means by which such discovery could have been obtained was by proceeding in equity.

After the introduction of the present Act one of the earliest questions Extent of raised was as to the extent of the jurisdiction conferred upon the Court, it jurisdiction. having been contended that interrogatories could only be administered in Whether cases where a bill for discovery would formerly have lain. Although, how-sane as in equity. ever, the Courts of Common Law, in administering the new jurisdiction conferred by the present section, conform in general to the principles and rules formerly acted upon by the Courts of Equity, it has nevertheless been held Held to be that they are not fettered by those rules, and that discovery may be sought sive.

more exten

sonal tort.

for as to matters upon which the party could not have been interrogated in equity (Pye v. Butterfield, 11 Jur. N. S. 220; Dobson v. Richardson, 9 B. and S. 516). Thus, although Courts of Equity would not grant discovery in Cases of per- aid of a personal tort, the Courts of law will allow interrogatories in such actions (Zychlinski v. Maltby, 10 C. B. N. S. 838); and in that case it was laid down that the Court may allow any interrogatories which are relevant to the matter in issue, and which the party interrogated would be bound to answer if in the witness box. As before mentioned, there are, however, cases to be met with in which it has been held that the jurisdiction of the Court is limited to cases where discovery might have been obtained in equity (see Edwards v. Wakefield, 6 El. & Bl. 462).

General principle as to extent of jurisdiction.

Must be relevant.

Must not exclusively

of opposite

party.

Such, then, being the nature of the jurisdiction possessed by the Courts of Common Law under the present section, the next question to be considered is what are the matters upon which a discovery may be sought, aud what are the principles upon which the Courts act in allowing or disallowing interrogatories? This is a question which cannot be considered as finally settled as yet. It may, however, be laid down as a general rule that the administration of interrogatories is not a matter of strict right, and that it rests in the discretion of the Court to allow or to disallow them (Stern v. Sevastopulo, 14 C. B. N. S. 737; Bird v. Malzy, 1 C. B. N. S. 308), in which latter case the Court refused to allow the interrogatories upon the ground that the party had the means of acquiring the information sought from his own agents. Furthermore, in order that they may be allowed, it may be laid down as a general rule that they must (1) be relevant to the matter in issue (Robson v. Cooke, 2 H. & N. 766; Zychlinski v. Maltby, 10 C. B. N. S. 838, 843); (2) they must be confined to matters which relate to the case of the party seeking to administer them, and must not extend to matters which relate exclusively to the case of the opposite party; and (3) they must not be of a mere fishing description, i. e. they must have reference to some state of circumstances which the party interrogating has good ground for believing to exist, and must not be put merely for the purpose of finding out if, by chance, whether any circumstances exist of which the party applying may take advantage to support his own case or disprove his adversary's.

As regards the second of the qualifications adverted to above, reference relate to case may be had to the case of Moore v. Roberts, 26 L. J. C. P. 246, in the judgment in which the law is thus laid down per Cockburn, C. J.: "We shall find the object of the act to be this, that when either party to an action has a specific case which he desires to set up, but the materials for making it out are not in his possession, but in that of the other side, he should have a right to interrogate his adversary in order to establish his own case; but he is not entitled to find out how his opponent is going to shape his case, or to see whether there be any defects in it." A defendant will not therefore in an action of trover be allowed to interrogate the plaintiff as to the nature of the title by which he claims the goods (Finney v. Forwood, L. R. 1 Ex. 6), with which case compare Derby Bank v. Lumsden, L. R. 5 C. P. 107. It has however been held in actions of ejectment that the defendant may interrogate the plaintiff, as to the nature of the title under which he claims (Flitcroft v. Fletcher, 11 Ex. 543; Kettlewell v. Dyson, 9 B. & S. 300); but these cases have been explained in Finney v. Forwood, ubi supra; and the plaintiff in ejectment will not be allowed to interrogate the defendant as to the nature of his title (Horton v. Bott, 2 H. & N. 249); and see further as to the meaning of the rule that

Ejectment.

the interrogatories must not relate exclusively to the case of the party interrogated (Edwrds v. Wakefield, 6 El. & Bl. 462; Peppiatt v. Smith, 3 H. & C. 129 (an action for negligence); M'Clintock v. Langan, 8 Ir. Jur. N. S. 381 (in which case the plaintiff was not allowed to interrogate the defendant as to the particulars of a payment relied upon); Jourdain v. Pulmer, L. R. 1 Ex. 102; Zarifi v. Thornton, 26 L. J. Ex. 214; Adams v. Lloyd, 3 H. & N. 351. As regards the third qualification adverted to above, viz., that the interrogatories must not be of a "fishing" nature; interrogatoreference may be had to Edwards v. Wakefield, ubi supra, where in an ries. action by the assignees of a bankrupt, an application for leave to interrogate the plaintiffs, as to what acts of bankruptcy they intended to rely upon at the trial was refused on the ground of their being fishing interrogatories; and see further as to the meaning of the rule (Morris v. Parr, 6 B. & S. 203; Jones v. Hargreave, 29 L. J. Ex. 368; Atter v. Willison, 7 W. R. 265).

Fishing

Where, however, the interrogatories sought to be administered are not When open to any of the objections just mentioned, they will in general be allowed; allowed. and the rule upon the subject may be taken to be as laid down by Lord Campbell in Carew v. Davis, 5 E. & B. 709. "I think the true rule is that such questions may be put as may reasonably be expected to produce answers tending to advance the case of the party who puts them. The rule on this subject has been very clearly laid down by that great jurist, Sir James Wigram, and I concur in that rule in the very terms in which he has laid it down. Whatsoever advances the plaintiff's case may be inquired into, though it may at the same time bring out matter which the defendant relies on for his defence, but you shall not inquire into that which is exclusively matter of defence; that which is common to both the plaintiff and the defendant may be inquired into by either," and accordingly in that case Negligence. which was an action against an attorney for negligence in the conduct of a defence to an action on a bond, interrogatories were allowed as to whether he had made inquiry concerning the circumstances under which the bond was obtained and the consideration for the same; and in Whately v. Crowter, 5 El. & Bl. 709 (which was an action against a surveyor for negligence) similar interrogatories were allowed. As to interrogatories a railway company in an action against them for negligence, see Bechervaise v. Great Western Railway Co., 19 W. R. 229; and see ante, p. 325.

It will not be a fatal objection to the interrogatories that the answers, if Where tendgiven in the affirmative, would render the person interrogated liable to a ing to crimicriminal prosecution, though it may be ground for refusing to answer nate. (Bartlett v. Lewis, 12 C. B. N. S. 249; Bickford v. Darcy, 4 H. & C. 534; M'Fadzen v. The Mayor and Corporation of Liverpool, L. R. 3 C. P. 279, 281). In such cases the Court has a discretion to say that it will not admit of irrelevant, offensive, or scandalous questions; but it will not allow a question to be shut out because the opposing counsel says that it is a question which the interrogated party may, perchance, object to answer. As instances of cases where the Court, in the exercise of its discretion, has refused to allow such interrogatories to be put, see Baker v. Lane, 3 H. & C. 544; Tupling v. Ward, 6 H. & N. 749; Stern v. Sevastopulo, 14 C. B. N. S. 737; Edmunds v. Greenwood, L. R. 4 C. P. 70. In such cases the interrogatories will not be allowed upon the common affidavit, and special circumstances must be shown (Villeboisnet v. Tobin, L. R. 4 C. P. 184; Inman v. Jenkins, L. R. 5 C. P. 738). As to allowing interrogatories when the answers may have the effect of rendering the party interrogated liable to

Forfeiture.

Disclosing trade secrets.

How objection of privilege taken.

Action1 against broker.

nistravit.

tion of lost instrument.

a forfeiture, see Chester v. Wortley, 17 C. B. 410; May v. Hawkins, 11 Ex. 213; Pye v. Butterfield, 5 B. & S. 829. Neither is it an objection that the defendant, by answering the interrogatories, will disclose the secrets of his trade (Howe v. M'Kernan, 30 Bear 547); nor is it a ground for refusing to answer that third parties will be thereby exposed to actions (Tetley v. Easton, 18 C. B. 643). In Chester v. Wortley, 17 C. B. 410, it was laid down that the Court will not, on a motion for leave to deliver interrogatories, entertain the objection that they are such as the party interrogated is privileged from answering, and that such an objection must be taken when the interrogatories are administered, and see M'Fadzen v. Mayor of Liverpool, L. R. 3 Ex. 279; and as to how far the oath of the party interrogated is conclusive as to the question of privilege, see Adams v. Lloyd, 3 H. & N. 351.

In an action against a broker interrogatories asking whether he acted as principal or agent, and if as agent who was his principal, were allowed (Thol v. Leask, 10 Ex. 704). So also in an action for commission upon the sale of goods, it was held that the defendant was entitled to interrogate the plaintiff as to conversations with the defendant's agents respecting the subject matter of the action (Rew v. Hutchins, 10 C. B. N. S. 829). Interrogatories have Plene admi- also been allowed to be administered to an executor who pleaded plene administravit (Peck v. Nolan, 14 Ir. C. L. R. Ap. 32; and for a form see also Petheram on Interrogatories, p. 94); and to defendants sued as assignees of Assignees of a lease ( Grattan v. Wall, Ir. R. 2 C. L. 80). So also in an action by surviva lease. ing partners, interrogatories as to the particulars of a settlement of accounts with a deceased partner have been allowed (Hawkins v. Carr, 6 B. & S. 995). A defendant may be interrogated as to whether he has executed a document As to execu- supposed to have been lost, subject to the condition that the answers were not to be used at the trial unless evidence of the loss was given (Wolverhampton Waterworks Co. v. Hawksword, 5 C. B. N. S. 703; or as to the existence of a partnership between him and a co-defendant (Bickford v. Darcy, 4 H. & C. 534); or as to whether he entered into an agreement to become a partner of the plaintiff, and whether the defendant's books contain any entries relating to it (Levy v. M'Swiney, 2 Ir. Jur. N. S. 380); or as to whether he has had a correspondence relating to the subjects in dispute, and asking for the dates and names of the places and the correspondence (Rew v. Hutchins, ubi supra). In an action on a bill of exchange by an indorsee against acceptor, the plaintiff was not allowed to interrogate the defendant as to whether or not on one previous occasion he had authorized his bankers to pay a similar bill, on the ground that no foundation was laid for administering such interrogatories by showing that the answers to them would be material (Morris v. Bethel, L. R. 4 C. P. 765); and in a similar action interrogatories as to the consideration given by the plaintiff, and the circumstances attending the indorsement, were refused (Martin v. Hemming, 10 Ex. 478).

Correspondence.

Action on bill of exchange.

Other instances in which allowed,

As to interrogatories in an action of slander, in reference to the speaking of the words, see Atkinson v. Fosbrooke, 7 B. & S. 618 (in which case such interrogatories were allowed); Stern v. Sevastopulo, 14 C. B. N. S. 727; in an action for libel, Baker v. Lane, H. & C. 544; Tupling v. Ward, 6 H. & N. 749; Thompson v. Wynne, Ir. R. 1 C. L. 600; in an action for negligence, Peppiatt v. Smith, 3 H. & C. 129; Mason v. Wythe, 5 F. & F. 153; Whately v. Crowther, 5 El. & Bl. 709; Carew v. Davies, id.; and see further, Woolley v. North London Railway Company and the other cases referred to, ante, p. 325; in an action for a false