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purpose of litigation. The Divisional Court of Queen's Bench, sustaining the refusal of the Judge at Chambers, had declined to order the desired discovery in the second of the above cases, and the Master of the Rolls had ordered it in the first case. The Court of Appeal upheld the decision of the Master of the Rolls, and reversed that of the Queen's Bench Divisional Court.
In delivering judgment in the case of Anderson v. the Bank of British Columbia (the first of these cases), James, L.J., says, “ As to the cases at Law, they seem to have been brought now, at least, very much in conformity with the principle of the cases in Equity. They may possibly all be based upon this, which is an intelligible principle, that you have no right to see your adversaries' briefs,” and he shows that a communication between a principal and his agent giving information of the facts and circumstances of the very transaction which is the only subject matter of litigation is not of that character. Mellish, L.J., says, “ Having regard to the general rule that the practice in Equity is to prevail, and that the 11th rule of the 31st order is taken from Equity practice, there can be no doubt that the rules previously existing respecting discovery in the Court of Chancery are now binding upon all the Courts.” After showing that the desired discovery was not privileged as a communication between a client and his solicitor, he observes, “In reference to the question whether it was privileged as being evidence obtained for the purpose of litigation, there may be some very nice questions, particularly when the evidence is not obtained for the direct purpose of being given in the action, but in order that the party who seeks it may determine whether he will defend or commence an action. If the information is really and simply information obtained respecting his evidence, I do not think it necessary to give my opinion on the present occasion whether it would be privileged or not. It might be that it would be privileged just as much if obtained before as if it was sent after the action was commenced. As a general rule, no doubt, a person is not bound to give discovery respecting that.”
Baggallay, L.J., in the same case, after pointing out that this discovery sought was of facts known to the defendant's agent as such agent, says, “I can understand no possible ground, consistent with the recognised principles on which discovery is given in suits in Equity, upon which the information afforded by the letter (of which discovery was sought) can be withheld. It might be very different, indeed, if the letter had contained certain matters not within the knowledge of the writer, or not within his means of information in the ordinary discharge of his duties.”
In the case of Bustros v. White (45 L.J., Q.B. 642) Cockburn, C.J., and Coleridge, C.J., had decided that correspondence between the plaintiffs (merchants in Liverpool) and Riso (their agent in Hull), and between the plaintiffs and their firm at Alexandria, was privileged. The Court of Appeal, before which the question was argued, consisted of the Master of the Rolls, Kelly, C.B., James, Mellish, and Baggallay, LL.JJ., Lush and Denman, JJ., and Pollock, B., and judgment was delivered by the Master of the Rolls after retirement of the Court to consider the matter.
The Common Law element in the Court of Appeal, therefore, preponderated in the proportion of 5 to 3, and it may reasonably be expected that due weight was given to the more restricted view of the right to discovery which had been acted upon in the Divisional Court of the Queen's Bench Division. In supporting their order before the Court of Appeal the counsel for the plaintiff argued that the documents in question were privileged as being quasi professional, a term under which the rule relating to professional privilege has been sometimes enlarged. In giving judgment the Master of the Rolls laid down the rule which is henceforth to govern all the branches of the Court on this subject in the following words :-“ By quasi professional privilege I understand this, that the communication may be protected when it does not proceed from the solicitor directly, but is information sent at his instance by an agent employed by him, or by his client on his recommendation ;” and he held that the documents in question did not come within that rule or any other known rule as to privilege.
The case of Bustros v. White (45 L.J. Q.B. 642), is also important for having determined another question which has been productive of much difference of opinion in the Common Law Courts. As has been observed, it has always been theoretically a part of the Common Law Jurisdiction of the Courts to grant inspection of documents, irrespective of the Statutory powers which have been at various times granted ; and, in some cases, it has been considered that they had a discretion to refuse it where the production would give one party an undue advantage, as if the effect of the production would be to enable the Defendant to use a document, not directly Evidence for the Jury, in an indirect manner against the Plaintiff, either by founding upon it a damaging crossexamination, or raising other topics of prejudice in relation to
was resisted on this ground. In giving judgment, the Master of the Rolls, said: “ This case raises a question of very considerable importance, as to whether under the Judicature Acts the Judge has any discretionary power of refusing to allow the inspection of documents by a party to the action, except on the ground of privilege ; in other words, whether, when the document is not protected by reason of privilege, the Judge can exercise any further discretion. We think he cannot.” After observing that the IIth rule of the 31st order under the Judicature Act is copied from the 31st section of the Chancery Improvement Act (15 & 16 Vic. c. 86), and that it had been held that that section did not alter the right to the production of documents, and did not confer any discretionary power on the Judge, but that the right remained unaffected, and was exerciscable at the option of the parties where no privilege could
be established, his Lordship said, “ Under the 25th section of the Judicature Act, if there is any difference between the practice of the Courts of Law and Equity, the practice of the Court of Equity is to prevail. It, therefore, lies upon the party who might have been made a Defendant to a Suit in Equity, to show something depriving the Plaintiff of the right to discovery of documents, which the rules of a Court of Equity could give him, in one or other of the Judicature Acts.” After showing that the letter in question was not privileged, he adds,“ if its production is a matter of right, as we think it is, it is not now for us to say that the rule applicable to it should be extended, because it might or might not be injurious to the party producing it if it were made use of before a jury."
The conclusion to be drawn from these cases, therefore, is that discovery is now a matter of right, and that inspection can only be resisted on the ground that the document of which inspection is desired, is a communication from or to a Solicitor or his Agent, or that it is evidence exclusively applicable to the establishment of the case of the party objecting to produce it.
In the recent case of Orr v. Diaper (46 L.J. Ch. 41) it was decided that a Plaintiff is entitled as of right to this discovery before the trial of the action, not only from a Defendant but from any person possessing information that may be material, though no relief is sought against such person, that is, from a possible witness.
It is to be observed that two methods of discovery may be pursued under the Act, the first under the 13th Order, r. 15, which provides that any party may give notice to the other party to produce any document mentioned in any pleading or affidavits, or may obtain an order as of course, without affidavit, requiring the other party to state on affidavit what documents he has or has ever had material to any matter in issue in the action (Order 13, r. 11); or, secondly, he may deliver what interrogatories he chooses for the examination
of such other party (Order 31, r. 1), subject, as a check upon his otherwise absolute right of delivering interrogatories, to the right of the party interrogated to apply to a judge to strike out any interrogatories which can be shewn to be scandalous, or irrelevant, or not put bonâ fide for the purpose of the action, or if the matter inquired after is not sufficiently material at that step of the action, or on any other ground (Order 31, r. 5).
This order has been acted on in the recent case of Mansfield v. Childerhouse (46 L.J. Ch. 30), in which Bacon, V.C., struck out interrogatories filed by a Defendant for the purpose of discovering whether Plaintiff, who was seeking specific performance of an alleged agreement, had been guilty of a breach of trust in entering into the alleged agreement.
J. C. E. WEIGALL.
IV.—PATENT LAW AMENDMENT.
DURING the last two Sessions, Bills having for their
object the amendment and consolidation of the Law relating to Patents have been before Parliament. It has long been admitted on all hands that the law regulating Patents is in a very unsatisfactory condition, but up to quite a recent date it has been a moot question whether the Patent Laws should be preserved or not, whether in fact it would not be to the advantage of the community at large, that the patent monopoly should be altogether abolished. Now we do not propose to discuss that question, because