027-NLR-NLR-V-58-M.-B.-NANDAWATHIE-DE-SILVA-Appellant-and-M-.-B.-YASAWATHIE-DE-SILVA-et-al.-R.pdf
1956 Present: K. D. de Silva, J., and H. N. G. Fernando, J.M B. XAN-DAWATHUS DE SILVA, Appellant, and 31. B. YASA-WATHIE D.R SILVA H al„ Respondents
S. C. 61 (Inly.)—D. (J. Guile, 6110! L
Discovery and Inspection oj Documents—Scope anil procedure—Objection to inspectionon grouiul that documents do not support opponent's case—Jb'orin of affidavit—Civil Procedure Code, si. SO, SI, 102, 103, 101, 103, 100, 100.
An order for discovery of documents need not be made us a matter of course,but is discretionary and may bo resisted by a claim of privilege although noexpress provision in this behalf is to bo found in section 102 of the CivilProcedure Code.
Although seetion 10G of the Civil Procedure C’odo does not on its face authorisethe Court to refuse inspection of documents, the obligation to jJroduce documentsfor inspection is much more restricted than tjio obligation to disclose theirexistence. One of the main grounds of protection is that the documents relatesolely to the case of the party giving the discovery.
Where objection is token to the inspection of any documents on the groundthat they relate solely to the caso of the party giving the discovery, the followingis the proper procedure:—the party must declare by affidavit that the documentsin question support or relate exclusively to his own case and that they containnothing supporting or tending to support the adversary’s case. An assertionin these terms is conclusive “ unless the Court is reasonably satisfied or reasonablycertain from particular sources that the nature of the document has been erro-neously misconceived or that the documents are of such a character that theparty cannot properly malto such an assertion or tho caso has been miscon-ceived ”. In view of the conclusive effect which an affidavit mado in tho properterms may have, a very serious responsibility is imposed on the legal advisers"to peruso carefully all the documents and to refrain from advising their clientto swear tho affidavit xmless the documents in questions do not even tend tosupport the opponent’s case.'
Where tho party noticed fails to make the appropriate) averments in thoaffidavit, tho Court- will usually not reject the affidavit without giving the partya further opportunity to mako a further affidavit.
A
-iA-PPEAL from an order oi the District Court-, Galle.
W. Jayeuardene, Q.G., with D. It. P. Goonelillekc, for tho plaintiff-appellant.
D. S. Ju yain't dire me, Q.C., with C. D. S. Siriivttrdene, for the defendants;respondents.'
Cur. adv. vult.
February 2S, I95G. H. KT. G. Ferxaxdo, J.—
The plaintiff instituted this action for a‘declaration that three deedsexecuted by her deceased mother on 6th October, 1952, are null and voidon the ground that, t-heir execution was secured by the defendants (brother
5twin.
3J. X. B 01077—1,503 (11/56)
and sisters of the plaintiff) by fraud and collusion. After filing answerdenying the allegations in the plaint, the defendants moved for notice onthe plaintiff to declare by affidavit the documents to be relied on by herat the trial. Notice having issued, the plaintiff filed the necessary listwhich referred to three classes of documents—certain deeds and copiesthereof, prescriptions and certificates issued by doctors, and letters writtento the plaintiff’s husband by the 3rd defendant and by the broker whoarranged the marriage between plaintiff and her husband. In the accom-panying affidavit, the plaintiff objected to the production of the two latterclasses of documents “ on the ground that they relate solely to my owntitle and contain evidence by which I seek to prove m3' case”. Thedefendants thereafter applied for an order of inspection in relation toall the documents, and, in response to the notice to produce, the plaintiffhas again objected to product ion in the same terms, subject to thealteration that “ they relate solel3' to 1113- title and case ”.
At the inquiry into the application for inspection, the learned DistrictJudge x’cjected the objections of the plaintiff for the reason that in hisopinion the documents “ do not relate to title whatsoever, but to otherfacts which are expected to help the plaintiff to prove her case ”. Heaccordingly ordered the production for inspection of all the documentsthe production of which was pressed for at the inquiiy.
. It was agreed on both sides that in the Courts outside Colombo recourseis not often had to those provisions of the Civil Procedure Code relatingto discover and inspection of documents, and in view of the fairh' fullarguments which have been urged at the hearing of this appeal, weconsider this a suitable opportunity' to attempt some explanation ofthose provisions.
The Court has power under section 102 to order any' party to declareby affidavit all the documents in his possession or power relating toany matter in question in an action, and in an affidavit under the section,the party is required to specify which of the listed documents he objectsto produce and the grounds of his objection. Application for such anorder may be made by a party at any time before the hearing.
Section 103 empowers the Court at 3113- time during the pendency of anaction to order the production of documents in the jxosscssion or powerof a party and to deal with the documents when produced in such manneras appears just. This section docs not- confer an3' right on a party' to askfor production, but appears rather to give the Court a discretion to orderproduction in the interests of justice, without necessarily' permitting ins-pection by' the other party. As the section does not appear to coixferrights on parties, no need arises for the consideration of this section inthe present action..
Section 104 enables a party' to obtain an order of Court for noticerequiring any other party' to produce- for inspection (and for the takingof copies) any document referred to in the pleadings or affidavits of theparty noticed. A notice under this section can issue cither in relationto documents mentioned in the pleadings or else to documents declared
bv affidavit in pursuance of an order under section 102. Sub-section (2)of this section provides that once a notice issues under section 104:, theparty noticed is bound to respond to t-lie notice at the risk of beingprecluded from producing the particular document in the action, unlesshe is able to satisfy the Court when he seeks to produce it “ that suchdocument relates only to his oira title or that he had sonic other or suffi-cient cause for not complying with such notice Without commentat this stage on the words just cited from sub-section (2), I pass to thesubsequent provisions of the Code.
The response to a notice under section 104 may be of two kinds. Theparty noticed would cither comply with the notice within the time specifiedin section 105, or, if he objects to production of any documents, he willstate through the Court the grounds of his objection to the production.
Section 10G deals with eases where either there is no response whateverto ail order under section 104, or the party noticed objects to giving ins-pection. In each of these events application may be made to the Courtfor an order of inspection, which if made must be complied with at perilof his action being dismissed or his defence being struck out, as well asof punishment for contempt—(section 109).
It has not been disputed at the argument in appeal that the object ofthese provisions was to introduce the procedure and practice obtainingin England. But it was only after considerable discussion and examina-tion of the authorities that Counsel and ourselves were able to acquireany adequate knowledge of what that practice and procedure actually is.In the first place, although section 102 of our Code is silent oil the point,a party is not entitled as of right to require his opponent to make a decla-ration of documents. " Discovery is no longer granted as of right butas a matter of discretion based oil the facts of the particular case underconsideration ”. (Jfalsbury 3rd Edn. Vol. 12 p. 5). But quite apartfrom the discretionary power of the Court to refuse discovery, there arespecial grounds of privilege upon which discovery may be denied, including“ the protection from disclosure of documents relating solely to the caseof the party giving discovery ” (idem p. 7). It will be seen thereforethat except in regard to documents produced with the. plaint or to borelied on as evidence (which must be produced or listed as required bysections 50 and 51 of the Code), a plaintiff would not necessarily be boundto make a full declaration under section 102 unless the Court in its dis-cretion so orders. There is no express provision in the Code with regardto the production or listing of documents relied upon by a defendant andit is not necessary for the purposes of the present appeal to considerwhether or not section 102 is the only provision under which a defendantcan be required to make a disclosure of documents but clearly ho toowould be inthesanie position as a plaintiff if in fact an application is madeto Court under section 102 for a declaration by' affidavit. With regardto this section the point which docs appear to need some emphasis is thatan order for discovery need not be made as a matter of course, but isdiscretionary and may be resisted by a claim of privilege although noexpress provision in this behalf is to be found in section 102.
As to the procedure for inspection as opposed to discovery, it is clearfrom section 104 that the notice to produce 11133' issue upon an ex jpariemotion. But where there is no response to such a notice the power ofthe Court to make an order of inspection is discretional'. (Halsbnryp. 35). Order 31 Rule IS of the Rules of the Supreme Court contains thejjroviso that the order (for inspection) “ shall not be made when and sofar as the Court or a Judge shall be of opinion that it is not necessaryeither for disposing fairly of the cause of matter or for saving costs ”.Again. Halsbmy at page 38 says “ Many relevant documents, althoughtheir existence must l>o disclosed in the affidavit of documents, are,nevertheless, protected from production. The obligation to producedocuments for inspection is much more restricted than the obligation todisclose their existence ”. (cf. Halsbmy, p. 3S for the 8 main heads ofprotection). One of the main grounds of protection is that the docu-ments relate solely to the ease of the party giving the discovery
Although therefore section 106 does not on its face authorise the Courtto refuse inspection, the English practice if followed would enable a partyto resist inspection on any of the specified grounds of protection, includingin particular the ground I have expressly cited.
I should now refer to the proper procedure which should be followedwhere objection is taken to the inspection of any document on this ground.
The Code nowhere sets out the various objections which may be takenor the form in which objection should be made. In England, it wouldappear that the Courts now recognise the following as the appropriateform of affidavit in a case such as the present one :—" The party mustswear that (to the best of his belief, and after proper examination) theyform or support or evidence or relate exclusively to his own case, thatthey contain nothing supporting or tending to support the adversary'scase ”. An assertion in these terms is in England accepted as con-clusive unless the Court is reasonably satisfied or reasonably' certainfrom particular sources that the nature of the document has been erro-neously' misconceived or that the documents are of such a characterthat the parly cannot properly' make such an assertion or the case hasbeen misconceived (p. 503 Annual Practice 1955 and the cases therecited).
* (19IS) 1 All. E. It. 907.
1 (1020) A. C. 5S1.
Where there is an affidavit in the specific terms required by the Englishpractice, the Court will usually not reject the affidavit without giving theparty noticed a further opportunity to make a further affidavit. Forinstance in O'Rourke, v. Darbishire and others 1 the party noticed to producetiled an affidavit, but the Judge held that it was insufficient and ordereda further and better affidavit. In this further affidavit objections tothe production of certain documents was taken in the recognised termsand the objections were thereupon entertained. Indeed the rights of aparty noticed appear to have been extended in the recent case of Brooksand another v. Pre-scolt and others 2 where although a quite insufficientaffidavit was furnished in the Court of trial, the Court of Appeal admittedand acted upon a sufficient affidavit wliich was sworn after the trial Judgehad ordered inspection. The failure of the parti' noticed to make theappropriate averments in the original affidavit were not considered by theCourt of Appeal to be a sufficient ground to draw an inference that theilnrnments would have sinvnorted the opponent's case.
Involved in the ground of objection that a document relates solelyto the case of the party noticed is the principle “ that it is consideredcontrary to the interests of justice to compel a litigant to disclose to hisopponent before trial the evidence to be adduced against him. It isconsidered that so to do would give undue advantages for cross-examina-tion and lead to endless side-issues ; and would enable witnesses to betampered with and give unfair advantage to the unscrupulous ”. (perFindley F.J. in Re StracJian ; see also Halsbury). While therefore theCourt must consider the advantages to be gained in the matter of savingdelay and costs, there must also be regard to the question whether anorder to permit inspection would impose an unfair disadvantage on the■party noticed.
While the terms of the affidavit and the statement of objections whichhave been filed in the present case do not correspond to those which aremade essential by the English practice, the question still arises whether inthe circumstances of the case the terms actually employed are insufficient.'As stated already, objection was taken to the production of docu-ments of three classes :—
(a) A register of prescriptions and two medical cert i/i cutes presumablyrelating to drugs or treatment for the executant of the impugned deed.I think that with regard to these documents it is manifest from theirdescription that in all probability they cannot be said to relate solely tothe plaintiff’s ease. Undoubtedly such prescriptions must containreferences to drugs or medicines, the nature of which may assist theplaintifF to establish (together with other evidence)-the state of healthof the executant ; but there is at least the same probability that they mayhelp the defendants to establish that the state of health of the executantwas not the same as that which the plaintiff may propose to establish.The defendants are therefore in my opinion entitled to an opportunit}-to inspect these documents with a view to preparation of their case.
■ The second class of documents consists of letters written by the 3rddefendant to the plaintiff’s husband. In this connection Counsel for therespondent relied on the following observations of Odgers (Pleadingsand Practice 13th Edn. p. 220) “ Some letters have, as a rule, passed bet-ween the parties before the action was commenced, and these may containimportant admissions, or be evidence of some material fact; but theplaintiff has the defendant’s letters, and the defendant has the plaintiff's ;and in the absence of copies, neither set is properly intelligible withoutthe other. It is most desirable that anyone who intends to give evidenceshould, if possible, read over his own letters before he enters the witness-box. For his recollection of an interview which took place many montlrsago is probably somewhat hazy now, and far less reliable than his accountof it, given in a letter written at the time, which remains in black andwhite, as clear and intelligible now as it ever was. Moreover, there is710 better material for cross-examining an opponent than his letters writtenbefore the dispute arose. Hence it is generally desirable for each partyto see all material documents in the possession of his opponent, and totake copies of the more important ones ”.
I think this statement must be read subject to the circumstances ofthe particular ease. If, for example, some commercial agreement orbusiness transaction is the subject of litigation, and the terms of thearrangement between the parties are to be found wholly or mainly incorrespondence exchanged between them, it is in the interests of bothparties that their memories be refreshed by inspection in order that theybe made fully aware of the actual terms ancl conditions of the transaction.Such a course will clearly make for expeditious disposal of an action andmay even enable a party to admit a claim of his opponent. But theposition I think must necessarily be different if the documents in question-do not in fact evidence the terms and conditions of a disputed transaction,but merely contain statements made by parties after a dispute has arisen,-or, though made before the dispute, cannot reasonably be supposed torelate to the disputed transaction. In the present Ciise the plaintiff’ssuit is for the annulment of deeds executed by her mother in October 1952.but most of the letters for which protection is sought were letters writtenby the 3rd defendant between December 1952 and September 1953.The plaint, be it- noted, was filed in November 1953. The disputed ques-tion will apparently be whether the executant was of sound mind orsubject to undue influence in October 1952, and it is impossible to saywithout actually perusing the letters which were written long after,whether they would in any way assist the defendants to establish thesoundness of the mind or the freedom of the will of the executant inOctober 1952. The learned District Judge therefore, if he had properlyaddressed his mind to the question he had to decide, could not in myopinion possibly have concluded that the failure of the plaintiff to averthat the letters did not tend to support the defendants’ case was in anyway an indication that they would in fact tend to support that ease.
The other letters of the 3rd defendant which were written in June,August and September, 1952 (before the execution of the deed) may onthe other hand contain material relating to the circumstances in which
the impugned deed came to be executed, and in the absence of a positiveaverment that they do not tend to support the defendants’ case, it cannotfairly be said that they are entitled to protection.
The third class of documents, namely letters alleged to have beenwritten by a marriage broker to the plaintiff's husband before theirmarriage are also documents which from their description are not to bonecessarily regarded as only tending to establish the case for the plaintiff.From their description they may well contain material concerning thearrangements or agreements made with regard to the marriage and toproperty proposed to be given to the plaintiff oh her marriage. Thatbeing so, they may well contain material of assistance to the defendants.
I should add that I have thought fit to deal in appeal with matterswhich should more properly have been dealt with by the trial Judge,and which therefore might have been remitted to the trial Court to dealwith at tliis stage. But having regard to the excusable ignorance of theterms in which the appropriate affidavit of objections should have beenprepared, and also to the fact that there appeal’s to have been no earlierdecision of this Court emphasising the responsibility of the legal advisersof a party noticed, in the matter of the preparation of the affidavit, thecase appears to be one which is best dealt with in appeal on its merits.
For the reasons set out above I would vary the order of the DistrictJudge of 15th November, 1954 by the omission, from the direction toproduce, of the documents specified in items numbered 6-12. The direc–tion for production of the other documents itemized in the order willstand. The direction that the plaintiff pay Es. 52 ’50 as costs of theinquiry is set aside. There will be no costs of this appeal.
K. D. de Silva, J.—I agree.
Order varied.