Allhusen v Labouchere
| Jurisdiction | England & Wales |
| Date | 1877 |
| Year | 1877 |
| Court | Court of Appeal |
Practice - Striking out Interrogatories - Party - Witness - Questions to Credit Answers tending to Criminate - Order XXXI., Rule 5.
A party who applies to strike out interrogatories must, unless they are altogether an abuse of the practice of the Court, specify those to which he objects.
Questions which go merely to the credit of the witness, and might be put in cross-examination, cannot be put as interrogatories to a party, and are as such irrelevant.
Where the answer to an interrogatory might tend to criminate the person interrogated, he may refuse to answer, but the interrogatory is not therefore objectionable.
THE action in this case was for damages to the credit and reputation of the plaintiff, caused by libels published by the defendant in a journal called ‘Truth,’ of which he was the proprietor. The alleged libels accused the plaintiff of misconduct as a director of the Royal Aquarium and Winter Garden Company, and also in connection with a company called the Newcastle Chemical Works Company. The defendant delivered interrogatories for the examination of the plaintiff. The interrogatories were thirty-three in number, of which some appeared to be irrelevant, and others intimated that the plaintiff had concurred in acts which amounted to crimes.
The plaintiff took out a summons to have the interrogatories struck out. The summons came before Hawkins, J., in chambers, who made an order to strike them out. His Lordship stated that he had read the interrogatories, and that he was inclined to allow some of them to be put, but that it was not the duty of a judge to examine interrogatories en bloc, and as several could not be put, he thought it better to disallow them all.
From this order the defendant appealed to the Divisional Court of Queen's Bench.
1878. July 17. Crump, for the defendant.
Sir H. Giffard, S.G., and A. L. Smith, for the plaintiff.
KELLY, C.B. I am not about to lay down any general rule or principle applicable to the question of allowing or disallowing interrogatories, but with respect to the case before us it is quite enough to say that at the outset we are referred to several interrogatories which do not in the least degree relate to the conduct of the plaintiff in this cause — or in the slightest degree refer to any portion of the libel, except where the libel attacks a Mr. Robertson, not a party to this cause, though mentioned in the libel. We see that several of these interrogatories taken together import a clear specific charge against Mr. Robertson, of having defrauded the company of a number of shares by allotting them to persons with whom he was acquainted or connected — possibly friends of his own — without the knowledge of the company, and without any money being paid into the pockets or possession of the company on account of these shares. Under these circumstances, that really is a charge of a criminal offence made against Mr. Robertson, and if it were to appear in any other part of the libel or in any other part of these interrogatories that the plaintiff was at all a party to these acts of Mr. Robertson, the answers might make out the plaintiff to be guilty of a conspiracy to defraud the company of shares to a considerable amount, for which, if convicted, he would be liable to severe punishment. How, then, are we to deal with the case as to the other interrogatories? We are asked to go through them one by one, and say which shall be allowed and which shall be disallowed. It is impossible for the public time to be, I will not say so wasted, but so bestowed, upon such matters as that we are, while sitting in court, to go through these thirty-three interrogatories in order to see if here and there we could light upon one which, if standing alone, would be admissible, and would be a proper interrogatory to be exhibited; still less can we be supposed to perform that task by taking home the interrogatories and considering if any of them should be allowed, especially when we find that that task, to which no judge should be subjected either in chambers or in court, has been performed by another judge. We are asked to go through them again, and to overrule the discretion which he has exercised and the judgment which he has given. That is conclusive of the matter. Where a number of interrogatories are exhibited, it lies upon the party claiming the right to exhibit them to shew that if there be one or two that ought not to be exhibited, they are exceptional only, and to shew that the great majority of them are relevant to the case, and such as the law allows him to exhibit. I think, from all we have heard with reference to these interrogatories, that the majority of them would be found not in any way admissible or such as we ought to allow. Upon the ground, therefore, that those to which our attention has been chiefly called are wholly irrelevant, upon the ground also that others tend to invade the sound principle of the law of England that no man should be called upon in a court of justice, or in any proceedings emanating from a court of justice, to criminate himself, I think these interrogatories ought to be disallowed, and therefore that this motion should be dismissed.
MELLOR, J. I have not sufficiently looked at the interrogatories to see whether the answers to them would necessarily, if given in one way, tend to criminate the party, but I am very much opposed to suffering the principle of not compelling a man to answer such questions (which I consider to be an elementary principle of jurisprudence) to be frittered away by allowing such interrogatories to be put. In the face of the judgment of the Court of Appeal in Fisher v. OwenF1, I do not wish to pass an opinion upon these interrogatories as being within that principle so as to require their rejection, but I base my objection upon the ground that if a party administers interrogatories, he ought to be careful how he mixes up genuine interrogatories with interrogatories that ought not to be allowed. I think the discretion is one which the judge applied to may well exercise in regard to particular interrogatories, and if it can be pointed out that there are in the interrogatories a large number which are likely to embarrass or which are inadmissible, I think the judge is justified in saying, “I shall refuse them all, because I am not called upon to go into each interrogatory.” It would be right that to that extent the judge should look into the interrogatories and see whether they are proper, but when you appeal against the decision of the judge I...
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