Douihech v Findlay
| Jurisdiction | England & Wales |
| Date | 1990 |
| Year | 1990 |
| Court | Queen's Bench Division |
Practice - Discovery - Action for - Action for inspection of musical instrument - Instrument property of person not party to dispute - Owner joined as defendant for purposes of obtaining order of inspection - Whether plaintiff entitled to order -
The first defendant, an antiques dealer, sold a cello to the plaintiff for £50. The cello, which was very valuable and reputed to have been made by a 16th century instrument maker, had been recently stolen and it was returned to the owner. The plaintiff brought an action against the first defendant for, inter alia, breach of an implied condition that the first defendant had title to the cello and he claimed damages on the basis of the difference between the purchase price and the market price of the instrument. To prove the damages claimed, the plaintiff needed an expert to inspect the cello in the possession of the owner but she refused to grant permission. The plaintiff therefore joined the owner as a defendant to the action and amended his statement of claim to allege against the owner in paragraphs 6 and 7 that he was entitled to inspect the instrument under the provisions of R.S.C., Ord. 29, r. 2.F1 The master made the order for inspection.
On the owner's appeal against the master's order and on her application to strike out paragraphs 6 and 7 in the statement of claim: —
Held, allowing the appeal, that a party could not be joined as a defendant to an action solely for the purpose of obtaining inspection and photographing the subject matter of the action; that, while R.S.C., Ord. 29, r. 2 was wide enough to cover discovery and inspection between defendants, that right depended on the existence of either a cause of action against the defendant or where the actions of a third party had facilitated the wrongdoing by which the party seeking inspection had suffered; that the court had no jurisdiction to grant the order for inspection and, accordingly, paragraphs 6 and 7 of the statement of claim would be struck out (post, pp. 273B–C, E–F, 274D–F, H–275B).
The following cases are referred to in the judgment:
Coomes & Son v. Hayward [
Hetherington, decd., In re [
Norwich Pharmacal Co. v. Customs and Excise Commissioners [
Penfold v. Pearlberg [
Shaw v. Smith (
INTERLOCUTORY APPEAL from Master Creightmore.
By a writ indorsed with the statement of claim dated 19 December 1984, the plaintiff, Kamel Douihech, alleged that he had purchased from the first defendant, Dennis Findlay, a cello which proved to have been stolen from its owner, Mrs. Vivian Mackie. He claimed damages for breach of an implied condition that the first defendant had title and breach of an implied warranty of quiet possession. By an amendment to the statement of claim of 8 November 1988, he claimed in paragraph 6: “inspection (and photography) thereof for the purpose of compiling an expert's report and so as to give full particulars of loss and damage suffered as a result of the first defendant's said breaches of contract.” By paragraph 7, he pleaded that he was entitled to such inspection and photography under R.S.C., Ord. 29, r. 2.
On 25 January 1989 by an order of Master Lubbock Mrs. Mackie was joined as second defendant. By an amended defence dated 10 May 1989 the first defendant admitted the breaches of contract but denied that the plaintiff had suffered any loss, that the loss was not reasonably foreseeable and was not recoverable in law.
On 10 May 1989 the plaintiff applied to Master Creightmore under Ord. 29, r. 2(1) for an order for the inspection of the cello by experts. The order was granted and the second defendant appealed and applied for paragraphs 6 and 7 of the amended statement of claim be struck out. The appeal was heard in chambers and judgment was given in open court.
The facts are stated in the judgment.
Stephen Bate for the plaintiff.
Simon Davies, solicitor, for the second defendant.
The first defendant did not appear and was not represented.
13 June. JUDGE DOBRY Q.C. read the following judgment. The issue in this appeal is whether a person can be joined as a defendant solely to obtain an order for inspection and photography of a cello under R.S.C., Ord. 29, r. 2(1).
The claim is for damages for breach of contract against Mr. Dennis Findlay, the first defendant. He is an antique dealer and sold the cello to the plaintiff in March 1983 for £50. It then transpired that the cello had been stolen from a Mrs. Vivian Mackie who is now the second defendant. The cello was returned to her on 16 March 1983 a few days after the theft. It is reputed to have been made by Gasparo Da Salo, a 16th century Italian instrument maker. It is worth a great deal of money, considerably more than £50. The writ was issued in December 1984 and later amended joining Mrs. Mackie as a defendant.
The claim...
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