Fairchild v MacFarlane ; Burchard v Macfarlane ; Burchard and Others v MacFarlane and Others ; Re an Action Pending in Scotland
| Jurisdiction | England & Wales |
| Date | 1891 |
| Court | Court of Appeal |
Practice - Commission issued by Court in another part of the United Kingdom - Production of Documents - Persons not parties to the proceeding - 6 & 7 Vict. c. 82, s. 5.
In pursuance of a commission issued by the Court of Session, in an action pending in Scotland with regard to the sale of a vessel by the defenders to the pursuers, an order was made at chambers under 6 & 7 Vict. c. 82, s. 5, that the chairman and secretary of Lloyd's should attend before the commissioner for examination as to, and to produce the documents which Lloyd's had under their control answering the description in the specifications of documents by the pursuers and the defenders. The specifications stated that the documents called for were correspondence between Lloyd's and their surveyor at Hamburg, relating to the condition or the surveys of the vessel between certain dates, and all reports and communications addressed to Lloyd's by their agent at Hamburg relating to these matters. On appeal against this order:—
Held (reversing the decision of the Queen's Bench Division), that the only process intended to be enforced by the statute was the production of documents as ancillary to the examination of a witness; that the order amounted to one for discovery against persons not parties to the action; and that there was no jurisdiction to make such an order.
APPEAL from an order of the Queen's Bench Division.
The action was pending in the Court of Session in Scotland, and arose out of a contract by the pursuers to purchase from the defenders a vessel called the Lady Octavia. In this action, the Lord Ordinary granted a commission to examine certain witnesses and granted diligence against havers, at the instance of both parties, for recovery of the documents specified in their respective specifications, Nos. 22 and 23 of process and commission, to certain named commissioners to take the oaths and examinations of the havers, resident in Germany, London, Glasgow, and Edinburgh respectively, and receive their exhibits and productions, and ordained “Mr. A. H. Tindall, chairman, and Mr. A. G. Dryhurst, secretary of Lloyd's Register of British and Foreign Shipping, to appear before the commissioner in London and produce any of the documents called for, so far as under their control.”
The specification No. 22 of documents called for by the pursuers was: “All correspondence passing between the defenders or Barr, their surveyor, or any person on their behalf, on the one hand and Emil Padderatz, surveyor at Hamburg, to Lloyd's Register of British and Foreign Shipping, or any one on his behalf on the other, relating to the condition of the vessel known as the Lady Octavia, or the surveys of said vessel in 1889 and in July and October 1890, between January 1, 1889, and the date of raising this action. 2. All correspondence between the said Emil Padderatz on the one hand and the London office of said Lloyd's Register of British and Foreign Shipping or any of the officials of said register relating to said matters prior to said date. 3. All reports obtained by, and all communications addressed to said Lloyd's Register of British and Foreign Shipping or any of the officials of said register in reference to said vessel during the years 1889 and 1890. 4. Failing principals, copies, drafts, scrolls or jottings of any of the above documents are called for.” The specification, No. 23 of documents called for by the defenders was, “all correspondence passing between the pursuers or any one on their behalf on the one hand and Lloyd's, or Lloyd's Register of British and Foreign Shipping, or W. H. Tindall, the chairman, and A. G. Dryhurst, the secretary, or any one on behalf of or as representing Lloyd's or Lloyd's Register of British and Foreign Shipping, on the other hand, relating to the vessel referred to on record as the Lady Octavia, between May 1, 1890, and the date of raising the present action.” A copy of the interlocutor was duly served and the commissioner cited Messrs. Dryhurst and Tindall respectively, “to attend to produce the documents mentioned in the specifications served upon you, and give your oath and examination respecting the same on behalf of the pursuers.” Failing the appearance of Messrs. Tindall and Dryhurst, a summons was taken out before a judge at chambers, who ordered them to attend before the commissioner at such time and place as he might appoint, “for examination as to the documents which Lloyd's Register of British and Foreign Shipping have in their possession answering the description mentioned in the specifications Nos. 22 and 23, of process in the said action, and also that they do respectively produce to the said commissioner the documents mentioned in the said specifications (without prejudice to the said W. H. Tindall and A. G. Dryhurst's objections before the commissioner as to all or any class of documents or document, or to further application by pursuers to a judge in any such case).”
On appeal to the Queen's Bench Division the Court affirmed this order.
Messrs. Tindall and Dryhurst appealed.
Sir R. E. Webster, A.G., and Cohen, Q.C. (with them James Fox), in support of the appeal. This is an attempt to obtain discovery from a witness, and not merely an application for the production of documents as ancillary to his examination. It purports to be made under 6 & 7 Vict. c. 82, s. 5F1; but the clause in that section as to documents only means that on the examination of a witness he may be ordered to produce documents, and does not give rights over third parties other than witnesses. This order, however, does not purport to treat either of the applicants as witnesses, but calls on them to ascertain and disclose the documents in their possession, which are their exclusive property. If the order of the judge at chambers is upheld, the English Court would be making an order in aid of the parties to the Scotch action which...
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