Re Hinchliffe, a Person of Unsound Mind, Deceased

JurisdictionEngland & Wales
CourtCourt of Appeal

Practice - Evidence - Affidavit, Exhibit to - Right of Inspection.

Irrespective of any question as to discovery, property, or privilege, if a document is made an exhibit to an affidavit, any person who has the right to inspect and take copies of the affidavit has a similar right as to the exhibit also.

THE deceased lunatic, Emma Jane Hinchliffe, was one of three sisters. The other two were sane, and the elder of them was the committee of the lunatic.

Before the death of the lunatic the committee and the sane sister, thinking that a certain person, who was trustee for the three sisters, had dealt improperly with the trust fund, took counsel's opinion on behalf of themselves and of the lunatic, and were advised that proceedings should be taken against the trustee, and that the lunatic should be joined as co-Plaintiff. They then applied in the lunacy for leave to join the lunatic as a co-Plaintiff, and in support of their application the committee made an affidavit, in which she stated that she had taken the opinion of counsel, as she and her sisters were interested in the question of the liability of the trustee; and she further stated in her affidavit that the case and opinion were “annexed hereto and marked with the letters C and D respectively.”

Upon that affidavit, which was filed on the 6th of January, 1891, the requisite leave to join the lunatic was given; and an action was subsequently commenced against the trustee by a writ issued on behalf of all the three sisters.

The lunatic afterwards died, and the surviving Plaintiffs added as a Defendant to their action the executor of a will made by her while she was still sane.

The executor then applied in the lunacy, asking that the committee, who had not yet received her final discharge, should hand over to him all the books, papers, and property of the lunatic. The committee accordingly handed over (amongst other papers) an office copy of the affidavit so made by her; but she refused to shew the executor the case and opinion referred to therein, upon the ground that they were documents of title, the property, not of the lunatic, but of the committee herself, and that the Defendant ought to make any application for discovery in the action. The executor then applied to the Master in Lunacy for an order that he might be at liberty to inspect and take copies of the...

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31 cases
  • Re Hernandez
    • Cayman Islands
    • Summary Court (Cayman Islands)
    • 18 February 1986
    ...A. S. McField for the applicants. Cases cited: (1) Harris, In re, Grand Court, January 27th, 1978, unreported. (2) Hinchcliffe, In re, [1895] 1 Ch. 117, applied. (3) R. v. BlakeUNK(1978), 68 Cr. App. R. (4) R. v. Brixton Prison Governor, ex p. Atkinson, [1969] 2 All E.R. 1146, applied. Legi......
  • Barings Plc ((in Liquidation)) v Coopers & Lybrand (No. 1)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 5 May 2000
    ...proceedings. 44 This is a principle on which Mr Bannister strongly relies and in support refers to the clear statements of this Court in Re Hinchliffe [1894] 1 Ch.. They are so succinct we quote them in full. Firstly, Lord Herschell LC at p. 119 : "I think that questions of property and of ......
  • Lee Chin Ho v Syed Hussein bin Salim Al-Attas
    • Malaysia
    • High Court (Malaysia)
    • 1 January 2000
  • Liew Choo and Another v Million Purpose Properties Sdn Bhd
    • Malaysia
    • High Court (Malaysia)
    • 1 January 2018
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