Senior v Holdsworth, ex parte Independent Television News Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE ORR,LORD JUSTICE SCARMAN
Judgment Date26 March 1975
Judgment citation (vLex)[1975] EWCA Civ J0326-1
Date26 March 1975
CourtCourt of Appeal (Civil Division)
Between
Ms. Diana Senior, Heathcote Williams Nicholes Albery
Plaintiffs
and
David Holdsworth
Defendant

In the matter of a summons to produce documents dated 6th January 1975 and served upon Independent Television News Ltd.

[1975] EWCA Civ J0326-1

Before

The Master Of The Rolls (Lord Denning),

Lord Justice Orr and

Lord Justice Scarman.

In The Supreme Court of Judicature

Court of Appeal

Appeal by Independent Television News Ltd. from order of His Honour Judge Duveen at Slough County Court on January 6th, 1975.

Mr. COLIN DUNCAN, Q. C. and The Honourable HUGH DONOVAN (instructed by Messrs. Biddle & Co.) appeared on behalf of Independent Television News Ltd.

Mr. GORDON SLYNN, Q. C, and Mr. MICHAEL HOWARD (instructed by the Treasury Solicitor) appeared as amici curiae.

THE MASTER OF THE ROLLS
1

In August 1974 there was a Pop Festival in Windsor Great Park. There were serious disorders. On 29th August the police intervened to stop them. The camera men took cinematograph pictures of what happened. These were shown on television news.

2

Afterwards three of those present at the festival brought an action in the County Court against the Chief Constable. They alleged that they had been assaulted by the police. One of them, Mr. Albery, said that policemen carried him away from the scene and that one of them hit him on the nose. He, with the others, acted in person. Before the hearing Mr. Albery went to the offices of the County Court and got a summons issued to produce documents. It was addressed to Mr. David Phillips, the main-producer of Independent Television News. It required him to attend at the trial and bring with him:

3

"… all film and video taken of the break-up of the Windsor Great Park Festival on August 29th, 1974, both the video and film that was broadcast and the video and film that was not: and equipment on which to show the film and video." The trial opened on 6th January, 1975. Mr. Albery and the others acted in person. Counsel appeared for I. T. N. He applied to set aside the summons because Mr. Phillips had no knowledge of the event and was an employee who had no authority to show the film.

4

The Judge saw that this objection was a good one. He determined to overcome it. After hearing Counsel for I. T. M., he decided that the entire film should be shown. He directed a new summons to be issued, addressed to I. T. N. Ltd. It required them to appear and: "Produce all the film negative of the events of the Windsor Festival 1974. Such film to be shown at the I. T. N. Studio in London."

5

On the next day, 7th January, 1975, the Judge went to theI. T. N. Studio. He was shown the film as it had been transmitted on the I. T. N, news; but he was not shown the other parts of the film which had not been transmitted.

6

On the following day, 8th January, 1975, I. T. N. asked for leave to appeal against the order to show all the film. The Judge refused leave. Thereupon the editor of I. T. N, news, Mr. Ryan, went to the Court and explained their reasons for not showing the untranslated portion of the film. The Judge did not accept these explanations. He ordered the film to be produced for showing next morning. I. T. N. did not produce it. They told the Court that they had decided not to produce it until an appeal had been heard.

7

The Judge then proceeded to hear the case without the untransmitted film. He decided in favour of Mr. Albery against the Chief Constable and awarded him £75 and costs, The Chief Constable has not appealed against the decision. So the case itself is at an end. But not so far as I. T. N. are concerned. On 16th January, 1975, I. T. N. were summoned to appear at the County Court with a view to being fined for disobedience.

8

I. T. N. seek to appeal to this Court. They are very concerned at the course taken by the Judge. They wish to know whether they were obliged to obey his order: and whether they were guilty of contempt of Court. They ask for guidance as to their duty in case a similar order is made again.

9

There are two points to be considered. First, the jurisdiction of the Court to order the production of the film and show it. Second, if the Court can order It, what are the principles it should apply.

10

1. JURISDICTION

11

In the ordinary way a summons to produce documents is issued out of the County Court on the authority of the Registrar, seeOrder 20, r. 8(1). If the documents are in the possession of a limited company, such as I. T. N. Ltd., the subpoena is to be served on the company itself, requiring it, by its proper officer to produce the documents - see Penn-Texas Corporation v. Anstalt (Murat) 1964 2 Q. B. at page 663. If the person summoned refuses or neglects, without sufficient cause, to produce the document, he is liable to be fined up to £50, see section 84 of the County Court Act, 1959, as amended.

12

If the person summoned takes objection to it, he can wait till the trial and take his objection there. In the old days, If he did this, he had to do it himself and was not allowed Counsel to do it for him - see Doe v. Egremont (1841) 2 Moody & Robinson 386. Nowadays, of course, he can do it by Counsel. The better course is, however, for him to apply before the trial to set aside the summons. The application is heard by the County Court Judge. The summons will be set aside if the witness has no material documents or if at is oppressive or there is any other sufficient reason to set it aside - see Steele v. Savory (1891) 8 T. L. R. 94: Regina v. Lewes Justices (19?2) 1 Q. B. at 240-G, 243-H.

13

Under Order 20, r. 8, of the County Court Rules the summons is limited to "documents". "Documents" has been given a wide meaning so as to include any material on which there is writing, such as parchment, paper or metal, see Rex v. Daye (1908) 2 K. B. at page 340, or on which there are pictures or drawings which give Information, such as photographs and plans, see Hayes v. Brown (1920) 1 K. B. 250 at page 251. It has recently been held by Mr. Justice Walton that, so far as discovery is concerned, "documents" include tape recordings, see Grant v. South Weston (1974) 3 W. L. R. 221. I doubt, however, whether this applies to a subpoena duces tecum. It must be remembered that a subpoena duces tecum is issued with the authority of the Court, but it does not, as arule, come under the eye of the Judge or any judicial officer. It is issued by a clerk in the office as a ministerial duty. The litigant, who may be acting in person, fills in the form with the name of the witness and the documents that he desires, and then the clerk stamps it with the Court seal. If the witness does not obey it, he is liable to a fine. If he objects to it, his only remedy is to apply to the Judge of the Court to set the summons aside. That is the first time that any judicial officer sees anything of it. This procedure has been followed for centuries in the case of ordinary documents. But I do not think it should be followed in the case of tape recordings or films. These are modern inventions which require special equipment to make them speak or be seen. The Courts are not provided with the equipment. The practical course would be to order the witness to bring not only the tape recording or the film, but also the tape recorder, or the projector and the screen. But the ordinary form of subpoena duces tecum does not provide for this. This equipment cannot by any possibility come under the description of "documents". So I would not hold it covered by the ordinary form.

14

This does not mean, however, that the Court has no jurisdiction in the matter. These new inventions are capable of providing most valuable evidence: and the Court should nave the means of making them available. We are the masters of our own procedure: and have authority to adopt it to meet the needs of the time. In my opinion the High Court has an inherent jurisdiction to make orders for the production and playing of tape recordings and for the production and showing of cinematograph films, and the County Court can adopt and apply that Jurisdiction under Section 1039 of the County Courts Act 1959. A witness may be required to provide not only taperecordings and films, but also the apparatus that is required to operate it. This jurisdiction should be exercised by the County Court Judge himself, and in the High Court, by a Master. The application should be made on notice to the witness: so that he can raise any point that he desires. On such an application the Judge should have a discretion to make such order as he thinks fit. He can order the witness to produce the tape recording or the film, and also the necessary apparatus, and order it to be played over or shown at such place as may be most convenient. And, of course, all expenses must be paid. But the Judge may refuse to make an order if he thinks it would be oppressive or unreasonable or otherwise not proper to be ordered.

15

If the Judge makes an order with which the witness is aggrieved, the witness will have an appeal to this Court. Although he is not a party to the suit, he is a person who is aggrieved by the order: and he is entitled, by leave, to appeal against it, see Re Markham (1880; 16 Ch. D. 1: In Re Securities Assurance (1894) 2 Ch. 410. He must obtain leave either from the Judge or from this Court: but he cannot appeal without such leave, see Section 31(l)(i) of the Judicature Act, 1925,

16

I may here mention a point arising on the County Courts Act, 1959. By section 108, if a party to any proceedings is aggrieved with the determination of the Judge in point of law, he is entitled to appeal to the Court of Appeal. This applies to interlocutory orders as well as final orders. The section does not in terms say that, in interlocutory proceedings, leave is required. But I think that these are governed also by section 31(1) (i) of the 1925 Act. In my opinion leave is required from the County Court Judge or...

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