The Chartered Bank of India, Australia and
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 1863 |
| Date | 03 May 1863 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 387
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
S. C. 32 L. J. Q. B. 300; 8 L. T. 454; 11 W. R. 830. Distinguished, Baker v. London and South Western Railway, 1867, L. R. 3 Q. B. 93. Approved, Woolley v. North London Railway, 1869, L. R. 4 C. P. 609; Cossey v. London, Brighton and South Coast Railway, 1870, L. R. 5 C. P. 149. Followed, Phillips v. Routh, 1872, L. R. 7 C. P. 289. Applied, Fenner v. South Eastern Railway, 1872, L. R. 7 Q. B. 771.
[73] the chartered bank op india, australia and china against rich. Monday, May 3rd, 1863.-Inspection of documents. Confidential communication. Common Law Procedure Act, 1854, 17 & 18 Viet. c. 125, s. 50.- Declaration alleging breaches of an agreement made between the plaintiffs, a banking Company, carrying on business, amongst other places, at Bombay, and the defendant who had been their agent there. Plea denying the breaches. Upon an order under The Common Law Procedure Act, 1854, 17 & 18 Viet, c. 125, s. 50, for discovery of documents relating to the matter in dispute, obtained by the defendant, the secretary of the plaintiffs made an affidavit stating that the letters specified in a schedule attached to the affidavit consisted of communications between the head office of the plaintiffs' bank in London and their officers at Bombay, not forming part of the res gestse, but written after the defendant had left the service of the bank and the dispute in question in the cause had arisen ; being on the one part instructions given and inquiries made with the view of obtaining the information required to enable the plaiutiffs to decide as to the mode of proceeding against the defendant; several of them having been written under the immediate direction and advice of the attorney for the plaintiffs; and on the other part their officers' reports and replies specifying the evidence which could be adduced in Bombay to prove the breaches of contract complained of; and that the same could not be material to the defendant with a view of establishing his case. The defendant made an affidavit of bis belief that the correspondence in the schedule was material to the defence of the action. Held, that all this correspondence was confidential communication which the defendant was not entitled to inspect. [S. C. 32 L. J. Q. B. 300 ; 8 L. T. 454 ; 11 W. R. 830. Distinguished, Baker v. London and South Western Railway, 1867, L. R. 3 Q. B. 93. Approved, Woolley v. North London Railway, 1869, L. R. 4 C. P. 609; Cossey v. London, Brighton and South Coast BaUioay, 1870, L. R. 5 C. P. 149. Followed, Phillips v. South, 1872, L. R. 7 C. P. 289. Applied, Fenner v. South Eastern Railway, 1872, L. R. 7 Q, B. 771.] The declaration (of the 19th November, 1862), stated that the plaintiffs being a banking company carrying on business amongst other places at Bombay, in the Empire of India, and having appointed the defendant as their agent at Bombay, it was by articles of agreement, dated the 9th September, 1857, agreed between the plaintiffs and the defendant that he would proceed to Bombay and enter upon the discharge of his duties, and diligently, carefully, and faithfully apply himself to the duties and conduct of his office, under the direction, control, and orders of the board of directors, and of the manager and secretary of the bank. It then averred that the defendant entered upon the appointment and proceeded to Bombay, and alleged, as breaches, that the [74] defendant did not faithfully and diligently perform his duties as such agent, but, on the contrary, acted carelessly, negligently and unfaithfully in the same, and lent the money of the plaintiffs to certain persons who were unsubstantial and ought not to have been trusted, and whose credit and responsibility were bad ; and, in violation of the directions and orders of the board of directors and manager and secretary as to the sums of money ha should advance to a certain class 388 THE CHAPTERED BANK OP TNDTA, ETC., 1'. RICH 4 B. & S. 75. of persona, advanced sums of money to such persons contrary to such orders; and, also, discounted bills of exchange for native merchants of India, without taking proper securities, and renewed such bills in violation of the orders of the directors; and also sent in and returned to the plaintiffs incorrect and untrue statements respecting the business transacted by the defendant for them, and as to the money lent by him on their account. The defendant pleaded, among other pleas, a denial of the breaches alleged in the declaration. On the 27th November, 1862, upon an application by the defendant for a discovery of documents, Crompton J. made an order directing that the plaintiffs should answer upon affidavit, stating what documents they had in their possession or power relating to the matters in dispute, and whether they objected, and on what grounds, to their production. On the 2nd February, 1863, James Caller Stewart, the secretary of the bank, made an affidavit, to which were attached two schedules, in which was set out a list of all the documents in the possession or power of the plaintiffs relating to the matters in dispute in this cause, pursuant to the above order : stating that, with reapect to the documents specified in the first schedule, the plain-[75]-tiffs were willing that they should be produced to the defendant; but that with respect to the correspondence specified in the second schedule, it consisted exclusively and entirely of communications between the head office of the plaintiffs' bank in London atid their officers at Bombay, not forming part of the res gestse, but written after the defendant had left the service of the bank and the dispute in question in this cause had arisen ; that that correspondence consisted entirely and exclusively, on the one part, of the instructions given and inquiries made by the head office of the plaintiffs' bank in London to and of their officers in Bombay, with a view of obtaining the information required to enable them to decide as to the mode of proceeding against the defendant and also generally on the merits of the claim in this action; and, on the other part, of their officers' reports and replies thereon and thereto, which specified the evidence which could be adduced in Bombay to prove the breaches of the contract complained of in the declaration, and the same could in no way be material to the defendant with a view of establishing his case; and that for these reasons the plaintiffs objected to the production of the documents specified in the second schedule. The documents specified in the second schedule were letters from J. C. Stewart to A. Morrison, agent of the plaintiffs' bank at Bombay, and answers thereto, between 18th April, 1861, and 14th November, 1862, inclusive, some of them being dated before the 16th August, 1861; also "weekly states "from time to time rendered by A. Morrison, whilst so acting, to the head office in London, from 4th May, 1861, to the 27th September, 1862. On the 12th February, 1863, a summons, calling upon the plaintiffs to shew cause why the defendant should not be at liberty to inspect and take copies of and ex-[76]-tracts from all the documents mentioned and referred to in the first and second schedules mentioned in the affidavit of discovery of documents made by J. C. Stewart, was heard before Crompton J., and was by him referred to the Court. On the 28th April the defendant made an affidavit, stating his belief that the correspondence specified in the second schedule was material to the defence of the action, and that it was advisable and necessary for his defence that he should have inspection and he at liberty to take copies of the correspondence and documents, and that he was advised and believed that he should derive material benefit and advantage from the inspection of them : that he was advised and believed that he had a good defence to the action, and that this application was made bona fide and not for the purpose of delay. An affidavit of George Ure Adara, manager of the plaintiffs' bank, stated that the correspondence specified in the second schedule consisted entirely and exclusively on the one part of the instructions given and inquiries made on the part of the head office of the plaintiffs' bank in London to and of their officers in Bombay, with a view of obtaining evidence in support of the plaintiff's claim against the defendant in this action, and on the other part of their officers' reports and replies thereon and thereto, which specified the evidence which could be adduced in Bombay to prove the breaches of contract complained of in the declaration ; and that on and subsequently to the 16th August, 1861, those instructions were given and those inquiries made under the 4B. 4s S. 77. THE CHARTERED BANK 01" INDIA, ETC., V. RICH 389 immediate direction and advice of the plaintiffs' attorneys acting as such, and in the conduct of this litigation, and with a view to it, and with a view to the evidence in support of the plaintiffs' claim in this action ; and those reports and replies consisted exclusively of the [77] information obtained in pursuance of such...
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