Held - The eighth and ninth defendants were not entitled to copies of the exhibits, which related to a question, viz, the question whether the trustee should start proceedings against them, on which they were not entitled to be heard.
Re Kay's Settlement ([1939] 1 All ER 245) and
Re Hinchliffe ([1895] 1 Ch 117) distinguished.
Notes
As to proceedings in chambers in the Chancery Division for directions whether executors or trustees should take or defend proceedings, see 30
Halsbury's Laws (3rd Edn) 313, para 572, note (r); and see further, particularly as to a trustee's position regarding indemnity for costs of proceedings that he has brought or defended, 33
Halsbury's Laws (2nd Edn) 273, 274, paras 454, 485; and for cases on the subject, see 43
Digest 823,
2670-2673, and 825-827,
2699-2714.
WYNN-PARRY J. This is a summons issued by two of the defendants to the originating summons, the eighth and ninth defendants, for an order on the plaintiff's solicitors to supply copies of exhibits forming part of the evidence in the case. The originating summons was taken out by the Midland Bank Executor and Trustee Co Ltd as plaintiff against nine defendants, to resolve a number of disputes which have arisen in the administration of the estate of the deceased, Martin Rudolph Moritz. Among other things the plaintiff bank asks in the originating summons for directions whether proceedings, which I need not particularise, should be brought by it against the eighth and
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ninth defendants. In support of that application, an affidavit has been sworn on behalf of the plaintiff bank in which allegations have been made against the eighth and ninth defendants. In support of those allegations a volume of exhibits has been filed.
The application of the eighth and ninth defendants is that at this stage they ought to be furnished with copies of those exhibits in order, as they say, to be put in a position to argue before the court whether or not the plaintiff bank should be allowed to bring the proceedings against them. It has been the practice of this court, without exception, over a great many years, that where, in such a case as this, application is made by a trustee for directions from the court whether proceedings should be brought against the defendants or not, those defendants are not entitled to be heard on that application. The court acts on such evidence as is placed before it and it expresses itself one way or the other.
My attention, however, was drawn to
Re Kay's Settlement, Broadbent v Macnab, a decision of Simonds J where the court decided in limine that proceedings should not be brought; but that was a case in which it appears quite clearly on the facts that there was no dispute whatsoever as to the evidence in question. It turned on the right view to be taken of a voluntary settlement and the court was armed on the face of it with all the evidence required to decide the question once and for all. Simonds J decided that the action should not proceed. That appears to me quite a different case from the present case.
My attention was also drawn to
Re Hinchliffe, in which the Court of Appeal laid down as a general rule that if a document is made an exhibit to an affidavit, any person who has the right to take copies of the affidavit has a similar right in the case of the exhibits also. With that proposition one could not properly quarrel, but that does not deal in the least with the practice in chambers in this Division. As I understand it, the practice in this Division is that where a trustee finds that he is compelled to ask for the directions of the court whether or not proceedings should be taken and that it is proper and necessary to join the parties against whom the proposed relief is sought, those parties should not be present in chambers when the matter is debated, and they should not be furnished with the evidence on which the court is asked to act. The court in these circumstances is asked by the trustee to say whether, in view of the circumstances put before it, the action should or should not proceed, and, if it should proceed, how far it should be continued. Very frequently the leave to proceed is limited, eg, up to discovery, but it would seem to me to be a quite unjustified inroad on what I conceive to be a very useful practice if I were to allow this application and to allow the two defendants to have all the evidence on which the trustees are asking the court for its directions. I know of no precedent for it, and, in my view, it is completely against the established practice.
In regard to the final incidence of the costs of such proceedings, it was pressed on me that the eighth and ninth defendants stand substantially to lose if I hold against them, because they are interested in one-third of the estate. That appears to me to be a matter which can be adequately dealt with by the court, either when the originating summons comes before it, or, indeed, if an action is brought, when the action is heard. On the facts which have been opened to me, I do not feel justified in interfering with the practice which, in my own experience has been followed for many years, and, therefore, I refuse this application.
