[COURT OF APPEAL.]

ELDER v. CARTER.

EX PARTE SLIDE AND SPUR GOLD MINING COMPANY.

Practice - Production of Documents - Persons not Parties to the Proceedings - Order XXXVII., r. 7.

Rule 7 of Order XXXVII., under which the Court has power in any cause or matter "at any stage of the proceedings" to order the attendance of any person for the purpose of producing any documents which the Court may think fit to be produced and which such person could be compelled to produce at the hearing or trial, was not made for the purpose of giving to litigants any new right to discovery against persons not parties to the proceedings, but in order to remove the difficulties which existed before the order was made in compelling the production of documents by parties at any stage of the proceedings other than the hearing or trial.

The Court has no jurisdiction to order a person not a party to the proceedings to produce a document belonging to him, unless the parties to the proceedings are entitled to the production of such document for the purpose of justice at the moment the order is made; e.g., for the purpose of a pending trial, hearing, or application, or in order to carry out or complete an order which has already been obtained.

APPEAL from an order of the Divisional Court (Huddleston, B., and Grantham, J.), in an interpleader proceeding, directing the attendance of the Slide and Spur Gold Mining Company to produce certain books, writings, and documents.

The defendant, being a judgment creditor of one Haldeman,

obtained an order charging Haldeman's interest in 375,000 shares in the company which were standing in the name of the plaintiff, but (as the defendant alleged) merely as trustee for Haldeman.

An interpleader issue was afterwards directed between the plaintiff and the defendant to determine Haldeman's interest in the shares in question. Before the trial of this issue the defendant took out a summons for an order directing the attendance of the company, "by their secretary or other proper officer, for the purpose of producing their books, writings, or other documents containing any entries relating either to registration, transfer, ownership, or other dealing with" the 375,000 shares, and "that the secretary or other officer of the said company be directed to attend before such persons at such time and place as may be ordered, and there to produce the said books, writings, and other documents for the inspection of" the defendant and his solicitors or agents, and to permit him or them to make copies of or extracts therefrom of the entries relating to the said shares; and asking also that the action might be stayed until such inspection should be had.

The company were the only respondents to this summons, and the discovery was sought for the general purposes of the interpleader issue, and not for the purpose of any summons or motion pending before the Court.

The summons for production was referred by the master to Denman, J., who referred it to the Divisional Court.

The hearing before the Divisional Court took place on April 18, 1890, when it was contended by counsel for the company that there was no jurisdiction to make an order for production of documents against persons not parties to the proceeding; but the Court considered the judgment of Lord Coleridge, C.J., in the Central News Co. v. Eastern News Telegraph Co. (1), a decision that the Court had such jurisdiction, and that the suggestion of Watkin Williams, J., in the same case, that Order XXXVII., r. 7, might be ultrà vires if it purported to authorize an order for production against a stranger, was an obiter dictum by which they were not bound; and the Court accordingly made an order

(1) 53 L. J. (Q.B.) 236.

for production in the terms of the application. The company appealed.

C. Johnston Edwards, for the company. Order XXXVII., r. 7, does not confer upon litigants any new rights of discovery against strangers to the proceeding. The decision in Warner v. Mosses (1), which turned upon rule 4 of Order XXXVII. of the Rules of Court, 1875, virtually re-enacted by Order XXXVII., r. 5, of the orders now in force, shews that the rules are not to be construed as enlarging the jurisdiction of the Court.

Howard v. Beall (2), turned upon s. 7 of the Bankers Books Evidence Act, and has no application. The right of discovery now claimed against the company is an entirely new one, and it is claimed not for the purpose of any particular pending motion, summons, or other proceeding, but for the general purposes of the interpleader issue. Lord Coleridge, C.J., in the Central News Co. v. Eastern News Telegraph Co. (3), in refusing to make an order under rule 7 before trial against persons not parties to the action and where it was not required for the purposes of any particular motion or proceeding, said that any application for the exercise of the powers of this rule should be granted with the most watchful jealousy; and Watkin Williams, J., suggested that if the rule did confer this power over perfect strangers it might be contended that it was ultrà vires. Assuming that the application is warranted by rule 7 of Order XXXVII., the order itself is ultrà vires. Before the Judicature Acts, under 1 Wm. 4, c. 22, s. 5, and the Common Law Procedure Act, 1854, ss. 46, 47, the Courts had no jurisdiction to compel production of documents as against persons not parties to the proceedings; and s. 17 of the Judicature Act of 1875 only authorizes the making of rules for "regulating the pleading, practice, and procedure" of the Courts, so that the rules made thereunder cannot enlarge or alter their jurisdiction. Then, again, the defendant either knows or does not know what material documents are in the possession of the company. If he does he can get production of them through a subpoena duces tecum; if he does not, he is attempting to get by a side-wind the means of manufacturing a case.

(1) 16 Ch. D. 100.

(2) 23 Q. B. D. 1.

(3) 53 L. J. (Q.B.) 236.

[BOWEN, L.J. If the order is to be construed as your opponent contends, I do not see the use of the Bankers' Books Evidence Act (42 & 43 Vict. c. 11, s. 7: see Arnott v. Hayes. (1))]

The order made is also objectionable in point of form, being a roving order which does not name or shew upon the face of it what documents are to be produced.

[He also referred to Straker v. Reynolds (2) and Rishdon v. White. (3)]

Vennell, for the defendant. The Court had jurisdiction to make the order. Rule 7 of Order XXXVII. is in the widest possible terms, and gives the Court power to order the attendance of any person to produce at any stage of the proceedings any document which the Court or a judge may think fit to be produced. There is no limit to or qualification of the generality of the rule. It is clearly an extension of the powers of the Court, which, under the practice obtaining at the time the rule was made, could only order production of documents at the trial or hearing of a cause or matter; and in Central News Co. v. Eastern News Telegraph Co. (4), while both the judges carefully guarded themselves from saying that the Court had not the power to order production by a person not a party to the proceedings, Lord Coleridge, C.J., went further, and did not doubt "that the Court had power to make such an order."

The enactment in s. 7 of the Bankers' Books Evidence Act, 1879, was rendered necessary by the peculiar character of the business transacted by bankers, which requires the perpetual and almost momentary use of their books. This is not a case in which the persons required to produce the documents are strangers to the action. It is true that the company are not actually parties to it, but they are so interested in the interpleader that no injustice will be done them by the order.

Edwards, was not heard in reply.

LINDLEY, L.J. The question is, whether this order can be supported. I confess that when it was first read it appeared to be one the like of which I had never seen or heard of; and the

(1) 36 Ch. D. 731.

(2) 22 Q. B. D. 262.

(3) 5 Times L. R. 59.

(4) 53 L. J. (Q.B.) 236.

more the matter is reflected upon, the more difficult it is to support the order. Let us see exactly how the matter stands. This company is no party whatever to the interpleader issue. The company has no more to do with it - I do not say in point of fact, but in point of law - than I have, or any stranger has. One of the parties to the issue says: "Somebody has got some books which I should like to see for the purpose of enabling me to go into Court and try my case upon that issue. There is Order XXXVII., rule 7, which enables the Court, if it thinks fit, to order anybody to produce anything at any time, and I can apply to the Court and get an order to see those books." That, to my mind, is a very startling proposition. It is contrary to principle. Putting aside the facts of this particular case, the general proposition contended for is, that if any litigant thinks that documents held by anybody else who is not a party will be useful to him, and if the litigant wants to see them, he can get inspection of those documents from such person. That is entirely contrary to every rule relating to discovery which has ever existed, either on the common law side or the equity side of the Court. It has long been a rule well established (the origin of it I do not recollect) that you cannot get discovery except from a party to your action. There is another rule, equally old and equally well-established - that you cannot make a mere witness a party in order to get discovery from him. That would be abusing the doctrine of production and discovery. This particular order has infringed both those rules. The inconvenience and danger of granting such an application as this must, I think, be apparent to anybody who considers it.

But then reliance is placed on Order XXXVII., r. 7. Now, on looking at that rule, wide as its language is, the rule does not say at what time, or at what place, or for what purpose, this order is to be made, except for the purpose of producing documents. The rule is simple enough, and its history is this. There were difficulties in obtaining the attendance of witnesses and the production of documents at Common Law except on the trial of actions, and there were statutes passed to remove those difficulties - the statute 1 Wm. 4, c. 22, s. 5, passed in 1831, and the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125),

ss. 46, 47; and when the rules had to be recast so as to apply, not only to Common Law actions, but to all actions - Chancery and other actions - in the High Court, it became necessary to modify and change the words, so as to make them applicable to all proceedings in all Courts. That is the history of this rule, and there is no doubt whatever that it is a most useful rule; but the question is, whether we are to construe it as introducing a practice entirely unheard of before, and contrary, as I have endeavoured to shew, to all principle and all justice. Now, the answer to the defendant's argument is this, that you must look at this rule with reference to the purpose for which it was introduced; and it cannot be said that that purpose was to give a litigant a right to discovery which he did not previously possess against persons not parties to the action. That was not the purpose; so to construe it would be to abuse the rule. The object of it was to remove the difficulties which existed in compelling production of documents at various stages of the proceedings, both before and after the trial, at the hearing of motions, petitions, summonses and examinations of witnesses, and the like; and that is the real legitimate object of the rule, which is necessarily not confined to production on the hearing of any motion or petition, because there may be some proceeding before an official referee, or an examiner, or a commission to to take evidence, to which this rule would apply, and I am not at all desirous of doing more than to say that the rule cannot be construed so as to enable a litigant to obtain discovery from any person who is not a party to the proceedings. That is what is sought by this application. I have no doubt whatever that that is the true view to take of the rule; and I think, when the authorities, such as they are (and they are very few), are looked at, there is not one which is adverse to that view. Mathew, J.'s view, as expressed in the case of Central News Co. v. Eastern News Telegraph Co. (1), is clear that this rule does in reality no more than incorporate the preceding statutory enactment to which I have referred; and I think that is so - with this exception, that the language is made a little more general, so as to extend it to all proceedings in the High Court.

(1) W. N. (1884) p. 23.

Now, Watkin Williams, J., when the case of the Central News Co. v. Eastern News Telegraph Co. (1) came before the Queen's Bench Division, said(2), and I think very justly, that if rule 7 did confer this power over perfect strangers, it might be a question whether it was not ultrà vires; and I concur in that view. If it is to be so construed as to give any litigant the right to see the books of anybody who is not a party to the litigation, I should say that it would be ultra vires. But I am satisfied that that is not the true construction or meaning of the rule.

There is no other case that I think worth mentioning with reference to this matter.

Then it is said that, upon the facts, this company, although not nominally a party to this proceeding, is really so interested in it that there would be no injustice done in this particular case. I think that is so. Without going into the merits, I think it is very likely that, in this particular case, there would not be any particular injustice done. I will assume that; but the principle involved in that line of argument is a dangerous one, and I, for one, cannot be the first to sanction such a proceeding as is contended for. It appears to me that sound principle is entirely against this order. Therefore, the appeal will be allowed, and the order will be discharged.

BOWEN, L.J. I am of the same opinion.

Rule 7 of Order XXXVII., is not intended to enlarge the rights of a litigant to discovery against third persons who have nothing to do with the action, nor to enlarge his rights to production of documents against them. The rule is one of "practice and procedure," and therefore is, and can only be, a rule which is intended to enlarge the facilities of obtaining production when production is necessary for the purpose of justice.

Now, in the present instance, the production of the document at the present moment cannot be necessary for the purpose of justice. Whoever heard that there was a right on the part of a litigant, at a time when there was no pending motion and no pending trial, to obtain inspection of a document which belongs to a third person, unless indeed in the possible case where production

(1) W. N. (1884) p. 23.

(2) 53 L. J. (Q.B.) 236.

of such a document was necessary to carry out an order which had already been obtained?

The truth is, that no judge has a right to think the production of such a document fit at this particular time, inasmuch as it is interfering with rights of third parties at a moment when there is no evidence being taken in the cause, and when the presence of the document is not necessary for the purpose of carrying out or completing any order which has been made.

The Common Law Procedure Act, 1854, s. 46, introduced at common law a very valuable means of obtaining production of documents on the hearing of motions and summonses. At common law, the ordinary subpoena was a subpoena ad testificandum, and required the witness to be present in Court for the purpose of giving evidence to be used at the trial. The Common Law Procedure Act gave judges the power of compelling the attendance of witnesses to be examined, and of directing that documents be produced upon the hearing of motions and summonses. Then came rule 7 of Order XXXVII., the object and scope of which (as has always been said with regard to the Judicature Act) is not to increase rights as against third persons, but to give further facilities for enforcing rights which already exist. That rule does, to a certain extent, go further than the Common Law Procedure Act, because it abstains from making it a condition precedent that an order should be made upon the hearing of a motion or a summons. It says that the order may be made "at any stage of the proceedings" whenever production could be compelled at the hearing or trial. I do not think we ought to try to define the cases exhaustively in which production may be proper. It is sufficient to say that I could conceive a case in which production of a document might be proper, though there was no motion or summons pending; for instance, if an order had already been made, and the non-production of the document by the third person was a defeating of the rights which had already been declared and a defeating of the order which had already been obtained. But I am as certain as one can be of anything with regard to practice, that it is not intended to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at

that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of. I do not believe it was ever dreamt of until rule 7 was submitted to the ingenuity of counsel. An attempt has been made to extract out of a rule which has simply got to do with "practice and procedure" in an action, a power of obtaining inspection from third person outside the action. If such a power existed, it would be most inquisitorial, and might be used for purposes of infinite oppression. In this particular case, I dare say it would work no oppression at all; but we have to construe the rule.

Solicitors: Burn & Berridge; H. C. Barker.

W. W. K.