2Q.B. QUEEN'S BENCH DIVISION. {IN THE COURT OF APPEAL.) In Re AN Actix PENDING IN ScoTLAND. BURCHARD ap Ornens v. MAOFARLANE ayp Ornens. Ex ranre TINDALL ayo DRYHURST. Practice—Commission issued by Court in another part of the United Kingdom —Production of Documents—Persons not parties to the proceeding—6 & 7 Vict. ¢. 82, 8. 5. Tn pursuance of a commission issued by the Court of Session, in an action pending in Scotland with regard to the sale of a vessel by the defenders to the pursuers, an order was made at chambers under 6 & 7 Vict. c. 82, s. 5, that the chairman ana secretary of Lloyd’s should attend before the commissioner for examination as to, and to produce the documents which Lloyd’s had under their control answering the description in the specifications of documents by the pursuers and the defenders. ‘The specifications stated that the documents called for were correspondence between Lloyd’s and their surveyor at Hamburg, relating to the condition or the surveys of the vessel between certain dates, and all reports and communications addressed to Lloyd’s by their agent at Hamburg relating to these matters. On appeal against this order:— Held (reversing the decision of the Queen's Bench Division), that the only process intended to be enforced by the statute was the production of documents as ancillary to the examination of a witness; that the order amounted to one for discovery against persons not parties to the action; and that there was no jurisdiction to make such an order. APPEAL from an order of the Queen’s Bench Division. The action was pending in the Court of Session in Scotland, and arose out of a contract by the pursuers to purchase from the defenders a vessel called the Lady Octavia. In this action, the Lord Ordinary granted a commission to examine certain witnesses and granted diligence against havers, at the instance of both parties, for recovery of the documents specified in their respec- tive specifications, Nos. 22 and 23 of process and commission, to certain named commissioners to take the oaths and examinations of the havers, resident in Germany, London, Glasgow, and Edinburgh respectively, and receive their exhibits and produc- tions, and ordained “ Mr. A. H. Tindall, chairman, and Mr. A. G. Dryhurst, secretary of Lloyd’s Register of British and Foreign Shipping, to appear before the commissioner in London and pro- duce any of the documents called for, so far as under their control,” Vou. II, 1891, R 2 241 CA 1891 May 12,‘Bonowanp 2. ‘Macrannaye. Ex parte ‘Trypan. QUEEN'S BENCH DIVISION. 1891) The specification No. 22 of documents called for by the pur- suers was : “All correspondence passing between the defenders or Barr, their surveyor, or any person on their behalf, on the one hand and Emil Padderatz, surveyor at Hamburg, to Lloyd’s Register of British and Foreign Shipping, or any one on his behalf on the other, relating to the condition of the vessel known as the Lady Octavia, or the surveys of said vessel in 1889 and in July and October 1890, between January 1, 1889, and the date of raising this action. 2. All correspondence between the said Emil Padderatz on the one hand and the London office of said Lloyd’s Register of British and Foreign Shipping or any of the officials of said register relating to said matters prior to said date. 3. All reports obtained by, and all com- munications addressed to said Lloyd’s Register of British and Foreign Shipping or any of the officials of said register in reference to said vessel during the years 1889 and 1890. 4, Pailing principals, copies, drafts, scrolls or jottings of any of the above documents are called for.” ‘The specification, No. 23 of documents called for by the defenders was, all correspondence passing between the pursuers or any one on their behalf on the one hand and Lloyd’s, or Lloyd’s Register of British and Foreign Shipping, or W. H. ‘Tindall, the chairman, and A. G. Dryhurst, the secretary, or any one on behalf of or as representing Lloyd’s or Lloyd’s Register of British and Foreign Shipping, on the other hand, relating to tho vessel referred to on record as the Lady’ Octavia, between May 1, 1890, and the date of raising the present action.” A copy of the interlocutor was duly served and the commissioner cited Messrs. Dryhurst and Tindall respectively, “to attend to produce the documents mentioned in the specifi- cations served upon you, and give your onth and examination respecting the same on behalf of the pursuers.” Failing the appearance of Messrs. Tindall and Dryhurst, a summons was taken out before a judge at chambers, who ordered them to attend before the commissioner at such time and place as he might appoint, “for examination as to the documents which Lloyd's Register of British and Foreign Shipping have in their possession answering the description mentioned in the specifica- tions Nos. 22 and 23, of process in the said action, and also that2QB. QUEEN'S BENCH DIVISION. they do respectively produce to the said commissioner the docu- ments mentioned in the said specifications (without prejudice to the said W. H. Tindall and A. G. Dryhurst’s objections before the commissioner as to all or any class of documents or document, or to further application by pursuers to a judge in any such ease).” On appeal to the Queen’s Bench Division the Court affirmed this order. Messrs. Tindall and Dryhurst appealed. Sir B. E. Webster, A.G., and Cohen, Q.C. (with them James Fox), in support of the appeal. ‘This is an attempt to obtain discovery from a witness, and not merely an application for the production of documents as ancillary to his examination. It purports to be made under 6 & 7 Vict. c. 82,8, 5(L); but the clause in that section as to documents only means that on the examination of a witness he may be ordered to produce documents, and does not give rights over third parties other than witnesses, ‘This order, however, does not purport to treat either of the applicants as witnesses, but calls on them to ascertain and disclose the docu- ments in their possession, which are their exclusive property. If (1) 6 & 7 Vict. ¢. 82, 6. 5: “And whereas there are at present no means of compelling the attendance of per sons to be examined under any com- mission for the examination ot wit- nesses issued by the Courts of Law or Equity in England or Ireland, or by the Courts of Law in Scotland, to be executed in a part of the realm subject to different laws from that in which such commissions are issued, and great inconvenience may arise by reason thereof: Be it, therefore, enacted, that if any person, after being served with a written notice to attend any com- missioner or commissioners appointed to execute any such commission for the examination of witnesses as afore- said (such notice being signed by the commissioner or commissioners, and specifying the time and place of at- tendance), shall refuse or fail to appear and be examined under such commis- sion, such refusal or failure to appear shall be certified by such commissioner or commissioners, and it shall there- upon be competent, to or on behalf of any party suing out such commission, to apply to any of the superior Courts of Law in that part of the kingdom within which such commission is to ‘be executed, or any one of the judges of such Courts, for arule or order to compel the person or persons s0 failing as aforesaid to appear before such com- missioner or commissioners, and to be examined under such commission, and. it chall be lawful for the Court or a judge to whom such application shall ‘be made, by rule or order to command the attendance and examination of any person to be named, or the pro- duction of any writings or documents to be mentioned in such rule or order.” R2 2 243 OA. 1891 ‘Borcnanp ” ‘MAoraRLaNr, Ex varra Tovpann.244 OA. 1991 Buronazp ‘MACFARLANE. Ex parre. TTixpaLt. QUEEN’S BENCH DIVISION. [1891] the order of the judge at chambers is upheld, the English Court would be making an order in aid of the parties to the Scotch action which it could not make in a case within its own jurisdic- tion. The principle that governs this case is that on which the Court of Appeal decided Elder v. Carter (1), which arose under Order xxxviL, r. 7. J. G. Barnes, Q.C., and Lyttelton, contra. This is not a mere order for the production of documents, but it is intended to call the applicants as witnesses, and when they are called they will be asked to produce the letters and report. ‘There is a question as to the class of the vessel, and the surveys are required in order to prove or disprove the breach of warranty on which the action proceeds, The order itself shews that a Scotch Court would call for the production of these documents by a witness, and the effect of the statute is to enable the Court to enforce here whatever the Scotch Court would enforce within its own jurisdiction. This view is supported by the preamble to the section, which clearly contemplated the existence of different laws in different parts of the United Kingdom. Lorp Hatssury, L.C., after dealing with the circumstances under which the action arose, continued : I do not find any evi- dence that there are in fact documents in existence such as might be conjectured from the form of this order. The documents, if they exist, relate, by the hypothesis upon which the order is made, to the business of third parties, and not to any right existing between the pursuers and the defenders. They are a correspondence and a report between Iloyd’s and Lloyd’s agent. It is true that they have relation to the particular vessel which is the subject of sale, but that only happens by reason of the peculiar form of incorporation which Lloyd’s possess which enables them to class vessels, Sitting in this Court, and treating the dispute as if it had happened in England, I am bound by the decision of the Court of Appeal in Elder v. Carter (1), and I am remitted consequently to the inquiry, whether or not this is in substance an order for inspection and discovery, or whether it is part of a procedure to (2) 25 Q. B.D. 194.2Q.B. QUEEN’S BENCH DIVISION. examine witnesses in the course of proof for the purpose of establishing the facts. I do not know what facts are to be estab- lished.. I do not know what documents are asked for. I do not know that the parties have ever condescended upon any particu- lar document, or intimated that they havo any knowledge of any document existing at all, and I am led to the conclusion that it is inspection and discovery that is sought, and not proof, The meaning of the order is, as I construe the language of this instrument, that the witness is to be examined if he has got in his possession documents which may become part of the necessary evidence in the cause. If that is the meaning of it, it is quite clear that such a roving order for discovery is not rendered valid because it is limited to a particular ship and the particular years over which these transactions are spread. The order of the Scotch Court has been obtained, not adversely by one of the parties against the other, but by both of them against a third person who has not been consulted, and who has never been heard as to whether or not such an order ought to be made. I am of opinion that to enforce such an order would be a serious invasion of private rights. I have hitherto spoken as if this was a matter which occurred in England. When I look at the Act of Parliament, it appears to me that the only process intended to be enforced was the pro- duction of documents as ancillary to the examination of a witness. If there be any difference between the rights of discovery which exist in Scotland, and the rights of discovery which exist in this country, I can only say that, sitting in this Court, I can only know of such distinction so far as it is brought before me in evidence, and no such evidence has been produced. There was no evidence to shew any difference between the law of the two countries, or that the Scotch Courts would enforce upon third parties the production of their documents without its being ascertained that they were evidence in any cause, but simply to enable one or other of the parties to ascertain whether the third parties had something in their possession which might. possibly serve their purpose in the trial of the cause, The result appears to me to be that, looking at the order of the Scotch Court, and the order that has been made in furtherance of it, we 245 OA. 1891 ‘Bonowanp os ‘Macranuane. ‘Ex varre ‘Tinpann. ‘Lord Halsbary, Le,246 OA 1891 Bosowanp v ‘Maoranuang, Ex ranre, ‘Trypan. QUEEN'S BENCH DIVISION. 71891) ought to come to the conclusion that the latter is not an order which is justified by the 5th section of 6 & 7 Vict. c. 82, but that ~ it is an order which practically and in substance is for discovery under circumstances under which no such order would be made in this country ; and I think, therefore, this appeal ought to be allowed. Lorp Esner, M.R, In this case an order has been made upon Messrs. Tindall and Dryhurst, an order which assumes to be made under 6 & 7 Vict. c. 82, 5. 5, and it is objected to that order that the judge had no jurisdiction to make it. That is the question which we have to determine. Now that question raises nothing but what is the true interpretation of the statute, and we have not to consider the law of Scotland, whatever it may be. ‘The order assumes, on the face of it, to be made against Tindall and Dryhurstin an action, and for the purposes of an action, with which they have no relation whatever, to which they are mere strangers, in respect of which they can only be called upon as one calls a witness. It is objected, therefore, on their behalf that the order is beyond the jurisdiction of the judge, first of all because it is made upon third parties who have nothing to do with the action in respect of documents which are not alleged to be the documents of either party in the action, but which arc admitted upon the affidavits to be the documents and the property solely of these third parties; and secondly, because it requires them not only to state whether there are such docu- ments, but to produce them, and allow them to be read before it is determined whether they are evidence either on behalf of the plaintiffs or defendants. What the meaning of this document is I confess I have myself no doubt. It is ordered that Tindall and Dryhurst do respectively attend before a commissioner for examination, not for examination in the trial, but for examina- tion “as to the documents which Lloyd’s Register of British and Foreign Shipping have in their possession” answering certain descriptions, and those descriptions are of the largest kind ; “and also that they do respectively produce to the said com- missioner the documents mentioned in the said specifications.” Reading the affidavits and this order, and the summons, I20.83. QUEEN’S BENCH DIVISION. 247 cannot have a doubt that the real meaning of that last part of ©.A. it is, produce them in order that the persons applying for them 1801 may read them and know their contents. The question comes ~Bencuann to be whether such an order is within this Act of Parliament. s4,o, mvp, In my opinion it is beyond the jurisdiction of the judge to make px pane the order, He has made an order upon third persons for TAU discovery, and I take it that that has been determined in Wt Sek England, at all events, to be beyond the jurisdiction of the judge, and when I come to this Act of Parliament I shall consider whether it is not the same upon this Act of Parliament. Even supposing that the documents had been identified, and that the witnesses had been asked to produce a document which it is admitted, or shewn clearly, is not the document of either the plaintiff or the defendant, and had been ordered to produce it for the purpose of its being read, not at the trial, but before the trial, not before the examiner as part of the trial but as preliminary to the trial, then in that case also I should have thought that it is beyond the jurisdiction of the judge to make the order. Therefore, there are two defects in it according to that view. Now let us see if the same is true on the construction of this statute. In the Courts of Chancery before the Judicature Acts there was no such thing as a bill of discovery against a third person to discover matters in an action between other parties in which he had no interest. If there were a subpoena duces tecum to the same effect it would have been bad upon this view of the matter, and for the reason that it would be putting upon a witness who had no interest in the matter a burthen that there was no right to put upon him, that is, that he should look through his documents or books, and come to the conclusion as to what was relevant to the inquiry. A subpona duces tecum was an order from the Court to a person to produce a document which was alleged to be in his possession—to produce it to the Court at the trial, and not to produce it to the parties, for, under a subpcena duces tecnm, when a witness brought the document into Court the parties could not ask him for it. The parties have no right to see it, and all that could be done on a subpeena duces tecum was that the witness produced the docu- ment to the Court, subject to the order of the Court, not to the248 OA. 1891 ‘BunowARD v ‘MAcPARLANE. Exipanra ‘Tespatt. Lord Esher, LR. QUEEN’S BENCH DIVISION. 1891] parties; and he might insist that his document should not be handed to the parties even at the trial. All that could be done was that the Judge, when he was satisfied that it was evidence in the case for either of the parties, might order it to be read. Therefore, the suggestion must be that the Act of Parliament gives, as against third parties, a power which did not exist in any Court es against them before the Act. How was that matter dealt with, in that which was an enactment in almost the words which are found in this Act. Now, the words relied upon in this Act of Parliament are: “An order for the production of any writings or documents to be mentioned in such rule or order.” That is as like to these words in Order xxxvi,, r. 7, as can be: “The Court or a judge may in any cause or matter, at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order.” It was held by the Court of Appeal that, notwithstanding the largeness of those words, when you came to consider what was the purpose of the rule, and that to read it according to the largeness of the words, would enable the parties to the case to do that which before they could not do either at law or in equity, that that was not the meaning of the rule, and that such an order could not be made against a third person who was not a party to the cause. So far as to Order xxxvit, r.7. That is a judgment which is binding upon this Court, and, in my opinion, is clearly right. Then, coming to s. 5 of this Act of Parliament, the question is whether we are not obliged to hold the same with regard to this Act. It seems tome that the statute applies to an examination under a commission where the effect is the same as if the witness was being examined in court before a judge, only putting the commissioner in the place of the Court. Where there jis an order that a witness is to be examined before the commissioner, it is under the same circumstances as would arise if he were examined at the trial, and the order that may be lawfully made is for the attendance for examination as a witness as if he were at the trial—the production of any writings or documents to be mentioned in the rule or order which may be made for his attendance and examination as a witness, is only equivalent to2Q8B. QUEEN'S BENCH DIVISION. 249 saying that he must bring the writings or documents as he would 0. A. bring them on a subpcena duces tecum. Here that is evaded. 1891 The order is for discovery before examination instead of for Buncuaap production on examination. The moment it is admitted that he yraceaunanz. isa third person and in possession of the document not as the Ex ranre agent of either party, you are asking him to produce the docu. "PA ment not to the Court for the purpose of the Court exercising a discrotion over it, or determining the legal right, but that it may be shewn to the parties who, until the matter has been determined by a judge, have no right whatever to see it. It seems to me, therefore, that this case is outside the Act of Par- Tiament according to its true reading, and that the learned Judge had no jurisdiction to make the order appealed against. Tord Baer, MLR. Fry, LJ. In my judgment this order cannot be made, and ought not to be made under the statute. It is obviously to my mind an order that can only relate to discovery. An examination as to documents means as to the possession of documents, as to what documents are in the custody and power of the person examined, and as to the description of them. That seems to me to be the natural meaning of the order. When I refer to the specifications, to which the order also refers, I find that con- clusion confirmed, because the specification does not by date or parties or other simple method of identifying, indicate the instrument, but requires the witness to determine whether docu- ments relate to a particular vessel, and taking the two specifica- tions together it is apparent that the intention is that Lloyd's Register shall go through all the documents in their custody or power, that have passed between themselves and their agents and certain persons named, and ascertain whether or no they | have anything whatever to do with this vessel. ‘The citation follows precisely the same lines, and when I turn to the affidavits which have been made in this case, the con- clusion I have come to is rendered still stronger because the affidavits do not shew that Mr. Tindall or Mr. Dryhurst was a person who could give any evidence with regard to the facts which were in controversy between the parties in this suit. Therefore it is undoubted to my mind that the true conclusion250 GA. 1891 QUEEN’S BENCH DIVISION. 1891) is that the order really is, what on its face it appears to be, an order that Mr. Tindall and Mr. Dryhurst come before the exa- “Bononan> miner in order that they may make discovery of documents Macrantaxe. It is analogous to a bill of discovery against a mere witness. Exranms Now is such an order as that within the menning of the statuto Bry, Lad, LL. 6&7 Vict. c. 82? In my judgment it plainly is not. That statute enables the Court in England or Scotland or Ireland to direct a commission for the examination of witnesses—that means persons who are able to bear testimony with regard to the issues in controversy between the litigant parties. It does not mean that they may be examined with regard to the possession of documents which may be relevant to the controversy between the parties. ‘That observation governs, in my opinion, the whole of the section, and I think the words at the end “for the pro- duction of any writings or documents to be mentioned in such rule or order,” are only ancillary to the examination of witnesses. The words may enable the parties to require the production of the documents which the witness produces as a witness; but they cannot for one moment be stretched so as to enable any one to obtain discovery against a witness. Mr. Lyttelton put forward a very ingenious argument indeed, which was this. He said that the law of Scotland must govern the Scotch commission in England, and the law of England must govern the English commission in Scotland, and if the law of Scotland enables you to get discovery against a witness in Scot- land, you must be able in Hugland to obtain discovery from the witness in England. ‘There are two answers to that suggestion. In the first place I do not think that it is the true meaning of the clause; but even if it were, there is no evidence at all before us thet in Scotland discovery can be obtained against a witness. If that were the Scotch law it must be borne in mind that the English Court must exercise a discretion. I say without hesita- tion if I were the Judge at Chambers, I never would make an order which enabled a Scotch commission in England to obtain discovery of documents from a mere witness in the cause, There- foro I donot doubt that even if Mr. Lyttelton were right in his contention, and the law of Scotland is that which he suggests ought to be gathered from this consent order, the Court of2Q.B. QUEEN’S BENOH DIVISION. 251 England should not follow it in granting discovery againsta mere 0.4. witness. It is to be observed that according to the law of Eng- —_ 1891 land, as it exists at the present time, it is impossible to obtain ~pyroxanp discovery against a witness by any process. In the old Court of 4740. cane, Chancery you might maintain a bill for discovery, but in order gx parte to maintain a bill for discovery it was necessary to shew the T!Pat. interest of the plaintiff in the documents to be discovered, the by: interest of the defendant in the documents to be discovered, and the right of the plaintiff as against the defendant to the pro- duction of the documents that were discovered. Without that the bill was demurrable. It is obvious that such a bill never could lie against a witness. In the same manner with regard to a subpena duces tecum. You never could call on a witness to ascertain whether docu- ments related to a particular matter in controversy. ‘That caso came before the Court of Chancery in Lee v. Angas (1), where a subpcena duces tecum was served upon a witness which deseribed the particular documents, and then went on to direct him to pro- duce all documents relating to certain matters in question. It was held that as a subpena duces tecum it was bad, because it was in fact a bill of discovery against the witness. Then again, under the recent order, Order xxxvut,, r.7, the same observation applies. That rule was undoubtedly conceived in very wide language. It came before the Court of Appeal in the recent case which has been called to our attention ; and the Court took the view that, as a right to discovery could not be obtained against a witness, however wide the language of the order, there was no power to get such relief as is sought in this case. It appears to me that if we were to give the slightest countenance to this proceeding we should be doing a great injustice. It has been said, and not without justice, that it is a remark- able thing, that A., by making a series of false statements against B. and putting them on the back of a writ, or calling them a statement of claim, may obtain inspection of the books of B. That is the law, but it has never yet been carried to this extent, that by A. meking a statement against B. he can obtain discovery of the books of ©. This is an attempt to (1) Law Rep, 2 Eq, 59.252 OA. 1891 ‘Buncuanp . ‘MAcranaxe, Ex PARTE ‘TrinpaL., May 28, 29. QUEEN'S BENCH DIVISION. [1891] carry it to that extent, and therefore, in my judgment, it ought to fail. Appeal allowed. Solicitors for the applicants: Parker, Garrett, & Parker. Solicitors for the parties to the action: Thomas Cooper & Son. A.M. CHAPPELL v, NORTH. Arbitration—Submission to Arbitration—Application to stay Proceedings on Counter-claim—Arbitration Act, 1885 (52 d: 58 Vict, c, 49), s. 4—" Step in the Proceedings.” By s. 4 of the Arbitration Act, 1889, it is provided that “if any party to asubmission . . . commences any logal procecdings in any court against any other party to the submission in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearancé, and before delivering any pleadings, or taking any other steps in the proceedings, apply to that Court to stay the proceedings.” ‘The plaintiff brought an action for work done under a building contract, which contained a general eubmission to arbitration of all disputes arising out of the contract. ‘The defendant counter-claimed for damages arising out of breaches of the contract, Subsequently to the delivery of the counter-claim the defendant took out a summons for directions under Order xxx. for the purpose of obtaining discovery from the plaintiff. On the hearing of the sum- mons the plaintiff applied for and obtained, under rule 2 of that order, leave to administer interrogatories to the defendant. ‘The plaintiff subsequently dis- continued his action, and proposed to refer the whole matter to arbitration, and, upon the defendant refusing to allow the counter-claim to be referred, took out a summons under s. 4 of the Arbitration Act, 1889, to stay the proceedings on the counter-claim :— ‘Tield, that tho plaintiti’s application for leave to administer interrogatories was a step by him in the proceedings, and there was consequently no jurisdic- tion to make the order. ‘Sombie, that the delivery of a counter-claim is “the commencement of a legal proceeding” within the meaning of the section, AvrEaL from chambers. The action was brought by a builder to recover a sum of £5458, being the balance of an account for work done and mate- rials provided under a building contract. The contract contained a clause that the builder should not be entitled to any payment except on certificates signed by the architect, and that the final balance should be adjusted by an arbitrator; and it also con- tained a general submission to arbitration of all disputes arising