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ICLR: Exchequer/Volume 4 /GARDNER AND ANOTHER v. IRVIN AND ANOTHER. - (1878) 4 Ex.D. 49

(1878) 4 Ex.D. 49

[COURT OF APPEAL.]

GARDNER AND ANOTHER v. IRVIN AND ANOTHER.

1878 Dec. 20.

BRAMWELL, BRETT and COTTON, L.JJ.

Practice - Discovery of Documents - Documents protected from production by reason of Privilege - Privilege -
Affidavit as to Documents, sufficiency of - Rules of Supreme Court, Order XXXI., rule 13.

An affidavit as to documents by a party who objects to produce them is insufficient, if it merely states "that
the documents are privileged;" it ought to state and verify the facts upon which the objection is grounded.

Claim: That certain boxwood timber was lying in six warehouses at Poti, a port in the Black Sea, in
the empire of Russia; the timber was the property of the plaintiffs, and they were entitled to the
possession of it; the timber had been bought from
(1878) 4 Ex.D. 49 Page 50

Messrs. D'Isidare & Salonikidi, and had been delivered to the plaintiffs, and the plaintiffs had paid
for the same; whilst the timber was in the warehouses, certain disputes arose between the
plaintiffs, as purchasers, and D'Isidare & Salonikidi, as vendors, of the timber, and the plaintiffs took
legal proceedings against the vendors in the courts in the empire of Russia. In the course of the
legal proceedings an order was made that the timber should be arrested and sequestered for the
due performance of any judgment which might afterwards be given in the proceedings. In 1872,
one Vonticiano, as agent of the defendants, made a claim to the possession of the boxwood, and
after the making of the order arresting the same, Vonticiano, as agent of the defendants, took legal
proceedings against the plaintiffs to enforce his rights and those of the defendants to the timber;
D'Isidare & Salonikidi were, according to the law of Russia, made parties to the proceedings. The
court, being the High Court of Justice of Tiflis, decided by its judgment, dated the 19th of July,
1877, that the boxwood in four of the warehouses was the property of the plaintiffs; and the
judgment was and is valid, final, and conclusive according to the law of Russia, not only between
the plaintiffs and Vonticiano, but also between the plaintiffs and the defendants, as domini litis of
the proceedings, and the defendants were and are liable to pay the costs to the plaintiffs under the
judgment.

Defence: a denial of all the material allegations in the statement of claim.

An order having been made at the instance of the plaintiffs for discovery, the defendants made an
affidavit stating that they were in possession of certain documents relating to the mutters in
question in the action set forth in the 1st and 2nd parts of a schedule annexed to the affidavit, and
that they objected to produce the documents in the second part of the schedule; and the affidavit
further stated "that one reason for objecting to produce the said documents set forth in the second
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part of the schedule is that the same are privileged." The documents in the second part of the
schedule were: "correspondence between ourselves and our solicitors; correspondence between
our solicitors and their agents; cash-books, ledgers, and accounts; writ of summons, statement of
claim and other pleadings, counsel's opinions, statement of case
(1878) 4 Ex.D. 49 Page 51

in Russian courts prepared by attorney for Vonticiano, including copies of depositions and evidence
given."

On the 2nd of November, 1878, a summons was served on the defendants for a further and better
affidavit of documents; it was heard on the 6th of November, before Lush, J., who made no order;
an appeal from the decision of the learned judge was then made to the Divisional Court. On the
13th of November, after argument, the appeal was dismissed.

The plaintiffs appealed.

Crompton, for the plaintiffs. The affidavit made by the defendants is insufficient; it states merely that the
documents are privileged, and yet it is clear from the documents set out in the schedule that some of them,
the cash-book, ledger, and accounts, prim facie, are not privileged. The defendants in their affidavit ought to
set out the facts and claim the privilege. The Court could then see whether on the facts the defendants were
justified in claiming privilege. With regard to the correspondence, the plaintiffs are entitled to have the dates
and addresses of the letters, in order to judge whether they were confidential communications between the
defendants and their solicitors in their character of solicitors, and whether it was with reference to this
litigation. The plaintiffs are entitled to have from the defendants a better affidavit, setting forth the grounds on
which the privilege is claimed: Minet v. Morgan. (1)

[BRAMWELL, L.J. Order XXXI., rule 13, with Appendix B, Form 9(2), do not appear to have been brought to
the attention of the Divisional Court. Paragraph 3 of Form 9 states "here state upon what grounds the
objection is made, and verify the facts as far as may be;" that has not been done.]

(1) Law Rep. 8 Ch. 361.

(2) Order XXXI., rule 13: The affidavit to be made by a party against whom such order as is mentioned in the last preceding
rule has been made [that is, for producing documents] shall specify which, if any, of the documents therein mentioned he
objects to produce, and it may be in the Form No. 9 in Appendix B. thereto with such variations as circumstances may require.

Appendix B, Form 9: Form of affidavit as to documents. 2. I object to produce the said documents set forth in the 1st and 2nd
schedule hereto. 3. That [here state upon what ground the objection is made, and verify the facts as far as may be.]

(1878) 4 Ex.D. 49 Page 52

FitzAdam, for the defendants. The affidavit as to the correspondence is sufficient. The statement that the
correspondence was between the defendants and their solicitors is in itself a sufficient statement of a fact to
support the claim of privilege.
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[COTTON, L.J. The affidavit ought at least to state how many letters there are.

BRAMWELL, L.J. The affidavit does not state the grounds on which the cash-book and ledger are
privileged.]

That does not in any way prejudice the plaintiffs; they can take out a summons for inspection, and upon that
application the matter would be discussed and an order made. According to Minet v. Morgan (1), which was
approved of in Corporation of Hastings v. Ivall (2), this affidavit is sufficient. The form, No. 9, contained in the
appendix, is merely a skeleton form, and has been substantially complied with.

Crompton, in reply.

BRAMWELL, L.J. I think that this appeal should be allowed. We are not differing from the Court below, for it
would appear that the rule and the form given in the appendix were not brought to the attention of the
learned judge or of the Court. It is only necessary, in deciding this case, to read the rule to see if there has
been a compliance with it. Clearly there has not. The affidavit does not satisfy the requirement of rule 13,
Order XXXI. As it is the plaintiffs' fault that the order and rule were not brought to the attention of my Brother
Lush and the Court below, these costs must be costs in the cause.

BRETT, L.J. I think that rule 13 of Order XXXI. has not been complied with. The counsel for the defendants
argue that the form given in the Act is only a skeleton form which has been filled up in the affidavit. I think
that the skeleton still remains a skeleton, and the affidavit is insufficient. The defendants ought to verify on
oath the facts on which they claim the privilege; that is wholly omitted, and the affidavit is clearly insufficient
by reason of the omission.

COTTON, L.J. I am of opinion that the appeal must succeed,

(1) Law Rep. 8 Ch. 361.

(2) Law Rep. 8 Ch. 1017.

(1878) 4 Ex.D. 49 Page 53

and that a better and further affidavit should be made. It is said that the question might be raised on an
application for the inspection of documents, as the present affidavit sufficiently identifies the documents, and
that afterwards a further and better affidavit might be made; but the plaintiffs are entitled to make this
application. This affidavit does not follow rule 13 of Order XXXI. and the form given in the appendix, and the
plaintiffs have a right to call upon the defendants to file a better affidavit. How can it be said that this affidavit
is sufficient; in the body of the affidavit the defendants simply say "that the same are privileged," and in the
schedule they set out the documents, some of which clearly are not privileged. They ought to say not only
that the documents are privileged, which is a statement of law, but they ought to set out the facts from which
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we can see that the defendants' view of the law is right. Cash-books and ledgers prim facie are not
privileged.

An affidavit in answer to an application for discovery must be construed strictly, because the other side
cannot adduce evidence to contradict it. The person seeking discovery is bound by the affidavit made by his
opponent, and therefore it ought to be full. It is not sufficient for the affidavits to say that the letters are a
correspondence between a client and his solicitor, the letters must be professional communications of a
confidential character for the purpose of getting legal advice. I think that the plaintiffs are not entitled to have
the dates of the letters and such other particulars of the correspondence as may enable them to discover
indirectly the contents of the letters, and thus to cause the defendants to furnish evidence against
themselves in this action. The law was very recently correctly laid down on this point in this Court.(1)

This affidavit is insufficient, and the appeal must be allowed.

Appeal allowed.

Solicitors for plaintiffs: Crowder, Anstie, & Vizard, for Yates, Son, & Stananought, Liverpool.

Solicitors for defendants: Gregory, Rowcliffes, & Rawle, for Charnley & Finch, Preston.

(1) Taylor v. Batten, 4 Q. B. D. 85.