CHAPTER VII.

ADMISSIONS-INTERROGATORIES-DISCOVERY-INSPECTION.

And now having considered the practice in those cases in Issues of which the parties who come before the Court are agreed with fact. regard to the facts, and the only questions with regard to which they desire the aid of the Court arise with reference to the law applicable to those facts, we pass on to consider a different class of cases-where the parties do not agree as to the facts, but where there are, as it is termed, issues of fact between them. The aim of a proper system of practice is that those issues of fact should be decided as easily and cheaply as possible, provided of course that no injustice is caused in so doing. Under the old system, before the Judicature Acts, the principles on which the Courts proceeded with regard to the subject of granting or refusing discovery, i.e. as to enabling a litigant to obtain before the trial a knowledge of the facts and documents on which his opponent relied, differed essentially in equity and at common law. In equity there was generally speaking an absolute right to all discovery material to the question about to be tried. At common law discovery was in the discretion of the Court. In framing the present rules as to discovery, said the present Master of the Rolls, it was the intention of the Judicature Act to introduce a new intermediate practice, following the extended principles of the Court of Chancery rather than the narrower practice of the Courts of Common Law (1). Under the former system in conducting a suit in Chancery interrogatories of the most sweeping character were wont to be administered with a view to obtaining admissions of which the opposite party might avail himself at the trial. This practice, however, grew to much abuse, and was checked by the Rules of the Supreme Court of 1883, under which there are now the following ways provided in which each party may obtain information from the other as to what his case really is. These ways are as follows: (1) Admissions of facts and documents; (2) Interrogatories; (3) Discovery and Inspection.

Present

rules as to
discovery

(1.) With regard to admissions of fact-the rules contain a Admissions general provision that any party to a cause or matter may give of fact.

(1) Jones v. Monte Video Gas Co., 5 Q. B. D. 558.

H

of fact.

Admissions notice, by his pleading, or otherwise, in writing, that he admits the truth of the whole or any part of the case of any other party. In addition to this, another rule deals with the question of the admission of documents. Either party may call upon the other party to admit any document, saving all just exceptions and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the Court or a judge shall certify that the refusal to admit was reasonable; and no costs of proving any document will be allowed, unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing-officer, a saving of expense.

A further provision on this subject, intended to obviate the expense of parties being prepared to prove facts which ought to be, and often are, admitted at the trial, was introduced by the Rules of 1883, as follows, viz. :

Any party may by notice in writing at any time not later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in the notice. And in case of refusal or neglect to make the admission within six days after service of the notice, or such further time as the Court may allow, the costs of proving such fact or facts must be paid by the party neglecting or refusing to make the admission, whatever the result of the “cause, matter, or issue" may be, unless the Court otherwise directs or certifies that the refusal to admit was reasonable. It must be borne in mind, however, that any such admission is to be deemed to be made only for the purposes of the particular cause, matter, or issue, and cannot be used on any other occasion or in favour of any person other than the party giving the notice (1).

The next provision, with regard to the use which may be made of admissions, is of the greatest possible practical importance. Any party (2) may at any stage of a cause or matter, where

(1) R. S. C. Order xxxII., r. 4; and see Brown v. Watkins, 16 Q. B. D. 129; Shaw v. Smith, 18 Q. B. D. 193. See further on the subject of discovery: Bustros V. White, 1 Q. B. D. 426; Anderson v. Bank of Columbia, 2 Ch. Div. 654,658; Church v. Wilson, 9 Ch. D. 554; Parker v. Wells, 18 Ch. D. 485; China, &c., Co. v. Commercial &c., Co., 8 Q. B. D. 145 (C. A.); Bolckow v. Fisher, 10 Q. B. D. 168; Kearsley v. Phillips, 10 Q. B. D. 466; Jones v. Monte Video

Gas Co., 5 Q. B. D. 558; Aste v. Stumore, 13 Q. B. D. 329, 330; Attorney-General v. Gaskill, 20 Ch. D. 525, 526. 530 (C.A.); Leitch v. Abbott, 31 Ch. D. 374: Re Holloway, 12 P. D. 167; Marriott v. Chamberlain, 17 Q. B. D. 163; Lyell v. Kennedy, 8 App. Cas. 217: Fennessy v. Clark, 37 Ch. D. 184; Humphries v. Taylor Drug Co., 39 Ch. D. 693.

(2) R. S. C. 1883, O. xxxII., r. 6. Admissions may be amended or withdrawn by leave of the Court.

or order

upon

admissions of fact have been made, either on the pleadings, or Judgment otherwise, apply to the Court or a judge for such judgment or order as upon such admissions he may be entitled to, without admissions. waiting for the determination of any other question between the parties; and the Court may upon such application make such order, or give such judgment, as it may think just (1).

(2) The practice as to administering interrogatories to the Interrogaopposite party is dealt with by Order xxxI. of the Rules of the tories. Supreme Court, 1883, which alters very materially the preceding practice, not only by limiting the cases in which discovery can be obtained without special leave, but also by requiring the party seeking discovery to give security for costs (post, p. 745), This order provides that in any action where relief by way of damages or otherwise is sought on the ground of fraud or breach of trust, the plaintiff may at any time after delivering his statement of claim, and a defendant may at or after the time of delivering his defence, without any order for that purpose, and in every other cause or matter the plaintiff or defendant may by leave of the Court or a judge deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer. The power of administering interrogatories is, however, subject to the following important limitations::1. That no party may deliver more than one set of interrogatories to the same party without leave; and 2. That interrogatories which do not relate to any matters in question in the cause or matter are to be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

In deciding upon any application for leave to exhibit interrogatories, the Court takes into account any offer which may be made by the party sought to be interrogated, to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them; and the exhibition of interrogatories unreasonably, vexatiously, or at improper length, is visited with the penalty of payment of all costs to

(1) R. S. C. O. xxxшI., r. 6, and see on the subject of admissions Brett's Leading Cases in Equity, p. 296,

et seq.

An affidavit of the solicitor or his clerk of the due signature of any admissions of documents or facts is sufficient evidence of such admissions.

A similar affidavit of the service of

any notice to produce, and of the time
when it was served, with a copy of
the notice to produce, is sufficient
evidence of the service of the notice,
and of the time when it was served.

A notice to produce documents is
to be in the form specified in the
Rules, Form No. 14, Appendix B,
R. S. C. O. xxxii., rr. 7, 8.

tories.

Interroga- to be paid in any event by the party in fault. In actions in the Queen's Bench the general rule is, in the absence of special circumstances, not to allow interrogatories or discovery until after defence. In the Chancery Division, on the other hand, the general rule is to order discovery before defence (1).

It has been decided that a plaintiff cannot administer interrogatories in an action to enforce a penalty (2).

An action for recovery of land is no exception to the general rule, that a party has a right of discovery from his opponent to support his own case (3).

An action for discovery may still be brought without claiming any other relief. But it has been very recently decided that the Court will not entertain an action for discovery only in aid of proceedings in a foreign Court (4).

In an action by a foreign potentate, government, or corporation the Court may stay proceedings pending the nomination of some proper person to give discovery (5).

If any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly (6). This officer is regarded "as the alter ego of the corporation, inasmuch as the corporation itself cannot answer."

It has been decided on this rule that when a corporation puts forward one of their officers to answer interrogatories, who is also their solicitor, they cannot when so doing claim the advantage of the solicitor's privilege. "Having elected to answer through him they have waived the privileges which might otherwise have existed" ("). An infant cannot be interrogated (8).

(1) R. S. C. O. xxxi., rr. 1, 2, 3; Mercier v. Cotton, 1 Q. B. D. 442; Harbord v. Monk, 9 Ch. D. 616; Union Bank v. Manby, 13 Ch. D. 240; but see Sachs v. Spielman, 37 Ch. D. 303, where an application by the defendant for particulars was ordered to stand over until the defence was put in.

(2) Hunnings v. Williamson, 10 Q. B. D. 459; Hobbs & Co. v. Hudson, 25 Q. B. D. 232.

(3) Lyell v. Kennedy, 8 App. Cas. 217, and see Ind, Coope & Co. v. Emmerson, 12 App. Cas. 300; Morris v. Edwards, 23 Q. B. D. 287. See

tories.

A new rule introduced in 1883 provides that in any action Interrogaagainst or by a sheriff in respect of any matters connected with the execution of his office, the Court or a judge may, on the application of either party, order that the affidavit to be made in answer either to interrogatories or to an order for discovery shall be made by the officer actually concerned (1).

Any objection to answering any interrogatory on the ground of scandal, irrelevancy, or that it is not bona fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer (2).

And any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous (3).

Interrogatories are answered by affidavit to be filed within ten days, or such other time as a judge may allow. This affidavit must, unless otherwise ordered by a judge, if exceeding ten folios, be printed, and be in a prescribed form.

Formerly "exceptions" were taken to answers. The rules now provide that exceptions shall not be taken to any affidavit in answer, but the sufficiency or otherwise of the affidavit shall be determined by the Court or a judge on motion or

summons.

If any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court or a judge for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer, or answer further, either by affidavit or by vivá voce examination, as the judge may direct (4).

Allusion has already been made to the change in practice Security under which security for the costs of discovery is required. for costs They are to be secured, in the first instance, by the party seeking the discovery, and only to be allowed as part of his costs when the discovery shall appear to the judge at the trial, or if there is no trial, to the Court, or to the taxing officer, to have been reasonably asked for. Any party seeking discovery by interrogatories must now before delivery of interrogatories, pay into court to a separate account in the action, to be called "Security for Costs Account," to abide further order, the sum

(1) R. S. C. Order xxxi. r. 28. (2) R. S. C. Order xxxI. r. 6. Sammons v. Bailey, 24 Q. B. D. 727.

(3) Nothing relevant to the issue can be deemed scandalous: Fisher v.

Owen, 8 Ch. D. 645; Millington v.
Loring, 6 Q. B. D. 190.

() The application is by summons:
Chesterfield v. Black, 13 Ch. D.
138, n.