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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Caledonian Railway Co. v. Symington [1912] ScotLR 751 (12 June 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0751.html Cite as: [1912] ScotLR 751, [1912] SLR 751 |
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Page: 751↓
A respondent in an action obtained a diligence to recover the cash books of the complainers in the action, that excerpts might be taken showing transactions of a particular character, and also to recover certain documents. Failing the principals of the books and documents called for, the specification called for copies, jottings, &c. A partner of the firm of law agents who acted for the complainers was examined as a haver, when he deponed that his firm had none of the books and documents called for, and declined to produce the books of his firm. The commissioner upheld the haver's objection to produce the cash books of his firm, in which were admittedly entries of payments made on behalf of his principal, but ordained him to produce the letter books. The Lord Ordinary upheld the commissioner, and granted a new diligence covering the cash books of the law agents. On appeal the Court recalled the Lord Ordinary's interlocutor, refused the new diligence, and, on the ground that the respondent was not entitled to recover copies till he had used reasonable diligence to recover the principals, upheld the haver's objection to produce the letter books.
The Caledonian Railway Company, complainers, brought an action of suspension and interdict against Hugh Symington, contractor and quarrymaster, Coatbridge, respondent, in which the Lord Ordinary ( Cullen) allowed a proof, and, after sundry procedure, on 20th March 1912 granted a diligence to the respondent for the recovery of the documents contained in a specification of which articles 1, 3, 4, and 6 were as follows:—“1. All notices to treat under the Railway Clauses (Scotland) Act 1845 or Land Clauses Consolidation (Scotland) Act 1845 served by the complainers or anyone on their behalf on the proprietors of the Woodhouse estate, their tenants or lessees or anyone on their behalf, for or in connection with the formation of the Glasgow and Carlisle Railway, and all claims, valuations, reports, arbitration proceedings, awards, and decrees-arbitral following thereon, and all correspondence between said parties, or any of them, relating in any way to said notices, claims, arbitrations, or otherwise. … 3. The books of the complainers, including ledgers, journals, cash books, day books, account books, letter books, statement books, receipt books, voucher books, and all others, that excerpts may be taken therefrom showing, or in any way tending to show, the purchase money, compensation, and other moneys paid or payable by the complainers ( a) to the proprietors of Woodhouse, their tenants and lessees, and ( b) to all other landowners, their tenants and lessees, or anyone on their behalf, for or in respect of freestone or sandstone, within the county of Dumfries, acquired, taken, used, or reserved by the complainers or their contractors for or in connection with the construction of the railway and railways referred to in answer 11 for respondent between the years 1845 and 1868. 4. All notices to treat served by the complainers,
Page: 752↓
or anyone on their behalf, on landowners, their tenants or lessees, in connection with the acquisition, purchase, or reservation of freestone or sandstone within said county, referred to … for or in connection with the formation of the complainers' undertaking; all claims, valuations, reports, arbitration proceedings, awards, and decrees-arbitral following thereon, and all correspondence between said parties, or anyone on their behalf, relating in any way thereto, between the years 1845 and 1868. … 6. Failing principals of all or any of the books and documents called for, drafts, duplicates, excerpts, jottings, or copies thereof are called for.” On 29th April 1912 the commission was executed and Mr William John Kirk, W.S., a partner of the firm of Hope, Todd, & Kirk, W.S., the complainers' Edinburgh law agents, was examined as a haver.
The following narrative is an excerpt from the interim report by the commissioner to the Lord Ordinary—“Being called upon to produce under article 3 of the said specification (the haver) depones, I have none. Entries regarding the payments made on behalf of the Caledonian Railway Company, referred to in article 3, went through books kept by my firm, and these books are still in existence; but they are the books of my firm and their property, and I decline to produce them. These books were paid for by my firm, and not charged against the complainers, and are not complainers' books. By the commissioner—I decline to produce them because they are my firm's books, and the call applies to the complainers' books. I decline to produce them on the ground of confidentiality also. They contain a vast amount of matter absolutely outwith this present inquiry, and of the most private nature. The respondent's agent moved the commissioner to order the production of the books which the haver had deponed were the property of his firm but contained records of transactions made by his firm for the complainers. The commissioner refused the motion on the ground that the specification specified books of the complainers, and did not specify books kept on their behalf by the haver's firm. The commissioner found it unnecessary to deal with the haver's plea of confidentiality, beyond indicating that had the call covered books kept by the haver's firm, whether for themselves or the complainers, and containing the entries sought for, he would have held the said plea inapplicable in the circumstances. … Being called upon to produce under article 6 of the said specification, copies of the letters written by his firm on behalf of the complainers between 1845 and 1868, and called for under article 1 and 4, depones, I decline to produce the letter books containing these copies. These books are … the books of my firm. The respondent's agent moved the commissioner to order production of the said books. The commissioner ordered the haver to produce the said books, so as to enable him to determine what copies fell within the calls. The haver thereupon declined to obey the said order. The commissioner adjourned the diet sine die in order that the disputed matters might be referred to the Lord Ordinary.”
On 29th May 1912 the Lord Ordinary pronounced an interlocutor, the second head of which sustained the commissioner's ruling, and ordained the haver to produce to the commissioner the letter books in question in order that he might excerpt therefrom copies of letters falling under the specification, and granted a further diligence to the respondent for recovery of the books contained in the following specification—“1. All books kept by or on behalf of Hope, Todd, & Kirk, Writers to the Signet, Edinburgh, and of their predecessors in business Messrs Hope & Oliphant, Hope & Mackay, Hope, Mackay, & Mann, and Hope, Mann, & Kirk, all Writers to the Signet, Edinburgh, including ledgers, journals, cash books, day books, account books, letter books, statement books, receipt books, voucher books, and all others, that excerpts may be taken therefrom showing or in any way tending to show the purchase money, compensation, and other moneys paid or payable by the complainers ( a) to the proprietors of Woodhouse, their tenants and lessees, and ( b) to all other landowners, their tenants and lessees or any one on behalf of any of them, for or in respect of freestone or sandstone within the county of Dumfries acquired, taken, used, or reserved by the complainers or their contractors for or in connection with the construction of the railway and railways referred to in answer 11 for the respondent between the years 1845 and 1868.”
The complainers reclaimed, and argued—The haver ought not to be ordained to produce the letter books of his firm under the first specification, and the diligence in terms of the second specification should be disallowed in toto. Any evidence which might be contained in the books of the haver could only be secondary evidence, and the respondent was not entitled to recover them, because he had not previously made any attempt to recover the original documents which were the primary evidence— Smith v. Smith, December 4, 1869, 8 Macph. 239, 7 S.L.R. 143; County Council of Fife v. Thoms, July 9, 1898, 25 R. 1097, 35 S.L.R. 868; A v. B, January 20, 1858, 20 D. 407, per Lord President at p. 416.
Argued for the respondent—The respondent was entitled to recover the books of the haver, because it might prove exceedingly difficult and in some cases impossible to recover the original documents, and it would impose an unreasonable burden upon the respondent to compel him to attempt to do so. The practice of the Court was elastic, and it was ordinary practice to allow a party to recover copies of documents from a haver if the haver failed to produce the principals— Sleigh v. Glasgow and Transvaal Options, Limited, January 26, 1903, 5 F. 332, 40 S.L.R. 313.
Page: 753↓
The respondent in this case has obtained a diligence under which he was entitled to recover certain documents if they existed. Without having done anything whatever to endeavour to execute that diligence, which, of course, is a diligence to try and recover principal documents, he asks a second diligence to recover, not the documents themselves, but copies of the documents contained in the books of the complainers' agents, which at best are only secondary evidence, available only on its being proved to the satisfaction of the Court that the principals cannot be obtained. That is so elementary that I cannot see how, it could be pleaded that without anything whatever having been done to discover whether the principal documents existed, a diligence should be granted to recover that secondary evidence. I think, therefore, the proper course will be to recal the interlocutor of the Lord Ordinary, refuse the second specification, and find that Messrs Hope, Todd, & Kirk are not required hoc statu to produce their letter books in order that excerpts may be taken of the copy letters that are to be found in these books. Even if the production of such books were ultimately to be found necessary, I think that the interests of the agents to whom they belong would require to be very carefully guarded before such a sweeping search could be allowed. The point is certainly a novel one. I never heard of such a case before, and I am not in the least moved by what Mr Constable says, namely, that it is a good many years since these letters were written, and that it would be putting the respondent to great expense to show that he could not recover the letters. The fact that a long time has elapsed may make it difficult to recover the letters, but will make it all the easier to show that the party cannot expect to recover them.
The Court sustained the reclaiming note, recalled the second head of the interlocutor of the Lord Ordinary, and refused hoc statu the second specification, as also recalled the ruling of the commissioner appealed against.
Counsel for Complainers and Reclaimers— Morison, K.C.— Watson. Agents— Hope, Todd, & Kirk, W.S.
Counsel for Respondent— Constable, K.C.— Jamieson. Agents— Dove, Lockhart, & Smart, S.S.C.
