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Bombay High Court
L.A. Wallace And Ors. vs F.G. Jefferson on 15 February, 1878
Equivalent citations: (1878) ILR 2 Bom 453
Author: C Sargent
Bench: C Sargent, Bayley


JUDGMENT

Charles Sargent, J.

1. In Bustros v. While (L.R. 1.Q.B.D., 423) it was decided by a Court of Appeal consisting of eight Judges that, under Order XXXI, Rule 11, of the English Judicature Act, a Judge has no discretion as to refusing to allow the production of documents in possession of a party to the suit relating to the matter in question, provided the documents are not privileged. Section 130 of the Civil Procedure Act of 1877 would appear to have been copied from the above rule, and we think, therefore, it is advisable to adopt the English ruling as to its construction. As the defendant’s affidavit admits that the documents in question relate to the matter in dispute, the only question to be determined is, whether they are privileged. They consist of two or three telegrams and letters, all of which passed between the plaintiffs in London and Mr. Richardson, who manages their business in Bombay. It was said that they were confidential communications between principals and their agents. But the mere circumstance that communications are confidential does not render them privileged, as pointed out by the Master of the Rolls in Anderson v. Bank of British Columbia (L.R. 2 Ch. Div., 644, 653). They must be, to use his words, “confidential communications with a professional adviser,” and this view of the law was confirmed by the Court of Appeal consisting of Lords Justices JAMES and MELLISH. Nor would it be possible, having regard to the position in which Mr. Richardson stood to the plaintiffs, to treat him as a deputy of the solicitors in Bombay, even if the plaintiffs had at that time been in communication with professional advisers, which does not appear on the affidavits to have been the case. Lord Justice MELLISH in the case of Anderson v. Bank of British Columbia suggests that the privilege may, perhaps, extend to cases in which an agent, *as distinguished from a solicitor, is employed in communicating evidence to be used at the trial. But it is not suggested that the letters from Mr. Richardson were of that nature. The documents, as shown by Mr. Richardson’s affidavit, are of the same nature as those of which production was ordered in Anderson v. Bank of British Columbia.. Production must be ordered. Costs to be costs in the cause.

Bayley, J.

2. I entirely concur.


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