Kent Coal Concessions Ltd v Duguid

Lorp Loresurn L.C. My Lords, the question here is whether
this House should interfere with a discretion exercised by the
Master, confirmed by the learned judge at chambers and con-
firmed by the Court of Appeal.

I do not think myself that in the present case there is any
real question of principle involved, such as Vaughan Williams L.J.
thought he perceived. The facts are that an action for libel is
brought, and issues, whatever they may be, arise in the course
of the action. One, at all events, of the issues was whether
this company was in a sound condition or not. Thereupon
the plaintiff makes an affidavit of documents, and he includes
as relevant the report and the balance-sheet which is attached
to and explained by the report; and the Court of Appeal,
confirming the learned judge and the Master, think that the
books, which are the foundation of the balance-sheets are also
relevant. I think that is true. In any case it is the exercise

A. C. AND PRIVY COUNCIL

of a discretion. The learned judge decided that on the informa-

tion before him there was ground for going behind the former
affidavit.

4538

H. L. (E.)
1910

Sam

KENT COAL

My Lords, the law laid down in the case of Jones v. Monte-Video CONCESSIONS,

Gas Co.(1) has been referred to, but it is very familiar. It
merely, as I understand it, reaffirms the practice and rule

LIMITED
wv
DUGUID.

which have been acted upon constantly by Courts in matters of "7°? 7°°"™

discovery. In regard to the exercise of the discretion here, so
far as I can see, 1 agree with it; but I do wish to say this:
This House is of course open for the reconsideration of an
exercise of discretion, but it is a very exceptional case in which
the House will entertain the revisal of a discretion exercised
by the Court of Appeal confirming the opinion of the learned
judge. Even if I were disposed not to agree with it, I see
no question of principle here, and I should not be at all
prepared to differ from the solution arrived at by the Court
of Appeal.

Lorp Macnacuten. My Lords, I agree.

Lorp James or Hererorp. My Lords, | entirely concur in
every word which has been uttered by the noble and learned
Lord on the woolsack.

I should be very jealous indeed to concur in any course which
would support what in former days was called a "fishing"'
application—that a party should set himself to work, without any
case of his own, to endeavour to discover some case from his
opponent.

But when one comes to look at these reports and books upon
which our judgment is asked, I cannot see any danger whatever,
even if this application were a fishing application, that the
plaintiff can sustain any injury. We are not here positively
deciding whether these books must be admissible or not. All
that is asked is that a further affidavit shall state what documents
are in the possession of the plaintiff. When this affidavit is
made, questions may arise which I do not think Sir Edward
Carson quite answered, and I do not think Mr. Simon admitted®

(1) (1880) 5 Q. B. D. 536.
A. ©. 1910. 3 2H

454 . HOUSE OF LORDS [1910]

H.L.(&.) the difficulty would arise. But that will be determined in a way
1910 Iam sure that will inflict no injustice upon the plaintiff, and
Kenr coat Under those circumstances, my Lords, I entirely agree that our
aan discretion cannot be called in to overrule the discretion of the

v. Court.
DUGUID.

Lorp 'Arxinson. My Lords, I concur, but entirely upon the
"ground that this is a matter of discretion, and that it has not
been established to my satisfaction that the Master or the Court
of Appeal have gone upon a wrong principle.

Lorp Suaw or Dunrermuine. My Lords, I agree.

Order of the Court of Appeal affirmed and appeal
dismissed with costs.

Lords' Journals, June 21, 1910.