1. The plaintiff has filed this suit against the Official Assignee, the G. I. P. Ry. Co. and others claiming possession from the first defendant of 97 bales of cotton and in default of possession being given the value of the said bales from the first and second defendants, and other relief.
2. On the 11th October 1907, the second defendant filed then-affidavits of documents through Mr. Irvine, Assistant Traffic Superintendant. In para 2 Mr. Irvine, says : ' the defendant Co. object to produce the document set forth in the second part of the said schedule on the ground that they are by their nature privileged from production. ' In part II are set forth papers which passed between the Railway Company's officials relating to the subject matter in dispute since the threat of suit on the part of the plaintiff.
3. On the 9th. June 1908 plaintiff took out this summons calling upon the second defendant to show cause why they should not forthwith properly and fully disclose all the papers which passed between the Railway Company's Officials relating to the subject matter of the suit in dispute since the threat of suit referred to in the second part of the schedule of the affidavit of the 11th October 1907 and give inspection thereof to the plaintiff. There are two objections to this affidavit ;
(1) That the papers for which privileges are claimed are not properly disclosed; and
(2) That the documents are not privileged.
4. On the first point the defendants are bound to describe the documents for which they claim privilege sufficiently for the purpose of identification to enable the Court to order their production shoizld the Court think right to do so. Bewicke v. Grdham (1881) 7 Q. B. D. 400 per Lord Coleridge C.J. at page 410. In cases similar to this one, to which I shall refer on the second point particulars of the documents were disclosed and I think in this case it would not be sufficient for the second defendants to say 'papers tied up in a bundle and numbered,' the papers must be described separately. On the second point it is clear that the grounds on which privilege has been claimed are not properly set forth, for papers which passed between the Company and its officials relating to the subject matter in dispute since the plaintiff threatened suit are not by nature privileged. The test to be applied to documents passing between a principal and his servants has been laid down in a series of cases. I need not go further back than Woolley v. The Worth London Railway Company (1869) 38 L.J. C. P. 317.
5. Brett J. at page 324 says : 'Any report made by a servant to his principal for the purpose of instructing the latter as to the claim or defence in any legal proceedings anticipated or existing ought not to be produced but any such report made in the ordinary course and which would have been so made whether there was litigation either anticipated or existing should be produced. The material point is whether it is made or not in the ordinary course of things or whether only for the purpose of instructing a principal to resist or make a claim.' In Fennerv. The London and South Eastern Railway Gorrvpanyi (1872) 41 L.J. Q. B. 313 Blackburn J. says at p. 315. 'The principle I think to be derived from all the cases is that when it appears that the documents are substantially rough notes for the case to be laid before the legal advisers or supply the proof to be inserted in the brief, the discretion of the Court should, as a general rule, be to refuse inspection.' In that case the defendant had disclosed certain documents and objected to produce or allow inspection of them on the ground that they were not made in the ordinary course of duty but were made confidentially for the purpose of litigations and resisting the plaintiff's claim. In chambers, Blackburn J. ordered inspection and this order was confirmed on appeal by Quain and Hannen JJ. sitting with Blackburn J. It is somewhat difficult to reconcile the principle laid down as above by Blackburn J. with his decision in the case. Hannen J. agrees with the principle laid down and adds : 'In the exercise of my discretion I should have drawn the inference that the great bulk of the letters written by the servants of the Company after this inquiry were privileged.' In Parr v. London Chatham and Dover Railway Company (1871) 24 L. T.558, the defendants objected to produce certain documents on the ground that they contained statements by various persons of what took place at the time of the alleged accident to enable the defendants to judge whether they could be made responsible to the plaintiff or any other persons. Such statements were made in consequence of a custom or practice in all cases of accidents and that the same constituted the instructions to the defendants' adviser as to defending this action. It was held the documents were not privileged. Pigott Baron says: 'the possibility of their reports being useful for the purpose of litigation is a very different circumstance from that of their having been made for the purpose of or with a view to litigation.' In The London, Tilbury and Southend Ry. Company v. Kirk and Randall (1884) 51 L. T. 599 the defendants claimed privilege for certain reports made to them by their servants as having been made in the ordinary course of duty and a divisional Court held they were privileged, but the reasons for the decision which appear to go beyond the principle laid down in Woolley v. The North London Ey. Compamy are not given.
6. In The Southwark and Vanxhall Water Co. v. Quick (1878) 47 L.J. Q. B. 258 Cotton L. J, says : 'The true principle is that if the document comes into existence for the purpose of being placed before a solicitor to get his advice or for the purpose of enabling him to prosecute or defend a suit then the document is privileged.' This was followed in Collins v. The London General Omnibus Company (1893) 63 L.J.Q. B. 428.
7. The second defendants must therefore make a further affidavit giving particulars of the documents for which they claim privilege and specifying the grounds on which privilege is claimed. I shall then be in a position to decide whether the claim for privilege can be sustained. The summons will stand adjourned until the affidavit is made.