1. In this case the plaintiffs obtained the usual order on summons in Chambers calling on the defendant company to show cause, why they should not produce for inspection of the plaintiffs the documents set forth in Part III of the schedule of the affidavit of documents of the defendant company, and why the documents should not be deposited with the Registrar of this Court, with liberty to the plaintiffs and their attorneys to inspect the same and to take copies thereof, and why the costs of the application should not be paid by the defendant company.
2. In the affidavit of documents of the defendant company the documents, of which production and inspection are sought, are thus referred to: 'The defendant company also object to produce for inspection the documents set forth in the third part of the said schedule, because such documents were obtained after dispute arose and for the purposes of litigation that might arise between them and the plaintiffs.' Turning to Part III of the schedule the documents are described as the 'Report made by W. Arundell, Esq., dated the 15th July 1893, and the report made by J. Hammet, Esq., dated the 27th July 1893.'
3. The suit itself was instituted on 19th January 1894 by the plaintiffs to recover a large sum of money for work done and materials supplied for the defendant company in the erection of certain mills for the defendant company at Maheish near Serampore. On the hearing of the application the case of the defendant company was put in two ways-1st, it was said that the affidavit of documents sufficiently raised the claim of privilege, and that under that claim the documents were protected, and next, the defendant company sought, if the view taken by the Court should be against them, to put in a further affidavit of documents for the purpose of supporting their claim to privilege.
4. On the part of the plaintiffs it is contended in the first plane that the claim of privilege as set up in the affidavit of documents is insufficient, and further that the defendant company are confined to the grounds set up in that affidavit, and that they were not at liberty to put in any further affidavit setting forth further grounds in answer to the plaintiff's application.
5. There can be no question that the affidavit as it stands does not protect these documents from production and inspection as sought by the plaintiffs. The terms used are vague, and it is not stated that the reports were confidential in the sense that they were prepared at the instance of the legal advisers of the defendant company, or for the purpose of being submitted to them for their advice, and no authority was cited to show that the claim of privilege was ever so extended as to cover grounds such as those alleged in this affidavit. But I think the rule is that in an application of this kind for production and inspection of documents the party is entitled to put in and use a further affidavit in support of the claim of privilege, and that he is not confined to the grounds made in the affidavit in which the claim is first set up. The case of M' Corquodale v. Bell L.R. 1 C.P.D. 471 is a sufficient authority for this proposition. That case goes further than is required for the point now raised, inasmuch as it shows that a party can set up grounds not taken in his first affidavit of documents for the purpose of supporting his claim of privilege.
6. The case, however, is different when the party comes in relying on the original affidavit as sufficient to support the claim of privilege, but asks the Court, if it should think otherwise, for leave to put in a further affidavit in support of his claim. It is at the least doubtful whether a party should be allowed to take up a position which would give him an undue advantage. It is obvious that in putting his case in that alternative form he has the opportunity of hearing the objection taken to his original grounds and of mending his own case accordingly. But however that may be, it is, I think, beyond doubt that I ought not to give the leave sought by the defendant company in this case, because, in my opinion, having regard to the statements contained in paragraph 13 of the written statement, it is no longer open to the. company to claim privilege for these documents.
7. Paragraph 13, it is admitted, refers to these documents in these terms: 'The defendant company, in consequence of the information which they had received with regard to the quality of the work done by the plaintiffs, caused the same to be inspected by two independent engineers in the month of July 1893, and they at once discovered such extensive defects therein that the costs of making good such defects will, as they are informed, and believe, far exceed any possible sum due to the plaintiffs.'
8. The written statement then proceeds to set forth the various facts obtained from the reports of the two engineers as facts upon which the company rely as an answer to the plaintiffs' claim. Now, it seems to me that when a party expressly refers to documents in the pleadings as the source of his own information and knowledge of facts relevant to the suit, and then sets up those facts by way of answer to the plaintiff's' claim, it is too late for him to turn round and attempt to make the case that the documents are confidential and intended merely for their legal advisers or for the purpose only of evidence in the case.
9. The reports are in fact statements of relevant facts made by the agents of the defendant company admittedly for the information of the defendant company, and are the best evidence of the knowledge of the defendant company of those facts. I therefore think that the documents themselves are not privileged, and moreover that they clearly fall within that class of documents which are governed by the ruling in Anderson v. Bank of British Columbia L.R. 2 Ch. D. 644.
10. An order will be made in terms of the summons, with costs as against the defendant company. I will certify for Counsel.