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order being made for such particulars that the defendant may thereby be indirectly compelled to disclose the names of his witnesses. (Per Lord Esher, M.R., in Zierenberg v. Labouchere, (1893) 2 Q. B. at p. 187; Humphries & Co. v. Taylor Drug Co., 39 Ch. D. 693; 37 W. R. 192; 59 L. T. 177.) And to the particulars so given the defendant will be strictly limited; he may not deliver further particulars without leave. (Yorkshire Provident Co. v. Gilbert, (1895) 2 Q. B. 148; 64 L. J. Q. B. 578; 72 L. T. 445; Emden v. Burns, (1894) 10 Times L. R. 400.) So, too, particulars may be obtained if a plea of privilege does not state the circumstances which render the occasion privileged, and on obtaining such particulars plaintiff may object, as a matter of law, that they disclose no privilege.

Reply.

No Reply can now be delivered without the leave of a Master. If the plaintiff's only object in delivering a Reply is to deny what the defendant has stated in his Defence, the Master will not give leave; because for that purpose no Reply is necessary. If no Reply be delivered, all material statements of fact in the Defence will "be deemed to have been denied and put in issue" at the end of the period of ten days (Order XXVII. r. 13); and then the plaintiff can give notice of trial at once. (Order XXXVI. r. 11.) But if a Counterclaim has been pleaded, the Master will generally give leave to deliver a Reply and Defence to Counterclaim.

To a plea of absolute privilege no reply other than a joinder of issue is possible. (See Scott v. Stansfield, L. R. 3 Ex. 220; 37 L. J. Ex. 155; 16 W. R. 911; 18 L. T. 572; Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; 39 L. J. Q. B. 53; 18 W. R. 336; 21 L. T. 584.) To a plea of qualified privilege a special reply is unnecessary, if malice be alleged in the Statement of Claim or negatived in the Defence; the formal averment in the Statement of Claim that the words were spoken maliciously becomes an allegation of express malice. The defendant is not entitled to particulars of express malice. (Order XIX. r. 22. See ante, p. 582.) To a justification setting out a conviction, or to a plea of a previous action, the plaintiff must reply specially Nul tiel record, if it be the fact that there is no such record; or if the conviction be erroneously stated in the Defence (as in Alexander v. N. E. Ry. Co., 34 L. J. Q. B. 152; 6 B. & S. 340), the plaintiff may set it out correctly in his Reply. Or to such a conviction the plaintiff may reply a pardon (Cuddington v. Wilkins, Hob. 67, 81; 2 Hawk. P. C. c. 37, s. 48), or

that he had undergone his sentence, which will have the same effect (Precedent No. 61; Leyman v. Latimer and others, 3 Ex. D. 15, 352; 37 L. T. 360, 819; 14 Cox, C. C. 51); though I apprehend neither reply would be an answer if the words complained of were that the plaintiff "was convicted of" a crime. To a plea of payment into Court some pleaders reply specially that the sum paid in is insufficient; but a mere joinder of issue will raise that point with equal effect.

Where money has been paid into Court without any denial of liability (as it always must be in actions of libel or slander) the plaintiff has three courses open to him:

(i) He may leave the money in Court, in which case it will be subject to any future order of the Court or a judge, as in Gray v. Bartholomew, (1895) 1 Q. B. 209; 64 L. J. Q. B. 125 ; 43 W. R. 177; 71 L. T. 867.

(ii) He may take the money out in satisfaction of his cause of action and proceed to tax his costs. (Marriage v. Wilson, (1889) 53 J. P. 120.)

(iii) He may take the money out of Court not in satisfaction and continue the action in the hope of recovering a larger amount. (Order XXII. r. 5 (b).)

CHAPTER XXIV.

PREPARING FOR TRIAL.

THE parties have now ascertained by interchange of pleadings what are the matters in issue in the action; the next step is to prepare the evidence which they will adduce at the trial on each issue. Each party probably has in his possession material documents which his opponent will desire to inspect, and of which he may wish to take copies. Each party may also desire to obtain from the other disclosure of certain facts. This is especially desirable when it is known that there will be a conflict of evidence at the trial; it will save trouble, delay, and expense if the parties can ascertain before the hearing what are the exact points on which there will be such conflict. So there may be a difficulty in proving some material fact, which the other party, if interrogated, would have to admit. The Court therefore in a proper case allows one party to administer Interrogatories to the other, and compels that other to answer them on oath before the trial, subject to certain restrictions. As a rule, it is prudent, if there be time, to obtain discovery of documents before administering interrogatories. Inspection of the documents disclosed may render unnecessary some of the proposed interrogatories. On this ground the Master will often postpone an application for leave to administer interrogatories until after discovery of documents. Moreover, discovery of documents may suggest fresh matter for interrogatories to the party inspecting.

Order for Discovery of Documents.

There are three distinct cases in which a party can obtain disclosure of documents.

(i) If either party has in his pleadings, particulars, or affidavits referred to some particular document (e.g., the original libel), his opponent is entitled, without filing any affidavit or making any payment into Court, at once to give notice under Order XXXI. r. 15, that he will call and inspect that document, and

take a copy of it, if he deems it sufficiently important. And the party who has referred to the document must produce it for inspection, if he has it in his possession at the time named in the notice; if he does not produce it, he cannot himself put it in evidence at the trial, unless he can satisfy the judge that he had some sufficient reason for not producing it. (See rules 16, 17, 18, and Webster v. Whehall, 15 Ch. D. 120; 49 L. J. Ch. 704; 28 W. R. 951; 42 L. T. 868; Quilter v. Heatley, 23 Ch. D. 49; 31 W. R. 331; 48 L. T. 373.)

(ii) Again, if one party knows or thinks he knows, that the other has certain material documents in his possession, though they are not referred to in any pleading, particular, or affidavit, he may, in such a case, file an affidavit stating his belief, and the grounds of his belief, specifying the particular documents, and showing that they are material. Upon this the Master will order his opponent to state on affidavit whether he has or ever had any of those documents in his possession or power, and, if he ever had one of them and has not now, when he parted with it, and what has become of it. (Order XXXI. r. 19A (3).) If in this affidavit he admits that he has any of the documents specified, and that such document is material, it becomes at once a document referred to in an affidavit within the preceding paragraph, and rule 15 of Order XXXI. applies to it.

(iii) If, however, either party desires a detailed list of all the material documents in his opponent's possession he may, without filing any affidavit or naming any particular document, apply to a Master for an order directing any opponent in the action to disclose on oath all documents which are, or have been, in his possession or power, relating to any matter in question in the action. But before he makes the application he must pay 5l. into Court to the "Security for Costs Account," to abide further order. (Rule 26.) But this payment does not entitle him to an order for general discovery. The Master now has full discretion in the matter. He will order discovery only when and only so far as he deems it necessary "either for disposing fairly of the cause or matter or for saving costs." (Order XXXI. r. 12.) If he is satisfied that discovery is not necessary he will refuse the application. If he is satisfied that discovery is not necessary at that stage of the action, he will adjourn the application. (Rule 20.) In other cases he will order discovery limited to certain classes of documents, (e.g., those

relevant to some particular issue,) or general discovery, as he thinks fit.

General discovery, at all events, will never be ordered before the Defence has been delivered: for till then the issues are not clear. (British and Foreign Contract Co. v. Wright, 32 W. R. 413.) Discovery, and inspection too, will be strictly limited to the matters in issue in the action. As to matters of which particulars have been given, e.g., justification, discovery will be limited to the issues as narrowed by the particulars. (Yorkshire Provident Co. v. Gilbert, (1895) 2 Q. B. 148; 64 L. J. Q. B. 578; 72 L. T. 445.) And for this reason, among others, general discovery will not, as a rule, be ordered till after full particulars of the justification have been delivered. In Vernon v. Battiscombe the Court of Appeal made an order for discovery limited to the matters referred to in one paragraph of the defendant's Notice in mitigation of damages. (Daily Telegraph, January 19th, 1904.)

Documents Privileged from Production.

A party against whom an order for discovery has been made must thereupon make an affidavit in compliance with the terms of the order, stating what documents are in his possession or under his control. But he is not necessarily bound to produce all the documents set out in his affidavit; some of them may be privileged from inspection. If he claims any such privilege, he must state in his affidavit which documents he refuses to produce and the ground of such refusal.

That letters were written on a privileged occasion in the special sense in which that term is used in actions of defamation (i.e., that the occasion renders them not actionable, unless the plaintiff can prove malice) is no ground for refusing to produce them: they are not privileged from inspection. (Webb v. East, 5 Ex. D. 23, 108; 49 L. J. Ex. 250; 28 W. R. 229, 336; 41 L. T. 715.) Communications passing between a solicitor and his client are privileged from production provided they are of a confidential character, and made for the purpose of obtaining legal advice. (Gardner v. Irvin, 4 Ex. D. 53; 48 L. J. Ex. 223; 27 W. R. 442; 40 L. T. 357; O'Shea v. Wood, (1891) P. 286; 60 L. J. P. 83; 65 L. T. 30.) It is not necessary that they should have been written in contemplation of litigation. (Wheeler v. Le Marchant, 17 Ch. D. 682; 50 L. J. Ch. 793; 30 W. R. 235; 44 L. T. 632.)

Any document which was prepared by the deponent in order that his solicitor might submit it to counsel for the purpose of obtaining

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