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Caryll v. Daily Mail Publishing Co., Limited, (1904) 90 L. T. 307.
M'Colla v. Jones, (1887) 4 Times L. R. 12.

Mackenzie v. Steinkopff, (1890) 54 J. P. 327; 6 Times L. R. 141.
The Court will not make an order for discovery where the motive for the
application is a desire to obtain information with a view to future litigation.
Blanc v. Burrows, (1896) 12 Times L. R. 521.

But interrogatories are not, like pleadings, confined to the material facts on which a party relies for his claim or defence; they should be, and generally are, directed to the facts which will be proved at the trial as evidence of those material facts. Either party may interrogate as to any link in the chain of proof necessary to substantiate his case; the question must be relevant as leading up to a matter in issue in the action. Thus, if the defendant has denied that he wrote the libel, he may be asked whether other documents produced to him are not in his handwriting, though such other documents have nothing to do with the case, but will only be used for comparison with the libel. (Jones v. Richards, 15 Q. B. D. 439.) So, too, a defendant who has justified may interrogate as to any fact which will help him to prove his particulars of justification. (Marriott v. Chamberlain, 17 Q. B. D. 154; 55 L. J. Q. B. 448; 34 W. R. 783; 54 L. T. 714; and see ante, p. 604.)

Interrogatories addressed to matters which are relevant only in aggravation or diminution of damages are not encouraged. But in some cases such interrogatories are clearly admissible. Thus, where the defendant has delivered a notice in mitigation of damages under Order XXXVI. r. 37, he is entitled to administer interrogatories to the plaintiff as to the matters referred to therein (Scaife v. Kemp & Co., (1892) 2 Q. B. 319; 61 L. J. Q. B. 515; 66 L. T. 589); and I presume that the plaintiff may also interrogate the defendant on such matters, though not perhaps with the same minuteness. Again, since sect. 6 of the Law of Libel Amendment Act, 1888 (ante, p. 372), it is material on the question of the amount of damages to inquire whether the plaintiff has brought other actions for the same libel. Hence, it is submitted, that interrogatories as to such other actions are now admissible.

Illustrations.

A plaintiff is entitled to obtain an approximate statement in round numbers of the circulation of an obscure newspaper in which a libel has appeared. But in the case of The Times, or any other leading London newspaper, such an interrogatory would be deemed unnecessary and vexatious. In the case of any well-known and substantial newspaper, whether in London or the provinces,

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an answer that "a considerable number of copies" of the particular issue containing the libel were printed and published will be held sufficient.

Whittaker v. Scarborough Post, (1896) 2 Q. B. 148; 65 L. J. Q. B. 564 ; 44 W. R. 657; 74 L. T. 753.

James and others v. Carr and others, (1890) 7 Times L. R. 4.

Rumney v. Walter, (1891) 61 L. J. Q. B. 149; 40 W. R. 174; 65 L. T. 757.

Overruling on this point, Parnell v. Walter, (1890) 24 Q. B. D. 441 ;

59 L. J. Q. B. 125; 38 W. R. 270; 62 L. T. 75.

Prior to the passing of the Law of Libel Amendment Act, 1888, interrogatories were disallowed which asked the plaintiff for particulars of sums already recovered by him in other actions in respect of other publications of the same libel. But now such interrogatories would, it is submitted, be admissible under sect. 6 of that Act.

Tucker v. Lawson, (1886) 2 Times L. R. 593.

3. The party interrogating may put his whole case to his opponent if he thinks fit, though it is not always wise to do so; he may also interrogate in full detail as to matters common to the case of both parties; but he is not entitled to obtain more than an outline of his opponent's case. He may interrogate as to "anything which can be fairly said to be material to enable him either to maintain his own case or to destroy the case of his adversary." (Per Lord Esher, M.R., in Hennessy v. Wright (No. 2), 24 Q. B. D. at p. 447, n.) He can compel his adversary to disclose the facts on which he intends. to rely, but not the evidence by which he proposes to prove those facts. He cannot claim to "see his opponent's brief," or ask him to name the witnesses whom he means to call at the trial. The party interrogating may ask anything to make out his own case or answer his opponent's case, but he is not entitled to discover in what way his opponent intends to prove his case. (Ridgway v. Smith & Son, (1890) 6 Times L. R. 275.) Though if he is in other respects entitled to certain information, he will not be debarred from it merely because supplying it will necessarily disclose the names of persons whom the party interrogated may hereafter wish to call as his witnesses, or otherwise give some clue to his evidence. (Marriott v. Chamberlain, 17 Q. B. D. 154; 55 L. J. Q. B. 448; 34 W. R. 783; 54 L. T. 714; Birch v. Mather, 22 Ch. D. 629; 52 L. J. Ch. 292; 31 W. R. 362; M'Colla v. Jones, (1887) 4 Times L. R. 12; Ashworth v. Roberts, 45 Ch. D. 623; 60 L. J. Ch. 27; 39 W. R. 170; 63 L. T. 160.)

Illustrations.

In an action of slander, where the defence consisted of a denial of publication, the plaintiff was allowed to ask the defendant whether he did not speak the words, or words to that effect, and whether they were not spoken in the

presence of persons named in the plaintiff's particulars, or any and which of them.

Dalgleish v. Lowther, (1899) 2 Q. B. 590; 68 L. J. Q B. 956; 48

W. R. 37; 81 L. T. 161.

Where the defendants were sued for publishing an anonymous letter to P. of which publication was denied, the plaintiff was allowed to ask the defendant whether he did not on or about the date alleged, or at some other and what date, write and send, or cause to be sent to P., a letter of which a copy, in the terms alleged, was annexed to the interrogatory.

Jones v. Richards, (1885) 15 Q. B. D. 439; 1 Times L. R. 660.

A party cannot be asked to give the names of those who were present when any material act was done. This would be asking him to name his witnesses.

Eade v. Jacobs, (1877) 3 Ex. D. 335; 47 L. J. Ex. 74; 26 W. R. 159; 37 L. T. 621.

Johns v. James, (1879) 13 Ch. D. 370.

Ashley v. Taylor, (1877) 37 L. T. 522; (C. A.) (1878) 38 L. T. 44.

But where the defendant is entitled to certain information because it is material to his case upon a plea of justification, the plaintiff will be ordered to give such information in answer to interrogatories although he will thus be compelled to disclose the names of persons whom he intends to call as witnesses Marriott v. Chamberlain, (1886) 17 Q. B. D. 154; 55 L. J. Q. B. 448 ; 34 W. R. 783; 54 L. T. 714.

And see Birch v. Mather, (1883) 22 Ch. D. 629; 52 L. J. Ch. 292; 31 W. R. 362.

M'Colla v. Jones, (1887) 4 Times L. R. 12.

Ashworth v. Roberts, (1890) 45 Ch. D. 623; 60 L. J. Ch. 27; 39 W. R 170; 63 L. T. 160.

4. But even in interrogating as to his own case, the questions asked must not be "fishing," that is, they must refer to some definite and existing state of circumstances, not be put merely in the hopes of discovering something which may help the party interrogating to make out some case. They must be confined to matters which there is good ground for believing to have occurred. "The moment it appears that questions are asked and answers insisted upon in order to enable the party to see if he can find a case, either of complaint or defence, of which at present he knows nothing, and which will be a different case from that which he now makes, the rule against fishing' interrogatories applies." (Per Lord Esher, M.R., in Hennessy v. Wright (No. 2), 24 Q. B. D. at p. 448, n.; and see Dalgleish v. Lowther, (1899) 2 Q. B. 590; 68 L. J. Q. B. 956; 48 W. R. 37; 81 L. T. 161.) "Fishing" interrogatories are especially objectionable when their object is to get at something or other to support a plea of justification. (Gourley v. Plimsoll, L. R. 8 C. P. 362; 42 L. J. C. P. 121; 21 W. R. 683; 28 L. T. 598; Buchanan v. Taylor, W. N. 1876, p. 73.)

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Illustration.

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Where the plaintiff was charged with having used certain blasphemous phrases interrogatories were disallowed as fishing," the object of which was to show that if plaintiff had not said what he was charged with saying, still he had on other occasions said something very much like it.

Pankhurst v. Hamilton, (1886) 2 Times L. R. 682.

5. Interrogatories are not allowed as to the contents of written documents, unless it is first proved or admitted that such documents have been lost or destroyed. (Stein v. Tabor, 31 L. T. 444; Fitzgibbon v. Greer, Ir. R. 9 C. L. 294; Dalrymple v. Leslie, 8 Q. B. D. 5; 51 L. J. Q. B. 61; 30 W. R. 105; 45 L. T. 478.) Nor can either party as a rule be asked as to his having received or parted with a particular document; as he can always be called on to make an affidavit of documents. (Hall v. Truman, 29 Ch. D. 307; 54 L. J. Ch. 717; 52 L. T. 586; Morris v. Edwards, 15 App. Cas. 309; 60 L. J. Q. B. 292; 63 L. T. 26.) But an application can be made on affidavit to the Master for an order requiring the "other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been, in his possession or power, and, if not then in his possession, when he parted with the same, and what has become thereof." (Order XXXI. r. 19A (3); see ante, p. 602.)

Illustrations.

A party who has made an affidavit of documents cannot be interrogated as to documents alleged to be in his possession unless either upon the face of the affidavit itself, or of the documents referred to in it, or in his pleading, there is something which affords a presumption that he has in his possession other relevant documents besides those whose possession he has admitted.

Hall v. Truman, (1885) 29 Ch. D. 307 ; 54 L. J. Ch. 717; 52 L. T. 586. And if in an affidavit of documents privilege has been claimed, the party making such affidavit cannot be interrogated as to any of the privileged documents.

Morris v. Edwards, (1890) 15 App. Cas. 309; 60 L. J. Q. B. 292; 63 L. T. 26.

6. Questions which tend to criminate may certainly be asked, unless they are either irrelevant or "fishing," though the party interrogated is not bound to answer them. (Post, p. 616.) That the interrogatories will tend to criminate others is no objection, if they be put bona fide for the purposes of the present action. (M'Corquodale v. Bell and another, W. N. 1876, p. 39.) That to answer them would expose the party interrogated, or third persons, to civil actions, was never an objection. (Tetley v. Easton, 25 L. J. C. P. 293.)

Answers to Interrogatories.

The answers must be carefully drawn. The party interrogated may answer guardedly, and make qualified admissions only, so long as both the admission and the qualification are clear and definite. (Malone v. Fitzgerald, 18 L. R. Ir. 187.) He may answer "Yes" or "No" simply, so long as it is clear how much he thus admits or denies. It is generally wise to answer the interrogatory by following the exact words and denying or admitting each part of it specifically, as in this way the party interrogating is prevented from applying for further and better answers. It is quite admissible to say, "I do not know," where the matter is clearly not within the deponent's own knowledge or that of his servants. He is not bound. to procure information, for the purpose of answering, from others who are not his servants or agents. (Per Brett, J., in Phillips v. Routh, L. R. 7 C. P. 287; Field v. Bennett, (1885) 2 Times L. R. 91, 122.) The following answer was held sufficient in Dalrymple v. Leslie (8 Q. B. D. 5; 51 L. J. Q. B. 61; 30 W. R. 105; 45 L. T. 478): "I kept no copy and have no copy of the said letter, and I am unable to recollect with exactness what the statements contained therein were." If, however, the interrogatories are addressed to matters which are within the knowledge of his agents or servants, and such knowledge was acquired by them in the ordinary course of their employment as his agents or servants, then "their knowledge is his knowledge and he is bound to answer in respect of that." (Bolckow, Vaughan & Co. v. Fisher and others, 10 Q. B. D. 161; 52 L. J. Q. B. 12; 31 W. R. 235; 47 L. T. 724; Rasbotham v. Shropshire Union Rail. and Canal Co., 24 Ch. D. 110; 53 L. J. Ch. 327 ; 32 W. R. 117; 48 L. T. 902; Hall v. L. & N. W. Rail. Co., 35 L. T. 848.) And if he is answering as the proper officer of a corporation he must make all necessary inquiries of the servants or agents of the corporation, but he is not bound to disclose information acquired by himself or by such servants or agents otherwise than in the capacity of agents of the corporation. (Welsbach, &c. v. New Sunlight Co., (1900) 2 Ch. 1; 69 L. J. Ch. 546; 48 W. R. 595; 83 L. T. 58.) Agents" "includes bankers or solicitors. (Alliott v. Smith, (1895) 2 Ch. 111; 64 L. J. Ch. 684; 43 W. R. 597; 72 L. T. 789.

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Any objection to answering an interrogatory can be taken in the affidavit in answer. (Order XXXI. r. 6.) Thus, either party may object that a question is irrelevant or "fishing," or not put bona fide for the purposes of this action. Or he may object to name his witnesses or set out the evidence by which he hopes to prove his

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