Report No. 69

IV. Recommendation as to Section 130

1. Halsbury's, 3rd Edn., Vol. 15, p. 50, para. 72.

2. Halsbury's, 3rd Edn., Vol. 12, p. 50.

3. Cartwright v. Green, (1803) 8 Ves 405.

4. Claridge v. Hoare, (1807) 14 Ves 59 (65).

5. Baker v. Pritchard, (1742) 2 Aik 387.

6. Glynn v. Houston, (1836) 1 Keen 329 (337).

7. Lloyd v. Passinghom, (1809) 16 Ves 59.

8. Waters v. Earl of Shaftesbury, (1864) 14 WR 259.

9. Mesullum v. Turton, (8128) 2 Y&J 183.

69.10. Recommendations.-

In the light of the above discussion, we recommend that section 130 should be revised as follows:-

"130. No witness who is not a party to a suit shall be compelled to produce1 any document the production of which might tend to criminate him unless he has agreed in writing to produce the document with the person seeking its production or some person through who such person claims."

1. Portion relating to title deeds is omitted.

V. Section 131

69.11. Section 131-"compelled".-

Section 131 provides that no one shall be "compelled" to produce documents which any other person would be entitled to refuse to produce if they were in his possession, unless such last mentioned person consents to their production. Now, the word "compelled", according to its grammatical meaning, would lead to the result that the exercise of the privilege is optional, so that if the person in present possession of the document waives the privilege, production of the document would be lawful. For example, where the confidential communications between a client and his adviser are in the possession of the client's clerk who is called upon to produce them, and he chooses to produce them, he can produce them, because he is not "compelled".

This is an anomalous position, as it would certainly defeat the client's privilege. This is only one illustration. There could be many other.- e.g. the agent temporarily in possession of the principal's documents, the safe custodian of documents, and so on. The proper course should be to provide that the person in present possession of the document should not be "permitted" to produce the documents without the consent of the person entitled to the privilege. If the privilege is of the third person then the third person must have the choice. We may also state that the section appears to be intended for persons who are temporarily in possessio.- as is apparent from the words "any other person entitled to the possession". This aspect should be brought out.

69.12. Section 131-Recommendation.-

This appears to be the only just principle. Otherwise, the privilege can be bartered away by a dishonest agent, or lost through his indifference. The section should be revised to avoid such an anomalous situation. Accordingly, we recommend that section 131 should be revised so as to read as follows:-

"151. No one shall be permitted to produce documents in his temporary possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last-mentioned person consents to their production."

Back

Index

Next