Page:Halsbury Laws of England v1 1907.pdf/868

 Bankers and Banking.

646 Sect. 22.

Production, Inspection etc. of Bankers'

Books.

When application granted.

(o). Nor do they enable a party to get discovery, before the trial, of entries which would be privileged or protected from production (o), or which are, or are sworn to be, irrelevant (p), or which are not the subject of discovery apart from the Act {q). Where, therefore, a party swears that the entries sought to be inspected are irrelevant, his affidavit is conclusive, and no order for inspection should be made before the trial (r). The power to order inspection is a discretionary power (s), and will be exercised with great caution (a), and on sufficient grounds only (b) and the order, if made, should be limited to relevant entries (c) The order will only be made where the entries of which inspection is sought will be admissible in evidence at the

of privilege



.

trial (d).

Accounts of third persons.

would appear that there

is jurisdiction to order inspection persons who are not parties to the litigation {e) but this power will seldom, if ever, be exercised (/), except where the account sought to be inspected is in form or substance really the account of a party to the litigation or is kept on his behalf, so that the entries in it would be evidence against him at the trial (g), and then only on notice to the third party (h) and to the bank (i) Where, therefore, the plaintiff brought an action to rescind a contract for the purchase from the defendant of shares in a company, on the ground of misrepresentation by the defendant as to the company's finances, leave to inspect the company's banking account

It

of the accounts of



.

Pass-book exhibited.

Service of order.

was refused (j). The fact that the plaintiff has scheduled his pass-book in his affidavit of documents does not necessarily debar the defendant from getting an order to inspect the banker's book, and in a fit case an order will be made (A;). The order must be served on the bank three clear days before it is

obeyed unless otherwise directed

to be

The

Costs.

{I).

costs of the application and of anything done or to be done the order are in the discretion of the Court, and the whole

under or any part

of

such costs

may

be ordered to be paid to any party by

South Staffordshire Go. v. Mbsmith, [1895] 2 Q. B. 669, per Kay, 676 Parnell v. JVood, [1892] P. 137, per Lindlby, L.J., at p. 139. (p) Parnell v. JVood, supra. iq) Pollock V. Garle, [1898] 1 Ch. 1. (o)

at p.

.

L.J.,



(r)

South Staffordshire

(s)

Emmott

v.

Co. v. Ehbsmith, supra. Star Newspaper Go. (1892), 62 L.

J. (q. b.) 77.

(1887), 36 ,Ch. D. 731, jjer Bowen, L.J., at p. 738; South Staffordshire Go. v. Ebhsmith, supra, per Loid Esher, M.K., at p. 674. (6) Perry v. Phosphor Bronze Go. (1894), 71 L. T. 854. (c) Arnott v. Hayes, supra. Where a defendant applied for inspection to assist him to justify a libel imputing pecuniary embarrassment inspection was refused [a)

Arnott

{Emmott

V.

v.

Hayes

Star Newspaper Co., supra). v. Beall (1889), 23 Q. B. D.

(d)

Howard

{e)

Hoioard

1, per Mathew, J., at p. 2. supra. (/) Pollock V. Garle, supra, per Lindley, M.R., at p. 5. {g) South Staffordshire Go. v. Ebhsmith, supra ; Pollock v. Garle, supra. {h) South Staffordshire Co. v. Ebhsmith, supra, per Kay, L.J., at p. 677. {i) UAmie v. Wilson, [1907] 2 Ir. R. 130. (./) Pollock Y. Garle, supra, (ji) Perry v. Phosphor Bronze Co., supra. {I) Bankers' Books Evidence Act, 1879 (42 Vict. c. 11), s. 7.

v. Beall,

.