Charles Mac Naughten Sir Francis Beaufort Palmer.

Company precedents for use in relation to companies: subject to ..., Volume 2 online

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paper Co., 16th Nov. 1898.



Form 105. Upon the applicon of A. E., liqr appointed, &o.. Order that the
Order on bank Birmingham Banking Coy do produce to the sd A. E., at the pre-
to permit
inspection of



company's
books, &c.



mises of the bank, all books, papers, writings, or other documents
in their custody or possession, relating to the Birmingham Brewery
Coy, and particularly the several books containing entries of moneys
pd into the sd bank by the above coy, or by the late liqrs thof, or
either of them, to any credit on account of the above coy, or of the
liqrs thof, or of moneys pd out by the sd bank to the order of the
directors of the sd coy, or of the sd late liqrs, or either of them, on
such account, out of such credit. And order that A. E., on payment
of costs of inspection, be at liberty to inspect, at the premises of the
bank, aU such books, &o., and to take copies of, and extracts from, all
such entries as he may be advised. Birmingham Brewery Co., Kay, J.,
12th Nov. 1883. A. 1903.



Impection of File of Proceedings.

High Court. R. 16 of 1903. — All petitions, affidavits, summonses, orders, proofs, notices,
depositions, bills of costs, and other proceedings in the High Court in a winding-up
matter shall be kept and remain of record in the office of the registrar and, subject
to the directions of the Court, shall be placed in one continuous file, and no pro-
ceeding in any winding-up matter shall be filed in the Central Office. [R. 11 of
Ap. 1892, varied.]

Other Courts. E. 17 of 1908.— In Couits other than the High Court a file of proceedings in
every winding-up matter shall be kept on which, subject to the directions of the
Court, all petitions, affidavits, summonses, orders, proofs, notices, depositions, and
other proceedings in the matter shall be placed and remain, of record as far as
possible in continuous order. [Formerly B. 31 of Ap. 1892.]

Who may S« 19 of 1908. — Every person who has been a director or officer of a company

inspect. which is being wound up, and every duly authorized officer of the Board of Trade,

shall be entitled, free of charge, and every Contributory and every creditor whose
claim or proof has been admitted, shall be entitled on payment of a fee of one
shilling for each hour or part of an hour occupied, at all reasonable times, to in-
spect the file of proceedings, and to take copies or extracts from any document
therein, or to be furnished with such copies or extracts at a rate not exceeding
fourpence per folio of seventy-two words. [R. 32 of Ap. 1892, varied.]

Bestriction on S. 76 (2) of 1903.— The notes of the depositions of a person examined under sect. 115
inspection. of the Companies Act, 18C2, or under any order of the Court before the Court, or
before any officer of the Court, or person appointed to take such an examination
(other than the notes of the depositions of a person examined at a public examina*
tiou under sect. 8 of the Act of 1890), shall not be filed, or be open to the inspection
of any creditor, contributory, or other person, except the official receiver or liquidator,
unless and until the Court shall so direct; and the Court may from time to time



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EVIDENCE. 167

give sQch general or special direotioiis as it shall think expedient as to the custody
and inspection of such notes, and the famishing of copies of or of extracts there-
from. [Formerly R. 1 of 26 Koy. 1895, which was made in consequence of the
decision in Standard Gold Mining Co.y (1895) 2 Ch. 546.]

A report under B. 77 of 1903 <* shall not be placed upon the file, unless and imtil
the Court shall direct it to be filed." See Chaps. XLIV. and XLVI.

An application for leave to inspect under B. 19 of 1903 should be made by
ex parte summons, but the registrar is to direct that before inspection is given notice
shaJl be given to the liquidator, so that, if thought fit, an application may be made
to discharge the order. Merchant^ Fire Office, (1899) 1 Ch. 432, 434. Generally
speaking, inspection ought not to be ordered without some clear reason being shown,
and the cases are few in which it is right to make the order, a separate case being
made for the inspection of each deposition. Ihid,

But where in December, in a winding-up, one of the directors was examined
under sect. 115 of the Companies Act, 1862, and in the following March, 1898, the
liquidator in the name of the company commenced an action against the directors
for alleged misfeasances, and in this action interrogatories were administered for
the examination of the director examined, and before answering he applied in the
winding-up for liberty to inspect and take an office copy of the deposition taken at
his private examination, having already put in a full defence to the statement of
claim , and offered to gfive an undertaking to use his best endeavours to prevent the
communication of the deposition to the other defendants, or their solicitors or
counsel, Wright, J., gave him leave to inspect and take a copy of the deposition.
Ibid.



Discovery aiid Inspection gefierally. Form 106.



On the part of the [off] liqr of the above-named coy that A. B., who Summons for
claims to be a creditor [or 0. D., a contributory] of the sd coy, may doccmeaite
be ordered within (seven) days after service to make and file a full and and inspec-
sufl&cient afft stating whether he has or has had in his possession or *^°^*
power any, and if any what, documents relating to the matters in
question in the summons in these matters dated, &c., and accoimting
for the same. And that the sd A. B. [or as the case may he] may be
ordered at all reasonable times, upon reasonable notice, to produce at

the office of Mr. , his solor, situate at, &c., the documents which

by such afft shall appear to be in his possession or power, except such
of the same (if any) as he may by such afft object to produce. And
that the applicant, his solors and agents, may be at liberty to inspect
and peruse the documents so produced, and to take copies and abstracts
thof , and extracts therefrom, as the applicant shall be advised, at his
expense ; and that the sd documents may be produced upon any
examination of witnesses in these matters and at the hearing of the
sd summons, as the applicant shall require. And that the applicant
may be at liberty to make such further applicon as to all or any of the
documents mentd in such afft as he may be advised.

As to the application of the general practice <' where no other provision is made General
by the Acts or Rules,'' see R. 201 of 1903. practice as

to discovery.



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1G8 WINDING-UP BY THE COURT. [ChAP, XII.

Where proceedings are pending in the winding-up between the liquidator therein
and any alleged contributory or debtor or any claimant, discovery and inspection
of documents in usually ordered on the application of either party. To obtain
diHcovery and inspection a summons should be taken out as aboTC. See further as
to the practice, Seton, 6th ed. 50—98 ; Darnell's Forms, 6th ed. pp. 963 et teq, ; Ana.
Pr. 1903, p. 367, Ord. XXXI. An affidavit in support of the summons is not
generally requisite. The order follows the terms of the summons. See i^flra.

As to deposit before application for discovery, see Ord. XXXI. r. 26.

Although privilege is e£fectually claimed for documents in an affidavit of doou«
ments, particulars maybe ordered of such of them as are referred to in pleadings, &o.
Milbank v. Milbank, (1900) 1 Ch. 376.

As to a foreign sovereign's liability to give discovery when suing in this country,
see South African Republic v. Compagnie Franco-Beige^ ^., (1898) 1 Ch. 190.

As to the Court opening and inspecting sealed entries in books, &c. produced,
see Ord. XXXI. r. 19a ; Axmworih v. Wilding, (1900) 2 Ch. 315.

As to order as to specific documents referred to in affidavit of documents, see
Ord. XXXI. r. 19a (3), and Gratei v. Eeinemann, 18 T. L. R. 115.

As to obtaining inspection of entries in bankers* books, see Bankers' Books Evi-
dence Act, 1879 (42 & 43 Vict. c. 11) ; Amott v. JTiiyw, 36 C. D. 781 ; Follock v.
Garle, (1898) 1 Ch. 1, and Dan. C. P. 7th ed. p. 507.



Order for
affidavit and
inspection.



Form 107. Upon the applicon of A., B., and 0., resply contributories of the
above-named coy, and upon hearing the solors for the applicants and
for the [off] liqr of coy, Order that S., the off liqr of sd coy, do within
seven days after service of this order make and file a full and sufficient
afft stating whether he has or has had in his possession or power any,
and if any what, documents relating to the matters in question in
these matters, so far as regards the summons dated 4th June, 1878,
and the relief thereby sought against the applicants, and accounting
for the same. And [^prodtiction, inspection^ &c.]. BUien Caelan Co.y
M. E., 15th July, 1878. A. 1504.

The following are other examples : " Relating to the matters in question in the
summons issued by the said liquidator against the said A. and others on the -^

and returnable on the day of , 1880,'* and *' relating to the two pendmg

summonses issued by the said official liquidator, and another against the directors
of the company, dated respectively, &c."

As to discovery from liquidator, see Contract Corporation^ 2 Ch. 350 ; Gooch^s eatCf
7 Ch. 207 ; Mulml Society^ 22 C. Div. 714. According to the case last cited the
liquidator will only be ordered to make an affidavit of documents in very special
circumstances : he will be ordered to permit inspection.

For affidavit as to documents, see Form 8, in App. B., B. 8. C, 1883 ; Ann. Vt*
(1903) Vol. 2, p. 36.

Production of depositions under sect. 115 refused in action. North Brit, Co, v.
Goldsborough ^- Co,y (1893) 2 Ch. 381, but see Merchant Fire Office^ (1899) 1 Ch.
433.

The depositions are apparently not privileged. Goldttcm v. Williams^ Deacon f
Co,, (1899) 1 Ch. 47.



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EVIDENCE. 169

And it is further ordered that the pits do produce to thd dfts Form 107a.
to-morrow, the 8th iust., at the office of the pits' solor at Halifax, the ^~T Z
transcript of the shorthand writer's notes of the examination of the inspection of
dft B., taken before the registrar of the Halifax County Ct under depo«itionB.
sect. 27 of the Bankruptcy Act, 1883, and that the dfts be at liberty to
inspect such transcript of examination and to take copies and extracts
thof at their own expense. Mitchell v. Brenard, Ct. of Ap., Dec. 7th,
1897.



[% a reapt to an applicon hy the off recr.'] That C. J. S., the off Form 108.

recr and liqr herein, may be ordered within ten days to file an afft g^^^I^I

stating what documents are or have been in his possession, custody, or a^inst

power, relating to the matters in <juestion herein, &o. J!eo^ f

discovery of
documents.

Upon the applicon of the off liqr, &c., and upon hearing the solors Form 109.
for the applicant and for M. hnftr named, Order that M., an alleged



contributory of the sd coy, do within seven days after service of this alleged con-
order make and file a fuU and sufficient afft stating whether he has or tributory for
has had in his custody or power any, and (if any) what, documents docum^a.
relating to the matters in question in this matter, and his liability to
be placed on the list of contributories and accounting for the same.
And [usual order for production and inspection, and also for production"]
upon any examination of witnesses in these matters and at the hearing
of the applicon to place the sd M. on the list of contributories of the
sd coy as the applicant shall require, &c. British Fire Office^ M. E.,
2nd Aug. 1878. A. 1864.

Upon the applicon of T., the applicant named in the notice of Form 109a.
motion in the above matters, dated the 28th Nov. 1890, and upon T~:
hearing the solors for the applicant, and for the P., &c. Co., and upon company to
reading the sd notice of motion, and the sd P., &c. Co. by their solors Produce books
admitting that they have in their possession or power the books and "**P^
documents hnftr mentd, and undertaking to produce the same pursuant
to this order. It is ordered that the sd coy do at all reasonable times
upon reasonable notice produce at the office of Mr. N., their solor,
situate at , in the City of London, the following books and docu-
ments, namely, the minute book and register of shareholders of the
sd coy, and the report of K., a director of the sd coy, on the ppty of
such coy, and dated, &c., and that the sd T., his solors and agents, be
at liberty to inspect and peruse the sd books and documents when so
produced, and to take copies and abstracts thof and extracts therefrom
as the applicant shall be advised at his expense. But previous to the
sd inspection the sd coy are to be at liberty to seal up such parts of



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1"0 WINDING-UP BY THE COURT. [ChAP. XII.

the 6d minute book and the sd report as, according to an afft to be
made (if required) by the coy by its proper officer, do not relate to the
matters in question raised by the sd notice of motion. And it is
ordered that the sd coy do produce the sd books and documents on
any examination of witnesses in this matter, and at the hearing of the
sd motion, as the applicant shaU require, and the applicant is to be at
liberty to make such further applicon as to all or any of the sd books
and documents as he may be advised. Paszowa ( Oalician) Petroleum
Co., Chitty, J., 16th Feb. 1891. B. 107.



Oral Evidence.

In 'windiDg-up proceedings, occasion sometimes arises for obtaining the oral
evidence of witnesses. Thus, upon a winding-up petition the petitioner or respon-
dents maj require to obtain the evidence of some person who declines to make an
affidavit ; and, in proceedings after the winding-up order, a creditor whose daim
is disputed, or an alleged contributory, may desire to obtain such evidence. In
such cases the Court will give liberty to examine the witness before an examiner
of the Court or special examiner, pursuant to Ord. XXXVII. r. 5, t«/ra, or before
the registrar. He Sprxngall^ W. K. (1876) 225. As to special examiners, see Ann.
Pr. (1903) 503. But where a liquidator wants such evidence, he can very commonly
obtain it under sect. 115 of the Act of 1862. See Chapter XLU.

For order giving liberty to petitioner to examine witnesses who had refused to
make an affidavit, and directing them to attend in Court for examination, see
Goodwins f Jardine % Co., Wright, J., in Chambers, 2nd Feb. 1898.

Sometimes the Court will ^^ a day for the petition to be heard and for witnesses
to attend, and in other cases. See Form 52, wpra.

Depositions B. B. C. Ord. XXXVII. r. 5.— The Court or a judge may, in any cause or matter

OTdered to be ^j^ere it shall appear necessary for the purposes of justice, make any order for Uie
examination upon oath before the Court or judge or any officer of the Court, or any
other person, and at any place, of any witness or person, and may empower any
party to any such cause or matter to give such deposition in evidence therein on
such terms (if any) as the Court or a judge may direct.

Formerly, a witness could be examined or cross-examined before an examiner
under 15 & 16 Vict. c. 86, s. 40, but this section has been repealed by 46 & 47 Vict,
c. 49 (s. 3), except so far as applied by Order in Council to the Lancaster Palatine
Court, or to any inferior Court of civil jurisdiction (sect. 7).

Formerly, the witness could be served with a subpoena to attend before the
examiner without any order, but under the present practice an order must first be
obtained directing the examination to be had before one of the examiners of the
Court, or, aa is more usual in winding-up, before the registrar. See B. S. C.
Ord. XXXVII. rr. 39—53 ; Ann. Tr. (1903) 503—520. The examination having
been referred to an examiner or registrar, and an appointment obtained in accord-
ance with the rules above referred to, the subpoena can be served.

The order is to be obtained on summons. See infra, as to special examiners.

All vivd voce evidence adduced before the registrar has to bo taken down in short-
hand. See Practice Directions in Appendix.

As to documents to be left with the examiner, see Ord. XXXVII. r. 10.

As to the coats of an examination where the depositions are not actually used, see
BartUtt V. Eiggint, (1901) 2 K. B. 230.



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EVIDENCE, 171

In the High Ot of Justice. IReference to Record,'] Form 110.

Cos (Winding-up). Pmcipefor

Mr. Justice . sabpcona.

In the matter of the Cos Acts, 1862 to 1900;
and
In the matter of the Coy, Limtd.

Seal writ of subpoena ad testificandum [or duces tecum], on behalf
of [«.^., the off recr and liqr of the above-named coy], directed to

[^state names of witness or witnesses], returnable the .

Dated the day of , 19—.

[iVamff and address of solor,]

Solor for the sd off recr and liqr.

B. B. C. Ord. XXXVII. r. 20. — Any party in any cause or matter may by subpoona Attendance of
ad testificandum or daoes tecum require the attendance of any witness before an officer witness under
of the Ck>urt, or other person appointed to take the examination, for the purpose of B^bposna.
using his evidence upon any proceeding in the cause or matter in like manner as
such witness would be bound to attend and be examined at the hearing or trial ;
and any party or witness having made an affidavit to be used or which shall be
used on any proceeding in the cause or matter shall be bound, on being served with
such subpoena, to attend before such officer or person for cross-examination.

A subpoena may be issued at any stage of the proceedings without leave, although Abuse of
tJie Court on the witness attending can say that he shall not be examined, or shall process,
be examined in open Court. Raytnond v. Tapson, 22 C. Div. 430.

But a subpoena to a witness to attend before an examiner can only be issued after Before
an order that the examination shall be taken. Ann. Pr. (1903) 520. examiner.

B. B. C. Ord. XXXVII. rr. 26-34 :- Pr^pe for

86. Where it is intended to sue out a subpoena, a praecipe for that purpose, in the subpoena.
Form No. 21 in Appendix G. [altered as above in winding -up^ and containing the
name or firm and the place of bosiness or residence of the solicitor intending to sue
out the same, and, where such solicitor is agent only, then also the name or firm
and place of business or residence of the principal solicitor, shall in all cases be
delivered and filed at the Central Office. [In winding-up the precipe %8 placed on the
JUe at the Registrar'* 9 Chambers.']

27. A writ of subpoena shall be in one of the Forms 1 to 7 in Appendix J. [to Form of
B. S. C. 1883], with such variations as circumstances may require. [Form 111, subpoena.
infra^ is used in winding-up.]

28. Where a subpoena is required for the attendance of a witness for the purpose Subpoena for
of proceedings in Chambers, such subpoena shall issue from the Central Office [in attendance in
winding-up, the RegislrarU Chambers'] upon a note from the judge. [But see supra. Chambers.

as to attendance before examiners.]

28. Every subpoena other than a subpoena duces tecum shall contain three names Number of
where necessary or required, but may contain any larger number of names. persons in a

80. No more than three persons shall be included in one subpoena duces tecum, subpoena,
and the party suing out the same shall be at liberty to sue out a subpoena for each

person if it shall be deemed necessary or desirable.

81. In the interval between the suing out and service of any subpoena the party Correctiog
suing out the same may coxtect any error in the naines of parties or witnesses, and errors,
may have the wzit re-sealed upon leaving a corrected preecipe of such subpoena



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172 WINDING-UP BY THE COURT. [ChAP. XII.

marked with the words ** altered and re- sealed/' and signed with the name and
address of the solicitor suing out the same. [And see infra.']
Service. 88. The service of a subpoena shall be effected hj deliyering a copy of the writ,

and of the indorsement thereon, and at the same time producing the origfinal writ.

88. Affidavits filed for the purpose of proving the service of a subpcena upon any
defendant must state when, where, and how, and by whom, such service was
effected.

84. The service of any subpoena shall be of no validity if not made within twelve
weeks after the teste of the writ.

As to amending the date of return, and otherwise as to the above rules, see
Ann. Pr. (1903) 612—614.

As to abuse of process by serving subpoenas, see London and Globe Unanee Corpora*
Hon V. Kaufman, 48 W. R. 468 ; W. N. (1899) 240.



Form 111.

Subpoena ad
testificandum
or duces
tecum.



The subpoona will be as follows : —

{Title as in Form 110.)

Edward the Seventh, by the Grace of God of the United Kingdom
of Great Britain and Ireland and of the British Dominions beyond the
Seas, King, Defender of the Faith.

To \here insert name or names of the toitness or witnesses] greeting :

"We command you [where several, and every of you] to attend before

, Esq., one of the examiners of witnesses in our High Ct of

Justice, at [his Chambers situate at No. — , New Square, Lincoln's
Inn, in the County of Middlesex, or at the Chambers of the Eegistrar,
Companies Winding-up, Bankruptcy Buildings, Carey Street, London],

on day, the day of , at the hour of in the noon

and so from day to day until your evidence shall have been taken, to
give evidence on behalf of [the off reor and liqr of the above-named
coy].

Witness. — Hardinge Stanley, Earl of Halsbury, Lord High Chan-
cellor of Great Britain, the day of , in the year of our Lord

one thousand nine hundred and .

In the case of a subpoena duces tecum, the words " and also to bnug wiUi you
and produce at the time and place aforesaid ** [specify documents to be produced]
should be inserted in the aboye form before the word " witness.*' A subpoena duces
tecum should specify the documents required, so that the witness may be able to
identify them. Newland v. Steere, 14 W. R. 1014. But a witness served with a
subpoena in a general form, who admits that the documents are in his possession,
must produce them. Lee y. Angas, 2 £q. 59. Where the witness is to be cross-
examined, the requisite modifications must be made, e.g,, instead of "to give
evidence," say " to be cross-examined on your aflBdavit filed in this matter on, &o.*'

A liquidator in a oompuUory winding-up, who has been ordered to be cross-
examined, need not be subpoenaed. General Financial Bank, W. A. (1888) 47.

As t(» an ex parte order on a person wiio is not a i)arty to the proceedings to
attend to produce documents before an examiner, see Zutnbick y. Bigge, 48 W. B.
507 ; 82 L. T. 654.



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EVIDENCE. ITS

This writ was issued hj A. B., of , &o., whose address tor Form 112.

service is at the office of Mr. , No. — , Coleman Street, in the j^^^^^^ ^^

City of London [agent for , of, &c.], solor for the liqr of the on writ where

above-named coy. issuedby

An indorsement as above should be placed on a subpoena and the copy served.
Consolidated Ord. III. rr. 2 and 5, required it; and see Ord. XXXVII. r. 82.
Ord. XXXVn. also requires the particulars to be inserted in the pmoipe. See
Rule 26, tupra; and see Dan. Ch. Forms, 5th ed. pp. 2, 129.



{Title,) Form 113.



Take notice that you are required to attend under the accompanying Kodce to

subpoena before , one of the examiners of witnesses in the High ^t^^i^^orA

Ct of Justice, at his chambers, No. — , New Square, Lincoln's Inn, examiner or
London [or, as the case may be, before the Registrar, Companies ^^^^^^r-
Winding-up, Bankruptcy Buildings, Carey Street, London, W.C.],

on the day of , at of the clock in the fore[noon] of

that day, and so from day to day until your [examination] shall be
completed.

Dated this day of -.

E. B., 0/ ,

Solor for

To [insert names and place of
residence of person to be served']*



Should be obtained as foUows : —

(Title.) Form 114.



I certify that an appointment was made with me for the -^— day Examiner's

of , to take the examination [or cross-examination] of C. D., pur- ^nlf^d '

suant to the order made in this matter on the day of , and ance of

that no person of the name and description of C. D. [address and descrip- ^*^^^ ^

/urn] attended to be cross-ex6tmined before me on that day [or that , be sworn.



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 27 of 152)