Scottish Court of Session Decisions

W. A. S. mackirdy, Lesmahagow, presented a petition for the rectification of the register of the Glasgow and Transvaal Options, Limited, by the removal of his name from the register. He averred that he had been induced to take shares by representations contained in a document which he alleged to be a “prospectus” issued prior to the flotation of said company, and that these representations were untrue. The petitioner founded, inter alia, upon sections 9 and 10 of the Companies Act 1900. He averred that the prospectus was widely circulated in Glasgow and the surrounding district from the office of the person who ultimately became secretary of the company, and also by certain persons named in article 1 of the petition, who were alleged to be promoters of the company.

Answers were lodged by the company. They denied that the document referred to was a “prospectus,” and that it was issued to the public as such.

On November 19th a proof was allowed. Mackirdy then lodged a note craving for a diligence to recover documents. The first two articles in the specification were in the following terms:—“(1) The letter-books of the company, that excerpts may be taken therefrom of all letters to any person enclosing a copy of the document printed on pages 2 and 3 of the petition [ i.e., the notice or prospectus] or enclosing forms of application for shares in the company, or offering to any person or proposing that he should take shares in the company,

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prior to the service of the petition. (2) The letter-books of the persons named in article 1 of the petition, that excerpts may be taken, at the sight of the Commissioner, of all letters enclosing to any person a copy of the document printed on pages 2 and 3 of the petition or enclosing forms of application for shares in the company, or offering to any person or proposing or suggesting that he should take shares in the company, between 1st September 1901 and the date of service of the petition.”

The respondents objected to these two articles of the specification, and argued that they should not be allowed. The call was for documents which could only be used for the purpose of cross-examination. Letter-books, which only contained copies of letters, could not be recovered in a diligence, unless it was expressly shown that the original letters had been destroyed. Until that was done copies of letters were not admissible in evidence, and nothing that was not admissible in evidence could be recovered in a diligence—[ Lord Kinnear—There is no rule that the documents called for in a specification must clearly be admissible in evidence; the rule is that the diligence will be refused if it is shown that they cannot be evidence.]

Counsel for the petitioner argued that the call was necessary to enable him to recover the principal letters or to obtain copies if these principals had been destroyed. Without the letter-books he had no means of discovering to whom the letters referred to were sent.

The Court (without giving opinions) granted the prayer of the note.