C. A. 1905 consideration and interpretation. On the face of it a large number of persons might be included. But, on the authoriBOSTON FRUIT ties, it appears to me that it has long been decided and is now COMPANY settled law that not every person who is included in the wide BRITISH AND terms of the policy is of right entitled to the benefit of the v. FOREIGN MARINE insurance as against the insurer. Only those persons are COMPANY. entitled on whose behalf the policy was in fact effected. INSURANCE Romer L.J. In some of the cases which establish this the expressions used are that only those persons are entitled who at the time when the policy was effected were "contemplated" as being or "intended" to be covered by the policy; but I think these expressions mean that which I have stated. Now I need not consider the question whether, if there be no facts admitted or proved to shew on whose behalf the policy was in fact effected, any one who comes within the wide terms of the policy could not properly sue on it; for, in my opinion, there are in the present case facts which enable me to come to a conclusion as to the persons who are entitled to sue on the policy. It is admitted that the policy was in fact taken out by the brokers on the instructions of the agents for the owners of the ship. It is not suggested on behalf of the charterers that they ever gave any instructions to the brokers, and when I look at the terms of the policy I find it is a policy such as the owners might well take out for themselves, without regard to any one else. This being so, the conclusion which I draw from the above facts, in the absence of any other sufficient facts established leading to the opposite view, is, that the owners, on whose behalf the brokers were instructed, were the persons and the only persons on whose behalf the policy was in fact effected, and therefore the only persons entitled to sue upon it. That leads me to the consideration whether there are any other circumstances in this case sufficient to prevent the above primâ facie view from being maintained. The only circumstance relied on by the plaintiffs is the charterparty, and in particular clauses 17 and 22. As to this I can only say that, after a careful consideration of the charterparty and of those two clauses in particular, I cannot come to the conclusion that by the charterparty the shipowners contracted with the charterers C. A. 1905 COMPANY v. that they (the owners) would effect an insurance on the ship on behalf of the charterers as well as of themselves. Nor do I feel able to infer from the charterparty that the policy was or BOSTON FRUIT ought to be treated as effected on behalf of the charterers. And it is satisfactory to me to know from the proceedings in BRITISH AND the United States of America that this view appears to have been for some years taken alike by the owners and the present plaintiffs. On these grounds the appeal, in my opinion, fails. STIRLING L.J. concurred. FOREIGN MARINE INSURANCE COMPANY. Appeal dismissed. Solicitors: Thorne & Welsford; Waltons, Johnson, Bubb & Whatton. W. L. C. [IN THE COURT OF APPEAL.] WHITE & CO. v. CREDIT REFORM ASSOCIATION Practice Discovery — Interrogatories — Defamation — Privilege — Malice — In an action of libel against a trade protection society, in which privilege was pleaded, the plaintiffs sought to administer to the defendants an interrogatory, asking what inquiries they made as to the truth of the statements complained of, before publishing them, and from whom they obtained the information on which they relied in publishing those statements: Held, that such an interrogatory was admissible. Elliott v. Garrett, [1902] 1 K. B. 870, followed. The plaintiff's further sought to administer to the defendants an interrogatory, requiring them, by reference to their books, or otherwise, to give the names of the companies, firms, and persons to whom a certain publication of the defendants, containing the statements complained of, had been supplied, or shewn, by or through the defendants or their agents. Held, that the interrogatory was oppressive and ought not to be allowed. APPEAL against an order made by Bray J. at chambers allowing interrogatories as after mentioned. The action was for libel. VOL. I. 1905. 2 Y 2 C. A. 1905 March 13. C. A. CREDIT AND CREDIT The defendants were a trade protection society, who pub1905 lished a book called the "Credit Index," and a key card to be WHITE & Co. used with it. In the Credit Index were entered the names of traders, a letter and a number being placed against each name. On reference to the key card it appeared that the letter indicated the estimated pecuniary strength of the trader, and the number indicated the general credit which might be given to him in his business. The entry of the plaintiffs' name in the Credit Index with a letter and a number against it, read with reference to the key card, constituted the alleged libel. No special damage was alleged. The defendants by their statement of defence (inter alia) pleaded that they published the matter complained of in good faith, and without malice, under such circumstances as rendered the occasion of the publication privileged. In particulars contained in their plea of privilege they stated (inter alia) that the Credit Index and the key card were issued only to their subscribers, being traders and others, to whom the pecuniary strength and general credit of the traders whose names were included in the Index were matters of interest and importance, and were issued only on condition that the subscribers should return the Credit Index to the defendants at the expiration of the period for which they had subscribed. The defendants had administered to the plaintiffs an interrogatory, asking whether they alleged that the defendants, in publishing the statements complained of, were actuated by malice towards them, and, if so, upon what facts and circumstances they relied as shewing actual malice. To this the plaintiffs had answered that they alleged that the defendants made no proper inquiries, and were possessed of no information or particulars concerning the pecuniary strength and credit of the plaintiffs, and, although pretending to have honestly and bonâ fide made full, careful, sufficient, and recent inquiries as to the plaintiffs' pecuniary strength and credit, the defendants had in truth and in fact made no such inquiries, and had published the particulars complained of recklessly, being indifferent as to whether the same were true or false, and for the purpose of obtaining for themselves large pecuniary profits. The plaintiffs had obtained leave at chambers to administer C. A. 1905 v. CREDIT REFORM ASSOCIATION certain interrogatories to the defendants. Among these were the following: (1.) "Did the defendants before publishing the said Credit Index and key card take any and what precautions, WHITE & Co. or make any and what inquiries as to the truth of the said particulars" [i.e. the statements complained of], "or make any and what inquiry at all with respect to such particulars? From AND CREDIT whom did the defendants obtain the information on which they relied in making the statements complained of?" (2.) "Give by reference to your books or otherwise the names of the companies, firms, and persons to whom the same" [i.e. the Credit Index and key card] "have been supplied or shewn by or through the defendants or their agents?" The defendants appealed against the allowance by Bray J. of these last-mentioned interrogatories. Norman Craig, for the defendants. It must be admitted that no objection can be taken in this Court to the first part of the first of the two interrogatories in question: see Elliott v. Garrett (1); but it is submitted that the plaintiffs are not entitled to require the defendants to give the names of the persons from whom they obtained the information in reliance upon which they published the statements complained of by the plaintiffs: Hennessy v. Wright. (2) There is no authority for such an interrogatory. It may be relevant to the issue whether there was actual malice on the defendants' part to know whether, in publishing the libel, they acted on any, and, if so, what information, but it is not sufficiently material to know from whom the information was obtained. The function of interrogatories is to enable a party to an action to substantiate a case of which he has knowledge, not to enable him by crossexamination to endeavour to fish out a case against the other party of which he is as yet entirely ignorant. The defendants ought not to be compelled to give the names of their informants when to do so may expose them to an action by the plaintiffs. [He cited on this point Parnell v. Walter (3); Gibson v. (2) (1888) 24 Q. B. D. 445. (3) (1890) 24 Q. B. D. 441. (1) [1902] 1 K. B. 870. INDEX, LIMITED. C. A. 1905 WHITE & Co. V. CREDIT REFORM ASSOCIATION INDEX, LIMITED. Evans (1); McColla v. Jones (2); MacKenzie v. Steinkopff (3); The second interrogatory in question is of a very fishing character, and it would be grossly oppressive to require the defendants to answer an inquiry of such a sweeping nature AND CREDIT merely on speculation. The defendants are willing to state how many subscribers they have, and the number of subscribers to whom they have supplied the Credit Index, and that they have only supplied it to subscribers; but they ought not to be compelled to state the names of the subscribers to whom they have supplied it. It is not shewn that the information required by the interrogatory is relevant to any issue in the case, or that it would be of any value to the plaintiffs commensurate with the burden imposed on the defendants. [He cited on this point Dalgleish v. Lowther. (5)] McCardie, for the plaintiffs. With regard to the first of the two interrogatories, the plaintiffs are entitled to interrogate as to any facts which may support their own case or destroy the defendants' case; and it is clearly relevant to the issue whether there was actual malice on the defendants' part, which would destroy any privilege, to know from whom the information, on which the defendants relied, was obtained. It is submitted that the principle acted on in Elliott v. Garrett (6) clearly covers this interrogatory. The fact that the answer to an interrogatory may incidentally involve the disclosure of the names of persons who may be witnesses for the party interrogated does not render the interrogatory inadmissible where the names of those persons form part of the facts material to the issue see Marriott v. Chamberlain. (7) The character and position of the persons from whom the information was received would obviously be most material to the question whether the defendants could bonâ fide have believed the statements they published. With regard to the second (1) (1889) 23 Q. B. D. 384. interrogatory, the case which the (4) (1896) 12 Times L. R. 521. (5) [1899] 2 Q. B. 590. (6) [1902] 1 K. B. 870. (7) (1886) 17 Q. B. D. 154. |