Scottish Court of Session Decisions

The majority of the Court (The Lord Justice-Clerk, Lord Young, and Lord Rutherfurd Clark) disallowed the article.

Lord Trayner—The question raised by this reclaiming-note is, whether the defenders are entitled to a diligence for the recovery of the documents set forth in the specification which they have lodged. It is objected on the part of the pursuer that the diligence sought is too wide, and your Lordships' giving effect to this contention, and differing to some extent from the view adopted by the Lord Ordinary, have limited the diligence. For my own part, I think we should not have interfered with what the Lord Ordinary has done. It appears to me that the defenders are entitled to recover the whole documents specified, as tending to support the counter issue which has been allowed. It is quite possible that the call made for production of the whole business books, balance-sheets, &c., of the Val d'Elsa Copper Company might have been open to an objection on the part of the company, whose objection, if taken, would have been dealt with by the Commissioner or the Lord Ordinary. But the pursuer does not appear to me to have any right to state or insist in such an objection. The real question to be tried in the case is whether the Val d'Elsa Company at its inception and since has not been more or less a swindle, in the knowledge of the pursuer, who was inducing the defenders to become shareholders thereof to his pecuniary advantage and their detriment. In such a case I would have allowed the fullest investigation into the affairs of the company not inconsistent with the interests of innocent shareholders. Such interests would, I think, have been perfectly safe in the hands of the Commissioner or Lord Ordinary if at any time they were threatened by the execution of the defenders' diligence.