JUDGMENTBY: TERRELL, AG CJ

The claim in this action is upon certain policies of marine insurance, and the defendants are seeking to obtain an order for discovery, extending to the ships papers and various other documents, whether or not such papers and documents are in the plaintiffs possession or power.

It appears from Arnould on Marine Insurance, 11th edn. p. 1641, that for over a century an underwriter was entitled as a matter of course to an order against the assured requiring the latter to discover on oath and to produce the ships papers, the action being stayed in the meantime. This procedure was in England saved by S. 73 of the Judicature Act, 1873. In this century the practice of obtaining such orders became more and more common, and so far from advancing the cause of justice, appeared to have precisely the opposite effect. The practice was adversely commented on by Greer, L.J. in Leon & Ors v Casey (1932) 2 KB 576, where he says "I have known case after case in the Commercial List where defendants, who had no real defence, have been enabled by means of this instrument of oppression to keep plaintiffs out of their insurance money for long periods of time". The learned Lord Justice suggested, therefore, that a discretion should be conferred on the Judge hearing the Summons, as to whether he made the order for discovery of ships papers or not. Suggestions falling from the Bench are, I understand, always treated with respect, though it must be admitted that they usually fall on barren soil. The learned Lord Justice had the almost unique experience of finding his suggestion bearing fruit, and in 1936 the English Rules of Court were amended by the introduction of O. 31 r. 12a which gave the Court a discretion in granting a "ships papers" order. So much for the English practice.

In the Straits Settlements the position is different. It is true that by virtue of S. 5 (1) of the Civil Law Ordinance in all questions or issues which arise or have to be decided with respect to marine insurance "the law to be administered shall be the same as would be administered in England in the like case at the corresponding period if such question or issue had arisen or had to be decided in England unless in any case other provision is or shall be made by statute".

There is no doubt that the law to be administered in deciding the issues in this action will be the law of England which would have been applicable if the issues had had to be decided there--that is to say the law of England at the time that the writ was issued, the 4th August 1939. Leaving aside for the moment whether S. 5 s.s. 1 of the Civil Law Ordinance extends to matters of procedure, it is clear that in 1939 an order for the discovery of ships papers would have been discretionary. Mr. Burkes argument therefore that the practice in the Straits Settlements must be the same as it was in England before the 1936 amendment to the rules is quite untenable so far as it is based on the provisions of the Civil Law Ordinance.

The Rules of the Supreme Court, 1934, must however also be considered. Preliminary r. 2 reads as follows:--

"Where no provision for procedure is made or no appropriate form is

provided by these Orders and Rules or by any law in force in the

Colony, the procedure and practice and forms for the time being in

force or use in the Supreme Court of Judicature in England shall, as

near as may be, be followed and adopted."

Now in 1934 the English O. 31 r. 12a had not been enacted, and it can be argued that no special rules of procedure have been laid down in the case of marine insurance and that accordingly the English procedure (prior to 1936) should be adopted. The objection to this line of argument is that a "ships papers" order is a form of discovery, and that the Straits Settlements O. 30 contains full and comprehensive provisions as to discovery and inspection in actions brought in the Supreme Court, and that there is nothing c

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