National Association of Operative Plasterers and Others v. Smithies

Factual and Procedural Background

The Plaintiff, a master plasterer operating in The City, commenced an action against the Defendants—an operative plasterers’ association and its trustees—alleging conspiracy. The Plaintiff contended that the Defendants unlawfully and maliciously persuaded and coerced certain workmen to break existing contracts with the Plaintiff and to avoid entering future contracts with, or entering the service of, the Plaintiff.

During case management the Plaintiff sought discovery of documents. A Master ordered the Defendants to provide an affidavit of documents. A judge in chambers (Judge Bucknill) affirmed that order, and the Court of Appeal (Judge Collins, M.R. and Judge Romer, L.J.) upheld it. The Defendants then appealed to the House of Lords.

Legal Issues Presented

1. Whether the appellate court should interfere with the lower courts’ discretionary decision to order discovery.
2. Whether a party accused of conspiracy may resist an order for discovery on the ground that compliance could tend to incriminate that party.

Arguments of the Parties

Appellants’ Arguments

• The lower courts ought, in the exercise of discretion, to have refused discovery.
• Because conspiracy can carry criminal consequences, compelling discovery would violate a principle that no party should be forced to produce material that may incriminate it. The Appellants contended that, in actions with a possible criminal aspect, discovery should be unavailable as of right.

Respondent’s Arguments

• The established practice of the Chancery and common-law courts permits discovery notwithstanding the possibility of self-incrimination.
• The discretionary orders below were properly exercised and should not be disturbed on appeal.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court’s Reasoning and Analysis

Judge Loreburn, delivering the principal speech, observed that overturning concurrent discretionary decisions of three lower tribunals would require an “extremely exceptional case,” which was not present. On the substantive question, the Court rejected the proposition that an allegation of conspiracy automatically confers immunity from discovery. Judge Loreburn stated that neither Chancery practice nor common-law experience supported such a rule.

Judge James of Hereford emphasised that accepting the Appellants’ argument would produce absurd results, enabling parties in nearly any civil action with a potential criminal aspect—such as libel—to refuse discovery wholesale. He contrasted the limited privilege accorded to witnesses, who must show reasonable grounds for a self-incrimination objection, with the sweeping immunity the Appellants sought.

The Court further noted that historical reluctance in equity to aid actions for penalties or forfeitures was grounded in policy concerns inapplicable to ordinary commercial disputes like the present case. Any specific document that might truly tend to incriminate could be dealt with individually if and when the objection arose; a blanket refusal at the outset was unwarranted.

All members of the appellate panel concurred, finding that authority and principle alike required dismissal of the appeal.

Holding and Implications

Appeal dismissed. The order requiring the Defendants to provide an affidavit of documents remains in force.

Implications: The decision confirms that parties to civil litigation cannot refuse discovery solely because compliance might expose them to possible criminal liability. The ruling upholds the courts’ discretion to manage specific claims of self-incrimination document by document, rather than granting categorical immunity. No broader precedent was expressly created, but the judgment reinforces existing principles governing discovery in the United Kingdom.