1940 (4) TMI 17

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....stions put to him by the applicant as such inspector and otherwise may inquire into the case and that such order may be made with reference thereto as to this honourable Court shall seem meet and that the respondent Mark Ostrer may be ordered to pay the costs of this application". The section under which these proceedings are taking place is Section 135, sub-section (1) of which provides: "The Board of Trade may appoint one or more competent inspectors to investigate the affairs of a company and to report thereon in such manner as the Board direct." Then there is provision as to what proportion of the shareholders of the company have the right to apply to the Board of Trade, which I need not read. Sub-section (3) is: "It shall be the dut....

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.... 10, 1940, he summoned Mr. Ostrer, the respondent to the present motion, before him for examination, and the examination was thereupon commenced. The result of that was embodied in his report, which was made on February 5, 1940, as follows: "I, Russell Kettle, of 5 London Wall Buildings, Finsbury Circus, in the City of London, Chartered Accountant, being the inspector appointed by Order of the Board of Trade dated July 31, 1939, to investigate the affairs of the above-named company and to report thereon in such manner as the Board may direct hereby certify to this Court as follows: (1) As such inspector I arranged pursuant to Section 135 of the Companies Act, 1929, for the examination on January 10, 1940, at the company's offices of Mr. Mar....

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....efused, however, to proceed with the examination if I insisted that a shorthand writer should be present. I told him he left me no alternative but to withdraw and report the matter to the Court. (4) It was also my intention, as I explained to Mr. Mark Ostrer, for my representative in charge of the investigation to be present, solely for the purpose of facilitating my reference to papers and thus expedite the examination, and I told him that my representative would, in any event, become acquainted with the proceedings. Mr. Ostrer, however, said he could not agree and I did not press for my representative's attendance." That is the report and, as I understand the effect of the evidence which has been filed on this application-there is an affi....

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....ately for me the House of Lords dealt with it by reference to this very Section 136 of the Companies Act, 1929. I am able, I think, to use that as a parallel case which shows what is the meaning of the proviso with regard to such examination as took place under this section. What was decided in that case was that an examination under the. Friendly Societies Act and the Industrial Assurance Act, 1923, is not a legal proceeding and ought to be held in private. The House, of Lords in coming to that conclusion and in reversing the decision Of the Court of Appeal said (101 L. J. Ch., at p. 179 ; [1932] A. C , at p. 398): "The nearest analogy to the present case" that is the Hearts of Oak Case-" is to be found in Section 135 of the Companies Act,....

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....hing applies here and that that covers this case. What I have to consider is simply the question whether the presence of the shorthand writer is something which is reasonably necessary to enable the inspector properly to carry out his duty under the statute. I come to the conclusion here without any hesitation that it is necessary to enable him to do it. It is not for the purpose of recording it and publishing it or doing anything of that kind; it is for the purpose of enabling him to prepare his report. When he comes to prepare his report he wants a record of what has occurred and the shorthand note is for that purpose. The fact that he has a shorthand writer in his room for his own purposes, and not as a public shorthand writer, to enable....