§ SECTION 167 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Using, as evidence, of document production of which was refused on notice

Refuse it, and you lose it. A party who refuses to produce a document he had notice to produce cannot later use it as evidence — save with the other party’s consent or the court’s order.

How to read Section 167

If you withhold a document you were noticed to produce, you cannot spring it later — not to contradict the secondary evidence, not to raise a stamping point — unless the other side agrees or the court permits.

The refusal

A party refuses to produce a document he had notice to produce.

The bar

He cannot afterwards use that document as evidence.

The way back

Save with the other party’s consent or the court’s order.

The bare Act

The section in its own words — the rule and an illustration.

Section 167 · verbatim

When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

Illustration

In short: this is the mirror of § 166. There, a party who inspects a document produced on notice can be made to tender it; here, a party who refuses to produce a document he was noticed to produce forfeits his own right to use it. Having withheld the original — and thereby forced the other side to prove its contents by secondary evidence — he cannot afterwards turn round and put the document in himself. The mischief is ambush: a party could refuse, let the opponent lead a possibly-inaccurate secondary account, and then spring the original to contradict it — or to take a fresh point, such as that the instrument is unstamped. The section shuts that door: the refusal is treated as an election to keep the document out, and he is held to it. The only exits are the consent of the other party or an order of the Court. The illustration is exactly this: A sues on an agreement, notices B to produce it, B refuses, A gives secondary evidence; B may not then produce the original to contradict A’s evidence or to show the agreement is not stamped.

→ This carries forward IEA 1872 § 166 — a party who refuses to produce a noticed document may not later use it.

Glossary

notice to produce

A demand that the party bring a document at trial.

refuses to produce

Declines to bring the noticed document when called for.

cannot afterwards use the document

Forfeits the right to tender it in evidence.

consent of the other party

The opponent may agree to let him use it.

order of the Court

The court may permit it.

secondary evidence (illustration)

The account or copy the other side led once the original was withheld.

The picture

Withhold the original and force secondary evidence, and you cannot later spring the document — to contradict it, or to raise a stamping point.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The ruleThe illustration

the ruleRefuse to produce, and you forfeit the use of it

In one lineA party who refuses to produce a noticed document cannot afterwards use it as evidence — save with the other party’s consent or the court’s order.

When a party refuses to produce a document which he has had notice to produce,he was noticed, and he refused…having withheld the original when called for…

he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.→ he cannot afterwards use it (save consent/order)…he forfeits his own right to put it in — unless the other party consents or the Court orders.

ExampleHaving refused to produce a contract on notice, a party cannot later change his mind mid-trial and tender the very document to bolster his case — not without the opponent’s consent or the court’s leave.

✗ Not thisThe bar is on the refusing party’s own use of the document. It is not absolute — consent or an order can still let it in.

illustrationNo springing the original to contradict or to raise stamping

In one lineB refuses to produce; A leads secondary evidence; B may not then produce the original to contradict it, or to show the agreement is unstamped.

A sues B on an agreement and gives B notice to produce it. At the trial, A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.B refused → B cannot spring the originalneither to contradict A’s secondary evidence, nor to raise a fresh stamping point — B is held to his refusal.

ExampleThe two motives are telling: B wants the original either to undercut A’s account of it, or to spring a technical stamping objection. Both are attempts to profit from his own refusal — and both fail.

✗ Not thisThis is the counterpart of § 166. There, inspecting a produced document may bind you to it; here, refusing to produce bars you from it. Together they keep notice-to-produce fair.

Connected provisions

§ 166 · pairs with

Document called for and inspected

Inspect a produced document and be bound to it; refuse to produce and be barred — the two halves of the rule.

§ 167 · next

Judge’s power to put questions

The court’s wide power to ask any question and order production in pursuit of the truth.

secondary evidence

Proof without the original

Where the original is withheld, the other party may prove the contents by secondary evidence.

lineage

IEA 1872, § 166

Carried forward — a party who refuses to produce a noticed document may not later use it.