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Duncan and Another Vs. Cammell Laird and Company, Limited - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case Number[1942] UKHL 3
AppellantDuncan and Another
RespondentCammell Laird and Company, Limited
the lord chancellor my lords, the question to be determined in this appeal is as to the circumstances in which it may be validly claimed on behalf of the crown that documents, the production of which is demanded by regular process in a civil action, should not be produced on the ground that it would be contrary to the public interest to produce them, and as to the proper procedure to be followed if this claim is to be made good. this question is of high constitutional importance, for it involves a claim by the executive to restrict the material which might otherwise be available for the tribunal which is trying the case. this material one party, at least, to the litigation may desire in his own interest to make available, and without it, in some cases, equal justice may be prejudiced. the.....

The Lord Chancellor


The question to be determined in this Appeal is as to the circumstances in which it may be validly claimed on behalf of the Crown that documents, the production of which is demanded by regular process in a civil action, should not be produced on the ground that it would be contrary to the public interest to produce them, and as to the proper procedure to be followed if this claim is to be made good. This question is of high constitutional importance, for it involves a claim by the Executive to restrict the material which might otherwise be available for the tribunal which is trying the case. This material one party, at least, to the litigation may desire in his own interest to make available, and without it, in some cases, equal justice may be prejudiced. The question may arise, as in the present instance, in an action between private parties; but it may also arise in a case where the Crown itself, or the Crown's representative, is a party to the suit, and declines to produce a document or objects to the production of a document by the other side. In framing my opinion, I have had the advantage of consultation with, and contribution from, the six noble and learned Lords who sat with me at the hearing of the Appeal, and while what I am about to say is the expression of my own view, I have reason to think that it also expresses the judgment of my colleagues.

It is first necessary to state the facts which give rise to the question in the present case.

On June 1st, 1939, the submarine " Thetis ", which had been built by the Respondents under contract with the Admiralty, was undergoing her submergence tests in Liverpool Bay, and, while engaged in the operation of a trial dive, sank to the bottom owing to the flooding of her two foremost compartments and failed to return to the surface, with the result that all who were in her, except four survivors, were overwhelmed. Ninety-nine men lost their lives in this lamentable disaster. A large number of actions have been instituted by those representing, or dependent upon, some of the deceased against the Respondents and three other persons claiming damages for negligence. All of these actions, except two, have been stayed until after the trial of two test actions, which have been consolidated, and it is the Plaintiffs in these two test actions who are the Appellants to your Lordships' House.

The Respondents in their Affidavit of Documents object to produce a number of documents listed under paragraph (B) of the second part of the First Schedule for the reason which they set out in their affidavit as follows: —

Because they have been acquired and are held by them or " are copies of documents which came into their custody in their " capacity of contractors and agents for the Lords Commissioners of the Admiralty and subject to the directions of the First Lord of the Admiralty and not otherwise, and the attention of the First Lord having been drawn to the nature and contents of the said documents the Treasury Solicitor has by his letter to the London Agents of their Solicitors dated 13th day of August, 1940 . . . directed the Defendant Company not to produce the said documents and copies and to object to production thereof in these actions except under the order of this Honourable Court on the ground of Crown privilege. The letter from the Treasury Solicitor therein referred to contained the following passage: —

The question of the production of the documents has been considered by Mr. Alexander, the First Lord of the Admiralty, and I am instructed to inform you that Crown privilege is claimed for all those in your list numbered 1-16 other than those numbered 4, 7, and 8, and with these three " exceptions, the documents must accordingly not be produced.

I assume that you will produce this letter to the Plaintiffs' Solicitors, and if necessary to the Master, and if it is not accepted as sufficient to found a claim for Privilege, I will obtain an Affidavit from Mr. Alexander making the claim formally.

On January 29th, 1941, Mr. Alexander, as First Lord of the Admiralty, swore an affidavit referring to the documents above referred to and stating: —

All the said documents were considered by me with the assistance of my technical advisers and I formed the opinion that it would be injurious to the public interest that any of the said documents should be disclosed to any person. I accordingly instructed the Treasury Solicitor to write on behalf of " the Lords Commissioners to the Solicitors to the said Defendants not to disclose the documents set out in the said list or their contents to the Plaintiffs or either of them or to anyone on their behalf nor produce them for inspection in this action and to require them to claim privilege for the documents on the ground that it would be injurious to the public interest that the same should be disclosed or produced for inspection. A copy of the said list together with a copy of the said letter written by the Treasury Solicitor on my said instructions are now produced and shown to me and marked ' A.V.A.' On the above grounds I object on behalf of the Lords " Commissioners to the said documents or any of them or their contents being disclosed or inspected by the Plaintiffs or either of them or by anyone on their behalf in this action.

The Appellants took out a summons, which came before Master Horridge, calling on the Respondents to give inspection of the documents. The Master refused to order inspection and his decision was confirmed by Mr. Justice Hilbery sitting in Chambers. In the Court of Appeal Lords Justices MacKinnon, Goddard, and du Parcq unanimously affirmed the Judge's Order, but gave leave to appeal to this House.

The nature of the documents, to the production of which objection in thus taken, is described in the Respondents' affidavit. They include (either in original or as a copy) the contract for the hull and machinery of the "Thetis", letters written before the disaster relating to the vessel's trim, reports as to the condition of the 'Thetis " when raised, a large number of plans and specifications relating to various parts of the vessel, and a notebook of a foreman painter employed by the Respondents.

It was urged before us that, whatever the true principles upon which production of documents should be refused on the ground of public interest, some of these documents could not be validly withheld because they had already been produced before the Tribunal of Enquiry into the loss of the " Thetis ", over which Mr. Justice Bucknill presided, and because some reference was made to them in his Report (Cmd. 6190 of 1940). I am not convinced that in allcases a claim, validly made in other respects, to withhold documents in connection with a pending action on the ground of public policy, is defeated by the circumstance that they have been given a limited circulation at such an Enquiry, for special precautions may have been taken to avoid public injury, and some portion of the Tribunal's sittings may have been secret. Moreover, in point of fact, Mr. Justice Bucknill does not set out these documents in extenso, and there must be other entries in them which have not been reproduced. The Appeal should be determined without being affected by this special circumstance.

We have been referred to a large number of reported cases dealing with the claim to withhold documents on the ground that their production would be injurious to the public interest, and some of these I must examine. The argument before us proceeded on the assumption that there was no recorded decision of this House on the subject. This, however, is not so. My noble and learned friend Lord Thankerton has called my attention to a decision, pronounced by Lord Eldon in this House in 1822, which is very much in point. It is reported in Vol. I of Shaw's Reports of Cases decided in the House of Lords on appeal from Scotland, at p. 229. The Report gives the case the title of E. Earl and Others, Commissioners of the Board of Customs for Scotland v. David Vass. The Pursuer Vass had been a Paymaster in the Berwickshire Regiment of North British Militia, and the Earl of Home, who was Defender, was Colonel of the Regiment. Vass was hoping to be appointed Comptroller of Customs at the Port of Grangemouth, and Lord Home, in answer to a letter from the Collector of Customs at that Port, had made, as Vass alleged, an adverse report as to Vass's conduct when with the Regiment, which, in turn, had given rise to correspondence between the Board of Customs, the Lords of the Treasury, and Lord Home. Vass was suing Lord Home for damages for defamation and, after pleadings were closed, the Lord Ordinary granted to Vass a diligence for recovery of the writings founded on by him in the condescendence ". Vass, therefore, summoned the Commissioners of Customs and their Secretary to produce the documents which the condescendence alleged to be in their hands, and the Commissioners objected that they were neither bound nor entitled to produce the papers called for, as they had come into their hands on behalf of the public, and in the course of an investigation as to the fitness of Vass to hold an official and confidential situation". The Lord Ordinary repelled this objection, and he was confirmed by the Inner House of the Court of Session. The Commissioners of Customs appealed to the House of Lords; no Case was lodged on behalf of Vass; and this House ordered and adjudged that the interlocutors complained of be reversed.

Lord Eldon described the question raised as being whether the Appellants can be compelled to produce in evidence in a court of law, in an action depending between third parries, and in which they have no interest, officially or otherwise, the documents coming to their hands in the discharge of their official duty, and remaining in their custody. In the course of his judgment, the Lord Chancellor said, I apprehend, in all the cases in which it has been held, upon the principles of public policy, that you shall not be compellable to give evidence of, or produce such instruments —that is, wherever it is held you are not, on grounds of public " policy, to produce them—you cannot produce them, and that it is the duty of the Judge to say, you shall not produce them. This question is not, whether they can be permitted to produce them, but whether they can be compelled to produce them (p. 230). And, after giving a detailed account of the pleadings, the Lord Chancellor reaches his decision thus, at pp. 236, 237: —

Your Lordships will see that this is a case in which it becomes necessary, in order, if any justice whatever can be done, that not only the correspondence which is in the hands of the Board of Customs, but also all that has passed with the Secretary at War—and not only all that has passed with the Secretary at War, but all that has passed with the officers of the regiment—and not only all that has passed with the officers of the regiment, but all that has passed with respect to the Treasury, must all be set out. The Board of Customs are to be called upon to produce the documents they have in their hands relative to this transaction, going through so many public officers, inquiring into the conduct of an individual under all the circumstances in which Mr. Vass stood. The question is, whether, upon the grounds stated, the Board of Customs, as the servants of the Crown, having these papers in their hands, are at liberty to produce them So I must put the question. If they were at liberty to produce them, they might be compellable to produce them. There are many cases that bear upon this, which it is not necessary to go through. In the case of an information in the Court of Exchequer, where a man gives information as to smuggled goods, they will not allow you to ask who gave the information. So, as to cases of high treason, they will not allow a party to tell who gave the information. They will not allow it; and in a late case which I have in my hand, this matter was very much discussed, as far as the War Office was concerned. and which came very near to this. It is the case of Home v. Lord William Bentinck in the Exchequer Chamber in 1820, which refers to another case in the King's Bench, in Lord Ellenborough's time. There the principle is laid down —not that the right is, as here discussed, to withhold a document, because it is the property of the individual who has it—but because it is against public policy that you should be compelled to produce instruments and papers, which if persons are compelled to produce, it must shut out the possibility of the public receiving any information as to a person's fitness to be appointed to an office. Upon these grounds it has been held, in this part of the country, we can enforce no such direction. I took the liberty to communicate with the Lord Chief Justice upon this case. (The Lord Chief Justice referred to was Abbott C.J.) I showed him the papers; and he stated, without the least hesitation, that he would not have permitted any such production as is here called for, upon the grounds I have stated. . . . Upon the whole, it does appear to me it would be a dangerous thing indeed, if this were permitted; and therefore it does seem to me that this judgment ought to be reversed.

There is thus express authority in this House that a court of law ought to uphold an objection, taken by a public department when called on to produce documents in a suit between private citizens, that, on grounds of public policy, the documents should not be produced. It is important to note what are the circumstances in which this specific objection may arise. When the Crown (which for this purpose must be taken to include a Government department, or a Minister of the Crown in his official capacity) is a party to a suit, it cannot be required to give discovery of documents at all. No special ground of objection is needed. The common law principle is well established: see Thomas v. The Queen (1874) L.R. 10 Q.B. 44; 44 L.J.Q.B. 17. There is also the authority of Lord Chief Baron Abinger for the view that the former process in equity of a bill of discovery was not regarded as available against the Crown. (Deare v. Attorney-General (1835) 1 Younge and Collyer 197 at p. 208). But that learned Judge went on to say, At the same time it has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way ofany proceeding for the purpose of bringing matters before a Court of Justice, where any real point of difficulty that requires judicial decision has occurred. Similarly in Attorney-General v. Newcastle-on-Tyne Corporation [1897] 2 Q.B. 384 at 395, LordJustice Rigby said - The law is that the Crown is entitled to full discovery and that the subject as against the Crown is not. That is a prerogative of the Crown, part of the law of England, and we must administer it .as we find it. ... Now I know that there has always been the utmost care to give to a defendant that discovery which the Crown would have been compelled to give if in the position of a subject, unless there be some plain overruling principle of public interest concerned which cannot be disregarded.

Where the Crown is a party to a suit, therefore, discovery of documents cannot be demanded from it as a right, though in practice, for reasons of fairness and in the interests of justice, all proper disclosure and production would be made. The question which we have to decide can only arise as a matter of law in England in cases where a subpoena is issued to a Minister or department to produce a document (usually but not necessarily in a suit where the Crown is not a party), or where it intervenes in a suit between private individuals (as is the present case), to secure, on the ground of public interest, that documents in the hands of one of the litigants should not be produced. A similar situation might conceivably arise in litigation between the Crown and a subject where it was considered necessary to prevent the subject from producing a document in his possession on the ground that this would be injurious to public interests.

Lord Eldon, in the decision above cited, treated the rule to be applied as already well established. His reference to high treason may have been a recollection of the trial of Thomas Hardy in 1794 (24 State Trials, p. 199), for he (as Sir John Scott) was the Attorney-General who prosecuted on that occasion and he may well have recalled the ruling of Chief Justice Eyre reported at p. 808. The judgment of the House in the present case is limited to civil actions and the practice, as applied in criminal trials where an individual's life or liberty may be at stake, is not necessarily the same. Indeed. Eyre C.J., in the passage referred to, appears only to be restricting needless cross-examination. He says, there is a rule which has universally obtained on account of its importance to " the public for the detection of crimes, that those persons who are " the channel by means of which that detection is made, should not be unnecessarily disclosed: if it can be made to appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it. A statement to much the same effect was made by Mr. Justice Abbott, and confirmed by Lord Ellenborough, at the trial of James Watson (1817) 32 State Trials, at p. 101. See also Marks v. Beyfus (1890) 25 Q.B.D. 494.

In civil proceedings, early examples of the application of the rule may be found in Anderson v. Hamilton (1816) (2 Brod. And Bing., at p. 156, note)—the case before Lord Ellenborough to which Lord Eldon referred—(correspondence between Colonial Department and Governor of Heligoland); William Young and Co. v. Commissioners of Excise, 19 Faculty Decisions, 102 (investigation by Board of Excise and communications by the Board to Lords of the Treasury); Wyatt v. Gore (1816), Holt N.P.C., 299 (communications between Governor and Attorney-General of Upper Canada); and the case quoted by Lord Eldon, Home v. Lord William Bentinck (1820), 2 Brod. and Bing., 130.

This last was an action for libel. The conduct of the Plaintiff, who was an Army officer, had been the subject of a military Court of Enquiry, of which the defendant was president, and at the trialthe Plaintiff called for the production of the Minutes of the Court of Enquiry. Chief Justice Abbott ruled that the Minutes ought not to be admitted and read in evidence, and Dallas C.J., giving judgment in the Exchequer Chamber, upheld this ruling. The language of Chief Justice Dallas has been quoted with approval in subsequent decisions, and I set out the following extract from it. He said: —

It is agreed, that there are a number of cases of a particular description, in which, for reasons of state and policy, information is not permitted to be disclosed. To begin with the ordinary cases, and those of a common description in courts of justice. In these courts, for reasons of public policy, persons are not to be asked the names of those from whom they receive information as to frauds on the revenue. In all the trials for high treason of late years, the same course has been adopted; and, if parties were willing to disclose the sources of their information, they Would not be suffered to do it by the Judges. What is the ground, upon which these cases stand, except it be the ground of danger to the public good, which would result from disclosing the sources of such information?—for no person would become an informer if his name might be disclosed in a court of justice, and if he might be subjected to the resentment of the party against whom he had informed. Does not this reasoning apply closely to the case now before us This is an enquiry directed to be made by the Commander-in-Chief, with a view to ascertain what the conduct of the party suspected might have been; in the course of which a number of persons may be called before the court, and may give information as witnesses, which they would not choose to have disclosed: but, if the minutes of the  Court of Enquiry are to be produced in this way, on an action brought by the party, they reveal the name of every witness, and the evidence given by each. Not only this, but they also reveal what has been said and done by each member of the existing Court of Enquiry. It seems, therefore, that the reception of the minutes would tend directly to disclose that which is not permitted to be disclosed; and, therefore, independency of the character of the Court, I should say, on the broad rule of public policy and convenience, that these matters, secret in their natures, and involving delicate enquiry and the names of persons, stand protected.

It will be observed that the objection is sometimes based upon the view that the public interest requires a particular class of communications with, or within, a public department to be protected from production on the ground that the candour and completeness of such communications might be prejudiced if they were ever liable to be disclosed in subsequent litigation, rather than upon the contents of the particular document itself. Several cases have been decided on this ground protecting from production documents in the files of the East India Company held in its public capacity as responsible for the government of India. See Smith v. East India Co. (1841) 1 Phillips's Reports p. 50; Wadeer v. East India Co. (1856) 8 de Gex, Macnaghten and Gordon 182. In the earlier of these cases Lord Lyndhurst said: —

Now it is quite obvious that public policy requires, and " looking to the Act of Parliament, it is quite clear that the legislature intended, that the most unreserved communication should take place between the East India Company and the Board of Control, that it should be subject to no restraints or limitations; but it is also quite obvious that if, at the suit of a particular individual, those communications should be subject to be produced in a court of justice, the effect of that would be to restrain the freedom of the communications, and to render them more cautious, guarded, and reserved. Ithink, therefore, that these communications come within that class of official communications which are privileged, inasmuch as they cannot be subject to be communicated without infringing the policy of the act of parliament and " without injury to the public interests. On the same principle, it has been held in H.M.S. " Bellerophon [1874] 31 L.T. N.S. 756, that where a collision occurs between a ship of the Royal Navy and a ship belonging to a private owner, the Admiralty cannot be required to produce the report made by the officer who is in command of the former ship. Another example is the view which has been taken that reports made by a police officer to his superior as to a street accident are protected from production though requested by a party to subsequent litigation for fixing liability between private individuals. See Hastings v. Chalmers (1890) 28 S.L.R. 207; Muir v. Edinburgh Tramways Co., Ltd. (1909) S.C. 244; Spigelmann v. Hooker (1932) 50 T.L.R. 87. The practice in the Metropolitan Police District is, I believe, in the case of a street accident where no criminal proceedings are being taken, to provide, on the application of persons interested in a possible civil claim, an abstract of any report that has been made by the policeman on the spot to his superiors, including the names of witnesses so far as known to the police. This seems an admirable way of reconciling the requirements of justice with the exigencies of the public service. The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may be found to be satisfied either (a) by having regard to the contents of the particular document or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as a class be withheld from production.

Two further matters remain to be considered. First, what is the proper form in which objection should be taken that the production of a document would be contrary to the public interest? And, secondly, when this objection is taken in proper form, should it be treated by the Court as conclusive, or are there circumstances in which the Judge should himself look at the documents before ruling as to their production ?

On the first question, it is to be observed that the matter may arise at either of two stages in the course of a civil suit. It may arise (as in the present instance) before the trial begins, out of an application for inspection of documents referred to in the affidavit of one of the parties. But it may also arise at the trial itself when a subpoena or corresponding process has been served calling for the production of the documents and there is a refusal to comply on the ground that production would be contrary to the public interest. An example of the latter class of case will be found in Beatson v. Skene [1860] 5 H. and N. 838, where Mr. Sidney Herbert, the Secretary for War, had been subpoenaed to produce the minutes of a military Court of Enquiry and attended personally to object on the ground that this would be prejudicial to the public interest. In this he was upheld by the trial judge Baron Bramwell, and by the full Court. Pollock C.B., at p. 854, makes the observation, If, indeed, the head of the department does not attend personally to say that the production will be injurious, but sends the document to be produced or not as the judge may think proper, or as was the case in Dickson v. The Earl of Wilton before Lord Campbell (reported in 1 Foster and Finlayson's N.P. Rep. 419, at p. 425), where a subordinate was sent with a document with instructions to object but nothing more, the case may be different. In Hennessy v. Wright, 21Q.B.D. 509, which was an action for libel brought by the Governor of a Colony against the publisher of a newspaper which accused him of sending garbledreports to the Colonial Secretary, the Plaintiff, on the instructions of the Secretary of State, objected to the production of a number of official communications on the ground of the interest of the State and of the public service, but there was no affidavit or statement made by the Secretary of State himself. A Divisional Court consisting of Mr. Justice Field and Mr. Justice Wills considered that the statements in the Plaintiff's affidavit might be accepted as true, but it is noteworthy that Mr. Justice Wills said at p. 518 that, where further assurance is necessary, 1 think it ought to appear that the Secretary of State has seen and considered the documents, and has formed a real judgment as to the propriety of their being produced. ... In such a case there should, in my opinion, be a statement on oath, either by the Secretary of State himself, or by some person duly commissioned by him to make on his behalf such a statement, that the matter has been considered by the Secretary of State, and that he assures the Court in one of these ways that the production would in his opinion be pre-judicial to the public service." See also Kain v. Farrer (1877), 37 L.T. 469, where the Court, before being satisfied, required the responsible Minister's oath.

The essential matter is that the decision to object should be taken by the Minister who is the political head of the department, and that he should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents—e.g., departmental minutes—to which they belong. Instances may arise where it is not convenient or practicable for the political Minister to act (e.g., he may be out of reach, or ill, or the department may be one where the effective head is a permanent official) and in such cases it would be reasonable for the objection to be taken, as it has often been taken in the past, by the permanent head. If the question arises before trial, the objection would ordinarily be taken by affidavit and a good example is provided by the affidavit of the First Lord of the Admiralty in the present case. If the question arises on subpoena at the hearing, it is not uncommon in modern practice for the Minister's objection to be conveyed to the Court, at any rate in the first instance, by an official of the department who produces a certificate which the Minister has signed, stating what is necessary. I see no harm in that procedure, provided it is understood that this is only for convenience and that if the Court is not satisfied by this method, it can request the Minister's personal attendance.

The remaining question is whether, when objection has been duly taken, the judge should treat it as conclusive. There are cases in the books where the view has been expressed that the judge might properly probe the objection by himself examining the documents. For example, Field J. said in Hennessy v. Wright, 21 Q.B.D. 509, at p. 515, I should consider myself entitled to examine privately the documents to the production of which he (the head of the department) objected, and to endeavour, by this means and that of questions addressed to him, to ascertain whether the fear of injury to the public service was his real motive in objecting." Scrutton J., when sitting in Chambers in Asiatic Petroleum Company v. Anglo-Persian Oil Company [1916] 1 K.B. 822, looked at the documents (see p. 826), and so did Macnaghten J. in Spigelmann v. Hooker, 50 T.L.R. 87. On the other hand, it has been several times laid down that the Court ought to regard the objection, when validly and formally taken, as conclusive. Thus, in Beatson v. Skene (supra) at p. 853, Chief Baron Pollock observed: —

We are of opinion that, if the production of a State paper would be injurious to the public service, the generalpublic interest must be considered paramount to the individual interest of a suitor in a Court of justice; and the question then arises, how is this to be determined?

It is manifest it must be determined either by the presiding Judge, or by the responsible servant of the Crown in whose custody the paper is. The Judge would be unable to determine it without ascertaining what the document was, and why the publication of it would be injurious to the public service—an inquiry which cannot take place in private, and which taking place in public may do all the mischief which it is proposed to guard against.

It appears to us, therefore, that the question, whether the production of the documents would be injurious to the public service, must be determined, not by the Judge but by the head of the department having the custody of the paper; and if he is in attendance and states that in his opinion the production of the document would be injurious to the public service, we think the Judge ought not to compel the production of it. The administration of justice is only a part of the general conduct of the affairs of any State or Nation, and we think is (with respect to the production or non-production of a State paper in a Court of justice) subordinate to the general welfare of the community.

The same principle, subject to differences in procedure, is recognised and applied in Scotland. For example, in Lords Commissioners of the Admiralty v. Aberdeen Steam Trawling and Fishing Co., Ltd. [1909] S.C. 335, the Inner House of the Court of Session, overruling Lord Johnston, insisted that the view of the Government department was final. Lord President Dunedin said (at p. 340): —

It seems to me that if a public department comes forward " and says that the production of a document is detrimental to the public service, it is a very strong step indeed for the Court to overrule that statement by the department. The Lord Ordinary has thought that it is better that he should deter" mine the question. I do not there agree with him, because the question of whether the publication of a document is or is not detrimental to the public service depends so much upon the various points of view from which it may be regarded, and I do not think that the Court is in possession of these various points of view. In other words, I think that, sitting as Judges without other assistance, we might think that something was innocuous, which the better informed officials of the public department might think was noxious. Hence, I think the question is really one for the Department, and not for your Lordships.

Lord Kinnear's judgment in the same case is especially note-worthy : —

I agree that we cannot take out of the hands of the Department the decision of what is or what is not detrimental to the public service. There are only two possible courses, we must either say that it is a good ground of objection, or we must overrule it altogether. I do not think that we should decide whether it would be detrimental to the public service or not; and I agree with what your Lordships have said as to the position of the Court in reference to that question.

We do not know the conditions under which the production of the document would or would not be injurious to the public service. I think it is not improbable that even if an officer of the Department were examined as a witness we should not get further forward, because the same reasons which induced the Department to say that the report itself ought not to be produced might be thought to preclude the Department from giving the explanations required. Adepartment of Government to which the exigencies of the public service are known as they cannot be known to the " Court, must, in my judgment, determine a question of this kind for itself, and therefore I agree we ought not to grant the diligence.

In many cases there is a further reason why the Court should not ask to see the documents, for where the Crown is a party to the litigation, this would amount to communicating with one party to the exclusion of the other, and it is a first principle of justice that the judge should have no dealings on the matter in hand with one litigant save in the presence of and to the equal knowledge of the other.

Lord Justice Scrutton was therefore misinformed when he was told, as recorded in Ankin v. L. and N.E. Ry. Co. [1930] 1 K.B. 527, at p. 533, by " a very high authority " that the practice on this point in Scotland differed from that in England. Lord Thankerton gave warning of the error in the course of the argument in Robinson v. State of South Australia[No. 2] [1931] A.C. 704, at p. 708. The practice in Scotland, as in England, may have varied, but the approved practice in both countries is to treat a Ministerial objection taken in proper form as conclusive. The reasons given by Chief Baron Pollock, by Lord Dunedin and by Lord Kinnear cannot be gainsaid. As Lord Parker said in another connection:

Those who are responsible for the national security must be the sole judges of what the national security requires. The Zamora[1916] 2 A.C. 77, at p. 107.

In Robinson v. State of South Australia [No. 2] [1931] A.C. 704, the Judicial Committee reversed the decision of the Supreme Court of South Australia, which had refused to order the inspection of documents which the Minister in charge of the department objected to produce on grounds of public policy, and remitted the case to the Supreme Court with the direction that it was one proper for the exercise of the Court's power of inspecting documents in order to determine whether their production would be prejudicial to the public welfare. I cannot agree with this view. Their Lordships' conclusion was partly based on their interpretation of a Rule of Court which was in the same terms as Order XXXI, Rule 19a, sub-rule 2 of the Rules of the English Supreme Court. This sub-rule provides where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court or a Judge to inspect the document for the purpose of deciding as to the validity of the claim of privilege. In my opinion, the Privy Council was mistaken in regarding such a rule as having any application to the subject matter. The doubt expressed on the point by Lord Justice du Parcq in the present case is fully justified. The withholding of documents, on the ground that their publication would be contrary to the public interest, is not properly to be regarded as a branch of the law of privilege connected with discovery. " Crown privilege is for this reason not a happy expression. Privilege, in relation to discovery, is for the protection of the litigant and could be waived by him. But the rule that the interest of the State must not be put in jeopardy by producing documents which would injure it is a principle to be observed in administering justice, quite unconnected with the interests or claims of the particular parties in litigation, and indeed is a rule upon which the judge should, if necessary, insist, even though no objection is taken at all. This has been pointed out in several cases, e.g., in Chatterton v. Secretary of State for India [1895] 2 Q.B. 189, per A. L. Smith L.J., at p. 195.

Although an objection validly taken to production, on the ground that this would be injurious to the public interest, is conclusive, it is important to remember that the decision ruling out suchdocuments is the decision of the Judge. Thus, in the present case, the objection raised in the Respondents' affidavit is properly ex- pressed to be an objection to produce except under the order of this honourable court". It is the Judge who is in control of the trial, not the Executive, but the proper ruling for the judge to give is as above expressed.

In this connection, I do not think it is out of place to indicate the sort of grounds which would not afford to the Minister adequate justification for objecting to production. It is not a sufficient ground that the documents are State documents or official or are marked confidential. It would not be a good ground that, if they were produced, the consequences might involve the department or the Government in Parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claims for Compensation. In a word, it is not enough that the Minister or the department does not want to have the documents produced. The Minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified—for example, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service.

When these conditions are satisfied and the Minister feels it is his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration. The present Opinion is concerned only with the production of documents, but it seems to me that the same principle must also apply to the exclusion of verbal evidence which, if given, would jeopardise the interests of the community. Indeed, Lord Eldon's language, above quoted, implies this. After all, the public interest is also the interest of every subject of the realm, and while, in these exceptional cases, the private citizen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting the interests of the country as a whole were not ranked as a prior obligation.

I move that the Appeal be dismissed, with costs.

The Lord Chancellor


I am authorised by my noble and learned friends, Lord Thankerton, Lord Russell of Killowen and Lord Clauson, who are not able to be present, to say that they concur in this Opinion.

Lord Macmillan

MY LORDS, I also concur.

Lord Wright

MY LORDS, I also concur.

Lord Porter

MY LORDS, I concur.

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