Scottish Court of Session Decisions

This was an action at the instance of the trustees of the late Mr William Brown, distiller, Elgin, against Mr Hay, auditor there, concluding, inter alia, for damages for statements made by him to the Inland Revenue authorities regarding the duty which ought to have been paid on the distillery business conducted by the late

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Mr Brown, which he had been employed to audit.

Brown's trustees obtained a diligence for the recovery, inter alia, of all letters and other documents passing between Mr Hay and the Inland Revenue authorities. At the diet the Solicitor of Inland Revenue declined to produce letters received from Mr Hay, on the ground that to do so would be prejudicial to the public service. The question was debated before the Lord Ordinary ( Stormonth Darling).

Argued for the pursuer—This was a case of special circumstances, and it was not sufficient for the Inland Revenue authorities to make a general statement that the production of the documents called for would be prejudicial to the public service. They must go further and say in what respect that prejudice would arise. The pursuers' case was that Hay acted as an informer on his own initiative—a circumstance which distinguished this case from that of Earl v. Vass, July 17, 1822, 1 Sh. App. 229, where the productions refused were documents made officially by a public officer. If the only prejudice the Inland Revenue would suffer by being compelled to produce these documents was the discouragement of private informers in future, that was not a reason entitled to much consideration. Arthur v. Lindsay, March 8, 1891, 22 R. 417, was a case where the administration of the criminal law was in question, and was therefore not an authority in the present case. In Johnston v. Caledonian Railway Company, December 22, 1892, 20 R. 222, the production of income tax returns—quite as confidential as the documents required here—had been ordered.

Argued for the Inland Revenue—The Inland Revenue had a general right to refuse production when they were able to state, through the Lord Advocate, that it would be prejudicial to the public service—Hume ii., p. 134; Earl v. Vass, cit. supra; Donald v. Hart, July 6, 1844, 6 D. 1255; Little v. Smith, February 17, 1847, 4 D. 937; Henderson v. Robertson, January 20, 1853, 15 D. 292; Hughes v. Vargas, May 17,1893, 9 Times L.R. 471; Arthur v. Lindsay, cit. supra; Tierney v. Ballingal & Sons, February 19, 1896, 23 R. 512. The principle usually was not that the particular case would be prejudiced, but that future sources of information would be dried up. Johnston v. Caledonian Railway Company, cit. supra, was a special case, because the object of confidentiality did not apply to income-tax returns, which would always be obtained whether they were disclosed or not.