Scottish Court of Session Decisions

This was an action at the instance of the St Andrews District Committee of the County Council of the County of Fife against David Wedderburn Thoms, of Feddinch and Winthank, in which the pursuers sought declarator of a public right-of-way across the lands of Feddinch and Winthank.

An issue for the trial of the cause was adjusted and approved by interlocutor dated 24th May 1898.

Thereafter, by interlocutor dated 21st May 1898, the Lord Ordinary ( Stormonth Darling) granted a diligence for recovery of the documents enumerated in a specification thereof. One of the articles of this specification was in the following terms— “(3) All letters, telegrams, memoranda, or other writings passing between the defender or any of his predecessors in the lands of Feddinch and Winthank, or either of them, or any person on behalf of him or them on the one hand, and any member of the public on the other hand, having reference to any of the matters mentioned on record prior to the date of raising the present action.”

Thereafter notice was given for the sittings.

At the diet before the Commissioner (Mr F. M. Anderson, advocate), the defender being called on to produce under article 3 of the specification above quoted, deponed—“I produce three documents as per inventory, which I have signed as relative hereto. There are certain other documents I have falling within this call, which I decline on the advice of my agent to produce, but am quite willing to hand them over to the Commissioner sealed up, which I now do. I do so on the ground of confidentiality, they being of the nature of precognition after the question was raised between the parties.”

The Commissioner reserved consideration of the point, and subsequently made the following interim report to the Court, of date 7th July 1898—“The Commissioner having opened the sealed packet containing letters handed to him by the defender at his examination as a haver for the pursuers on 27th June last, and which is referred to on page 6 of the foregoing report, is of opinion that the letters therein fall to be produced under article 3 of the specification No. 14 of process, but, as requested by defender's agents in their letter to him of 28th June, a copy of which was sent by them to the agents for the pursuers of like date, he has again sealed them up to await the decision of the Court on an interim report of the Commission.”

Argued for the defender—These letters were all written within six months of the date when the action was raised by persons still living and in answer to inquiries made by the defender when making investigations with a view to the present action, which was then threatened. Such letters were of the nature of precognition and confidential, and the defender ought not to be compelled to produce them.

Argued for the pursuers—The letters in question fell within the specification of documents for which the Lord Ordinary had granted a diligence. [ Lord Justice-Clerk—I can understand how letters might be evidence with regard to a right-of-way if they were written some time ago, and by persons now dead, but how can letters written so recently by persons still alive be used as evidence? You must call the writers and examine them.] The interlocutor of the Lord Ordinary had been allowed to become final, and the Court were not now entitled to review that interlocutor and to inquire whether the diligence ought to have been granted. They admitted that the statements made on the other side of the bar as to the nature and dates of the letters were correct.