Scottish Court of Session Decisions

Two other topics I must just mention. In the first place, it was urged that here the affidavit was not that of the chief officer of the Department. I do not think that objection will do. I think that the Secretary to the Lords Commissioners of the Admiralty is entitled to be taken by your Lordships' Court as representing the Lords Commissioners of the Admiralty, and that it would be mere trifling to insist that we should have an affidavit under the hand of the First Lord himself. The other topic is this—it was argued that although the plea of confidentiality might be quite equitably allowed in cases where the documents were asked at the instance of third parties—and, no doubt, most of the cases, if not all of them, that have been decided in connection with the Lord Advocate's Department fall within that category—yet the rule ought to be different where the party pleading privilege is the party who himself first comes into Court, as here, where the Admiralty are suing. That again seems to me to make no real difference, for I do not think that the Admiralty should be put to the dilemma of either giving up their just rights, as they conceive them, of suing a party for damages sustained, or else of being obliged to do something that they think inconsistent with the public interest. And also I should like to say this, that the mere refusing of reports in such a case is not an unmixed benefit to the Admiralty. If the case goes to trial, and they still think fit not to make the report available, it seems to me that there will probably be a very good jury point to be made as to the keeping back of the report, and that point may be just as useful to the other party as any point that could be made on the report if it were produced. But that is a question entirely for the decision of the Admiralty and their officers.

On the whole matter, therefore, I am of opinion that this diligence, so far as this article is concerned, should be refused.

Lord M'Laren—I agree that before we come to the question of privilege it is necessary to consider whether a report to his owners by the officer in command of one of the vessels that collided is a document which in the ordinary course of practice might be asked for. Now I am not satisfied that in a case between private parties there is any decision or any rule that would preclude the Court from granting a diligence to recover from the owners of the ship a report made at the time of the collision when all the circumstances were fresh in the recollection of the master or officer in command. Such a report would, of course, be very useful to cross-examining counsel for the purpose of refreshing the memory of the master as to the events of the day, and furnishing points upon which he might be called upon to give explanations in his evidence. I would wish to add this, that while as regards decisions affecting the merits of the case the Court would desire if possible that the decisions should be consistent with those that have been given in parallel cases in England, that rule does not apply with nearly the same force when the decisions are on mere points of practice. One reason for that is that no one can say that persons entering into contracts do so in reliance on rules of practice. Another reason is that a decision on a point of form may be given without a full perception of the convenience or inconvenience resulting from settling the point one way or the other. We have reason to believe—I think, indeed, that it is admitted by counsel on both sides—that for many years it has been the practice of the Lords Ordinary in the Outer House to grant diligences for the recovery of reports of the nature in question. I think their Lordships' practice is perfectly right, and it would be a great misfortune if judges were not free to consider the element of convenience in regard to such questions.

But while I agree with your Lordship in the chair on that point, I am, at the same time, strongly of the same mind with regard to the plea of confidentiality. The interest of the public in maintaining the confidentiality of official documents is recognised by our constitution. For example, when papers are called for by Parliament, the Department is always understood to have the right to keep back documents the publication of which might be injurious to the public service, and I doubt whether it would be possible to find an instance where Parliament has insisted on the production of papers which the Minister responsible for the Department has declared could not be produced without injury to the public interest. That is a sort of authority which may very well regulate the practice of courts of law, and I think we must give to the Admiralty in stating this plea the credit of having regard to the public interest, not only with regard to this case, but with regard to similar cases if reports were called for in a court of law. As regards the course suggested by the Lord Ordinary, I may say that I should not desire to be put into the position of judging regarding the confidential character of such documents, because there are considerations which the public Department are much better acquainted with than we can possibly be, such as the desirability that the captain in command of a vessel should express his opinions freely without the restraint that would be imposed upon him if he knew that his report was liable to be published. There are also matters of discipline and order with which we are unacquainted, and which may enter into this question. As the Admiralty has objected on public grounds to the recovery of these documents, my opinion is that this is an objection which we ought to sustain.

Lord Kinnear—I agree with your Lordship in the chair as to the first point. I think that if this were a question between private litigants we ought to grant diligence for the recovery of a report of the kind described, made by the master of the ship to his owners, subject always to the condition that it must have been made directly after the accident. I entirely agree with what your Lordship has said as to the decision of Lord Low in the Outer House, and other decisions of the same kind. They appear to me to be perfectly in accordance with right practice; and I have the less hesitation in saying so because they are not inconsistent with any previous decision of this Court. In my opinion they are entirely consistent with the decision in Livingstone v. Dinwoodie, which is undoubtedly a judgment of great authority, pronounced, after consultation between both Divisions of the Court, for the purpose of determining what the Judges then thought a question of importance. All that was decided in that case was that the Court would not grant diligence for the recovery of documents in the possession of persons who had no interest whatever in the case and had nothing to do with it except that they might probably be called as witnesses. That is clearly not an authority which would be applicable in the case of a report made de recenti by the master of a ship to his owners, the owners being pursuers or defenders of an action in Court. I think, further, that such diligence should be allowed even although the report could not, according to our rules of law, be made evidence of the facts contained in it. and I agree with your Lordship in the chair that it would not be evidence of such facts. The case of the “Solway,” which was cited to us as an authority to the contrary, is the decision of a very eminent judge, and is on that account of great authority, but it is not binding upon as and has reference only to English practice, and therefore I cannot say that it shakes my opinion as to the true rule of the law of Scotland.

It was necessary to dispose of these points, because they were strenuously argued, but the real question for decision in this case is rather, whether assuming the report to be of such a kind that the defenders might have called for it if this had been a litigation between two private parties, the Admiralty is not entitled to say that it ought not to be produced because they hold that it would be detrimental to the public to produce it. 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 both 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. A Department 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.

Lord Pearson—I have no doubt that, according to our practice, the documents which are here called for are such as would be recoverable in an action between ordinary litigants to the limited effect defined by your Lordship. But where the documents are in the hands of a Government Department, and are of the nature of reports by the subordinate officers to their superiors, it is open to the Department to object to their production on the ground of public policy. The objection is not confined to the case where the litigation is between private persons, one of whom desires to have the documents in aid of his case. It would certainly, as I think, apply also to a case in which the Department of Government was called into Court as defender. The specialty of this case is, that the action being raised by the Department themselves as pursuers, they seek to prevent the defenders from recovering and using documents which, according to our rules of evidence, they would be entitled to recover in the ordinary case. I am afraid, however, that the public interest, of which the Department alone can judge, is paramount; and that it rests with the Department and their advisers to allow only such use of the documents as they deem to be consistent with the public interest. I agree in thinking that the course taken by the Lord Ordinary in ordering the documents to be produced under seal for the consideration of the Court is inexpedient.