Scottish Court of Session Decisions

The Caledonian Railway Company, complainers, brought an action of suspension and interdict against Hugh Symington, contractor and quarry master, Coatbridge, respondent, to interdict the respondent from quarrying the freestone under land which the complainers had purchased under the Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. cap. 33).

The respondent averred—“In selling and purchasing respectively the land in question both the sellers and the complainers treated with each other, in respect of the said freestone rock, on the footing that it was admittedly a mineral within the meaning and for the purposes of the said Railways Clauses Act”—see previous report, 1911 S.C. 552, at p. 554, 48 S.L.R. 539, at p. 541.

The Lord Ordinary ( Cullen) allowed a proof, and after sundry procedure—see especially previous report, 1912 S.C. 1033, 49 S.L.R. 751—on 19th December 1912 granted a diligence to the respondent for the recovery of the documents contained in article 1, heads 1 and 2, and article 3 of the following specification, disallowing the other articles:—

“1. All letter-books and business ledgers kept by or on behalf of Hope, Todd, & Kirk, W.S., Edinburgh, and their predecessors in business, Hope & Oliphant; Hope, Oliphant, & Mackay; Hope & Mackay; Hope, Mackay, & Mann; and Hope, Mann, & Kirk, all Writers to the Signet, Edinburgh, that excerpts may be taken therefrom of (1) the letters by the said Hope, Oliphant, & Mackay to Robert Elliot, Ecclefechan, dated 4th June 1850, 23rd October 1850, and 2nd November 1850; and (2) all other letters passing between the said Writers to the Signet or anyone on their behalf, as agents for the complainers, and the said Robert Elliot, Horn, and any other arbiters, oversmen, or clerks (or anyone on their behalf) acting in arbitrations between the complainers and the proprietors after mentioned, containing references to freestone as a mineral or otherwise, and tending to show whether the complainers regarded freestone as a mineral or otherwise in dealing with said proprietors and their claims, or containing instructions regarding claims made by said proprietors in respect of freestone or sandstone acquired, taken, used, or reserved by the complainers or their contractors for or in connection with the construction of their railways, or in any way relating to such claims, or the arbitration proceedings following thereon, viz.—( a) the proprietors of Woodhouse estate between the years 1845 and 1868; ( b) the proprietors of the following estates, namely—(1) Burnfoot, (2) Kirkpatrick, (3) Cove, (4) Barncleugh, (5) Longbedholm, and (6) Mossknowe, between said years; and ( c) the proprietors of Mount Annan estate between the years 1845 and 1875; and (3) all entries in any way relating to such instructions to said arbiters, oversmen, and clerks in arbitrations, or to communications to or meetings with them with reference to such claims and arbitration proceedings between said respective dates.

2. All letter-books and business ledgers kept by or on behalf of Hope, Todd, & Kirk, W.S.,

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Edinburgh, and their predecessors in business, Hope & Oliphant; Hope, Oliphant, & Mackay; Hope & Mackay; Hope, Mackay, & Mann; and Hope, Mann, & Kirk, all Writers to the Signet, Edinburgh, that excerpts may be taken therefrom of—(1) letters by the said Hope, Oliphant, & Mackay to ( a) John Willet, C.E., Carlisle, dated 17th May 1849; ( b) Stephenson & Company, contractors, or Mr Woodhouse of said firm, dated 15th August and 27th November 1849 and 3rd January 1850; and (c) James Davidson, writer, Lockerbie, dated 5th October 1847 and 4th April 1848, all relating to the claims after mentioned; (2) all letters passing between the said Writers to the Signet, or anyone on their behalf, as agents for the complainers; and ( a) engineers employed by the complainers; ( b) contractors employed by the complainers; and ( c) officials in the complainers' employment, and anyone on behalf of any of them, containing references to freestone as a mineral or otherwise, and tending to show whether the complainers regarded freestone as a mineral or otherwise in dealing with the proprietors after mentioned and their claims, or containing instructions and reports regarding or in any way relating to claims made by the said proprietors in respect of freestone required, taken, used, or reserved by the complainers or their contractors for or in connection with the construction of their railways or in any way relating to such claims, or the arbitration proceedings following thereon, namely—( a) the proprietors of Woodhouse estate between the years 1845 and 1868; (6) the proprietors of the following estates, namely—(1) Burnfoot, (2) Kirkpatrick, (3) Cove, (4) Barncleugh, (5) Longbedholm, and (6) Mossknowe, between said years; and (3) all entries in any way relating to such instructions and reports or to communications or meetings with reference to such claims, and arbitration proceedings between said respective dates.

3. Failing principals of all or any of the books and documents called for, drafts, duplicates, excerpts, jottings, or copies thereof are called for.”

The complainers reclaimed, and argued—The Lord Ordinary was right in disallowing article 2 of the specification, but he erred in allowing article 1. Communications passing between Mr Elliot and the company's solicitors were as much entitled to the privilege of confidentiality as were the other communications which the Lord Ordinary had refused, for Mr Elliot, although with regard to one matter he had acted in the capacity of an arbiter, was in reality the expert adviser of the company. Moreover, in those days arbiters were just in the same position quoad confidentiality as solicitors, because, as was shown by the evidence in the present case, arbiters were accustomed to act as the protagonists of the party who employed them. With regard to article 2 the Lord Ordinary was right in disallowing it. It was incompetent to recover communications passing between a company and its solicitors, &c., because such communications were confidential. A diligence to recover such documents was clearly incompetent according to the rule of English law— Oreenough v. Gaskell, January 31, 1833, 1 Mylne and Keen, 98, per Lord Brougham at p. 103, and the rule of Scots law was the same—Begg's Law Agents, 2nd ed., p. 316, et seq.; Lady Bath's Executors v. Johnston, F.C., November 12, 1811; Lumsdaine v. Balfour, November 13, 1828, 7 S. 7; M'Cowan v. Wright, December 14, 1852, 15 D. 229, per Lord Wood at p. 237; Munro v. Fraser, December 11, 1858, 21 D. 103. Wheeler v. Le Marchant, April 6, 1881, L.R., 17 Ch. Div. 675, merely laid down the principle that in order to establish the plea of confidentiality in the case of a solicitor and client it was necessary to show that the solicitor was actually acting in that capacity. It was true that the present action had not commenced at the time the letters were written, but the question between the parties was the same then as now.

Argued for the respondent—The Lord Ordinary was right in allowing article 1 of the specification, but he ought to have allowed article 2 also. With regard to article 1 there could not possibly be confidential relations between the arbiter in a case and one of the parties to it, since the arbiter was the judge. With regard to article 2 the documents there called for did not fall within the category of confidential documents which the reclaimers were entitled to withhold, because the respondents only desired to obtain excerpts from them at the sight of the commissioner with regard to a particular statement of fact contained in them, and the respondents were not attempting to recover anything in the nature of confidential advice or information—Taylor on Evidence, 10th ed., section 911, et seq.; Wheeler v. Le Marchant (cit). The crux of the present case was, did the parties who wrote these letters regard freestone as a mineral, and the answer to that question depended on what the word “freestone” meant in the vernacular of the mining world, the commercial world, and landowners— North British Railway Company v. Budhill Coal and Sandstone Company, 1910 S.C. (H.L.) 1, per Lord Chancellor (Loreburn), quoting Lord Halsbury, at p. 4, 47 S.L.R. 23, at p. 25. That was a pure question of fact, and it was only a historical fact, for the letters were written long ago. They were written, moreover, in connection with a matter entirely different from the subject-matter of the present lis, and where it was sought in one action to obtain communications which had passed in connection with another and different action the rule about confidentiality did not apply. The evidence contained in the letters was the best evidence to prove what the word “freestone” meant, because it was evidence of the intention of the parties themselves, which could best be ascertained from the letters they themselves wrote. The reclaimers had attempted, but had failed, to obtain the principals of the letters, and therefore having

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exhausted the primary evidence, they were entitled to fall back on secondary evidence, viz., copies of the letters— Caledonian Railway Company v. Symington, 1912 S.C. 1033, 49 S.L.R. 751.

At advising—