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Cite as: [1942] UKHL 3, [1942] AC 624

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JISCBAILII_CASE_CONSTITUTIONAL

Die Lunae, 27° Aprilis, 1942

Parliamentary Archives,
HL/PO/JU/4/3/970

Lord
Chancellor

Lord
Thanker-
ton

Lord

Russell of
Killowen

Lord
Macmillan

Lord
Wright

Lord
Porter

Lord

Clauson

DUNCAN AND ANOTHER

v.
CAMMELL LAIRD AND COMPANY, LIMITED.

The Lord Chancellor

MY LORDS,

The question to be determined in this Appeal is as to the circum-
stances 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 repre-
sentative, 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 ques-
tion 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 pro-
duce 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 Commis-
" sioners of the Admiralty and subject to the directions of the
" First Lord of the Admiralty and not otherwise, and the atten-
" tion 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

2 [2]

" 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 con-
tained 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 accord-
" ingly instructed the Treasury Solicitor to write on behalf of
" the Lords Commissioners to the Solicitors to the said Defen-
" dants 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 deci-
sion 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 objec-
tion 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 with-
held 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 all

[3] 3

cases a claim, validly made in other respects, to withhold docu-
ments 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, pro-
nounced 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, Commis-
sioners 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 re-
pelled 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

4 [4.

" 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 in-
" dividual 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 informa-
" tion. 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 con-
" cerned. 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 docu-
" ment, 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 per-
" sons are compelled to produce, it must shut out the possibility
" of the public receiving any information as to a person's fit-
" ness 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 per-
" mitted; 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 depart-
ment, 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 prin-
ciple 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 & 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 of

[5] 5

" any 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 QB 384 at 395, Lord

Justice 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 prin-

" ciple 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 prac-
tice, 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 docu-
ment 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 in-
dividual'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 QBD 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 Depart-
ment and Governor of Heligoland); William Young & 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 (com-
munications 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 trial

6 [6]

the 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 judg-
ment in the Exchequer Chamber, upheld this ruling. The language
of Chief Justice Dallas has been quoted with approval in sub-
sequent decisions, and I set out the following extract from it. He
said: —

" It is agreed, that there are a number of cases of a par-
" ticular 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 in-
" formation?—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, in-
" dependency 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 en-
" quiry 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 com-
munications 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 sub-
" ject 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. I

[7] 7

" think, 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 litiga-
tion 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 docu-
ment 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 pro-
duction 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. & 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 dif-
" ferent." In Hennessy v. Wright, 21 Q.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 garbled

8 [8]

reports 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 con-
sisting 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 depart-
ment 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 con-
clusive. 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 general

[9] 9

" public interest must be considered paramount to the in-
" dividual 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 pre-
" siding 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 recog-
nised and applied in Scotland. For example, in Lords Commis-
sioners 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 Govern-
ment 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 in-
" formed 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. A

[10]

" 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."

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 know-
ledge of the other.

Lord Justice Scrutton was therefore misinformed when he was
told, as recorded in Ankin v. L. & 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] AC 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 AC 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 docu-
ments 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 interpreta-
tion 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 un-
connected 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 QB 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 such

[11 11

documents 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 produc-
tion 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 pro-
tecting 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

MY LORDS,

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

(19462r) Wt. 8222—4 14 5/42 D.L. G.338