Church of Scientology of California v Department of Health and Social Security

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date22 January 1979
Judgment citation (vLex)[1979] EWCA Civ J0122-2
Docket Number1974 C No. 5676
Date22 January 1979

[1979] EWCA Civ J0122-2

In The Supreme Court of Judicature

In the Court of Appeal

On Appeal from The High Court of Justice

Quee's Bench Division

Judge in Chambers

Before:

Lord Justice Orr Lord

Justice Ormrod

and

Lord Justice Geoffrey Lane

1974 C No. 5676
1974 C Ho. 6319
1974 C No. 7458
Between:
Josephine Young
Petitioner
(Respondent)
- and -
Church Of Scientology of California
and
Departmsnt Of Health And Social Security & Others

MR D. A. HYTNER, Q.C. and MR J. HAMILTON (instructed by Stephen M. Bird, Esq., Solicitor East Grinstead) appeared on behalf of the Appellants.

MR P. BOWSHER, Q.C. (instructed by M.W.M. Osmoud, Esq., Solicitor, Department of Health and Social Security, London) appeared on behalf of the Respondents.

1

LORD JUSTICE STEPHENSON: This appeal concerns discovery in three consolidated actions for libel brought by the Church of Scientology of California, the first action against the Department of Health and Social Security alone, the second against that Department and its Principal Medical Officer, Sir GeorgeGodber, and the third against the Department and an Under-Secretary in it, Mr John Cashman.

2

On the 11th May, 1977, Master Lubbock made an extraordinary order. Paragraph 3, Sub-paragraphs (3) and (4) of that order are as follows: "The defendants be excused from giving inspection of the documents numbered 7, 30, 150, 166, 171, 205, 305, 314, 315 and 323 in Part 1 of Schedule 1 of their list of documents served on the 26th February, 1977, unless within 14 days the plaintiffs by their solicitors, Stephen M. Bird, expressly undertake that the said documents will not be shown nor their contents revealed to anyone other than Counsel for the plaintiffs and that the plaintiffs will not use the said documents for any purpose collateral to or ulterior to the conduct of this action; (4) The defendants be excused from producing for inspection the documents numbered 146, 152, 177, 170, 179, 202, 239, 240, 241 and 424 in Part 1 of Schedule 1 of their said list of documents other than to a Registered Medical Practitioner appointed by the plaintiffs for the purpose of these consolidated actions and upon his expressly undertaking in writing that he will not disclose the contents thereof".

3

On the 22nd February, 1978, Mr Justice Melford Stevenson affirmed that order by dismissing the appeal from it.

4

The Writs in these three actions were issued on the 23rd July, 6th August and 10th September, 1974. The allegations alleged to be defamatory are in effect that the plaintiffs are dangerous charlatans who give inexpert medical treatment to mentally-sick persona and make them worse rather than better; and that they are an undesirable and evil body. Those allegations were made in Background Notes issued by the Minister of Health to the Press in 1968, the subject of the first action, and in letters in the other two actions, one by Sir George Godber to a Health Authority in Sweden, and the other by Mr Cash-man to another Health Authority in Ontario, Canada.

5

The Defences in all three consolidated actions contain pleas of justification and fair comment, in paragraphs 5 and 6, and annexed to them are Particulars referring to 10 cases of mentally sick persons whom they allege to have been so treated - two of whom are now dead.

6

In the course of the proceedings - and that course has not been swift or expeditious for various reasons - the defendants have made and served a list of documents. Paragraphs 3 and 4 of that list are in these terms: "The defendants object to produce the documents numbered 146, 152, 177, 173, 179, 202, 239, 240, 241 and 424 in Part 1 of the said Schedule 1 other than to the plaintiff's medical adviser on the ground that such documents contain extracts from patient's medical records or material based thereon and are thus confidential in nature and ought not otherwise to be disclosed. 3. The defendants object to produce document numbered 7 in Part 1 of the said Schedule 1 unless the plaintiff, by its proper officer, gives an undertaking not to use any of the material contained in the document otherwise than for purposes reasonably necessary for the conduct of the actions, and not for any collateral or ulterior purpose. The defendants farther object to disclosing any part of the letters comprising the document which might reveal identifying details of the writer thereof or the individuals referred to therein. These objections are made to preserve the necessary relationship of confidence between the Secretary of State for Social Services (formerly the Minister) and his Department and those who write to him regarding matters on which the Secretary of State ought to be informed. 4. The defendants object to produce the documents numbered 30, 150, 166, 171, 205, 305, 306, 314, 315 and 323 in Part 1 of the said Schedule 1 unless the plaintiff gives an undertaking in respect thereof in similar fashion to that mentioned in the preceding paragraph. The defendants further object to disclosing any part of the said document which might reveal identifying details of those who corresponded with the person named in Part 1 of the Schedule in respect of such documents".

7

Now the documents referred to in paragraph 2, the first of those three paragraphs, are hospital notes and medical reports on the ten patients to whom I have referred, and in that list it is asked that the contents of those documents should only be disclosed to the plaintiff's medical adviser and nobody else, and that is the Order that has been made by the Master and affirmed by the Judge in respect of those documents.

8

The second head of documents to which objection to production is made is number 7, and that contains 250 letters from some thirty or forty persons (we are told) who have given information to the defendants adverse to the plaintiffs. The documents referred to in the last paragraph are letters passing between a Mr Maurice Johnson and some six other "renegades", persons (we are told) who have been scientologists, and allegations in the Pleadings show that Mr Johnson is also a person who has been treated by the plaintiffs.

9

The objection taken in the last two paragraphs of the list of documents which I have read is to producing those letters - the Maurice Johnson letters or the other informants' letters - to the plaintiffs unless the plaintiffs, by their proper officer, give the undertaking which I have read.

10

It will be noticed that the Order under appeal goes further than that objection because it forbids production to any proper officer, or an undertaking by any proper officer, other than Stephen Bird, the plaintiffs' solicitor. The undertaking which he is required to give on the Order - and which the proper officer was requested to give in this list - is an undertaking which the law implies, as is shown by the case of Alterskye -v- Scott (1948) 1 All England Reports, 469. The way in which these objections are taken in this list is the same as that in which it was taken in that case, and in the unreported case of Foot -v- Associated Newspapers Group Limited and Another, in which the following Order was made on the 19th January, 1977 by Mr Justice Ackner, in these terms: "………… there be inspection of documents within 7 days of the service of the defendants. list. That the plaintiff be excused from giving inspection of the documents at Item 5 of Schedule 1, Part 1 of the plaintiff's list of documents served on 30th March, 1976, unless within 14 days of the defendants by their solicitors expressly undertake that the said documents will not be shown to anyone other than the second defendant, and the legal advisers to the defendants" (the Associated Newspapers Group Limited and the second defendant) "including"(and there are named two persons) "and expert medical advisers and that the defendants will not use the documents for any purpose collateral to or ulterior to the conduct of thisaction".

11

No claim is made in this list of documents for privilege. Confidentiality, as is recognised and was declared by the House of Lords in the Crompton case, (1974) Appeal Case 405, is not a ground of privilege although it may all be relevant to the question of privilege. Mr Bowsher, on behalf of all the defendants, has affirmed and re-affirmed in this court that he is making and can make no claim to privilege for any of the documents which are the subject of the Order under appeal on the grounds of public interest. The only privilege claimed is claimed for certain documents in Fart 2 of the first Schedule and those documents are not those with which we are concerned.

12

The learned Judge decided to dismiss the appeal and affirm the Master's Order, after some argument, on a balance of conflicting interests - the balance of conflicting interests stated by the Master of the Rolls in the case of Riddick -v- Thames Board Mills Limited (1977) Queen's Bench Division, 881, at page 895G. The learned Master of the Rolls referred to the public interest in discovering truth so that justice may be done between the parties, and how that had to be put into the scales against the public interest in preserving privacy and protecting confidential information. It was in balancing those two public interests that the learned Judge came to his conclusion that the Master's Order should stand.

13

The learned Judge had before him certain evidence, to which I shall be referring. The Master had no evidence, but he had full particulars setting out copious extracts from documents attributed to the plaintiffs and their founder, Mr Ron Rubbard; and I shall have to refer later to the points that were taken before him and the points taken before the learned Judge. At the moment all I would say is this, that the learned Judge must, by implication (although we are not told that he did so expressly), have rejected a submission that there was no jurisdiction in the court to make an Order depriving a party...

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