Duke of Argyll v Duchess of Argyll
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Radcliffe,Lord Hodson,Lord Guest,LORD REID |
| Judgment Date | 12 July 1962 |
| Judgment citation (vLex) | [1962] UKHL J0712-1 |
| Docket Number | No. 5. |
| Court | House of Lords |
| Date | 12 July 1962 |
[1962] UKHL J0712-1
House of Lords
Lord Reid
Lord Radcliffe
Lord Hodson
Lord Guest
Lord Pearce
Upon Report from the Appellate Committee, to whom was referred the Cause Duchess of Argyll against Duke of Argyll and another, that the Committee had heard Counsel, as well on Tuesday the 5th, as on Wednesday the 6th, days of June last, upon the Petition and Appeal of the Most Noble Margaret Whigham or Sweeny or Campbell, Duchess of Argyll, of 48 Upper Grosvenor Street, London, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 15th of February 1962, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Most Noble Ian Douglas Campbell, Duke of Argyll; and also upon the Case of Harvey Christian Rupert Peter Combe, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause;
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor, of the 15th day of February 1962, complained of in the said Appeal, be, and the same is hereby, Recalled: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to allow the Minute of Amendment for the Appellant to be received and answered, and to proceed as accords: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondent, the Duke of Argyll, the expenses incurred by him in the Court of Session from the 6th day of December, 1961, until the 23d day of March, 1962, excluding the expenses dealt with by the Interlocutor of the Lord Ordinary (Lord Wheatley) of the 23d day of January, 1962, and also excluding the expenses dealt with by the Interlocutor of the First Division of the Court of Session of the 15th day of February, 1962: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The Appellant is defender and the Respondent pursuer in an action for divorce. This appeal is against an Interlocutor of the First Division of the Court of Session dated 15th February, 1962, whereby that Court by a majority (the Lord President and Lord Carmont, Lord Guthrie dissenting) refused the Appellant's motion to amend the Closed Record in the action in terms of a Minute of Amendment or alternatively to allow the said Minute to be received and answered. To appreciate the questions involved in the appeal it is necessary to have in mind in some detail the earlier procedure in the case.
The summons was signeted on 4th November, 1959, and the Record was first closed on 24th February, 1960. Thereafter on at least three occasions amendments by the Respondent were allowed. On the last occasion a copy of the Record was intimated to the present Party Minuter and then on 6th December, 1961, the Lord Ordinary closed the Record and "of consent allows to parties a proof before answer of their respective averments on Record". The Record then contained in Condescendence V detailed averments of a number of meetings between the Appellant and the Party Minuter during 1960 and included an averment that they committed adultery on one of these occasions. It was further averred by the Respondent:
"The defender recorded the said meetings with the said Peter Combe"
(the Party Minuter) "in her diary". In her answers the Appellant made no specific reference to this averment: it was merely covered by her general denial " quoad ultra denied". Then in a specification for recovery of documents the Respondent called for production of the diary. This was refused by the Lord Ordinary but he granted leave to reclaim.
Before the reclaiming motion was heard by the First Division the Appellant for some reason moved to amend her answers by adding:
"Admitted that the defender recorded certain of the said meetings with Peter Combe in her diary",
and this amendment was allowed. The argument on the reclaiming motion proceeded and the Court made avizandum. Then, apparently because it was thought that the Court were likely to allow the reclaiming motion, a new Minute of Amendment was tendered for the Appellant. It is the Interlocutor refusing this amendment that is the subject of the present appeal. At the same time the Court pronounced another Interlocutor permitting recovery of the diary so that excerpts could be taken of the relevant entries. As the Court were unanimous on this matter this latter Interlocutor could not be appealed to this House at this time.
The amendment sought and refused was in these terms:
"(1) by deleting the words 'Admitted that the defender recorded certain of said meetings with Peter Combe in her Diary' occurring between the 16th and 17th lines of page 25 and substituting therefor the words 'With regard to the pursuers averments to the effect that the defender recorded in her diary certain meetings with the said Peter Combe during the period from 13th July to 28th November 1960, no admission is made in respect that the defender's diary for said period has always been and is now in her possession and is confidential.
(2) by adding the following plea-in-law:—
"'5. Separatim the pursuer's averments to the effect that the defender recorded in her diary certain meetings with the said Peter Combe being irrelevant, should not be remitted to probation.'"
It is common ground that a diary is confidential and cannot be recovered and used in evidence unless something has occurred to destroy that confidentiality. The purpose of this amendment is to obtain a decision before the proof as to whether that confidentiality has been lost or destroyed. After the proof it will be no use arguing that that confidentiality was never lost or destroyed, even if that argument were open to the Appellant by reason of the proof being before answer. The damage—from her point of view—will have been done by the use made of the diary during the proof by the Respondent.
It appears from the opinion of the Lord President that one of the reasons—I think the main reason—which caused the majority of the Court to refuse the amendment was their view that the Appellant had already waived confidentiality and that she was now seeking to withdraw that waiver and claim confidentiality as if there had never been any waiver. If that were right, then not only would I think it wrong to overrule the discretion of the Court, I would agree with the reasons which the Lord President gives for the decision. But if there never has been any waiver, then it appears to me that your Lordships must consider the whole matter afresh.
The waiver is said to have been made by the Appellant's advisers consenting to a proof before answer on a Record containing the averment of the Respondent, which I have already quoted, to the effect that the Appellant recorded meetings with the Party Minuter in her diary. The Lord President said in his opinion:
"It is not as if a private diary can never be produced in Court. The writer can waive its confidentiality and make it available in evidence. If the defender had from the start claimed confidentiality for the contents of her diary there is nothing to prevent her coming forward later and waiving that confidentiality. By the averments which she made in this Court admitting certain of the entries and by agreeing all along up to date to a proof before answer as to what is in the diary she has already waived any confidentiality which it had and in my opinion there is nothing unfair in the pursuer now seeking to hold her to that waiver. On the contrary it would be unjust to entitle her now to withdraw her waiver and change her mind and claim confidentiality."
I must therefore consider first what was the effect of consenting to proof before answer. In the first place what would have been the effect if proof before answer had been opposed by the Appellant but ordered by the Court, perhaps after an unsuccessful reclaiming motion by the Appellant? Counsel for the Respondent argued before your Lordships that even in that case confidentiality of the diary would have been destroyed in the present case. I am in some doubt about the view of the Lord President because he said in his opinion with regard to the diligence for the recovery of the diary:
"Nothing that I have said is intended to imply that a private diary is not entitled to high privileges (see Creasey v. Creasey 1931 S.C. 9 per Lord President at p. 17). Indeed it is difficult to envisage any case in which the Court would order recovery by diligence of a private diary unless the writer had joined issue in a proof with an opponent regarding its contents. For an individual is entitled to keep his private affairs which he has recorded in a private diary secret from the world. But this privilege is not an absolute one. It may be waived by the writer who may wish to establish that his opponent's account of the entries is false. Or the writer may abandon his diary or leave it lying about for someone to find and lodge in process, in which event it may competently be admitted in evidence. ( Creaseysupra: compare Watson v. Watson 1934 S.C. 374). But it seems to me illogical and...
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