Waugh v British Railways Board

JurisdictionUK Non-devolved
Year1979
CourtHouse of Lords
Date1979
[HOUSE OF LORDS] WAUGH APPELLANT AND BRITISH RAILWAYS BOARD RESPONDENTS 1979 May 16, 17, 21; July 12 Lord Wilberforce. Lord Simon of Glaisdale, Lord Edmund-Davies, Lord Russell of Killowen and Lord Keith of Kinkel

Practice - Discovery - Privilege - Accident report by servants of railways board in pursuance of practice of board - Partly prepared for safety purposes and partly for obtaining legal advice in anticipation of legal proceedings - Whether latter purpose to be dominant for claim to privilege to succeed - Whether form of wording of report conclusive as to purpose for which pre pared

The plaintiff's husband was employed by the defendant railways board. In a collision between locomotives, he received injuries from which he died. The practice of the board when an accident occurred was that on the day of the accident a brief report was made to the railway inspectorate soon afterwards a joint internal report (“the joint inquiry report”) was prepared incorporating statements of witnesses, which was also sent to the inspectorate and in due course a report was made by the inspectorate for the Department of the Environment. The heading of the joint inquiry report stated that it had finally to be sent to the board's solicitor for the purpose of enabling him to advise the board. The plaintiff brought an action against the board under the Fatal Accidents Acts, alleging that the collision had been caused by their negligence, and sought discovery of, inter alia, the joint inquiry report. The board, who denied negligence and alleged that the collision had been caused or contributed to by the deceased's own negligence, refused to disclose the report on the ground, as stated in an affidavit sworn on their behalf, that one of the principal purposes for preparing it had been so that it could be passed to their chief solicitor to enable him to advise the board on its legal liability and, if necessary, conduct their defence to the proceedings, and that it was accordingly the subject of legal professional privilege. On an interlocutory application by the plaintiff for discovery of the report, the master ordered discovery, but an appeal by the board from his order was allowed by Donaldson J., and the Court of Appeal by a majority (Eveleigh L.J. and Sir David Cairns, Lord Denning M.R. dissenting) dismissed an appeal by the plaintiff from Donaldson J.'s order.

On appeal by the plaintiff: —

Held, allowing the appeal, that the due administration of justice strongly required that a document such as the internal inquiry report, which was contemporary, contained statements by witnesses on the spot and would almost certainly be the best evidence as to the cause of the accident, should be disclosed; that for that important public interest to be overridden by a claim of privilege the purpose of submission to the party's legal advisers in anticipation of litigation must be at least the dominant purpose for which it had been prepared; and that, in the present case, the purpose of obtaining legal advice in anticipation of litigation having been no more than of equal rank and weight with the purpose of railway operation and safety, the board's claim for privilege failed and the report should be disclosed (post, pp. 153H–154A, F–H, 155H–156A, 157E–G, 159H–160B, D, 165B, H, 167A–C).

Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850, C.A.; Ankin v. London and North Eastern Railway Co. [1930] 1 K.B. 527, C.A.; and Ogden v. London Electric Railway Co. (1933) 49 T.L.R. 542, C.A. overruled.

Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, Sir George Jessel M.R. and C.A. and Grant v. Downs (1976) 135 C.L.R. 674 considered.

Per curiam. The fact that the report stated on its face that it had finally to be sent to the board's solicitor for the purpose of enabling him to advise it cannot be conclusive as to the dominant purpose for which it was prepared (post, pp. 153H, 160D, 161G–H, 167B–C).

Dictum of Lord Strathclyde, Lord President, in Whitehill v. Glasgow Corporation, 1915 S.C. 1015, 1017 applied.

Decision of the Court of Appeal reversed.

The following cases are referred to in their Lordships' opinions:

Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, Sir George Jessel M.R. and C.A.

Ankin v. London and North Eastern Railway Co. [1930] 1 K.B. 527, C.A.

Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850, C.A.

Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874, H.L.(E.).

Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435; [1942] 1 All E.R. 142, H.L.(Sc.).

Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973] 2 All E.R. 1169, H.L.(E.).

D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, H.L.(E.).

Grant v. Downs (1976) 135 C.L.R. 674; 11 A.L.R. 577.

Jones v. Great Central Railway Co. [1910] A.C. 4, H.L.(E.).

Jones v. Monte Video Gas Co. (1880) 5 Q.B.D. 556, C.A.

Konia v. Morley [1976] 1 N.Z.L.R. 455.

Lawrence v. Campbell (1859) 4 Drew. 485.

Longthorn v. British Transport Commission [1959] 1 W.L.R. 530; [1959] 2 All E.R. 32, C.A.

Northern Construction Co. v. British Columbia Hydro and Power Authority (1970) 75 W.W.R. 21.

Ogden v. London Electric Railway Co. (1933) 49 T.L.R. 542, C.A.

Reg. in Right of Canada v. Hawker Siddeley Canada Ltd. (1976) 73 D.L.R. (3d) 453.

Seabrook v. British Transport Commission [1959] 1 W.L.R. 509; [1959] 2 All E.R. 15.

Southwark and Vauxhall Water Co. v. Quick (1878) 3 Q.B.D. 315, C.A.

Vernon v. Board of Education for the Borough of North York (1975) 9 O.R.(2d) 613.

Whitehill v. Glasgow Corporation, 1915 S.C. 1015.

The following additional cases were cited in argument:

Adam Steamship Co. Ltd. v. London Assurance Corporation [1914] 3 K.B. 1256, C.A.

Collins v. London General Omnibus Co. (1893) 68 L.T. 831, D.C.

Cook v. North Metropolitan Tramway Co. (1889) 54 J.P. 263, D.C.

London and Tilbury Railway Co. v. Kirk and Randall (1884) 28 S.J. 688, D.C.

Westminster Airways Ltd. v. Kuwait Oil Co. Ltd. [1951] 1 K.B. 134; [1950] 2 All E.R. 596, C.A.

Woolley v. North London Railway Co. (1869) L.R. 4 C.P. 602.

INTERLOCUTORY APPEAL from the Court of Appeal.

By an action against the respondent defendants, the British Railways Board, the appellant plaintiff, Alice Simpson Waugh (widow of John Wallace Waugh, deceased), claimed damages against the board in respect of the death of the deceased under the provisions of the Fatal Accidents Acts 1846–1959, alleging that a collision between two of the board's locomotives that had resulted in the death of the deceased, who had been employed by the board, had been caused by the negligence of the board, their servants or their agents. By their defence, the board denied negligence, and alleged that the collision had been caused or contributed to by the deceased's own negligence. The plaintiff sought discovery of an internal inquiry report made by two officers of the board two days after the accident, but the board refused discovery on the ground of legal professional privilege. On an interlocutory application by the plaintiff, Master Bickford Smith, on January 26, 1978, ordered disclosure of the report, but Donaldson J., on May 8, 1978, allowed an appeal by the board from that order. The Court of Appeal, on July 28, 1978, by a majority (Eveleigh L.J. and Sir David Cairns, Lord Denning M.R. dissenting) dismissed an appeal by the plaintiff. The plaintiff appealed by leave of the Court of Appeal.

The facts are set out in their Lordships' opinions.

Peter Weitzman Q.C. and Michael Brent for the plaintiff.

Francis Irwin Q.C. and Frederick Marr-Johnson for the board.

Their Lordships took time for consideration.

July 12. LORD WILBERFORCE. My Lords, the appellant s husband was an employee of the British Railways Board. A locomotive which he was driving collided with another so that he was crushed against a tank wagon. He received injuries from which he died. The present action is brought under the Fatal Accidents Acts 1846–1959 and this appeal arises out of an interlocutory application for discovery by the board of a report called the “joint inquiry report,” made by two officers of the board two days after the accident. This was resisted by the board on the ground of legal professional privilege. The Court of Appeal, Eveleigh L.J. and Sir David Cairns, Lord Denning M.R. dissenting, refused the application.

When an accident occurs on the board's railways, there are three reports which are made. 1. On the day of the accident a brief report of the accident is made to the Railway Inspectorate. 2. Soon afterwards a joint internal report is prepared incorporating statements of witnesses. This too is sent to the Railway Inspectorate. Preparation of this report, it appears, is a matter of practice: it is not required by statute or statutory regulation. 3. In due course a report is made by the Railway Inspectorate for the Department of the Environment.

The document now in question is that numbered 2. The circumstances in which it came to be prepared, and the basis for the claim of privilege, were stated in an affidavit sworn on behalf of the board by Mr. G. T.

Hastings, assistant to the general manager of the Eastern Region. I find it necessary to quote the significant passages in this affidavit.

“3. The general manager of the Eastern Region is required (as are the general managers of the other railways regions) to submit returns to the Department of [the] Environment in respect of accidents occurring on or about any railway … 6. It has long been the practice of the board and its predecessors to require that returns and reports on all accidents occurring on the railway and joint internal departmental inquiries into the causes of the said accident be made by the local officers of the...

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