Woods v Duncan and Others Duncan and Another v Hambrook and Others Duncan and Another v Cammell Laird & Company, Ltd (Consolidated Appeals.)
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Macmillan,Lord Wright,Lord Porter |
| Judgment Date | 27 April 1942 |
| Judgment citation (vLex) | [1942] UKHL J0427-2 |
| Date | 27 April 1942 |
| Court | House of Lords |
[1942] UKHL J0427-2
Lord Chancellor
Lord Thankerton
Lord Russell of Killowen
Lord Macmillan
Lord Wright
Lord Porter
Lord Clauson
House of Lords
After hearing Counsel, as well on Friday the 13th, as on Monday the 16th and Tuesday the 17th, days of March last, upon the Petition and Appeal of Rose Duncan of 5 Elgin Terrace, Edinburgh, Scotland, and Mabel Mary Jane Craven of 231 Lansdowne Road, Birkenhead, Chester, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 13th of March 1941, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Cammell Laird and Company Limited, 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 13th day of March 1941, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Question to be determined in this Appeal is as to the circumstances 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 representative, 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 question 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 produce 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 Commissioners of the Admiralty and subject to the directions of the First Lord of the Admiralty and not otherwise, and the attention 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 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 contained 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 accordingly instructed the Treasury Solicitor to write on behalf of the Lords Commissioners to the Solicitors to the said Defendants 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 decision 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 objection 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 withheld 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 cases a claim, validly made in other respects, to withhold documents 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, pronounced 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, Commissioners 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...
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