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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Waugh v British Railways Board [1979] UKHL 2 (12 July 1979) URL: http://www.bailii.org/uk/cases/UKHL/1979/2.html Cite as: [1980] AC 521, [1979] UKHL 2, [1979] 3 WLR 150, [1979] 2 All ER 1169 |
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Die Jovis, 4° Junii 1964
Parliamentary
Archives,
HL/PO/JU/4/3/1368
HOUSE OF LORDS
WAUGH (APPELLANT)
v.
BRITISH RAILWAYS BOARD (RESPONDENTS)
Lord
Wilberforce
Lord Simon of Glaisdale
Lord Edmund-Da vies
Lord
Russell of Killowen
Lord Keith of Kinkel
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 Accident Acts
and this appeal arises out of
an interlocutory application for
discovery by the Board of a report called the
joint enquiry
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.
On the
day of the accident a brief report of the accident is made to
the
Railway Inspectorate.
Soon
afterwards a joint internal report is prepared incorporating
state-
ments 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.
In due
course a report is made by the Railway Inspectorate for the
Depart-
ment 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 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
rail-
" way and joint internal departmental enquiries into
the causes of the
" said accident be made by the local
officers of the Board who would for-
" ward them to their
superiors in order to assist in establishing the causes
" of
such accidents.
' 7. Such
reports and the statements of witnesses to such accidents are
"
made for the purposes mentioned in paragraphs 3 and 6 of this
Affidavit
" and equally for the purpose of being submitted to
the Board's Solicitor
" as material upon which he can advise
the Board upon its legal liability
" and for the purpose of
conducting on behalf of the Board any proceedings
" arising
out of such accidents....
"
9. It is commonly anticipated by the Board that:
" (a)
where an employee of the Board suffers personal injury or death
"
at work or
" (b)
where a passenger suffers loss or personal injury or death while
"
on or about the railway
2
" a
claim for damages will be made against the Board and proceedings
will
" ensue if liability is repudiated. The present action
is brought as the
" result of a fatal accident suffered at
work by the late husband of the
" Plaintiff and it was
anticipated from the very outset that a claim for
" damages
would almost certainly ensue.
" 10.
The documents in this action namely the reports made by the Board's
"
officers and servants and the report referred to in correspondence as
the
" Internal Enquiry Report for which the Defendants have
claimed privilege
" in Part 2 of the First Schedule of their
List of Documents dated 11th day
" of November 1977 came into
existence by reason of the fact that the
" appropriate
officer, in this case the Divisional Manager at Newcastle in
"
accordance with long standing practice was required to and did so
call for
" such reports and statements. One of the principal
purposes for so doing
" was so that they could be passed to
the Board's Chief Solicitor to enable
" him to advise the
Board on its legal liability and if necessary conduct its
"
defence to these proceedings.
"11.
The Internal Enquiry Report in fact states on the face of it that it
has
" finally to be sent to the solicitor for the purpose of
enabling him to
" advise the Board."
This last paragraph refers to the wording which appears at the head of the
report:
" For
the information of the Board's solicitor: This form is to be used
by
" every person reporting an occurrence when litigation by
or against the
" B.R.B. is anticipated. It is to be provided
by the person making it to his
" Immediate Superior Officer
and has finally to be sent to the Solicitor for
" the purpose
of enabling him to advise the B.R.B. in regard thereto ".
Whatever
this heading may say, the affidavit makes it clear that the report
was
prepared for a dual purpose: for what may be called railway
operation and
safety purposes and for the purpose of obtaining
legal advice in anticipation of
litigation, the first being more
immediate than the second, but both being
described as of equal
rank or weight. So the question arises whether this is
enough to
support a claim of privilege, or whether, in order to do so, the
second
purpose must be the sole purpose, or the dominant or main
purpose. If either
of the latter is correct, the claim of
privilege in this case must fail.
My Lords,
before I consider the authorities, I think it desirable to attempt
to
discern the reason why what is (inaccurately) called legal
professional
privilege exists. It is sometimes ascribed to the
exigencies of the adversary
system of litigation under which a
litigant is entitled within limits to refuse
to disclose the
nature of his case until the trial. Thus one side may not ask to
see
the proofs of the other side's witnesses or the opponent's brief or
even
know what witnesses will be called: he must wait until the
card is played and
cannot try to see it in the hand. This argument
cannot be denied some validity
even where the defendant is a
public corporation whose duty it is, so it might
be thought, while
taking all proper steps to protect its revenues, to place all
the
facts before the public and to pay proper compensation to those it
has
injured. A more powerful argument to my mind is that
everything should be
done in order to encourage anyone who knows
the facts to state them fully
and candidly—as Jessel M.R.
said, to bare his breast to his lawyer. (Anderson v.
Bank of
British Columbia 2 Ch.D. 644, 699). This he may not do unless
he
knows that his communication is privileged.
But the
preparation of a case for litigation is not the only interest
which
call for candour. In accident cases " the safety of the
public may well depend
" on the candour and completeness of
reports made by subordinates whose
" duty it is to draw
attention to defects " (Conway v. Rimmer [1968] A.C. 910,
941 per Lord Reid). This however does not by itself
justify a claim to privilege
since, as Lord Reid continues,
... no one
has ever suggested that public safety has been endangered
"
by the candour or completeness of such reports having been
inhibited
" by the fact that they may have to be produced if
the interests of the due
" administration of justice should
ever require production at any time. "
3
So one may
deduce from this the principle that while privilege may be re-
quired
in order to induce candour in statements made for the purposes
of
litigation it is not required in relation to statements whose
purpose is different—
for example to enable a railway to
operate safely.
It is
clear that the due administration of justice strongly requires
disclosure
and production of this report: it was contemporary; it
contained statements
by witnesses on the spot; it would be not
merely relevant evidence, but almost
certainly the best evidence
as to the cause of the accident. If one accepts that
this
important public interest can be overridden in order that the
defendant
may properly prepare his case, how close must the
connection be between
the preparation of the document and the
anticipation of litigation? On principle
I would think that the
purpose of preparing for litigation ought to be either
the sole
purpose or at least the dominant purpose of it: to carry the
protection
further into cases where that purpose was secondary or
equal with another
purpose would seem to be excessive, and
unnecessary in the interest of en-
couraging truthful revelation.
At the lowest such desirability of protection as
might exist in
such cases is not strong enough to outweigh the need for all
relevant
documents to be made available.
There are
numerous cases in which this kind of privilege has been considered.
A
very useful review of them is to be found in the judgment of Havers
J. in
Seabrook v. British Transport Commission [1959]
1 W.L.R. 509 which I shall
not repeat. It is not easy to extract a
coherent principle from them. The two
dominant authorities at the
present time are Birmingham Omnibus Co. Ltd. v.
L.N.W.R.
Co. [1913] 3 K.B. 850 and Ogden v. London Electric
Railway Co.
(1933) 49 T.L.R. 542, both decisions of the Court
of Appeal. These cases
were taken by the majority of the Court of
Appeal in the present case to require
the granting of privilege in
cases where one purpose of preparing the docu-
ment(s) in question
was to enable the defendants' case to be prepared whether
or not
they were to be used for another substantial purpose. Whether in
fact
they compel such a conclusion may be doubtful—in
particular I do not under-
stand the Birmingham case to be
one of dual purposes at all: but it is enough
that they have been
taken so to require. What is clear is that, though loyally
followed,
they do not now enjoy rational acceptance: in Longthorn v.
British
Transport Commission [1959] 1 W.L.R. 530 the manner in
which Diplock J.
managed to escape from them, and the tenor of his
judgment, shows him to
have been unenthusiastic as to their
merits. And in A. Crompton Ltd. v. Customs
& Excise
Commissioners [1974] A.C. 405 Lord Cross of Chelsea pointedly
left
their correctness open, while Lord Kilbrandon stated that he
found the judgment
of Scrutton L.J. in Ogden's case "
hard to accept ". Only Viscount Dilhorne
(dissenting) felt
able to follow them in holding it to be enough if one purpose
is
the use by solicitors when litigation is anticipated.
The whole
question came to be considered by the High Court of Australia in
1976
(Grant v. Downs, 11 A.L.R. 577; (1976) 135 C.L.R. 674).
This case involved
reports which had " as one of the material
purposes for their preparation "
submission to legal advisers
in the event of litigation. It was held that privilege
could not
be claimed. In the joint judgment of Stephen, Mason and Murphy
JJ.,
in which the English cases I have mentioned were discussed
and analysed, it was
held that " legal professional privilege
" must be confined to documents brought
into existence for
the sole purpose of submission to legal advisers for advice or
use
in legal proceedings. Jacobs J. put the test in the form of a
question, " Does
" the purpose—in the sense of
intention, the intended use—of supplying the
" material
to the legal adviser account for the existence of the
material".
Barwick C.J. stated it in terms of "dominant
" purpose. This is closely in line
with the opinion of the
Master of the Rolls in the present case that the privilege
extends
only to material prepared " wholly or mainly for the purpose
of
" preparing [the defendant's] case ". The High Court
and the Master of the
Rolls agree in refusing to follow the
Birmingham case and Ogden, as generally
understood.
My Lords,
for the reasons I have given, when discussing the case in
principle,
I too would refuse to follow those cases. It appears to
me that unless the
purpose of submission to the legal adviser in
view of litigation is at least the
4
dominant
purpose for which the relevant document was prepared, the
reasons
which require privilege to be extended to it cannot apply.
On the other hand to
hold that the purpose, as above, must be the
sole purpose, would, apart from
difficulties of proof, in my
opinion, be too strict a requirement, and would
confine the
privilege too narrowly: as to this I agree with Barwick C.J. and
in
substance with Lord Denning M.R. While fully respecting the
necessity for the
Lords Justices to follow previous decisions of
their court, I find myself in the
result in agreement with Lord
Denning's judgment. I would allow the appeal and
order disclosure
of the joint report.
Lord Simon of Glaisdale
MY LORDS,
The
appellant's late husband, an employee of the respondents, was killed
in
an accident on part of their railway system. In accordance with
their usual
practice, shared by many industrial and commercial
undertakings in such
circumstances, a report was made about the
circumstances of the accident. As
so often, the report came into
being partly for the purpose of ascertaining
whether the working
system was defective and could be improved so as to
obviate such
accidents, partly for the purpose of informing the
respondents'
solicitors in case of the threat or initiation of
litigation, which, at the time when
the report was made, was
contemplated by the respondents as possible or
probable. The
report, as is usual, contains statements by all such persons as
could
throw light on the circumstances of the accident, the majority of
whom
could be witnesses in any ensuing litigation. Litigation
having in fact been
started by the appellant against the
respondents, the former has sought dis-
closure of the report to
assist her in the preparation and/or conduct of her case.
The
respondents resist its disclosure, on the ground that it is protected
from
disclosure by legal professional privilege.
The
situation being far from unusual, the issue has quite frequently
been
before the courts. The English authorities were meticulously
reviewed by
Havers J. in Seabrook v. B.T.C. [1959] 1
W.L.R. 509. His conclusion was that he
was bound by what was said
by the majority of the Court of Appeal in
Birmingham Omnibus
Company Ltd. v. L.N.W.R. Co. [1913] 3 K.B. 850, and by
the
ensuing Court of Appeal decisions in Ankin v. L.N.E.R. Co. [1930]
1 K.B.
527 and Ogden v. London Electric Railway Company
(1933) 49 T.L.R. 542. The
law thus laid down was that such a
report need not be disclosed if one of its
purposes (even though
subsidiary) was to inform the solicitor with a view to
litigation
contemplated as possible or probable. That this was the
correct
distillation of the prevailing case law was recognised by
Diplock J. in Longthorn
v. B.T.C. [1959] 1 W.L.R.
530; though he deftly avoided its application. It was
also
recognised as the prevailing English law, and applied, by various
Canadian
courts: see Northern Construction Company v.
British Columbia Hydro & Power
Authority (1970) 78
W.W.R. 21; Vernon v. Board of Education for the Borough
of
North York (1975) 9 O.R. (2d) 613; The Queen in Right of
Canada v. Hawker
Siddeley Co. Ltd. (1977) 73 D.L.R. 453. In
New Zealand, too, the Court of
Appeal held that to attract
privilege its use in reasonably apprehended litigation
need not be
the only purpose of the document (though it must be an
appreciable
purpose): Konia v. Morley [1976] 1
N.Z.L.R. 455. Ankin and Ogden being
English Court of
Appeal decisions, the law declared there was binding on, and
applied
by the majority of, the Court of Appeal in the instant case.
The
earlier authorities are, however, by no means so categorical; and
the
views of Hamilton L.J. in Birmingham Omnibus Co. Ltd. v.
L.N.W.R. Co. were
preferred, though not as a matter of
decision, by the majority of the members
of the Appellate
Committee in Alfred Crompton Amusement Machines v.
Customs
and Excise Commissioners (No. 2) [1974] A.C. 405; and it was
the
Birmingham Omnibus case which was the foundation of
Ankin and Ogden. In
5
Grant
v. Downs [1976] A.L.R. 577 the majority of the High Court
in Australia
took those earlier authorities into account and also
the doubt that had been
thrown on the more recent ones in Alfred
Crompton Amusement Machines Ltd. v.
Customs and Excise
Commissioners (No. 2); and, weighing various
other
considerations, held that to attract privilege the use of
the document for
reasonably anticipated litigation must be its
sole purpose. Barwick C.J.," having
" considered the
decisions, the writings and the various aspects of the public
"
interest which claim attention ", thought that use of the
document either for
legal advice or to be used in reasonably
apprehended litigation had to be the
dominant purpose in order to
attract privilege from disclosure. The Law Reform
Committee, in
its 16th Report (Privilege in Civil Proceedings, Cmnd.
3472,1967)
thought that, under the subsisting English law, the
test of privilege was that the
document should be " wholly or
mainly " for the purpose of preparing one's
case in
litigation then pending or contemplated; and, although I do not
myself
consider that that was the prevailing law (nor, indeed, I
think, did the learned
Master of the Rolls in the instant case,
for all that he favoured it as the test),
the views of such an
eminent Committee are entitled to great respect.
The upshot
of this cursory conspectus of the authorities is that your
Lord-
ships are, in my view, free to consider the issue on grounds
of principle and
convenience, unembarrassed by any previous
authority. The appellant argues
that the correct test is that
preferred by the majority of the High Court in
Grant v.
Downs, namely the sole purpose; or, alternatively, that
preferred by
the learned Chief Justice, namely the dominant
purpose. The respondents argue
that Ankin and Ogden were
correctly decided, and that it is sufficient to attract
privilege
from disclosure if one of the purposes (however subsidiary) is with
a
view to apprehended litigation.
The issue
exemplifies a situation which frequently causes
difficulties—where
the forensic situation is covered by two
valid legal principles which point each
to a different forensic
conclusion. Here, indeed, both principles subserve the
same legal
value—the administration of justice. The first principle is
that the
relevant rules of law should be applied to the whole body
of relevant evidence-
in other words, in principle all relevant
evidence should be adduced to the court.
The report in question in
this appeal undoubtedly contains information relevant
to the
matters in issue in the litigation here. The first principle thus
indicates
that it should be disclosed, so that the appellant may
make use of it if she wishes.
The second
general principle arises out of the adversary (in contradiction
to
the inquisitorial) system of administration of justice. Society
provides an objec-
tive code of law and courts where civil
contentions can be decided. But it
contents itself with so
providing a forum and a code (and nowadays some
finance for those
who could not otherwise get justice). Having done so much,
society
considers that it can safely leave each party to bring forward the
evidence
and argument to establish his/her case, detaching the
judge from the hurly-
burly of contestation and so enabling him to
view the rival contentions dis-
passionately. It is true that this
does not in itself give rise to legal professional
privilege. Sir
Thomas More, before his time for judicial and
administrative
responsibility, had a different system for the
Utopians:
" For
they thinke it most mete, that euery man shuld pleade his ovvne
"
matter, and tell the same tale before the iudge, that he would tel to
his
" man of lawe. So shall there be lesse circumstaunce of
wordes, and the trueth
" shal soner cum to light; whiles the
iudge with a discrete iudgement doth
" waye the wordes of him
whom no lawier hath instruct with deceit; and
" whiles he
helpeth and beareth out simple wittes agaynst the false and
"
malicious circumuertions of craftie chyldren." (Utopia, 1516,
tr. Ralph
Robinson, 1551, Bk. 2 [ch.7]).
This is
all very fine; but that great moralist and master of common
sense,
Dr. Johnson, saw the snag. Quite apart from the descent of
the judge into the
arena:
" As
it rarely happens that a man is fit to plead his own cause, lawyers
are a
" class of the community, who, by study and experience,
have acquired the
6
" art
and power of arranging evidence, and of applying to the points at
"
issue what the law has settled. A lawyer is to do for his client all
that his
" client might fairly do for himself if he could."
(Boswell, Life of Johnson,
ed. Birkbeck Hill, vol. v, 26,
72).
So the
adversary system calls for legal representation if it is to operate
with such
justice as is vouchsafed to humankind.
This
system of adversary forensic procedure with legal professional
advice
and representation demands that communications between
lawyer and client
should be confidential, since the lawyer is for
the purpose of litigation merely
the client's alter ego. So
too material which is to go into the lawyer's (i.e. the
client's)
brief or file for litigation. This is the basis for the privilege
against
disclosure of material collected by or on behalf of a
client for the use of his
lawyer in pending or anticipated
litigation: see Cotton L.J. in Southwark &
Vauxhall Water
Co. v. Quick (1878) 3 Q.B.D. 315, 321-322; D. v.
N.S.P.C.C.
[l978] A.C. 171. 231: 16th Report of Law Reform
Committee, paras. 17-21.
Apart from the limited exception of some
expert evidence, for which the Rules of the
Supreme Court make
express provision (0.38, r37), a party in civil litigation is not
entitled
to see his adversary's proofs of what the witnesses will
say at the trial; there
has been no suggestion that he should be
so entitled; and any such development
would require the most
careful consideration based on widespread consultation.
The report
in question in this appeal undoubtedly contains material collected
by
or on behalf of the respondents for the use of their solicitors in
anticipated
legislation. The second principle thus indicates that
the respondents are entitled
to claim that it is confidential as
between themselves and their solicitors and
that they are not
bound to disclose it.
"Historically, the second principle - that a litigant
must
"bring
forward his own evidence to support his case, and
"cannot
call on his adversary to make or aid it - was
"fundamental
to the outlook of the courts of common law.
"The
first principle - that the opponent might be compelled
"to
disclose relevant evidence in his possession - was
the
"doctrine
of the Chancery, a court whose conscience would
"be
affronted by forensic success contrary to justice
"obtained
merely through the silent non-co-operation of the
"defendant
(see Y.B. 2 Ed. IV, Trin.9), and which therefore
"had
some inclination to limited inquisitorial procedures.
"The
conflict between the Chancery and the courts of common
"law
was, here as elsewhere, ultimately resolved by
"compromise
and accommodation."
I can see
no intrinsic reason why the one principle rather than the
other
should prevail in a situation where they are
counter-indicative. Neither is
absolute: both are subject to
numerous exceptions. For example, if a document
protected by legal
professional privilege (or secondary evidence of it) has
been
obtained by the opposite party independently—even
through the default
of the legal adviser—even by
dishonesty—either will probably be admissible:
Phipson on
Evidence. 12th ed. 1976, p.241, para. 584; 16th Report of the
Law
Reform Committee, para. 31. The numerous exceptions to the
principle that all
relevant evidence should be disclosed arise
partly from historical reasons
(the tensions between the courts of
common law, where questions of fact were
tried, and the Court of
Chancery, where the remedy of discovery was devel-
oped). partly
from considerations of justice, partly from wider social
con-
siderations: see D. v. N.S.P.C.C. at pp.231 et seq.
Thus the historical exclusion
of hearsay evidence. " the
best evidence " rule and " without prejudice
"
communications are examples of exceptions to the principle
of adduction of all
relevant evidence. So too is the rule
excluding, in general, evidence going
merely to the discredit of a
witness, even though the credibility of the witness
may be
decisive of the case. But the exception which most nearly touches
the
issue facing your Lordships was cogently invoked in this very
connection by
James L.J. in Anderson v. Bank of British
Columbia (1876) 2 Ch.D. 644 at p.656:
"...
as you have no right to see your adversary's brief, you have no
right
" to see that which comes into existence merely as the
materials for the
" brief. "
The
adversary's brief will contain much relevant material; nevertheless,
you
cannot see it because that would be inconsistent with the
adversary forensic
process based on legal representation. I would,
though, draw attention to the
word " merely " in James
L.J.'s dictum.
There is,
then, no a priori reason why the one general principle should
yield
to the other. But in my judgment each party's main
contention would virtually
result in the total exclusion of the
principle relied on by the other. The rule in
Ogden in
effect means that reports such as that in the instant case will
always
be excluded, because it is unlikely that there is not in
such circumstances
even the subsidiary purpose of informing the
legal advisers. On the other hand,
to enjoin that privilege can
only be claimed if the information of legal advisers
7
is the
sole purpose of the report will in effect mean that such reports
must
always be disclosed, because it is unlikely that in such
circumstances there
will not be even the subsidiary purpose of
ascertaining whether the system of
work can be improved. Indeed,
in this type of report causation and fault can
hardly be kept
apart.
Your
Lordships will therefore, I apprehend, be seeking some
intermediate
line which will allow each of the two general
principles scope in its proper
sphere. Various intermediate
formulae as a basis for the privilege have been
canvassed in
argument before your Lordships, most based on some authority—
the
obtaining of legal advice was " an appreciable purpose ";
"a substantial
purpose"; " the substantial
purpose"; it was "wholly or mainly" for that
purpose;
that was its " dominant " purpose; that was its "
primary " purpose.
Some of
these are in my view too vague. Some give little or no scope to
the
principle of open litigation with the minimum exclusion of
relevant evidence.
The one that appeals most to me is "dominant"
purpose, as it did to Barwick
C.J. in Grant v. Downs. It
allows scope to each of the governing principles. It
seems to me
less quantitative than "mainly"; and I think it would be
easier
to apply—the law is already cognizant of the concept
of a dominant purpose—
in the law of conspiracy, for example
(see Crofter Hand Woven Harris Tweed
Co. Ltd. v. Veitch
[1942] A.C. 435, especially at pp. 445 Viscount Simon L.C.,
452
Viscount Maugham) and in the law as to fraudulent preference in
bank-
ruptcy (see Halsbury's Laws of England 4th ed., vol.
3, pp. 496, 499, paras
908, 913).
I would
therefore overrule Ankin v. L.N.E.R. Co. and Ogden
v. London
Electric Railway Company.
My noble
and learned friend on the Woolsack has already cited the
crucial
passages from the affidavit of Mr. Hastings. These show
that the procuring of
legal advice or preparation for litigation
was not the dominant purpose of the
report. It follows that the
claim for legal professional privilege fails, and the
report must
be disclosed.
Accordingly, I would allow the appeal.
Lord Edmund-Davies
MY LORDS,
The
circumstances of the fatal accident on 4th May 1976 giving rise to
this
litigation have already been related by my noble and learned
friend, Lord
Wilberforce. A copy of the short report sent the same
day by the respondent
Board to the Ministry of Transport in
accordance with section 6 of the Regu-
lation of Railways Act 1871
has been furnished to the appellant's solicitors.
They have also
been supplied with a copy of the report of 29th October 1976
prepared
by the Railway Inspectorate of the Department of Transport. But
what
has not been disclosed is the 6th May 1976 report based upon a
joint
internal inquiry conducted by the Board's personnel. The
importance to the
appellant of such a report, made only two days
after the accident and when the
memory of witnesses were fresh, is
manifest. But from the outset disclosure
ot its contents has been
resisted. In their list of documents the Board claimed
that they
were " documents which came into existence and were made by
the
" Defendants or their Officers or Servants after this
litigation was in contem-
" plation and in view of such
litigation for the purpose of obtaining for and
" furnishing
to the Solicitor of the Defendants evidence and information as
"
to the evidence which will be obtained or otherwise for the use of
the said
" Solicitor to enable him to conduct the Defence in
this Action or to advise
" the Defendants".
8
But that
the reports referred to were not made solely for litigation
purposes
emerged when the Board, being nevertheless pressed for
disclosure of the
internal enquiry report, responded by an
affidavit sworn by Mr. Hastings,
Assistant General Manager of
their Eastern Region. So important is it that I
must quote from it
at some length:
" 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 enquiries into the
causes of the said
" accident be made by the local officers
of the Board who would forward
" them to their superiors in
order to assist in establishing the causes of
" such
accidents.
" 7.
Such reports and the statements of witnesses to such accidents are
"
made for the purposes mentioned in paragraphs 3 and 6 of this
Affidavit
" and equally for the purpose of being submitted to
the Board's Solicitor
" as material upon which he can advise
the Board upon its legal liability
" and for the purpose of
conducting on behalf of the Board any proceed-
" ings arising
out of such accidents.
" 8.
This system of reporting accidents and making joint internal
depart-
" mental enquiries into the causes of the said
accidents and laying down the
" necessary instructions to the
relevant staff to do so for the purposes
" aforesaid
continues today.
" 9. It is commonly anticipated by the Board that:
" (a) where an employee of the Board suffers personal injury or death
" at work or
" (b) where a passenger suffers loss or personal injury or death while
" on or about the railway
" a
claim for damages will be made against the Board and proceedings
will
" ensue if liability is repudiated. The present action
is brought as the result
" of a fatal accident suffered at
work by the late husband of the Plaintiff
" and it was
anticipated from the very outset that a claim for damages
"
would almost certainly ensue.
" 10.
The documents in this action namely the reports made by the Board's
"
officers and servants and the report referred to in correspondence as
the
" Internal Enquiry Report for which the Defendants have
claimed privilege
" in Part 2 of the First Schedule of their
List of Documents dated 11th day
" of November 1977 came into
existence by reason of the fact that the
" appropriate
officer, in this case the Divisional Manager at Newcastle in
"
accordance with long standing practice was required to and did so
call
" for such reports and statements. One of the principal
purposes for so
" doing was so that they could be passed to
the Board's Chief Solicitor to
" enable him to advise the
Board on its legal liability and if necessary
" conduct its
defence to these proceedings.
"11.
The Internal Enquiry Report in fact states on the face of it that it
has
" finally to be sent to the solicitor for the purpose of
enabling him to
" advise the Board."
In the
light of such affidavit, learned counsel for the appellant accepts
that he
cannot challenge that litigation arising out of the fatal
accident was anticipated
when the report of 6th May 1976 was
prepared; see Jones v. Montevideo Gas Co.
(1880) 5
Q.B.D. 556. The fact that the report states on its face that it
finally
to be sent to the solicitor for the purpose of
enabling him to advise the Board
cannot, however, be determinative
of the outcome of this appeal, for, as the
Lord President (Lord
Strathclyde) said in Whitehill v. Glasgow
Corporation
(1915, S.C. 1015, at 1017)—quoted with
approval by Lord Kilbrandon in A.
Crompton Ltd. v. Customs
& Excise Commissioners [1974] A.C. 405, at 435H-
"
These words cannot alter the character of the report which is made
by
" the employee for the purpose of informing his employers
of the accident,
" and made at the time ".
My Lords,
in the light of their own affidavit, are the Board entitled to
resist
disclosure? There is a very large body of case-law on the
topic of legal profes-
sional privilege, much of which was
reviewed in Seabrook v. B.T.C. [1959]
1 W.L.R. 509
by Havers, J., who quoted extensively from earlier decisions. It
9
would not,
I think, be helpful were I to make a further attempt to do that
which
that learned judge so admirably accomplished. Instead, I
propose to consider
first whether Eveleigh L.J. and Sir David
Cairns were right in holding that the
earlier Court of Appeal
decisions in Birmingham Omnibus Co. Ltd. v. L. N. W.R.
Co.
[1913] 3 K.B. 850 and Ogden v. London Electric Railway
Co. (1933) 49
T.L.R. 542 compelled them to dismiss the
plaintiff's appeal from the decision
of Donaldson J. refusing
disclosure.
In the
Birmingham case Buckley L.J. (with whom Vaughan Williams,
L.J.
concurred) said (at p. 856):
" It
is not I think necessary that the affidavit should state that the
informa-
" tion was obtained solely or merely or primarily
for the solicitor, if it was
" obtained for the solicitor, in
the sense of being procured as materials
" upon which
professional advice should be taken in proceedings pending,
"
or threatened, or anticipated" .
That
passage was cited with approval in Ogden, the facts of which
were strikingly
similar to those of the present case, Scrutton
L.J., saying (at p. 543, with reference
to a non-privileged
purpose for which accident reports were obtained):
" It
may be that that is part of the purpose of making the reports, but
"
there is also the substantial purpose that if a writ is issued
these are
" the materials that will be wanted by the
solicitor conducting the litigation,
" and they are obtained
for that purpose, among others, and as appears
" from the
form at which we look ... the reports are made on a form
"
headed: ' For the information of the company's solicitors only ',
which
" is a very important heading to have, because if you
know that you are
" making a confidential report to the
solicitor you are much more likely
" to state accurately what
has happened than if you are afraid that some-
" body
presently seeing that report may take proceedings against you in
"
respect of the statements that you have made which may be
defamatory."
I have
already indicated my inability (in concurrence with Lord Denning
M.R.
in the present case) to have regard to such a heading.
Nevertheless, Birmingham
and Ogden are authorities
for the proposition that reports such as that compiled
in the
instant case two days after the fatal accident are privileged even
though
they were obtained for other purposes as well as to meet
impending or
anticipated litigation. And they led the majority of
the Court of Appeal to hold
here that the internal enquiry report
need not be disclosed. Eveleigh, L.J.
going to the length of
saying—
"...
I believe that in so far as this court is concerned it has been
firmly
" established that the documents in question in the
present case are
" privileged.
They were obtained for the purpose of being sent to the
"
solicitors to serve in preparing the defendants' case for litigation
which
" was anticipated. And they would also be used for
another very substantial
" and even more important
purpose. On the authorities, I do not believe
" that this
entitles me to say that the privilege which otherwise would
"
have attached [to them] has been removed." (Italics added).
But Lord
Denning M.R., in the course of his dissenting judgment, refused
to
be bound by such earlier Court of Appeal decisions. Instead, he
adverted
to the view expressed in the 16th Report of the Law
Reform Committee (1967
Cmnd. 3472), para. 17, that, "... it
is, we think, essential . . . that [a party]
" should be
entitled to insist upon there being withheld from the court any
"
material which came into existence . . . wholly or mainly for the
purpose of
" preparing his case in litigation then pending or
contemplated by him ". The
Master of the Rolls added:
"
We should not extend it further. If material comes into being for a
"
dual purpose—one, to find out the cause of the accident—the
other to
" furnish information to the solicitor—it
should be disclosed, because
" it is not then ' wholly or
mainly ' for litigation. On this basis all the
" reports and
inquiries into accidents—which are made shortly after the
"
accident—should be disclosed on discovery and made available
in
" evidence at the trial."
10
Applying that test to the facts of this case, Lord Denning said:
" The
main purpose of this Enquiry and Report was to ascertain the cause
"
of the accident and to prevent further accidents or similar
occurrences.
" Its nearby purpose was to put before the
Departmental Inspectorate.
" Its far-off purpose was to put
before the solicitors of the Board, should
" a claim be made
and litigation ensue."
My Lords,
it will later emerge how closely I am at one with the Master of
the
Rolls in this matter. I must, however, say that I am in respectful
agreement
with the view adopted by Eveleigh, L.J. and Sir David
Cairns that Birmingham
and Ogden were binding upon
the Court of Appeal and that none of the many
other cases
cited—such as Jones v. Great Central Railway Co.
[1910] A.C.4,
A. Crompton Ltd. v. Customs & Excise
Commissioners (ante), Seabrook v. B.T.C.
(ante), and
Longthorn v. B.T.C. [1959] 1 W.L.R. 530—enabled
them to escape
from that thraldom. In these circumstances, I
regard it as fortunate for justice
that an appeal has reached this
House, for in my judgment a grievous wrong
might have been done
had Master Bickford Smith's original order in favour of
disclosure
not been finally upheld.
It is for
the party refusing disclosure to establish his right to refuse. It
may
well be that in some cases where that right has in the past
been upheld the courts
have failed to keep clear the distinction
between (a) communications between
client and legal adviser, and
(b) communications between the client and third
parties, made (as
the Law Reform Committee put it) " for the purpose of
"
obtaining information to be submitted to the client's professional
legal
" advisers for the purpose of obtaining advice upon
pending or contemplated
" litigation ". In cases falling
within (a), privilege from disclosure attaches to
communications
for the purpose of obtaining legal advice and it is immaterial
whether or not the possibility of litigation were even contemplated,
Vice-
Chancellor Kindersley saying in Lawrence v. Campbell
(1859) 4 Drew. 485,
at 490):
"...
it is not now necessary, as it formerly was, for the purpose of
obtain-
" ing protection, that the communications should be
made either during or
" relating to an actual or even to an
expected litigation. It is sufficient if
" they pass as
professional communications in a professional capacity. "
But in
cases falling within (b) the position is quite otherwise. Litigation,
appre-
hended or actual, is its hallmark. Referring to " the
rule which protects
" confidential communications from
discovery as regards the other side ",
Jessel, M.R. said in
Anderson v. Bank of British Columbia (1876) 2 Ch.D.
644,
at 649,
' The
object and meaning of the rule is this: that as, by reason of the
"
complexity and difficulty of our law, litigation can only be
properly
" conducted by professional men, it is absolutely
necessary that a man, in
" order to prosecute his rights or
to defend himself from an improper
" claim, should have
recourse to the assistance of professional lawyers,
" and it
being so absolutely necessary, it is equally necessary, to use a
"
vulgar phrase, that he should be able to make a clean breast of it to
the
" gentleman whom he consults with a view to the
prosecution of his claim,
" or the substantiating his defence
against the claim of others; that he
" should be able to
place unrestricted and unbounded confidence in the
"
professional agent, and that the communications he so makes to him
"
should be kept secret, unless with his consent (for it is his
privilege,
" and not the privilege of the confidential
agent), that he should be enabled
" properly to conduct his
litigation. That is the meaning of the rule. "
And in the
Court of Appeal James, L.J. summed up the position (ibid, at
656)
by speaking succinctly of ... an intelligible principle, that
as you have no
" right to see your adversary's brief, you
have no right to see that which comes
" into existence merely
as the materials for the brief. "
Preparation
with a view to litigation— pending or anticipated—being
thus
the essential purpose which protects a communication from disclosure
in
11
such cases
as the present, what in the last resort is the touchstone of the
pri-
vilege? Is it sufficient that the prospect of litigation be
merely one of the several
purposes leading to the communication
coming into being? And is that sufficient
(as Eveleigh, L.J. held)
despite the fact that there is also "another and even
"more
important purpose"? Is it enough that the prospect of litigation
is a
substantial purpose, though there may be others
equally substantial? Is an
appreciable purpose sufficient?
Or does it have to be the main purpose? Or
one of
its main purposes" (as in Ogden)? Ought your
Lordships to declare
that privilege attaches only to material
which (in the words of Lord Denning
M.R.) " comes within the
words ' wholly or mainly' for the purpose of
" litigation "?
Or should this House adopt the majority decision of the High
Court
of Australia in Grant v. Downs (1977) 11 A.L.R. 577
that legal pro-
fessional privilege must be confi:. to documents
brought into existence for
the sole purpose of submission
to legal advisers for advice or for use in legal
proceedings?
An
affirmative answer to each of the foregoing questions can be
supported
by one or more of the many reported decisions. And so
can a negative answer.
But no decision is binding upon this House,
and your Lordships are accordingly
in the fortunate position of
being free to choose and declare what is the proper
test. And in
my judgment we should start from the basis that the public
interest
is, on balance, best served by rigidly confining within
narrow limits the cases
where material relevant to litigation may
be lawfully withheld. Justice is
better served by candour than by
suppression. For, as it was put in the Grant v.
Downs
majority judgment (at p. 586), " privilege . . . detracts
from the fairness
" of the trial by denying a party access to
relevant documents or at least sub-
jecting him to surprise ".
Adopting
that approach, I would certainly deny a claim to privilege
when
litigation was merely one of several purposes of equal or
similar importance
intended to be served by the material sought to
be withheld from disclosure,
and a fortiori where it was
merely a minor purpose. On the other hand, I
consider that it
would be going too far to adopt the " sole purpose "
test
applied by the majority in Grant v. Downs (ante),
which has been adopted in no
United Kingdom decision nor, as
far as we are aware, elsewhere in the Com-
monwealth. Its adoption
would deny privilege even to material whose out-
standing purpose
is to serve litigation, simply because another and very minor
purpose
was also being served. But, inasmuch as the only basis of the
claim to
privilege in such cases as the present one is that the
material in question was
brought into existence for use in legal
proceedings, it is surely right to insist
that, before the claim
is conceded or upheld, such a purpose must be shown to
have played
a paramount part. Which phrase or epithet should be selected
to
designate this is a matter of individual judgment. Lord Denning
M.R., as we
have seen, favoured adoption of the phrase employed in
the Law Reform
Committee's report, viz. " material which came
into existence wholly or
" mainly " for
the purpose of litigation. " Wholly " I personally would
reject
for the same reason as I dislike " solely ", but
" mainly " is nearer what I
regard as the preferable
test. Even so, it lacks the element of clear paramountcy
which
should, as I think, be the touchstone. After considerable
deliberation, I
have finally come down in favour of the test
propounded by Barwick. C.J.
in Grant v. Downs (ante), at
p. 579 in the following words:
"
Having considered the decisions, the writings, and the various
aspects
" of the public interest which claim attention, I
have come to the con-
" elusion that the court should state
the relevant principle as follows: A
" document which was
produced or brought into existence either with the
" dominant
purpose of its author, or of the person or authority under
"
whose direction, whether particular or general, it was produced or
"
brought into existence, of using it or its contents in order to
obtain legal
" advice or to conduct or aid in the conduct of
litigation, at the time of its
" production in reasonable
prospect, should be privileged and excluded
" from inspection
".
Dominant
purpose, then, in my judgment, should now be declared by
this
House to be the touchstone. It is less stringent a test than
" sole " purpose, for,
12
as Barwick, C.J. added—
"...
the fact that the person . . . had in mind other uses of the
document
" will not preclude that document being accorded
privilege, if it were
" produced with the requisite dominant
purpose ".
Applying
such test to the facts of the present case, we have already seen
that
privilege was claimed in the Hastings' affidavit on several
grounds. Thus, the
report of 6th May 1976 was produced in
accordance with the long-standing
practice of the Board regarding
" accidents occurring on or about any railway
"... in
order to assist in establishing the causes of such accidents ",
and this
whether or not (so your Lordships were informed) any
personal injuries were
sustained and even where there was no
prospect of litigation ensuing. This
particular report was called
for in accordance with such practice and, " One of
"
the principal purposes for so doing was so that they could be
passed to the
" Board's Chief Solicitor to enable him to
advise the Board on its legal liability
" and, if necessary,
conduct its defence to these proceedings ". Were the "
sole
" purpose " test adopted and applied, on the
Board's own showing their claim
to privilege must fail. Then what
of the " dominant purpose " test which I
favour?
Dominance again is not claimed by the Board, but merely that use
in
litigation was " one of the principal purposes ".
Such moderation is only to
be expected in the face of a claim
arising out of a fatal accident. Indeed, the
claims of humanity
must surely make the dominant purpose of any report upon
an
accident (particularly where personal injuries have been sustained)
that of
discovering what happened and why it happened, so that
measures to prevent
its recurrence could be discussed and, if
possible, devised. And, although
Barwick C.J. observed that "
the circumstance that the document is a ' routine
" '
document ' will not be decisive. The dominant purpose of its
production
" may none the less qualify it for professional
privilege ", the test of dominance
will, as I think, be
difficult to satisfy when enquiries are instituted and
reports
produced automatically whenever any mishap occurs,
whatever its nature, its
gravity, or even its triviality.
My Lords,
if, as I hold, " dominant purpose " be the right
test of privilege
from disclosure, it follows that the Board's
claim to privilege must be disallowed,
and the same applies if the
" sole purpose " test be applied. I would therefore
allow this
appeal and restore the order of Master Bickford Smith
in favour of disclosure.
Lord Russell of Killowen
my lords,
It
has already been demonstrated by my noble and learned friend
Lord
Wilberforce that if, in order to attract privilege from its
production, it is neces-
sary that the joint internal report
should owe its genesis to either the sole or
the dominant purpose
that it should be used for the purpose of obtaining legal
advice
in possible or probable litigation, the evidence in this case falls
short
of both those standards. At the conclusion of the arguments
in this appeal I
was minded, while agreeing that anything less
than the standard of the dominant
purpose would not suffice to
support a claim for privilege from production,
to prefer the
higher standard of the sole purpose, in line with as I
understand
them the judgments of the majority in the High Court of
Australia in Grant v.
Downs. It appeared to me that
such a standard had the merit of greater
simplicity in a decision
on a claim for privilege from production, as being
a line easier
to draw and to apply to the facts of a particular case. However
on
reflection I am persuaded that the standard of sole purpose
would be in most,
if not all, cases impossible to attain, and that
to impose it would tilt the balance
of policy in this field too
sharply against the possible defendant. Moreover to
select the
standard of dominant purpose is not to impose a definition too
13
difficult
of measurement. It is to be met with in other fields of the law, of
which
I need instance only the question in bankruptcy law whether
there has been a
fraudulent preference of a creditor.
In
summary, therefore, my Lords, I am in agreement with the speech of
my
noble and learned friend Lord Wilberforce, and would allow this
appeal and
order the production to the plaintiff of the joint
internal report.
Lord Keith of Kinkel
my lords,
I have had
the advantage of reading in draft the speech of my noble and
learned
friend Lord Wilberforce. I agree with it, and accordingly I too
would
allow the appeal.
S598730/MP Dd 353246 181 7/79