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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)
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Cite as: [1980] AC 521, [1979] UKHL 2, [1979] 3 WLR 150, [1979] 2 All ER 1169

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    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.

    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 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.

    3. 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


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