1942 Mar. 13, 16, 17; Apr. 27. 1942] A.C.642



















 Discovery – Affidavit of documents – Objection to production of documents – Disclosure injurious to public interest – Affidavit of Minister of Crown – Refusal to direct production of documents to court.














































 A court of law should uphold an objection taken by a public department, called on to produce documents in a suit between private citizens, if on grounds of public policy they ought not to be produced. Documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. The test may be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which, on grounds of public interest, must as such be withheld from production. It is essential that the decision to object should be taken by the minister who is the political head of the department concerned and that he should have seen and considered the contents of the documents and himself formed the view that on grounds of public interest they ought not to be produced. If the question arises before trial the objection would ordinarily be taken by affidavit of the minister. If it arises on subpoena the objection may in the first instance be conveyed to the court by an official of the department, who produces a certificate signed by the minister stating what is necessary, but if the court is not satisfied it can request the minister’s personal attendance.







 An objection validly taken to production on the ground that it would be injurious to the public interest is conclusive. The mere fact that the minister or the department does not wish the documents to be produced is not an adequate justification for objecting to their production. Production should only be withheld when the public interest would otherwise be damnified, as where disclosure would be injurious to national defence or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. In such a case the court should not require to see the document, for the purpose of ascertaining whether disclosure would be injurious to the public interest.







 When the Crown is a party to a suit, discovery of documents cannot be demanded by the other party as of right, although in practice, for reasons of fairness and in the interests of justice, all proper disclosure and production would be made.






Earl v. Vass (1822) 1 Shaw’s App. 229 followed.


Statement in Ankin v. London & North Eastern Ry. Co. [1930] 1 K. B.

527, 533, incorrect.


Robinson v. State of South Australia (No. 2) [1931] A. C. 704

dissented from.


Decision of the Court of Appeal [1941] 1 K. B. 640 affirmed.


APPEAL from the Court of Appeal.


The facts, as stated by VISCOUNT SIMON L.C., were as follows: On June 1,

1939, the submarine, Thetis, which had been built by the respondents

under contract with the Admiralty, was undergoing her submergence tests

in Liverpool Bay, and, while engaged in the operation of a trial dive,

sank to the bottom owing to the flooding of her two foremost




[1942]  626





compartments and failed to return to the surface, with the result that

all who were in her, except four survivors, were overwhelmed.

Ninety-nine men lost their lives. A large number of actions were

instituted by those representing, or dependent on, some of the deceased,

against the respondents and three other persons, claiming damages for

negligence. All of these actions, except two, were stayed until after

the trial of two test actions, which were consolidated, the plaintiffs

in those two test actions being now the appellants. The respondents in

their affidavit of documents objected to produce a number of documents

listed under para. B of the second part of the first schedule for the

reason which they set out in their affidavit as follows: “…. because

they have been acquired and are held by them or are copies of documents

which came into their custody in their capacity of contractors and

agents for the Lords Commissioners of the Admiralty and subject to the

directions of the First Lord of the Admiralty and not otherwise, and the

attention of the First Lord having been drawn to the nature and contents

of the said documents the Treasury Solicitor has by his letter to the

London agents of their solicitors dated August 13, 1940 …. directed

the defendant company not to produce the said documents and copies and

to object to production thereof in these actions except under the order

of this honourable court on the ground of Crown privilege.” The letter

from the Treasury Solicitor therein referred to contained the following

passage: “The question of the production of the documents has been

considered by Mr. Alexander, the First Lord of the Admiralty, and I am

instructed to inform you that Crown privilege is claimed for all those

in your list numbered 1-16 other than those numbered 4, 7, and 8, and

with these three exceptions, the documents must, accordingly, not be

produced. I assume that you will produce this letter to the plaintiffs’

solicitors, and if necessary to the master, and if it is not accepted as

sufficient to found a claim for privilege, I will obtain an affidavit

from Mr. Alexander making the claim formally.” On January 29, 1941, Mr.

Alexander, as First Lord of the Admiralty, swore an affidavit referring

to the documents above referred to and stating: “All the said documents

were considered by me with the assistance of my technical advisers and I

formed the opinion that it would be injurious to the public interest

that any of the said documents should be disclosed to any




[1942]  627





person. I accordingly instructed the Treasury Solicitor to write on

behalf of the Lords Commissioners to the solicitors to the said

defendants not to disclose the documents set out in the said list or

their contents to the plaintiffs or either of them or to anyone on their

behalf nor produce them for inspection in this action and to require

them to claim privilege for the documents on the ground that it would be

injurious to the public interest that the same should be disclosed or

produced for inspection. … On the above grounds I object on behalf of

the Lords Commissioners to the said documents or any of them or their

contents being disclosed or inspected by the plaintiffs or either of

them or by anyone on their behalf in this action.” The documents, to the

production of which objection was thus taken, included (either in

original or as a copy) the contract for the hull and machinery of the

Thetis, letters written before the disaster relating to the vessel’s

trim, reports as to the condition of the Thetis when raised, a large

number of plans and specifications relating to various parts of the

vessel, and a notebook of a foreman painter employed by the respondents.

The appellants took out a summons, which came before Master Horridge,

calling on the respondents to give inspection of the documents. The

master refused to order inspection and his decision was confirmed by

Hilbery J. sitting in chambers. In the Court of Appeal MacKinnon,

Goddard, and du Parcq L.JJ. unanimously affirmed the judge’s order, but

gave the appellants leave to appeal to the House of Lords.


Wallington K.C. and Holroyd Pearce (for F. D. L. McIntyre,on war

service) for the appellants. The documents in question should be

produced. Some of them were produced before the tribunal of inquiry into

the loss of the Thetis presided over by Bucknill J. and were referred

to in his report (Cmd. 6190 of 1940), and once a document has been made

public it can never be the subject of an objection to produce it in an

action on the ground that it should not be made public. The wide

diversity in the nature of the documents in regard to the production of

which the question of public policy may arise is such that clearly

injustice would be done if there were a universal rule that the opinion

of an officer of State was final. Sometimes it may be doubtful whether a

document contains matter which in the public interest should not be

disclosed and the judge should determine the point by




[1942]  628





seeing the document. In other cases the character of the document would

be so clear that there would be no need to examine it, but, unless the

claim of privilege can be investigated, injustice may be done to the

individual without necessity for it from the point of view of the

protection of the State. The number of documents the disclosure of which

would involve danger to the State is relatively small, and the documents

in question in the present case do not on the face of them belong to a

class the disclosure of which would prejudice the public interest. On

the other hand, judges can be trusted properly to protect the interests

of the State. These questions must either be taken entirely out of the

hands of the court or left for the decision of the court. The power of

decision has been given to the judges and that power necessarily imports

a power of inquiry. The court can examine the document privately and in

any order made can define the limits of its production. The court can

also call in assistance from the department concerned, if necessary

privately. In the present case that course could not be open to

objection since the Crown is not a party to the action. If it is

objected that the private examination of the documents in question by

the court might involve the court communicating with one party to the

exclusion of the other, it is obviously better for the litigant that

there should be discussions behind his back ex parte than that the bare

word of the Crown officials should automatically prevail. The

administration of justice is part of the public welfare. In the matter

of the disclosure of documents much may be left to officials who are not

at the head of their department and they may make up their minds that a

document should not be produced on grounds which would not appeal to the

judge. [They referred to Home v. Bentinck (1), Smith v. East India Co.

(2); Beatson v. Skene (3); H.M.S. Bellerophon (4); Hughes v. Vargas (5);

Hennessy v. Wright (6); Spigelmann v. Hocker (7); Admiralty

Commissioners v. Aberdeen Steam Trawling and Fishing Co., Ld. (8);

Asiatic Petroleum Co., Ld. v. Anglo-Persian Oil Co., Ld. (9); Ankin v.

London & North Eastern Ry. Co. (10); Robinson v. State of South

Australia [No. 2] (11); Dickson v.


(1) (1820) 2 Brod. & B. 130, 160.


(2) (1841) 1 Ph. 50.


(3) (1860) 5 H. & N. 838.


(4) (1874) 44 L. J. Adm. 5, 6.


(5) (1893) 9 R. 661.


(6) (1888) 21 Q. B. D. 509.


(7) (1932) 50 T. L. R. 87, 88.


(8) 1909 S. C. 335.


(9) [1916] 1 K. B. 822, 830.


(10) [1930] 1 K. B. 527, 532.


(11) [1931] A. C. 704.




[1942]  629





Earl of Wilton (1); Kain v. Farrer (2); Wadeer v. East India Co. (3).]


VISCOUNT SIMON L.C. The House requires no assistance from counsel for

the respondents on the question whether the decision of the Court of

Appeal should be sustained. It only asks whether there are any

additional authorities to which they wish to refer.


Sellers K.C. and R. M. H. Everett for the respondents referred to

Adam v. Ward (4) and Chatterton v. Secretary of State for India (5).


The House took time for consideration.


1942. April 27. VISCOUNT SIMON L.C. My Lords, the question to be

determined in this appeal is as to the circumstances in which it may be

validly claimed on behalf of the Crown that documents, the production of

which is demanded by regular process in a civil action, should not be

produced on the ground that it would be contrary to the public interest

to produce them, and as to the proper procedure to be followed if this

claim is to be made good. This question is of high constitutional

importance, for it involves a claim by the executive to restrict the

material which might otherwise be available for the tribunal which is

trying the case. This material one party, at least, to the litigation

may desire in his own interest to make available, and without it, in

some cases, equal justice may be prejudiced. The question may arise, as

in the present instance, in an action between private parties, but it

may also arise in a case where the Crown itself, or the Crown’s

representative, is a party to the suit, and declines to produce a

document or objects to the production of a document by the other side.

In framing my opinion, I have had the advantage of consultation with,

and contribution from, the six noble and learned Lords who sat with me

at the hearing of the appeal, and while what I am about to say is the

expression of my own view, I have reason to think that it also expresses

the judgment of my colleagues.


It was urged before us that, whatever the true principles on which

production of documents should be refused on the ground of public

interest, some of these documents could not


(1) (1859) 1 F. & F. 419.


(2) (1877) 37 L. T. 469.


(3) (1856) 8 De G. M. & G. 182, 189.


(4) [1917] A. C. 309, 344.


(5) [1895] 2 Q. B. 189, 195.




[1942]  630



(H.L.(E.))  Simon L.C.



be validly withheld because they had already been produced before the

tribunal of inquiry into the loss of the Thetis, over which Bucknill

J. presided, and because some reference was made to them in his Report

(Cmd. 6190 of 1940). I am not convinced that in all cases a claim,

validly made in other respects, to withhold documents in connection with

a pending action on the ground of public policy, is defeated by the

circumstance that they have been given a limited circulation at such an

inquiry, for special precautions may have been taken to avoid public

injury and some portion of the tribunal’s sittings may have been secret.

Moreover, in point of fact, Bucknill J. does not set out these documents

in extenso, and there must be other entries in them which have not been

reproduced. The appeal should be determined without being affected by

this special circumstance.


We have been referred to a large number of reported cases dealing with

the claim to withhold documents on the ground that their production

would be injurious to the public interest, and some of these I must

examine. The argument before us proceeded on the assumption that there

was no recorded decision of this House on the subject. This, however, is

not so. My noble and learned friend Lord Thankerton has called my

attention to a decision, pronounced by Lord Eldon L.C. in this House in

1822, which is very much in point, Earl v. Vass (1). The pursuer, Vass,

had been a paymaster in the Berwickshire Regiment of North British

Militia, and the Earl of Home, who was defender, was colonel of the

regiment. Vass was hoping to be appointed comptroller of customs at the

port of Grangemouth, and Lord Home, in answer to a letter from the

collector of customs at that port, had made, as Vass alleged, an adverse

report as to Vass’s conduct when with the regiment, which, in turn, had

given rise to correspondence between the Board of Customs, the Lords of

the Treasury, and Lord Home. Vass was suing Lord Home for damages for

defamation and, after pleadings were closed, the Lord Ordinary granted

to Vass “a diligence for recovery of the writings founded on by him in

the condescendence.” Vass, therefore, summoned the Commissioners of

Customs and their secretary to produce the documents which the

condescendence alleged to be in their hands, and the commissioners

objected “that they were neither bound nor entitled to produce the

papers called for, as they had come into their hands on behalf of the

public, and in the course of an investigation as to the fitness


(1) (1822) 1 Shaw’s App. 229.




[1942]  631



(H.L.(E.))  Simon L.C.



of Vass to hold an official and confidential situation.” The Lord

Ordinary repelled this objection, and he was confirmed by the Inner

House of the Court of Session. The Commissioners of Customs appealed to

the House of Lords. No case was lodged on behalf of Vass, and this House

ordered and adjudged that the interlocutors complained of be reversed.

Lord Eldon described the question raised as being(1) “whether the

appellants can be compelled to produce in evidence in a court of law, in

an action depending between third parties, and in which they have no

interest, officially or otherwise, the documents coming to their hands

in the discharge of their official duty, and remaining in their

custody?” In the course of his judgment, the Lord Chancellor said(1): “I

apprehend, in all the cases in which it has been held, upon the

principles of public policy, that you shall not be compellable to give

evidence of, or produce such instruments – that is, wherever it is held

you are not, on grounds of public policy, to produce them – you cannot

produce them, and that it is the duty of the judge to say, you shall not

produce them. This question is not, whether they can be permitted to

produce them, but whether they can be compelled to produce them.” And,

after giving a detailed account of the pleadings, the Lord Chancellor

reached his decision thus(2): “Your Lordships will see that this is a

case in which it becomes necessary, in order, if any justice whatever

can be done, that not only the correspondence which is in the hands of

the Board of Customs, but also all that has passed with the Secretary at

War – and not only all that has passed with the Secretary at War, but

all that has passed with the officers of the regiment – and not only all

that has passed with the officers of the regiment, but all that has

passed with respect to the Treasury, must all be set out. The Board of

Customs are to be called upon to produce the documents they have in

their hands relative to this transaction, going through so many public

officers, inquiring into the conduct of an individual under all the

circumstances in which Mr. Vass stood. The question is, whether, upon

the grounds stated, the Board of Customs, as the servants of the Crown,

having these papers in their hands, are at liberty to produce them? So I

must put the question. If they were at liberty to produce them, they

might be compellable to produce them. There are many cases that bear

upon this, which it is not necessary to


(1) 1 Shaw’s App. 230.


(2) Ibid. 236, 237.




[1942]  632



(H.L.(E.))  Simon L.C.



go through. In the case of an information in the Court of Exchequer,

where a man gives information as to smuggled goods, they will not allow

you to ask who gave the information. So, as to cases of high treason,

they will not allow a party to tell who gave the information. They will

not allow it; and in a late case which I have in my hand, this matter

was very much discussed, as far as the War Office was concerned, and

which came very near to this. It is the case of Home v. Lord William

Bentinck (1) in the Exchequer Chamber in 1820, which refers to another

case in the King’s Bench, in Lord Ellenborough’s time. There the

principle is laid down – not that the right is, as here discussed, to

withhold a document, because it is the property of the individual who

has it – but because it is against public policy that you should be

compelled to produce instruments and papers, which if persons are

compelled to produce, it must shut out the possibility of the public

receiving any information as to a person’s fitness to be appointed to an

office. Upon these grounds it has been held, in this part of the

country, we can enforce no such direction. I took the liberty to

communicate with the Lord Chief Justice upon this case.” [The Lord Chief

Justice referred to was Abbott C.J.] “I showed him the papers; and he

stated, without the least hesitation, that he would not have permitted

any such production as is here called for, upon the grounds I have

stated. … Upon the whole, it does appear to me that it would be a very

dangerous thing indeed, if this were permitted; and therefore it does

seem to me that this judgment ought to be reversed.”


There is thus express authority in this House that a court of law ought

to uphold an objection, taken by a public department when called on to

produce documents in a suit between private citizens, that, on grounds

of public policy, the documents should not be produced. It is important

to note what are the circumstances in which this specific objection may

arise. When the Crown (which for this purpose must be taken to include a

government department, or a minister of the Crown in his official

capacity) is a party to a suit, it cannot be required to give discovery

of documents at all. No special ground of objection is needed. The

common law principle is well established: see Thomas v. Reg. (2). There

is also the authority of Abinger C.B. for the view that the former



(1) 2 Brod. & B. 130; 4 Moore 563, sub nom. Home v. Lord Frederick

Cavendish Bentinck.


(2) (1874) L. R. 10 Q. B. 44.




[1942]  633



(H.L.(E.))  Simon L.C.



in equity of a bill of discovery was not regarded as available against

the Crown: Deare v. Attorney-General (1), but that learned judge went on

to say: “At the same time it has been the practice, which I hope never

will be discontinued, for the officers of the Crown to throw no

difficulty in the way of any proceeding for the purpose of bringing

matters before a court of justice, where any real point of difficulty

that requires judicial decision has occurred.” Similarly, in

Attorney-General v. Newcastle-upon-Tyne Corporation (2) Rigby L.J. said:

“The law is that the Crown is entitled to full discovery, and that the

subject as against the Crown is not. That is a prerogative of the Crown,

part of the law of England, and we must administer it as we find it. …

Now I know that there has always been the utmost care to give to a

defendant that discovery which the Crown would have been compelled to

give if in the position of a subject, unless there be some plain

overruling principle of public interest concerned which cannot be

disregarded.” Where the Crown is a party to a suit, therefore, discovery

of documents cannot be demanded from it as a right, though in practice,

for reasons of fairness and in the interests of justice, all proper

disclosure and production would be made. The question which we have to

decide can only arise as a matter of law in England in cases where a

subpoena is issued to a minister or a department to produce a document

(usually, but not necessarily, in a suit where the Crown is not a

party), or where it intervenes in a suit between private individuals (as

is the present case), to secure, on the ground of public interest, that

documents in the hands of one of the litigants should not be produced. A

similar situation might conceivably arise in litigation between the

Crown and a subject where it was considered necessary to prevent the

subject from producing a document in his possession on the ground that

this would be injurious to public interests.


Lord Eldon, in the decision above cited, treated the rule to be applied

as already well established. His reference to high treason may have been

a recollection of Rex v. Hardy (3), for he (as Sir John Scott) was the

Attorney-General who prosecuted on that occasion and he may well have

recalled the ruling of Eyre C.J.(4). The judgment of the House in the

present case is limited to civil actions and the practice, as applied in

criminal trials where an individual’s life or liberty may be at


(1) (1835) 1 Y. & C. 197, 208.


(2) [1897] 2 Q. B. 384, 395.


(3) (1794) 24 St. Tr. 199.


(4) Ibid. 808.




[1942]  634



(H.L.(E.))  Simon L.C.



stake, is not necessarily the same. Indeed, Eyre C.J., in the passage

referred to, appears only to be restricting needless cross-examination.

He says: “There is a rule which has universally obtained on account of

its importance to the public for the detection of crimes, that those

persons who are the channel by means of which that detection is made,

should not be unnecessarily disclosed: if it can be made to appear that

really and truly it is necessary to the investigation of the truth of

the case that the name of the person should be disclosed, I should be

very unwilling to stop it.” A statement to much the same effect was made

by Abbott J., and confirmed by Lord Ellenborough C.J., in Rex v. Watson

(1). See also Marks v. Beyfus (2).


In civil proceedings, early examples of the application of the rule may

be found in Anderson v. Hamilton (3), the case before Lord Ellenborough

to which Lord Eldon referred (correspondence between Colonial Department

and governor of Heligoland); William Young & Co. v. Commissioners of

Excise (4) (investigation by Board of Excise and communications by the

board to Lords of the Treasury); Wyatt v. Gore (5) (communications

between governor and attorney-general of Upper Canada); and the case

quoted by Lord Eldon, Home v. Bentinck (6). This last was an action for

libel. The conduct of the plaintiff, who was an Army officer, had been

the subject of a military court of inquiry, of which the defendant was

president, and at the trial the plaintiff called for the production of

the minutes of the court of inquiry. Abbott C.J. ruled that the minutes

ought not to be admitted and read in evidence, and Dallas C.J., giving

judgment in the Exchequer Chamber, upheld this ruling. The language of

Dallas C.J. has been quoted with approval in subsequent decisions, and I

set out the following extract from it. He said(6): “It is agreed, that

there are a number of cases of a particular description, in which, for

reasons of state and policy, information is not permitted to be

disclosed. To begin with the ordinary cases, and those of a common

description in courts of justice. In these courts, for reasons of public

policy, persons are not to be asked the names of those from whom they

receive information as to frauds on the revenue. In all the trials for

high treason of late years,


(1) (1817) 32 St. Tr. 1, 101.


(2) (1890) 25 Q. B. D. 494.


(3) (1816) 2 Brod. & B. 156n.


(4) (1816) 19 F. C. 102.


(5) (1816) Holt N. P. 299.


(6) 2 Brod. & B. 130, 162, 163.




[1942]  635



(H.L.(E.))  Simon L.C.



the same course has been adopted; and, if parties were willing to

disclose the sources of their information, they would not be suffered to

do it by the judges. What is the ground, upon which these cases stand,

except it be the ground of danger to the public good, which would result

from disclosing the sources of such information? – for no person would

become an informer if his name might be disclosed in a court of justice,

and if he might be subjected to the resentment of the party against whom

he had informed. Does not this reasoning apply closely to the case now

before us? This is an inquiry directed to be made by the

commander-in-chief, with a view to ascertain what the conduct of the

party suspected might have been; in the course of which a number of

persons may be called before the court, and may give information as

witnesses, which they would not choose to have disclosed: but, if the

minutes of the court of inquiry are to be produced in this way, on an

action brought by the party, they reveal the name of every witness, and

the evidence given by each. Not only this, but they also reveal what has

been said and done by each member of the existing court of inquiry. It

seems, therefore, that the reception of the minutes would tend directly

to disclose that which is not permitted to be disclosed; and, therefore,

independently of the character of the court, I should say, on the broad

rule of public policy and convenience, that these matters, secret in

their natures, and involving delicate inquiry and the names of persons,

stand protected.”


It will be observed that the objection is sometimes based upon the view

that the public interest requires a particular class of communications

with, or within, a public department to be protected from production on

the ground that the candour and completeness of such communications

might be prejudiced if they were ever liable to be disclosed in

subsequent litigation rather than on the contents of the particular

document itself. Several cases have been decided on this ground

protecting from production documents in the files of the East India

Company held in its public capacity as responsible for the government of

India: see Smith v. East India Co. (1); Wadeer v. East India Co. (2). In

the earlier of these cases Lord Lyndhurst L.C. said(3): “Now it is quite

obvious that public policy requires, and looking to the act of


(1) 1 Ph. 50.


(2) 8 De G. M. & G. 182.


(3) 1 Ph. 50, 55.




[1942]  636



(H.L.(E.))  Simon L.C.



parliament, it is quite clear that the legislature intended, that the

most unreserved communication should take place between the East India

Company and the Board of Control, that it should be subject to no

restraints or limitations; but it is also quite obvious, that if, at the

suit of a particular individual, those communications should be subject

to be produced in a court of justice, the effect of that would be to

restrain the freedom of the communications, and to render them more

cautious, guarded, and reserved. I think, therefore, that these

communications come within that class of official communications which

are privileged, inasmuch as they cannot be subject to be communicated

without infringing the policy of the act of parliament and without

injury to the public interests.” On the same principle, it has been held

in H.M.S. “Bellerophon” (1), that where a collision occurs between a

ship of the Royal Navy and a ship belonging to a private owner the

Admiralty cannot be required to produce the report made by the officer

who is in command of the former ship. Another example is the view which

has been taken that reports made by a police officer to his superior as

to a street accident are protected from production though requested by a

party to subsequent litigation for fixing liability between private

individuals: see Hastings v. Chalmers (2); Muir v. Edinburgh District

Tramways Co., Ld. (3); Spigelmann v. Hocker (4). The practice in the

metropolitan police district is, I believe, in the case of a street

accident where no criminal proceedings are being taken, to provide, on

the application of persons interested in a possible civil claim, an

abstract of any report that has been made by the policeman on the spot

to his superiors, including the names of witnesses so far as known to

the police. This seems an admirable way of reconciling the requirements

of justice with the exigencies of the public service. The principle to

be applied in every case is that documents otherwise relevant and liable

to production must not be produced if the public interest requires that

they should be withheld. This test may be

found to be satisfied either

(a) by having regard to the contents of the particular document, or

(b) by the fact that the document belongs to a class which, on grounds

of public interest, must as a class be withheld from production.