Duncan v Cammell, Laird & Co Ltd

In civil proceedings, otherwise producible evidence must be withheld where its disclosure would injure the public interest. The objection may rest on the document’s contents or its membership of a class whose confidentiality is necessary for public administration.

The responsible Minister must personally consider the material and form the required opinion. A properly made objection is conclusive, although the resulting order remains the court’s decision. Public interest immunity protects the State, rather than a litigant, and cannot be waived. Official status, embarrassment, criticism, administrative inconvenience or possible liability cannot alone justify withholding evidence.

The submarine Thetis, built by the respondents under contract with the Admiralty, sank during submergence trials. Ninety-nine people died. Representatives and dependants of victims brought negligence proceedings, of which two consolidated actions became test cases.

The respondents resisted inspection of contracts, correspondence, reports, plans, specifications and a notebook. The First Lord of the Admiralty certified after personal consideration that disclosure would injure the public interest. The Master refused inspection. Hilbery J and a unanimous Court of Appeal affirmed that decision.

The appeal concerned the circumstances in which the Crown could prevent production of documents in civil litigation, the required procedure and whether a properly made ministerial objection was conclusive.

1. Appeal dismissed unanimously. The Lord Chancellor delivered the leading opinion following consultation with the other six Law Lords. Lord Thankerton, Lord Russell of Killowen, Lord Macmillan, Lord Wright, Lord Porter and Lord Clauson concurred.

2. Per the Lord Chancellor, documents which are otherwise relevant and producible must be withheld where production would injure the public interest. That conclusion may follow from the particular contents or because the documents belong to a class which public policy requires to remain confidential. The earlier decision in E Earl and Others, Commissioners of the Board of Customs for Scotland v David Vass established that the rule applies where a public department intervenes in litigation between private parties.

3. The objection should ordinarily be made by the political head of the relevant department. The Minister must have seen and considered the documents and personally concluded that their production would harm the public interest. A permanent departmental head may act where ministerial action is impracticable or where that official is the effective head. Before trial the objection should ordinarily be supported by affidavit. At trial a signed ministerial certificate may initially be conveyed through an official, although the court may request the Minister’s attendance.

4. A ministerial objection properly made in that form is conclusive. The judge should not inspect the documents to substitute a judicial assessment of the risks for that of the responsible department. Nevertheless, the operative ruling remains the judge’s decision because the court retains control of the proceedings. The contrary approach in Robinson v State of South Australia (No 2) [1931] AC 704 was disapproved.

5. The doctrine is a rule of public policy, not an aspect of a litigant’s discovery privilege. It exists independently of the parties’ interests, cannot be waived by them and should be enforced by the judge where necessary even without an objection. The inspection power concerning claims of privilege under the Rules of the English Supreme Court therefore did not apply.

6. Neither the designation of a document as official, State or confidential nor a wish to avoid criticism, inconvenience, evidence of inefficiency or compensation claims is sufficient. Withholding requires harm to the public interest, such as injury to national defence or diplomatic relations, or impairment of a class confidentiality necessary to the public service. The First Lord’s affidavit satisfied the required procedure and the documents were properly withheld.

1. House of Lords: Dismissed the appeal unanimously and affirmed the refusal of inspection.
2. Court of Appeal: MacKinnon, Goddard and du Parcq LJJ unanimously affirmed Hilbery J’s order and granted leave to appeal.
3. High Court: Hilbery J, sitting in chambers, confirmed the Master’s refusal to order inspection.
4. Master: Master Horridge refused the appellants’ summons for inspection.