No. 5. Hennessy v. Wright, 21 Q. B. D. 520, 521.

whether if Sir Henry Torrens under a mistake had been disposed," to produce the report, "it would not have been the bounden duty of the learned Judge before whom the case was tried, considering that this document was a secret, not the privilege of the party holding it, but of which he was a trustee on behalf of the public, to have interposed and prevented the admission of such evidence," and the ruling of the learned LORD CHIEF JUSTICE was upheld "on the broad ground of state policy and public convenience." In McElveney v. Connellan, 17 Ir. C. L. 55 (186), the Irish Court declined on the same grounds, and on an application for discovery, to order production of a report of the Inspector General of Prisons to the Lord Lieutenant, although there was no evidence before it of objection on the part of the Lord Lieutenant. This decision was referred to with approval by Sir JOSEPH NAPIER in Stace v. Griffith, L. R., 2 P. C. 420, 425, decided in 1869, and in that case, both in the course of the argument and in delivering the judgment of the Privy Council, Lord CHELMSFORD refers to Anderson v. Hamilton, 2 Brod. & Bing. 156, n., as laying down. the correct rule as to the admissibility of public documents, and that official letters are not receivable in evidence. "It was absolutely necessary," said Lord CHELMSFORD," before any evidence of the contents of this letter was admitted, that the Judge should determine that it was not an official communication." In 1873, in Dawkins v. Lord Rokeby, L. R., 8 Q. B. 255, an action for libel was brought against the defendant for statements made to the Commander-in-Chief in the report of a court of inquiry upon the conduct of an officer, the contents of the documents in question were stated to the jury, whereupon BLACKBURN, J., directed a verdict for the defendant on the ground that such proceedings were absolutely privileged, even if the statements they contained were wilfully false and malicious. A bill of exceptions was tendered, and the case was heard by the Court of Exchequer Cham

ber in 1873. It was held * by that Court, on the authority [* 521] of Home v. Bentinck, 2 Brod. & Bing. 130, at p. 162, that the proceedings in question were inadmissible in evidence. We cannot doubt," said the learned LORD CHIEF BARON, " that if the attention of the Judge who tried this cause had been called to this decision, although the parties had admitted the evidence, he would have felt it, in the language of DALLAS, C. J., his bounden duty to have interposed and prevented the admission of such evidence.

I think the above cases abundantly show that no sound distinction can be drawn between the duty of the Judge when objection is taken by the responsible officer of the Crown, or by the party, or when, no objection being taken by any one, it becomes apparent to him that a rule of public policy prevents the disclosure of the documents or information sought.

With one exception, the cases cited arose with reference to evidence sought to be introduced upon the trial. It is obvious that whatever difference may exist between the case of evidence asked for or tendered at the trial and that of an application for discovery or inspection, is altogether in favour of a refusal to order discovery in the earlier stages of the case. I should be reluctant to say anything which could interfere with the discretion of the Judge at nisi prius, or to treat it as impossible for circumstances to arise which might justify a Judge at the trial in deciding that a particular document of the class under consideration ought to be produced. At the trial, in most cases, the document is only to be got at by subpoenaing the head of the department of state concerned with it. It has happened, and may happen again, that, instead of stating that in his opinion it ought in the interest of the public service to be withheld, he submits that very question to the Court. The responsible officer of state being subpoenaed has, at all events, the opportunity of considering the question and taking the objection, and the Judge at the trial has a much better opportunity of judging whether production ought to be ordered or allowed than the Court can have upon an application at the present stage of the action, when, unless production be refused, mischief might be done behind the back and without the knowledge

of the officer of state, who, to put it at the lowest, would [* 522] certainly have a right * to state his objections to production, a right which, in all but exceptional cases, would be pretty certain to secure the protection claimed. The question whether or not in the public interest production of the document should not be allowed is so far a matter of state rather than of legal decision, that it is within the undoubted competence of the responsible minister of the Crown, by taking the proper steps, to interfere and raise an objection to which every tribunal would be certain, to say the least, to pay respectful attention; and we must be careful, in dealing with an interlocutory application like the present, to see that a right which has been established for great

No. 5. — Hennessy v. Wright, 21 Q. B. D. 522, 523.

purposes of public welfare, and which, with one exception presently to be noticed, has been uniformly respected at nisi prius for a great number of years, is not frustrated by an order for discovery.

The only cases which can be cited as establishing anything like a conflict of authority upon this important question are Dickson v. Lord Wilton, 1 F. & F. 419, and Kain v. Farrer, 37 L. T. (N. S.) 469.

In Dickson v. Lord Wilton, Lord CAMPBELL compelled a clerk in the War Office, who attended upon a subpoena addressed to the Commander-in-Chief, to produce letters written by the commanding officer of a regiment to his superior officer touching matters connected with the discipline of the regiment, in spite of his statement that he was directed by the head of the department to refuse to produce them. In Beatson v. Skene, 5 H. & N. 838, 854, the Court of Exchequer, after holding that the proceedings of a military court of inquiry to the production of which objection was taken by the Secretary for War, could not in the circumstances of that case be produced, went on to refer to Dickson v. Lord Wilton, and to observe that if the documents were produced without objection, or with a mere submission to the Judge as to whether they should be produced or not, "the case might be different." In Dawkins v. Lord Rokeby, L. R., 8 Q. B. 255 at p. 273, it was said by the Court of Exchequer Chamber that Dickson v. Lord Wilton was in conflict with a mass of authorities, and must be considered as overruled. In Kain v. Farrer, an action against the Secretary of the Board of Trade for acts done by the Board of Trade, privilege was claimed for certain docu- [* 523] ments on the ground that the defendant objected on the ground of public policy to produce them. It was held that the affidavit was insufficient, and production was ordered. If that case is in conflict with the numerous authorities above cited, and it seems to me difficult entirely to reconcile it with them, it is clear that they must prevail, and that Kain v. Farrer cannot be supported.

*

It was argued on behalf of the plaintiff that the application was in any case premature, and that at this stage an order for discovery could not be made, although the documents might be liable to be disclosed at the trial; and it has undoubtedly happened that in many reported cases the objection has been taken at the trial, and

not at an application for discovery, which, as regards the Courts of Common Law, is a modern proceeding. In my opinion, however, there are reasons, which I have already pointed out, for refusing discovery which may possibly not apply at the trial; and whilst I should be sorry to limit unnecessarily the right to see documents at the only stage of the case at which, very often, they are of any practical value, on the other hand it must not be forgotten that to order production may render of no avail the right of the Crown, which exists in the public interest, to object in the proper manner to publicity being given to the documents.

The plaintiff sought to exclude the documents in question on the ground that they do not belong to him, but to the Secretary of State. If this be anything but another way of putting the proposition already dealt with, I do not accede to it. The copies to which the matter now in hand relates are, as far as I can see, subject to the duty upon him not to disclose them, the plaintiff's own, and Kearsley v. Phillips, 10 Q. B. D. 36, 465, 52 L. J. Q. B. 8, 269, and similar decisions, to which a large part of the arguments for the plaintiff was addressed, appear to me to have nothing to do with this case, which is not one of joint ownership or custody at all, nor depending upon any considerations applicable to such cases. In my opinion the order asked for must be Order refused.

refused.

ENGLISH NOTES.

The rule that no evidence, either oral or documentary, can be asked for or given, the disclosure of which would be injurious to the interests of the public, is so well established that it is hardly necessary to cite authorities in its support.

Reference may however be made to Beatson v. Skene (1860), 5 H. & N. 838, 29 L. J. Ex. 430, 2 L. T. 378, 8 W. R. 544, 6 Jur. (N. S.) 780, where it was held that a judge at nisi prius has no power to compel a witness to produce documents connected with affairs of state if their production would be injurious to the public service; and Hughes v. Vargas (1894), 9 R. 661, to the same effect. In Wright v. Mills (1890), 62 L. T. 558, which was an action against the Agent General to a colonial government, the defendant having objected to produce certain documents which were the property of that government and which he had acquired merely as Agent General, and which the Prime Minister of the Colony had directed him not to produce on the ground of public interest except under an order of the Court,

on a summons

for production by the plaintiffs, it was held that an official was only entitled to use such documents for his own protection, and not for ordinary purposes, and that the Court had no jurisdiction to order him to produce them.

Where an independent Sovereign prince who had filed a bill in equity against the East India Company for recovery of two promissory notes of the company taken from him as spoils of war, upon coming in of the answer moved for production of documents, it was held that he was not entitled to their production as they related to matters of government. Rajah of Coorg v. East India Co. (1856), 25 L. J. Ch. 354; S.C. nom. Wadeer v. East India Co. (1856), 8 De G. M. & G. 182, 2 Jur. (N. S.) 407 (and see 1 R. C. 826).

Communications in official correspondence relating to matters of State cannot be produced in evidence in an action against a person holding an office, for an injury alleged to have been done in the exercise of such office. Anderson v. Hamilton (1816), 8 Price, 244 n., 4 Moore, 593 n., 2 Brod. & Bing. 156 n., 22 R. R. 751 n. Nor is a witness bound to answer questions relating to communications between the Governor of a distant province and his Attorney-General. Wyatt v. Gore (1816), Holt, 299.

Reports made in the discharge of the duties of their offices by government officials to the Crown, or its representatives, are state documents, and their production cannot be enforced in a court of law. M'Elveney v. Connellan (1864), 17 Ir. C. L. R. 55.

Where a commander-in-chief directed a military inquiry into the conduct of a commissioned army officer, who afterwards sued the president of the inquiry for a libel alleged to be contained in his report, such report was held on grounds of public policy to be privileged, and properly rejected as evidence at the trial. Home v. Bentinck (Lord) (1860), 2 Brod. & Bing. 130, 4 Moore, 563, 8 Price, 225, 22 R. R. 748. And the director of public prosecutions cannot be asked to disclose the name of his informant upon a criminal trial or any subsequent civil proceedings arising out of it, unless it seems to the judge in the criminal trial that a miscarriage of justice would be likely to ensue from the strict enforcement of the rule. Per BOWEN, L. J., in Marks v. Beyfus (1890), 25 Q. B. D. 494, 59 L. J. Q. B. 479, 63 L. T. 733, 38 W. R. 705, 17 Cox, C. C. 196.

The general rule is also supported by the cases cited below.

The question whether the production of the documents would be injurious to the public service must be determined, not by the judge, but by the head of the department having the custody of the documents or his deputy. Beatson v. Skene, supra. Thus where a collision occurs between one of the Queen's ships and a ship belonging to a private