Duncan v Cammell Laird & Co Ltd (Discovery)

Die Lunae, 27° Aprilis, 1942

Parliamentary Archives,
HL/PO/JU/4/3/970

Lord
Chancellor

Lord
Thanker-
ton

Lord

Russell of
Killowen

Lord
Macmillan

Lord
Wright

Lord
Porter

Lord

Clauson

DUNCAN AND ANOTHER

v.
CAMMELL LAIRD AND COMPANY, LIMITED.

The Lord Chancellor

MY LORDS,

The question to be determined in this Appeal is as to the circum-
stances 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 repre-
sentative, 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 is first necessary to state the facts which give rise to the ques-
tion in the present case.

On June 1st, 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 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 in this lamentable disaster. A large number of actions
have been instituted by those representing, or dependent upon,
some of the deceased against the Respondents and three other
persons claiming damages for negligence. All of these actions,
except two, have been stayed until after the trial of two test actions,
which have been consolidated, and it is the Plaintiffs in these two
test actions who are the Appellants to your Lordships' House.

The Respondents in their Affidavit of Documents object to pro-
duce a number of documents listed under paragraph (B) of the
second part of the First Schedule for the reason which they set out
in their affidavit as…