An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying documents supplied to them by others containing confidential information about the affairs of persons other than the plaintiff who were not parties to the litigation. Much of the material appears to have been provided by those persons to the Commissioner of Customs and Excise pursuant to their statutory powers.
Held: The Court had a discretion to order disclosure of the documents and a Court would do so ‘if it is in the public interest . . if either party wanted them before the Court, he would have to subpoena the third party to produce them.’
As to this ground of privilege, Lord Denning said: ‘Although the commissioners are not entitled to Crown privilege, they are, I think, entitled to claim privilege on another ground. The privilege is quite sufficiently claimed by Sir Louis Petch in his affidavit on the ground of confidence, but is not a privilege peculiar to the Crown. It is a privilege available to all litigants. It comes down to us from the Chancery Court. It is this; a party to litigation is not obliged to produce documents, or copies of documents, which do not belong to him, but which have been entrusted to his custody by a third party in confidence. It frequently happens that a party who thinks he may be involved in litigation goes to a friend who has a material document. The friend allows him in confidence to see it and take a copy of it. He takes a copy and hands it to his solicitor. The original document came into existence long before any litigation was contemplated. It was not prepared for the purpose of getting advice on it. If the party had been entrusted by the owner with the original, it would clearly be privileged from production, simply because it did not belong to him.’
Lord Denning then quotes some authorities and continues: ‘Likewise the copy in his hands is also privileged, because he was only allowed to take the copy in confidence, and it would be an abuse of that confidence to disclose it without the permission of the owner of the original.’
Lord Cross said: ‘Here, on the other hand, one can well see that the third parties that have supplied this information to the commissioners because of their statutory powers would very much resent disclosure by the commissioner to the appellant and that it is not at all fanciful for Sir Louis to say that the knowledge that the commissioners cannot keep such information secret may be harmful to the official working of the Act. In a case where the considerations for and against disclosure appear to be fairly evenly balanced the court should I think uphold the claim for privilege on public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill-effects of non-disclosure.’
Judges:
Denning, Cross LL
Citations:
[1974] AC 405, [1973] 2 All ER 1169
Statutes:
Jurisdiction:
England and Wales
Citing:
Appeal from – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners CA 1972
Legal advice given by employed lawyers to their employers, rather than lawyers in independent practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a . .
Cited by:
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property, Litigation Practice
Updated: 18 May 2022; Ref: scu.420493