gov.uscourts.nysd.447706.57.1.pdf

Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 1 of 26 EXHIBIT 1  Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 2 of 26 521 A.C. [HOUSE OF LORDS] WAUGH APPELLANT AND BRITISH RAILWAYS BOARD RESPONDENTS B 1979 May 16, 17, 21; Lord Wilberforce, Lord Simon of Glaisdale, July 12 Lord Edmund-Davies, Lord Russell of Killowen and Lord Keith of Kinkel Practice — Discovery — Privilege — Accident report by servants of railways board in pursuance of practice of board—Partly p prepared for safety purposes and partly for obtaining legal ^ advice in anticipation of legal proceedings—Whether latter purpose to be dominant for claim to privilege to succeed— Whether form of wording of report conclusive as to purpose for which prepared The plaintiff's husband was employed by the defendant railways board. In a collision between locomotives, he received injuries from which he died. The practice of the D board when an accident occurred was that on the day of the accident a brief report was made to the railway inspectorate, soon afterwards a joint internal report (" the joint inquiry report") was prepared incorporating statements of witnesses, which was also sent to the inspectorate, and in due course a report was made by the inspectorate for the Department of the Environment. The heading of the joint inquiry report stated that it had finally to be sent to the board's solicitor for the E purpose of enabling him to advise the board. The plaintiff brought an action against the board under the Fatal Acci­ dents Acts, alleging that the collision had been caused by their negligence, and sought discovery of, inter alia, the joint inquiry report. The board, who denied negligence and alleged that the collision had been caused or contributed to by the deceased's own negligence, refused to disclose the report on the ground, as stated in an affidavit sworn on their behalf, ^ that one of the principal purposes of preparing it had been so that it could be passed to their chief solicitor to enable him to advise the board on its legal liability and, if necessary, conduct their defence to the proceedings, and that it was accordingly the subject of legal professional privilege. On an interlocutory application by the plaintiff for discovery of the report, the master ordered discovery, but an appeal by the _, board from his order was allowed by Donaldson J., and the *-* Court of Appeal by a majority (Eveleigh L.J. and Sir David Cairns, Lord Denning M.R. dissenting) dismissed an appeal by the plaintiff from Donaldson J.'s order. On appeal by the plaintiff: — Held, allowing the appeal, that the due administration of justice strongly required that a document such as the internal inquiry report, which was contemporary, contained statements n by witnesses on the spot and would almost certainly be the best evidence as to the cause of the accident, should be dis­ closed; that for that important public interest to be overridden by a claim of privilege the purpose of submission to the party's legal advisers in anticipation of litigation must be at least the Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 3 of 26 522 Waugh v. British Railways Board (H.L.(E.)) [19803 dominant purpose for which it had been prepared; and that, A in the present case,, the purpose, of obtaining legal advice in anticipation of litigation having been no more than of equal rank and weight with the purpose of railway operation and safety, .the board's claim for privilege.failed and the.report should be disclosed (post, pp. 531A-B, H — 5 3 2 B , 533B-D, 5 3 4 F - G , 5 3 5 B - C , 5 3 7 E - G , 5 3 8 A - B , 543c—545A, D - F ) . ■:-;•■'.. . Birmingham and Midland Motor Omnibus Co. Ltd: v. London and North Western Railway Co. [1913] 3 K.B. 850, C.A.; Ankinv. London and North Eastern Railway Co. [1930] " . 1 K.B.' 527, C.A. and Ogden v. London Electric Railway Co. . (1933) 49 T.L.R. 542, C.A. overruled. Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, Sir George Jessel M.R. and C.A. and Grant v. Downs (1976) 135 C.L.R. 674 considered. ■•...•■,.- Per curiam. The fact that the report stated on its face that it had finally to be sent to the board's solicitor for the .-, purpose of- enabling him to advise it cannot be conclusive - as to the dominant purpose for which.it was prepared (post, pp. 53 1A, 5 3 8 A - B , 5 3 9 E - G , 5 4 5 E - F ) . . Dictum of Lord Strathclyde, Lord. President, in Whitehill v. Glasgow Corporation, 1915 S.C. 1015, 1017 applied. Decision of the Court of Appeal reversed. The following cases are referred to in their Lordships' opinions: j) Anderson v. Bank of British Columbia (1876) 2,Ch.D. 644, Sir George Jessel M.R. and C.A. Ankin v. London and North Eastern Railway Co. [1930] 1 K.B. 527, C.A. Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850, C.A. Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 F All E.R. 874, H.L.(E.). Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch [1942] A.C. 435; [1942] 1 All E.R. 142, H.L.(Sc). Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973] 2 All E.R. 1169, H.L.(E.). D. v. National Society for the Prevention of Cruelty to Children [1978] F A.C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, H.L.(E.). Grant v. Downs (1976) 135 C.L.R. 674; 11 A.L.R. 577. Jones v. Great Central Railway Co. [1910] A.C. 4, H.L.(E.). Jones v. Monte Video Gas Co. (1880) 5 Q.B.D. 556, C.A. Konia v. Morley [1976] 1 N.Z.L.R. 455. Lawrence v. Campbell (1859) 4 Drew. 485. G Longthorn v. British Transport Commission [1959] 1 W.L.R. 530; [1959] 2 All E.R. 32. Northern Construction Co. v. British Columbia Hydro and Power Autho­ rity (1970) 75 W.W.R. 21. Ogden v. London Electric Railway Co. (1933) 49 T.L.R. 542, C.A. Reg. in Right of Canada v. Hawker Siddeley Canada Ltd. (1976) 73 D.L.R. (3d) 453. H Seabrook v. British Transport Commission [1959] 1 W.L.R. 509; [1959] 2 All E.R. 15. Southwark and Vauxhall Water Co. v. Quick (1878) 3 Q.B.D. 315, C.A.  Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 4 of 26 523 A.C. Waugh v. British Railways Board (H.L.(E.) ) Vernon v. Board of Education for the Borough of North York (1975) A 9 O.R.(2d) 613. Whitehill v. Glasgow Corporation, 1915 S.C. 1015. The following additional cases were cited in argument: Adam Steamship Co. Ltd. v. London Assurance Corporation [1914] 3 K.B. 1256, C.A. B Collins v. London General Omnibus Co. (1893) 68 L.T. 831, D.C. Cook v. North Metropolitan Tramway Co. (1889) 54 J.P. 263, D.C. London and Tilbury Railway Co. v. Kirk and Randall (1884) 28 S.J. 688, D.C. Westminster Airways Ltd. v. Kuwait Oil Co. Ltd. [1951] 1 K.B. 134; [1950] 2 All E.R. 596, C.A. Woolley v. North London Railway Co. (1869) L.R. 4 C.P. 602. C INTERLOCUTORY APPEAL from the Court of Appeal. By an action against the respondent defendants, the British Railways Board, the appellant plaintiff, Alice Simpson Waugh (widow of John Wallace Waugh, deceased), claimed damages against the board in respect of the death of the deceased under the provisions of the Fatal Accidents J-J Acts 1846-1959, alleging that a collision between two of the board's locomotives that had resulted in the death of the deceased, who had been employed by the board, had been caused by the negligence of the board, their servants or their agents. By their defence, the board denied negli­ gence, and alleged that the collision had been caused or contributed to by the deceased's own negligence. The plaintiff sought discovery of an internal inquiry report made by two officers of the board two days after the E accident, but the board refused discovery on the ground of legal pro­ fessional privilege. On an interlocutory application by the plaintiff, Master Bickford Smith, on January 26, 1978, ordered disclosure of the report, but Donaldson J., on May 8, 1978, allowed an appeal by the board from that order. The Court of Appeal, on July 28, 1978, by a majority (Eveleigh L.J. and Sir David Cairns, Lord Denning M.R. dissenting) dismissed an appeal p by the plaintiff. The plaintiff appealed by leave of the Court of Appeal. The facts are set out in their Lordships' opinions. Peter Weitzman Q.C. and Michael Brent for the plaintiff. Where a report is brought into existence for several reasons or purposes only one of which is to obtain professional legal advice in litigation that is pending or anticipated, is it protected by legal professional privilege from dis- G covery? What is the test? There are a number of possible answers. (1) It is enough to secure privilege if the intention to obtain legal advice is a purpose, inter alia. (2) The intention to obtain legal advice must be at least a substantial purpose. (3) The purpose for which the document is brought into existence must be wholly or mainly that of obtaining profes­ sional legal advice, or it must have been " the primary," " the substan- JJ tive," or " the dominant," purpose (these different phrases have all been used in the cases). (4) It must be the sole purpose. The plaintiff says that the answer is (4), alternatively, possibly, (3). As to the authorities, the following preliminary observations may be Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 5 of 26 524 Waugh v. British Railways Board (H.L.(E.)) [1980] made. At one time, the practice differed as between equity and com- . mon law. (2) R.S.C., Ord. 24, r. 5, first came into existence in 1894 as R.S.C., Ord. 31, r. 19A. It was not until then that there was power in the court to inspect the documents in respect of which privilege was claimed. The authorities fall into three groups: (i) pre-1913; (ii) Birming­ ham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850 and Ogden v. London Electric Railway Co. (1939) 49 T.L.R. 542; (iii) the cases after that, which do not add B much. Southwark and Vauxhall Water Co. v. Quick (1878) 3 Q.B.D. 315 is strong authority for the " sole purpose " test, and Collins v. London General Omnibus Co. (1893) 68 L.T. 831 is also clear authority that at that stage the test was the " sole purpose " test. [Reference was made to Woolley v. North London Railway Co. (1869) L.R. 4 C.P. 602; Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644; London and Tilbury Railway Co. v. Kirk and Randall (1884) 28 S.J. 688; Cook v. C North Metropolitan Tramway Co. (1889) 54 J.P. 263; and the Sixteenth Report of the Law Reform Committee (Privilege in Civil Proceedings) (1967) (Cmnd. 3472), pp. 8 (para. 17), 13.] Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850 turns, to begin with, on the form of words used in the affidavit (Eveleigh L.J. in the present case D said that the judgment of Buckley L.J. there could be read in that way). It was not, therefore, intended to deal with the proper principles or test to be applied. Alternatively, Buckley and Hamilton L.JJ. were by implica­ tion referring to the " dominant purpose " test. The plaintiff relies on the passage at p. 860: " The only authority . . ." Hamilton L.J. is at least saying that there is no authority for the view that the purpose does not at least have to be the primary or substantial purpose, and the judgment of Buckley L.J., even taken on its own, does not go to the extent of contradicting that of Hamilton L.J.: see at p. 856: " I t is not I think necessary . . ." (In Southwark and Vauxhall Water Co. v. Quick, 3 Q.B.D. 315, the word " merely " was used a number of times by Brett L.J.) The argument in the Birmingham case was directed largely to the form of the affidavit. There is no suggestion in the report that there was any F other purpose. The judgment of Buckley L.J. relates primarily to the wording of the affidavit rather than to the substance of it. [Reference was made to Adam Steamship Co. Ltd. v. London Assurance Corpora­ tion [1914] 3 K.B. 1256 and Ankin V. London and North Eastern Rail­ way Co. [1931] 1K.B.527.] Ogden V. London Electric Railway Co., 49 T.L.R. 542, is moving to the position that, as a matter of substance, it is enough that one, substan- ® tial, purpose for bringing the document into existence is that it shall be available for legal advice. This is inconsistent with the judgments in Southwark and Vauxhall Water Co. v. Quick, 3 Q.B.D. 315. Scrutton L.J. misinterpreted that case, and wrongly extended what the Birmingham case decided. Ogden was wrongly decided, if it is authority that a substantial purpose is sufficient. Westminster Airways Ltd. v. Kuwait Oil Co. Ltd; JJ [1951] 1 K.B. 134 is against the plaintiff: it shows that, since Ogden, the courts have been following Ogden and taking the view that a substantial purpose is enough. There is a reference to " other purposes " at p. 143. Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 6 of 26 525 A.C. Waugh v. British Railways Board (H.L.(E.)) [Reference was made to Seabrook v. British Transport Commission [1959] A 1 W.L.R. 509; Longthorn v. British Transport Commission [1959] 1 W.L.R. 530 and Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405.] The privilege should only be accorded where it is necessary in order to achieve the purpose for which it is designed. Where the party would have brought the document into existence apart from the seeking of legal B advice, there is no need for the privilege. Before 1894, when only the affidavit was produced, the inability of the court to inspect the actual documents could lead to abuse or mistake. Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850 was the first case where the court examined what the affidavit had to say and also looked at the documents. Thus, the language of the affidavit was no longer vital. There were now two questions: C should the court inspect the documents, and was the form of words conclusive? Because the court could inspect the documents, the form of words was no longer conclusive. [Reference was made to Grant v. Downs (1976) 135 C.L.R. 674; Wigmore's Law of Evidence (1905), vol. iv, paras. 2317-2319 and R.S.C., Ord. 38, r. 29.] The plaintiff's submissions, in summary, are as follows. 1. Ogden v. D London Electric Railway Co., 49 T.L.R. 542, was wrongly decided. One can go back to the situation before Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850, where, as was said in Southwark and Vauxhall Water Co. v. Quick, 3 Q.B.D. 315, the sole purpose test was the appropriate test. What is said by Lord Cross of Chelsea in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] E A.C. 405, with the concurrence of the others of their Lordships, is that the matter is now open for the House to decide what is the appropriate test to be applied—that is, presumably, that which is most desirable in the interests of justice. If privilege is to be accorded to a document, it is only to be accorded where that is necessary for the basic rationale of the rule, as expressed, inter alia, by Sir George Jessel M.R. in p Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, 648-649. If a document comes into existence in circumstances such that it cannot be shown that it would not have come into existence but for the purposes of litigation, then in truth the privilege does not serve the purpose that is the basis of the rule, but merely provides an adventi­ tious advantage. This is particularly the case with large corporate employers who are obliged to collect knowledge, as in this case. These ^ points were made in Grant v. Downs, 135 C.L.R. 674, on which the plaintiff very much relies. The problem posed can best be met by applying the sole purpose test; alternatively, the dominant purpose test, on the basis that the dominant purpose is the one that, if it had not existed, would mean that the document would not have come into exist­ ence. Here, the litigation purpose is at the highest one of two equal JJ purposes. Francis Irwin Q.C. and Frederick Marr-Johnson for the board. The powers of the inspectors appointed by the Secretary of State are set out in section 4 of the Regulation of Railways Act 1871. The report of Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 7 of 26 526 Waugh v. British Railways Board (H.L.(E.)) [1980] October 29, 1976, can be obtained by. anyone from the Ministry of Trans- port or Her Majesty's Stationery Office. One of the objects of privilege is to prevent one party from seeing in detail what the other party's case is. It is very difficult to define " sub­ stantial." As to the tests, (1) once duality has been raised, there is no English case that has approved the sole purpose test. The only case, relied on by the plaintiff, is Grant v. Downs, 135 C.L.R. 674. (2) the dominant purpose test has not been used by any judge except Barwick C.J. in Grant v. Downs. How does one assess dominance? Dominance in whose eyes? At what particular time? [LORD EDMUND-DAVIES. In a civilised society, would not the domin­ ant purpose be to find out what happened, so as to prevent it from happening again?] In this case, there was no dominant purpose. The second report, the C joint inquiry report of May 6, 1976, was really the collection of evidence. One difficulty of this approach is to distinguish between one aspect and another: which is the important one? The answer here should therefore be that the real test here can be described as a " substantial purpose "-r- " a substantial purpose "—test, or an " appreciable purpose " test. " An appreciable " means that it is something of consequence. The board does -Q not accept the substantial purpose test because there was not a substantial purpose here. If there had been one, they would not go as far as to accept that test. They would accept that it is a question of "dominant in whose eyes? " Even there, there is difficulty, because one might have, for example, two members of a family charged with making a report about an accident that had happened to them: one might regard the dominant purpose of the report as liability, the other safety. " A dominant pur- E pose " means a substantial purpose without the need to inquire whether it was the dominant purpose. There are two basic criteria: (1) that the test should be fair to both parties to the litigation; (2) that it should be simple to understand and easy to apply in practice. Support for the " a substan­ tial purpose " test is found in the judgment of Diplock J. in Longthorn V. British Transport Commission [1959] 1 W.L.R. 530, 534; see also Konia p v. Morley [1976] 1 N.Z.L.R. 455 and the test that Eveleigh L.J. applied in the present case. Provided that the board establish a substantial purpose, they concede that there may be cases—not this one-^-where there may be a more important function. Thus, the substantial, appreciable purpose test ought to be applied. It represents the law and practice of at least the last 60 years. It is fair to both parties, in the sense that the privilege attaching to the document supports the case of the board in this instance. G It has that advantage, but it precludes the plaintiff, on general grounds, from having access to information to which otherwise she would be •entitled. [LORD SIMON OF GLAISDALE. There are two conflicting principles— curiously, both advanced to further the administration of justice. They point in different directions. One usually tries to resolve such a conflict JJ [byfindinga middle line.] ■< That is the difficulty here: to find a workable middle line. This advances the board's case for "substantial" or "appreciable."  Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 8 of 26 527 \.C. ' ;Waugh V.British Railways Board (H.L.(E.)) [LORD.RUSSELL OF KILLOWEN. What about the preliminary accident report?. There must also have been a report to the police?] The accident report was not disclosed. The coroner's notes were dis­ closed. The board could hold two inquiries, one as to liability and..one as to safety. It could not then be said that the first would be disclosable: The second would be. The plaintiff says.that Southwark and Vauxhall Water Co. v. Quick; B 3 Q.B.D. 315, is strong authority for the sole purpose test. There, the court was not concerned with any duality of purpose, and they were not directing their mind to that point. "Secondly, the plaintiff says that Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850 turned mainly on the form of words used in the affidavit and was not, therefore, intended to deal with the proper principles and the test to be applied; alternatively, C she suggests that Buckley and Hamilton LJJ. were by implication referring to the dominant purpose test. That case has been considered ever since it was decided as settling matters of principle, and it is not correct to say that within the language used the court were favouring the dominant purpose test. There is no distinction between " primary " and " domim ant"; that is why one should prefer the substantial purpose test. D ' The plaintiff said that Ogden v. London Electric Railway Co., 49 T.L.R. 542, was Wrongly decided: Scrutton L.J. misinterpreted the Southwark and Vauxhall case and extended what had been decided in the Birmingham case. Ogden, like the Birmingham case, has been regarded as settling matters of principle now for "a great number of years; Scrutton L.J. took a correct view of the Southwark and Vauxhall Case and correctly interpreted and applied the Birmingham case. The present state of the E law, based principally on the Birmingham case, the Ogden case and othef cases referred to in Seabrook. v. British Transport Commission [1959] 1 W.L;R. 509, may be summarised as follows. (1) All communications between a client or his legal adviser and third parties are prima facie privileged if one of the purposes for which they are made is the purpose of pending or contemplated litigation. (2) This purpose need not be the p " dominant" purpose for the document's existence, but it must be a "substantial" or "appreciable" purpose. (3) Whether or not the pur­ pose is sufficiently substantial to attract the cloak of privilege will be a question of fact and degree in every case. There is no magic in any particular form of words, and (for example) it is not necessary that the affidavit should state that information was obtained " solely " o r " merely " or " primarily " for the legal adviser. (4) Such a communication remains G privileged notwithstanding the fact that it is brought into existence as a matter of routine, or in accordance with standing instructions, and not­ withstanding the fact that it may pass through various hands before coming finally to the legal adviser. If the test is dominant purpose, it is possible to argue that the dominant purpose of the joint inquiry report was an inquiry into liability. The JJ " label" on the affidavit of the assistant to the general manager of the board's Eastern Region in support of the board's claim of privilege artd on the joint inquiry report cannot be more than an indication of its pur-; pose. Paragraph 2 of the board's list of documents, stating that they have Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 9 of 26 528 Waugh v. British Railways Board (H.L.(E.)) [1980] in their possession, custody or power the documents " relating to the . matters in question in this action" enumerated in the first schedule, is standard form. Marr-Johnson following on the Commonwealth authorities. As to Grant v. Downs, 135 C.L.R. 674, the House should have in mind the principle set out by the majority there. Using shorthand, they applied the sole purpose test. The judgment of the majority is based on a fallacy, based on a misunderstanding of Anderson v. Bank of British Columbia B (1876) 2 Ch.D. 644: see at pp. 687-689. It can be reduced to four pro­ positions. (1) An ordinary individual can always be compelled to dis­ close his own knowledge of relevant facts. (2) A corporation generally has to acquire knowledge of relevant facts through the written communi­ cations of its agents. (3) It would be extraordinary if a corporation could claim the benefit of a privilege that was not available to an ordinary individual. (4) The majority conclude that, if the dual purpose claim is allowed the effect would be precisely that. The board agrees with (3), but (4) does not follow from (1) and (2). (1) is correct, but " relevant facts" means the basic facts of the transaction, the res gestae, one might almost say: the written documents in an accident case—typically, the entry in the accident book in a factory case—or, in a commercial case, the bank account in question. Anderson v. Bank of British D Columbia is probably right if one reads it from end to end. The facts were wholly different from those in Grant v. Downs. That is plain, especially from the judgment of Mellish L.J., at p. 658: " . . . as to the question that we have to decide in this case . . . " It is well-established that a client is entitled to act on behalf of his legal adviser in obtaining information from third parties. A corporation is in no different position from an individual. That point was made clearly by Cotton L.J. in Southwark and Vauxhall Water Co. v. Quick, 3 Q.B.D. 315, 321. There is no difference at all that the board is aware of. It is plain from all the judgments in Anderson v. Bank of British Columbia, 2 Ch.D. 644, particularly that of Mellish L.J., that all the docu­ ments there would legitimately have been the subject of discovery if the bank had been in England: they were, in truth, bankers' records. F The board is not aware of any case other than Grant v. Downs, 135 C.L.R. 674, where the sole purpose test has been applied. It is not right to draw the line at that particular point. If one is to draw a line at all, one should draw it where it is capable of being applied easily in practice (it is not only High Court judges who have to apply it). Apart from Australia, the Commonwealth authorities all apply the sub- stantial purpose test, which does work adequately in practice. One " might have two different safety officers, one concerned with safety, one with liability. Or one might have a document 90 per cent, of which was concerned with safety, 10 per cent, with liability. These Commonwealth cases follow the practice in England and Wales, and in two of them where the substantial purpose test was applied the claim to privilege failed: Northern Construction Co. v. British Columbia Hydro and Power JJ Authority (1970) 75 W.W.R. 21 and Vernon v. Board of Education for the Borough of New York (1975) 9 O.R. (2d) 613. Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2)  Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 10 of 26 529 A.C. Waugh v. British Railways Board (H.L.(E.)) [1974] A.C. 405 was considered in Reg. in Right of Canada v. Hawker A Siddeley Canada Ltd. (1976) 73 D.L.R. (3d) 453. [Reference was made to Konia v. Morley [1976] 1 N.Z.L.R. 455.] Weitzman Q.C. in reply. One should not go through this report line by line, but should look at what the person says who inspired it. There is confusion in the board's argument between the function of pleadings on the one hand and particulars on the other. One should distinguish B between the purpose for which the report was made and the use even­ tually made of its contents. As to the proposition that the test should be simple to understand and easy to apply, that is the whole question here. It is very difficult to say exactly where such a test as " a substantial purpose " draws the line. It seems as though the Law Reform Committee in its Sixteenth Report (Privilege in Civil Proceedings) (1967) (Cmnd. r 3472) were recommending the dominant purpose test: see at p. 8, para. C 17: "wholly or mainly." Even if the board's historical summation of the authorities be right, the House in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405 regarded the matter as open for reconsideration. It is quite impossible that the board should succeed on the dominant D purpose test, because their affidavit falls far short of it. That was recognised by Eveleigh L.J. As to the Commonwealth authorities, see Grant v. Downs, 135 C.L.R. 674: the Commonwealth cases more or less follow what was said in Seabrook v. British Transport Commission [1959] 1 W.L.R. 509 and Longthorn v. British Transport Commission [1959] 1 W.L.R. 530. E Fairness and good sense suggest that the privilege should be limited to those cases where it is essential that it should be granted. Where a docu­ ment would have been produced anyway, whether there was to be litigation or not, that suggests that the privilege is not necessary. Their Lordships took time for consideration. F July 12. LORD WILBERFORCE. My Lords, the appellant's husband was an employee of the British Railways Board. A locomotive which he was driving collided with another so that he was crushed against a tank wagon. He received injuries from which he died. The present action is brought under the Fatal Accidents Acts 1846-1959 and this appeal arises out of an interlocutory application for discovery by the board of a report called the G " joint inquiry report," made by two officers of the board two days after the accident. This was resisted by the board on the ground of legal pro­ fessional privilege. The Court of Appeal, Eveleigh L.J. and Sir David Cairns, Lord Denning M.R. dissenting, refused the application. When an accident occurs on the board's railways, there are three reports which are made. 1. On the day of the accident a brief report of the JJ accident is made to the Railway Inspectorate. 2. Soon afterwards a joint internal report is prepared incorporating statements of witnesses. This too is sent to the Railway Inspectorate. Preparation of this report, it appears, is a matter of practice: it is not required by statute or statutory regula- A.C. 1980—20 Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 11 of 26 530 Lord Wilberforce .Waugh v. British Railways Board (H.L.(E.)) [1980] tion. 3. In due course a report is made by the Railway Inspectorate for . the Department of the Environment. The document now in question is that numbered 2. The circumstances in which it came to be prepared, and the basis for the claim of privilege, were stated in an affidavit sworn on behalf of the board by Mr. G. T. Hastings, assistant to the general manager of the Eastern Region. I find it necessary to quote the significant passages in this affidavit. D " 3. The general manager of the Eastern Region is required (as are the general managers of the other railways regions) to submit returns to the Department of [the] Environment in respect of accidents occurring on or about any railway . . . 6. It has long been the practice of the board and its predecessors to require that returns and reports on all accidents occurring on the railway and joint internal departmental inquiries into the causes of the said accident be made by the local officers of C the board who would forward them to their superiors in order to assist in establishing the causes of such accidents. 7. Such reports and the statements of witnesses to such accidents are made for the purposes mentioned in paragraphs 3 and 6 of this affidavit and equally for the purpose of being submitted to the board's solicitor as material upon, which he can advise the board upon its legal liability and for ]-» the purpose of conducting on behalf of the board any proceedings arising out of such accidents . . . 9. It is commonly anticipated by the board that: (a) where an employee of the board suffers personal injury or death at. work or (b) where a passenger suffers loss [or] personal injury- or death while on or about the railway a claim for damages will be made against the board and proceedings will ensue if liability is repudiated. The present action is brought as the result of a fatal E accident suffered at. work by the late husband of the plaintiff and it was anticipated from the very outset that a claim for damages would almost certainly ensue.i 10. The documents in this action namely the reports made by the board's officers and servants and the report referred to in correspondence as the internal inquiry report for which the defendants have claimed privilege in part 2 of the first p schedule of their list of documents dated November 11, 1977, came into existence by reason of the fact that the appropriate officer, in this case the divisional manager at Newcastle, in accordance with long standing practice was required to and did so call for such reports and statements. One of the principal purposes for so doing was so that they could be passed to the board's chief solicitor to enable him to advise the board on its legal liability and if necessary conduct its G defence to these proceedings. 11. The internal inquiry report in fact states on the face of it that it has finally to be sent to the solicitor for the purpose of enabling him to advise the board." This last paragraph refers to the wording which appears at the head of the report: ' . ' JJ : : " For the information of the board's solicitor: This form is to be used by every person reporting an occurrence when litigation by or -:: against the B.R.B.: is anticipated. It as to beprovided by the person  Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 531 Page 12 of 26 A.C. . Waugh v. British Railways Board (H.L.(E.)) Lord Wilberforce making it to his immediate superior officer and has finally to be sent to the solicitor for the purpose of enabling him to advise the B.R.B. in regard thereto." Whatever this heading may say, the affidavit makes it clear that the report was prepared for a dual purpose: for what may be called railway operation and safety purposes and for the purpose of obtaining legal B advice in anticipation of litigation, the first being more immediate than the second, but both being described as of equal rank or weight. So the question arises whether this is enough to support a claim of privilege, or whether, in order to do so, the second purpose must be the sole purpose, or the dominant or main purpose. If either of the latter is correct, the claim of privilege in this case must fail. My Lords, before I consider the authorities, I think it desirable to C attempt to discern the reason why what is (inaccurately) called legal pro­ fessional privilege exists. It is sometimes ascribed to the exigencies of the adversary system of litigation under which a litigant is entitled within limits to refuse to disclose the nature of his case until the trial. Thus one side may not ask to see the proofs of the other side's witnesses ■ or the opponent's brief or even know what witnesses will be called: he must D wait until the card is played and cannot try to see it in the hand. This argument cannot be denied some validity even where the defendant is a public corporation whose duty it is, so it might be thought, while taking all proper steps to protect its revenues, to place all the facts before the public and to pay proper compensation to those it has injured. A more powerful argument to my mind is that everything should be done in order to encourage anyone who knows the facts to state them fully and candidly E ^-as Sir George Jessel M.R. said, to bare his breast to his lawyer: Anderson y. Bank of British Columbia (1876) 2 Ch.D. 644, 699. This he may not do unless he knows that his communication is privileged. < ■' But the preparation of a case for litigation is not the only interest which call for candour. In accident cases " . . . the safety of the public may well depend on the candour and completeness of reports made by P subordinates whose duty it is to draw attention to defects": Conway v. Rimmer [1968] A.C. 910, per Lord Reid, at p. 941. This however does not by itself justify a claim to privilege since, as Lord Reid continues: " . . . no one has ever suggested that public safety has been endangered by the candour or completeness of such reports having been inhibited by the fact that they may have to be produced if the interests of the Q ( due administration of justice should ever require production at any time." " " . . ' : ' ' : .'. . So one may deduce from this the principle that while privilege may be required in order to induce candour in statements made for the purposes of litigation it is not required in relation to statements whose purpose is different—for example to enable a railway to operate safety. JJ It is clear that the due administration of justice strongly requires dis­ closure and production of this report: it was contemporary; it contained statements by witnesses on the spot; it would be not merely, relevant evidence, but almost certainly the best evidence as to the cause of the Case532 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 13 of 26 Lord Wilberforcc Waugh v. British Railways Board (H.L.(E.)) [1980] accident. If one accepts that this important public interest can be over- . ridden, in order that the defendant may properly prepare his case, how close must the connection be between the preparation of the document and the anticipation of litigation? On principle I would think that the purpose of preparing for litigation ought to be either the sole purpose or at least the dominant purpose of it: to carry the protection further into cases where that purpose was secondary or equal with another purpose would seem to be excessive, and unnecessary in the interest of encouraging B truthful revelation. At the lowest such desirability of protection as might exist in such cases is not strong enough to outweigh the need for all rele­ vant documents to be made available. There are numerous cases in which this kind of privilege has been con­ sidered. A very useful review of them is to be found in the judgment of Havers J. in Seabrook v. British Transport Commission [1959] 1 W.L.R. 509 which I shall not repeat. It is not easy to extract a coherent principle from them. The two dominant authorities at the present time are Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. [1913] 3 K.B. 850 and Ogden V. London Electric Railway Co. (1933) 49 T.L.R. 542, both decisions of the Court of Appeal. These cases were taken by the majority of the Court of Appeal in the present case to require the granting of privilege in cases D where one purpose of preparing the document(s) in question was to enable the defendants' case to be prepared whether or not they were to be used for another substantial purpose. Whether in fact they compel such a conclusion may be doubtful—in particular I do not understand the Birmingham case to be one of dual purposes at all: but it is enough that they have been taken so to require. What is clear is that, though loyally followed, they do not now enjoy rational acceptance: in Longthorn v. ^ British Transport Commission [1959] 1 W.L.R. 530 the manner in which Diplock J. managed to escape from them, and the tenor of his judgment, shows him to have been unenthusiastic as to their merits. And in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Com­ missioners (No. 2) [1974] A.C. 405 Lord Cross of Chelsea, at p. 432, pointedly left their correctness open, while Lord Kilbrandon stated, at p p. 435, that he found the judgment of Scrutton L.J. in Ogden v. London Electric Railway Co., 49 T.L.R. 542, 543-544, "hard to accept." Only Viscount Dilhorne (dissenting) felt able to follow them in holding it to be enough if one purpose was the use by solicitors when litigation was anticipated. The whole question came to be considered by the High Court of Australia in 1976: Grant V. Downs, 135 C.L.R. 674. This case involved G reports which had " as one of the material purposes for their preparation " submission to legal advisers in the event of litigation. It was held that privilege could not be claimed. In the joint judgment of Stephen, Mason and Murphy JJ., in which the English cases I have mentioned were dis­ cussed and analysed, it was held that " legal professional privilege " must be confined to documents brought into existence for the sole purpose of JJ submission to legal advisers for advice or use in legal proceedings. Jacobs J. put the test in the form of a question, at p. 692: " . . . does the purpose "—in the sense of intention, the intended use—" of supplying Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 14 of 26 533 A.C. Waugh v. British Railways Board (H.L.(E.)) Lord Wilberforce the material to the legal adviser account for the existence of the ^ material? " Barwick C.J. stated it in terms of " dominant" purpose. This is closely in line with the opinion of Lord Denning M.R. in the present case that the privilege extends only to material prepared " wholly or mainly for the purpose of preparing [the defendant's] case." The High Court of Australia and Lord Denning M.R. agree in refusing to follow Birmingham and Midland Motor Omnibus Co. Ltd. v. London B and North Western Railway Co. [1913] 3 K.B. 850 and Ogden v. London Electric Railway Co., 49 T.L.R. 542, as generally understood. My Lords, for the reasons I have given, when discussing the case in principle, I too would refuse to follow those cases. It appears to me that unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose for which the relevant document was prepared, the reasons which require privilege to be extended to it cannot ^ apply. On the other hand to hold that the purpose, as above, must be the sole purpose would, apart from difficulties of proof, in my opinion, be too strict a requirement, and would confine the privilege too narrowly: as to this I agree with Barwick C.J. in Grant v. Downs, 135 C.L.R. 674, and in substance with Lord Denning M.R. While fully respecting the necessity for the Lords Justices to follow previous decisions of their court, I find D myself in the result in agreement with Lord Denning's judgment. I would allow the appeal and order disclosure of the joint report. LORD SIMON OF GLAISDALE. My Lords, the appellant's late husband, an employee of the respondents, was killed in an accident on part of their railway system. In accordance with their usual practice, shared by many industrial and commercial undertakings in such circumstances, a report E was made about the accident. As so often, the report came into being partly for the purpose of ascertaining whether the working system was defective and could be improved so as to obviate such accidents, partly for the purpose of informing the respondents' solicitors in case of the threat or initiation of litigation, which, at the time when the report was made, was contemplated by the respondents as possible or probable. p The report, as is usual, contains statements by all such persons as could throw light on the circumstances of the accident, the majority of whom could be witnesses in any ensuing litigation. Litigation having in fact been started by the appellant against the respondents, the former has sought disclosure of the report to assist her in the preparation and /or conduct of her case. The respondents resist its disclosure, on the ground that it is protected by legal professional privilege. G The situation being far from unusual, the issue has quite frequently been before the courts. The English authorities were meticulously reviewed by Havers J. in Seabrook v. British Transport Commission [1959] 1 W.L.R. 509. His conclusion was that he was bound by what had been said by the majority of the Court of Appeal in Birmingham and Midland Motor Omnibus Co. Ltd. v. London and North Western Railway Co. H [1913] 3 K.B. 850, and by the ensuing Court of Appeal decisions in Ankin v. London and North Eastern Railway Co. [1930] 1 K.B. 527 and Ogden v. London Electric Railway Co., 49 T.L.R. 542. The law thus laid down was that such a report need not be disclosed if one of its purposes Case 1:15-cv-07433-RWS Document 57-1 Filed 03/14/16 Page 15 of 26 §34 J-?1* Simon Waugh v. British Railways Board (H.L.(E.)) [1980] of Glaisdale " (even though subsidiary) was to inform the solicitor with a view to » litigation contemplated as possible or probable. That this was the correct di