E. Earl and Others, Commissioners of the Board of Customs for Scotland - Shepher - Giffor - Maconochie v. David Vass [1822] UKHL 1_Shaw_229

UKHL
E. Earl and Others, Commissioners of the Board of Customs for Scotland - Shepher - Giffor - Maconochie v. David Vass
[1822] UKHL 1_Shaw_229
Held, ex parte, (reversing the judgment of the Court of Session,) that public officers are not entitled or compellable to produce written communications made to them officially relative to the character and conduct of a party applying for a public office, the productions being demanded with a view to an action of damages against the writer.Vass , who was formerly a paymaster in the Berwickshire regiment of North British militia, raised an action before the Court of Session against the Earl of Home, the Colonel of the regiment, stating, that having been about to be appointed to the office of Comptroller of Customs at the port of Grangemouth in Scotland, the Earl had, in answer to a letter from the Collector of Customs at that port, insinuated that he had been obliged to leave the regiment, which insinuation had given rise to a correspondence with the Board of Custom sand the Lords of the Treasury with the Earl, who had in the course of it made various malicious, false, and calumnious statements against him, in consequence of which he was deprived of the office of Comptroller; and therefore concluding for damages. * The Lord Ordinary ordered Vass to give in a condescendence of his averments, and answers to be lodged by the Earl of Home; on advising which, he ordained “the pursuer to confess or deny, by a writing under his hand, the statements contained in the answers to the condescendence;” and granted to him a diligence for recovery of the writings founded on by him in the condescendence. That correspondence consisted chiefly of the letters which had been written by the Earl of Home to the Commissioners of Customs, and to the Lords of the Treasury, in consequence of a requisition by them to that effect. In virtue of this diligence, Vass summoned the Commissioners of Customs and their Secretary “to bring with them, exhibit and produce the writings founded on by the pursuer in his condescendence, or such of them as they have in their hands, custody or keeping, and to depone thereupon as in an exhibition.” The Commissioners gave in a minute, objecting that they were neither bound nor entitled to produce the papers called for, as they had come into their hands on behalf of the public, and in the course of an investigation as to the fitness of Vass to hold an official and

Footnote

* The summons is fully recited in the opinion delivered by the Lord Chancellor. See postea, p. 231.

Page: 230 ↓

The Commissioners of Customs having appealed, and no Case being lodged on behalf of Vass, the House of Lords “ordered and adjudged that the interlocutors complained of be reversed.”Lord Chancellor .—My Lords, this is a case brought before your Lordships upon appeal by the Commissioners of the Board of Customs in Scotland, which gives rise to the question, whether the appellants can be compelled to produce in evidence in a Court of Law, in an action depending between third parties, and in which they have no interest, officially or otherwise, the documents coming to their hands in the discharge of their official duty, and remaining in their custody? This question, so stated, arose incidentally in the course of the proceedings.My Lords,in the paper I have in my hand, it is taken for granted by those who insist that the Commissioners of Customs ought to produce these papers, that the Commissioners of the Customs might, if they were influenced by caprice, produce the papers; and therefore it is argued, if it is competent for them to produce them, they ought to be compellable to produce them. I apprehend, in all the cases in which it has been held, upon the principles of public policy, that you shall not be compellable to give evidence of, or produce such instruments,—that is, wherever it is held you are not, on grounds of public policy, to produce them,—you cannot produce them, and that it is the duty of the Judge to say, you shall not produce them. This question is not, whether they can be permitted to produce them, but whether they can be compelled to produce them.

I preface what I am going to state by saying, that I do not mean

Footnote

* See Fac. Coll. 20th February 1818, No. 155, where it is stated, that “three of the Judges expressed an opinion that the Board were bound to produce the letters called for, being from a third party to the Board, and their contents being condescended on, although the case might have been otherwise with regard to official communications between the Board and their own officers employed in making inquiries, or between the Board and the Treasury. Their Lordships did not see why the Board should not be bound to produce their information, as the Lord Advocate is. The remaining two Judges were of opinion, that the compelling the production of such letters would deprive the Board of the power of procuring information, and that it would be unjust to the opposite party, as all that could be obtained was only a partial production of evidence, it being admitted that the Board were not bound to disclose their deliberations and proceedings upon the information obtained by them, so that it could not appear to what extent the information had operated,”

Page: 231 ↓

Page: 232 ↓

Page: 233 ↓

There were short defences put in to this summons, and then the Court of Session did (as well they might) call upon this party to condescend upon what he had complained of, and accordingly the condescendence is in these terms:—

in consequence the pursuer has not been installed into the office.”

“That the pursuer, in the month of May 1815, received the usual official notice, that he had been nominated by the Lords of the Treasury to be Comptroller of the Customs at Grangemouth, in the room of Mr. Thomas Learmonth resigned, and he was at the same time informed that he must repair to Leith for instruction in the duties of his office. All this is instructed by a letter from Messrs. Muirhead and Burns, two of the officers of the Customs at Grangemouth, dated the 10th of May 1815, produced in process. Mr. Muirhead, the Collector of the Customs at that port, having written to Lord Home, (of whose regiment the pursuer had formerly been paymaster,) inquiring where the pursuer resided, the defender was pleased, in answer to this, to state that the pursuer had been obliged to leave the regiment. This statement was utterly untrue; for, though the pursuer had voluntarily resigned his situation of paymaster a few weeks before the regiment was disembodied, yet in fact he continued to act in that capacity, and never left the regiment at all while it remained embodied. The Collector having transmitted Lord Home's letter to the Board of Customs, the pursuer was required to explain the cause of his being obliged to leave the regiment. He applied to Lord Home for an explanation of this unguarded expression, which his Lordship refused to give; and, on the contrary, by additional representations and misstatements, written and verbal, regarding the pursuer, his Lordship succeeded in depriving him of his appointment. The pursuer will prove that the various statements and representations made by Lord Home to the Board of Customs, or to their officers, were untrue; and that it was in consequence of these statements and misrepresentations that he lost his appointment. In consequence of these statements and misrepresentations, a report was made by the Board of Customs to the Lords of the Treasury, stating that the memorialist was an unfit and improper person for the appointment, and

Page: 234 ↓

Then he states the annual salary, and the amount of his loss.My Lords,the defender made an answer to the condescendence; and I will just repeat again, that I am not stating this with an assertion that it is true, or giving any intimation whether it is true or untrue; but upon the supposition that it may be true,—and where the question is, whether a man is fit to be the servant of the public, and where that question is to be decided by inquiries, and where the persons do not forget their duty so much as to say, I will give you no answer, although it is fit you should know what the reason is; and as they may be liable to all these actions;—your Lordships will see the grounds upon which, as I apprehend, upon the face of this case, it is a matter of public policy, that you cannot enforce this summons as the Court of Session thought fit to enforce it; and so involving the Board of Customs, the Treasury, and the Secretary at War, and the officers of the regiment, in this litigation,With respect to the condescendence, the Earl of Home states he knows nothing of the facts stated relative to the pursuer's appointment, but he presumes they are correct. As to the second article, he says, With regard to the answer the defender is said to have made to Mr. Muirhead's inquiries where the pursuer resided, he calls upon the pursuer to produce it. The defender kept no copy of it, as it was a casual inquiry, which he answered without thinking much about the matter, and he cannot, at this distance of time, recollect the precise expression he used; but he asserts he had no ill will to the pursuer, or intention of injuring him, and neither on that nor any other occasion could he have used expressions which were not strictly true. With regard to the assertion that the pursuer voluntarily quitted the regiment, it is matter of opinion, not of fact, when stated generally. The pursuer has not stated the facts. The defender now does so, and calls on the pursuer to confess or deny them. The following letters were transmitted to the defender, as Colonel of the regiment, by Mr. William Christison, formerly a Lieutenant of the regiment:—

David Vass, Paymaster Berwickshire Militia.”

“Edinburgh, 22d July 1814.—My Lord, I beg leave to transmit to your Lordship a copy of a correspondence between Mr. David Vass, paymaster of the Berwickshire militia, and me.—Copy of Mr. Vass' two last letters to me from Tynemouth Barracks.—Tynemouth Barracks, 25th of February 1814.—Sir, I have just now received yours of the 23d instant. Any charge you have against me state it, and I will settle it, whatever it may be; but, you low blackguard rascal, settle your account with me, and I am your man in any shape whatever. I am your most obedient servant, (signed) David Vass, Paymaster Berwickshire Militia. Mr. W. M. Christison.”—“Tynemouth Barracks, 26th of February 1814.—Sir, I wrote you last night in very explicit terms; but I must now, from your conduct, tell you again, that you are nothing more or less than a low rascal. If you have the smallest bit of flesh in your whole carcase, you may show it; but if there is a bit, it must be a very small bit. In my opinion, there is not a bit of the kind in your whole body. I am, Sir, your most obedient servant, (signed)

Page: 235 ↓

Then Mr. Christison's two letters to Mr. David Vass are set forth:—

“Edinburgh, 15th of July 1814.—Sir, I have always delayed answering your two last letters until I were certain you were in town. Now that I am so, I have only to say, that the language in these last two letters is not to be borne with, nor passed over in silence. I therefore must insist that you either fight me, or make an apology. I wait your answer in course. I am, Sir, your most obedient servant, (signed) William Christison. To Mr. David Vass.”—
“Mr. David Vass' answer, in course, written on my card: Settle your accounts, and am your humble servant, (signed) D. V.”—Edinburgh, 16th July 1814.—Sir, Your conduct is just what might have been expected from a cowardly but blustering poltroon. Your answer to my card of last night is just what might have been expected from a dastardly coward. Because my account is not settled, you are to hedge yourself under that poor pitiful pretence. If you still refuse to give the satisfaction demanded, I will instantly send a copy of the correspondence to the Colonel, your agents, the Secretary at War, and to the head-quarters of the regiment. The gentleman who bears this waits your answer. I am, Sir, your most obedient servant, (signed) Wm. Christison.”
Mr. David Vass declined a meeting. Mr. Christison goes on, and represents the matter to the Colonel:—
“Allow me to say, my Lord, that every gentleman, both civil and military, who have seen the correspondence, are of one opinion, and it is, that the expressions uttered by Mr. David Vass are such as could scarcely have been expected from the most abandoned worthless vagabond upon earth, and that he is a disgrace to the situation he holds, and to mankind besides, and that I have done just what I should have done. I meant to have sent a copy of the correspondence to the officers of the regiment, but my friends think it sufficient that your Lordship is made acquainted with the business. I have sent the same to the Secretary at War, Messrs. Greenwood and Cox, and a number of Mr. Vass' friends and acquaintances, as this I have sent your Lordship; and I always remain, with due respect, my Lord, your Lordship's most obedient humble servant, (signed) Wm. Christison. I also beg leave to subjoin a copy of the placard which I meant to have put up in different parts of the town, but was strenuously advised from doing it by my friends.”
—“Mr David Vass, Paymaster, Berwickshire Militia, is a dastardly ruffian and an infamous coward. (Signed) Wm. Christison.” Well, my Lords, this having been sent to the Secretary at War, I have understood—your Lordships perhaps may know whether that is the custom of the Secretary at War or not—that the declining a challenge is sometimes thought sufficient to dismiss a man from the service. “The Secretary at War transmitted Christison's letters to the defender, and ordered him to inquire into the circumstances of the case: That the defender, after he had received the correspondence transmitted to him by Christison, stated the case to General Fuller, the Commanding Officer of the district, and General Fuller directed the defender to send for Mr. Vass, and ask him whether he acknowledged

Page: 236 ↓

“My Lord, I have the honour to acknowledge the receipt of your Lordship's letter of the 4th instant, relative to the dispute between Paymaster Vass and Mr. Christison, and to acquaint you that the steps which your Lordship has taken thereupon appear to me extremely proper. I have the honour to be, &c. (signed) Palmerston.”
The pursuer, in answer, is called upon to confess or deny each of these particulars, and then he goes on to state, “That the defender, when applied to by the Board of Customs, referred to the Secretary at War for the circumstances that took place relative to Mr. Vass' quitting the regiment. The Board of Customs having been referred by him to the Secretary at War, he apprehends they did apply to the Secretary at War, and that the consequence was, he was not appointed.”Your Lordships will see that this is a case in which it becomes necessary, in order, if any justice whatever can be done, that not only the correspondence which is in the hands of the Board of Customs, but also all that has passed with the Secretary at War—and not only all that has passed with the Secretary at War, but all that has passed with the officers of the regiment—and not only all that has passed with the officers of the regiment, but all that has passed with respect to the Treasury, must all be set out. The Board of Customs are to be called upon to produce the documents they have in their hands relative to this transaction, going through so many public officers, inquiring into the conduct of an individual under all the circumstances in which Mr. Vass stood. The question is, whether, upon the grounds stated, the Board of Customs, as

Page: 237 ↓

Page: 238 ↓

Appellants' Authorities .—James, Jan. 1. 1709, (3433); Young, Feb. 27. 1816, (F. C.); Buller's N. P. 284; 4. T. R. 140. 144; 2. Vesey jun. 189; Peake's L. of Ev. 93. 94. 95; 2. Raym. 927; 1. Strange, 646; 2, Strange, 717. 1005. 1203; 1. Wilson, 104. 239.Solicitors: Spottiswoode and Robertson,—Solicitors.

( Ap. Ca. No . 32.)