Scottish Court of Session Decisions

Mrs Mary Russell or Mackenzie, Duncarss, Bearsden, Glasgow, pursuer, raised an action against the trustees of the late Thomas Mackenzie, distiller, of Dailuaine House, Carron, Banffshire, and against others, the brothers and sisters of the deceased, defenders, for declarator that the pursuer and the said Thomas Mackenzie were lawfully married to each other on the 5th March 1901. Mackenzie's trustees were the partners of the firm who were his law agents.

The Lord Ordinary ( Dewar), after sundry procedure, allowed a proof.

The defenders, other than the trustees, sought this diligence to recover documents—“1. All letters, telegrams, and other communications in writing passing between the pursuer or anyone on her behalf and the now deceased Thomas Mackenzie mentioned on record or anyone on his behalf. 2. All declarations of marriage alleged to have been written by or for the pursuer or for the said deceased Thomas Mackenzie. 3. All letters, telegrams, or other communications in writing passing between the said deceased Thomas Mackenzie or anyone on his behalf and Messrs Mackenzie, Innes, & Logan, W.S., Edinburgh, or any of the partners of that firm, relating to any of the matters referred to on record, and, without prejudice to such generality, relating in particular to (1) the pursuer and her relationship to the said deceased Thomas Mackenzie; (2) the child Violet Mackenzie mentioned on record; and (3) testamentary deeds or documents of the said deceased Thomas Mackenzie in reference to the pursuer and the said Violet Mackenzie or either of them. 4. All letters,

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telegrams, and other communications in writing passing between the pursuer or anyone on her behalf and the defenders the testamentary trustees of the said deceased Thomas Mackenzie, or any of them, or anyone on behalf of them, or of anyone of them prior to the raising of the action. 5. The whole business books of the said Messrs Mackenzie, Innes, & Logan, that excerpts may be taken therefrom at the sight of the commissioner of all entries therein relating to any of the matters mentioned on record and made prior to the raising of the action. 6. All deeds or documents of a testamentary nature executed by the said deceased Thomas Mackenzie prior to 23rd March 1910, and having reference to the pursuer and the said Violet Mackenzie or either of them….”

On 9th December 1915 the Lord Ordinary granted the diligence with the exception of the calls, 3, 5, and 6.

Opinion.—“I agree with Mr Watson that the documents called for are confidential, but if the defenders had been able to show that they were essential to prove any facts averred on record I think that difficulty might have been overcome in a case of this kind. They say that the documents are necessary to prove that the deceased was not married to the pursuer, but they have no averment on record that he ever made any communication of that kind to his solicitors, and even if he had I doubt whether it would have been good evidence against the pursuer.”

The defenders, other than the trustees, reclaimed, and argued—Confidentiality was a privilege of the client, not of the agent—Begg on Law-Agents, 2nd ed. p. 319; Dickson on Evidence, sec. 1682; Taylor on Evidence, 8th ed., vol. i, sec. 928, 935; M'Cowan v. Wright, 1852, 15 D. 229, per Lord Justice-Clerk at p. 231. Confidentiality could not exclude the law agents' business books when the client was dead. The modern practice was to give a wide call— Jones v. Great Central Railway Company, 1910 A C 4, per Lord Chancellor (Loreburn) at p. 6—especially in cases involving the marriage relation. Even the confidentiality between husband and wife yielded when the question was marriage or no marriage. Law agents were examined in Hamilton v. Hamilton, 1839, 2 D. 89; Duran v. Duran, 1904, 7 F. 87, 42 S.L.R. 69.

The trustees argued—The books could not be evidence but were wanted merely for cross-examination. The diligence should not be granted— Livingstone v. Dinwoodie, 1860, 22 D. 1333, per Lord Justice-Clerk at p. 1334. Confidentiality was the client's, but in the cases where diligence to recover the books was granted the dispute was with outside parties, not as here a domestic dispute— Lady Bath's Executors v. Johnston, November 12, 1811, F.C.; M'Cowanv. Wright, 1852, 15 D. 229, per Lord Wood, p. 237; Munro v. Fraser, 1858, 21 D. 103, per Lord President, p. 107. The diligence should not be granted, but the partners of the firm could be called as witnesses— M'Neill v. Campbell, 1880, 7 R. 574, 17 S.L.R. 392. The English practice was so different from ours that it could not be appealed to.

The opinion of the Court ( Lord President, Lords Mackenzie and Skerrington) was delivered by