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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Elder v Black [1838] CS 16_1183 (22 June 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1183.html Cite as: [1838] CS 16_1183 |
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Page: 1183↓
Subject_Proof—Writings, production of—Confidentiality—Principal and Agent—Process.—
Part of a correspondence was produced by a pursuer in process; he moved for a diligence to recover the rest of the correspondence; the defenders opposed this, and moved to have the letters withdrawn which were already produced; both motions depended on the plea of professional confidentiality, as alleged by the defender to affect the correspondence: Held, in the circumstances, that a diligence should be granted, before answer, to recover the letters called for, in order that the Lord Ordinary might be enabled to judge whether the defender was in a situation to which the plea of confidence applied.
The pursuers, who were spouses, raised an action for aliment and in lying expenses on account of a natural child of which the female pursuer had been delivered, before marriage, and of which she alleged that the father was a person recently deceased, and who was represented by the defenders. The pursuers founded, inter alia, on a correspondence alleged to have been carried on by the deceased, and two persons who had formerly acted as their agents, the tenor of which was said to instruct, or necessarily imply, that he was the father of the child. The defenders denied the existence of such correspondence. The pursuers then put into process various letters received, as above alleged, from the deceased, and they moved for a diligence to recover the letters addressed by their former agents to the deceased, or copies thereof from the agents' letter-books. The defenders opposed this, alleging that the persons to whom the deceased had written, were his own agents, and that both these, and the letters of the agents to the deceased, were covered by the plea of confidentiality,
and could not be produced without the consent of the defenders as representing the deceased. They also made a counter-motion to have the letters withdrawn which were already produced. The Lord Ordinary pronounced this interlocutor:—“Having heard the counsel for the parties, on a motion by the defender to have the letters by the deceased withdrawn from the process, and on a motion by the pursuers for a diligence for the recovery of certain other letters, to which the said letters by the said deceased were answers—Finds, that the disposal of both motions rests on the ground of professional confidentiality; therefore, in order that the Lord Ordinary may be enabled to judge whether the parties were in a situation to which the principle of confidence applies, and, before farther answer, grants diligence to the pursuers for the recovery of the letters set forth in their specification; or, if the originals cannot be got, for the recovery of copies of them from the letter-books of the writers, provided the commissioner, upon examining the said books, shall be satisfied that they have been regularly kept; and appoints parties to be farther heard on these matters after the diligence shall be reported,” &c.
The defenders reclaimed; but
The Court unanimously adhered, and awarded expenses against the defenders; which were, at the same time, modified to £5, 5s.
Solicitors: D. M. Black, W.S.— R. Laidlaw, S.S.C.—Agents.
