Scottish Court of Session Decisions

Bernard M'Culloch, carter, 50 Anderson Street, Partick, Glasgow, pursuer, brought an action against the Corporation of the City of Glasgow, defenders, for damages in respect of injuries sustained in a collision between a tramway car belonging to the defenders and a lorry which the pursuer was driving.

The Lord Ordinary ( Anderson), on the motion of the pursuer, ordained the defenders to lodge in process that part of the report made to them by their official at the time of the accident, which contained the names and addresses of the bystanders who might eventually give evidence in the ensuing action. The facts are given in his

Opinion.—“If this question had been open my impression is that, finding myself as I do in sympathy with what the Lord Advocate has said, I should have given effect to his contention to the effect of refusing to ordain the Corporation of the City of Glasgow to disclose to the pursuer the names of their witnesses, because that is in effect what is asked by counsel for the pursuer. But it seems to me that so far as am concerned the matter is concluded by authority.

The circumstances are these—A specification for the recovery of documents was granted in certain terms, and under one of the articles of the specification the pursuer craved recovery of a report which the Corporation had received from one of the servants in charge of the tramway car. The report as furnished by that servant consists of a document divided into two portions, and separated one from the other by a perforation. On one portion of the document there is what I may call the report proper, and the Lord Advocate concedes that the pursuer must get that under the call. But he says that is all the pursuer ought to get, because that constitutes a report, complete in itself, of the circumstances, and whatever else the document contains cannot fairly be described as a report of what happened.

The other portion of the document consists merely of the names of those who witnessed the occurrence, and who presumably had been interviewed by the defenders' servants, and interviewed to the effect of furnishing these officials with a statement of the facts favourable to the views of the Corporation. But Mr Christie, for the pursuer, maintains that because those names of possible witnesses appear on the same document, unico contextu with the report proper, he is entitled to get those names, and it seems to me that on the case of Macphee that that is a contention which I cannot resist.

The Lord Advocate pointed out that the call in the present case was merely for a report of the accident relative to the matter mentioned on record, and he contended that the names of witnesses do not fall under the language of that call. I observe, however, that that is exactly the language of the call which was under the consideration of the Court in the case of Macphee, and the Court decided in that case that the pursuer was entitled to get the names of the bystanders noted on the report, and that it was incompetent, as suggested by the defenders in that case, to exclude or excise that portion of the report from the rest of it. Now it seems to me that that is just the situation I have here, and accordingly I consider that I am bound to follow the authority of the case of Macphee, where the question at issue has been in effect decided.

I shall therefore ordain the defenders to lodge in process that portion of the report which contains the names of the bystanders, and I shall grant leave to reclaim.

I shall also ordain the defenders to lodge in process the corresponding list of names in the case of Walton v. Corporation of Glasgow.”

The defenders reclaimed, and argued—The pursuer was entitled to that part of the report which contained a description of the events that took place at the time of the accident, but with the exception of the names of the driver and the conductor of the tramway car in question he was not justified in claiming access to the list of persons present. That list was confidential and as such was privileged. Counsel referred to Finlay v Glasgow Corporation, 1915 S.C. 615, 52 S.L.R. 446; Macphee v. Glasgow Corporation, 1915 S.C. 990, 52 S.L.R. 772; Whitehill v. Glasgow Corporation, 1915 S.C. 1015, 52 S.L.R. 782.

Argued for the pursuer—The pursuer merely desired access to the names of witnesses

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compiled by the defenders in order to have an opportunity of precognoscing them. In the event of their evidence being particularly unfavourable to the pursuer, he might even abandon his action. Thus this procedure, which was by no means new, would possibly benefit both parties. The defenders were not entitled to excise part of the report. The fact that the list of witnesses was separated by a perforated line across the paper did not prevent it from forming part of the report. The perforation did not take the report out of the ordinary rule. There could be no kind of confidentiality about a mere list of witnesses. The following cases were cited— Jones v. Great Central Railway Company, 1910 AC 4, per the Lord Chancellor; Macphee v. Glasgow Corporation ( cit.); Whiteshill v. Glasgow Corporation ( cit.); Tannett, Walker & Company v. Hannay, (1873) 11 Macph. 931, 10 S.L.R. 642.

At advising after consultation with the First Division:—