Report No. 88
The Procedural Codes
8.1. Right to appeal-need for.-
An important question relating to procedure that deserves to be considered may now be mentioned. Where a document is claimed to be privileged under section 123 and the Court determines the question one way or the other, the question naturally arises whether there should be a right of appeal against a ruling so determining the question, and if so, in what cases, and to which forum. In considering that issue, a distinction can be made between a ruling upholding the privilege so claimed and a ruling denying it, in the particular case. A ruling upholding the privilege can be challenged in appeal on final determination in the case, whether it be a decree or other final order in a civil case and a judgment of conviction or acquittal or other final order in a criminal case.
A separate right of appeal is not required, and the absence of such a right would not seriously prejudice the interests of the private litigant, whose request for admission in evidence of the particular document is rejected by upholding the privilege. But the case of a denial of the privilege stands on a different footing. The document would then straightaway go into evidence. If, ultimately, on appeal, the document is held to be privileged, an anomalous situation might arise. The harm that the privilege is intended to prevent (injury to the public interest) would then have been already done. Any ruling of the Appellate Court (even if it upholds the privilege) would then have only an academic value, so far as that particular litigation is concerned. In view of this, an immediate and separate right of appeal to the appropriate forum would appear to be necessary in the interests of justice. Such a course, we think, should be adopted whether the proceedings are civil or criminal in nature.