Angela Grahame QC

Scandal, infidelity, secrets and high society. It’s like an episode of Bridgerton but much more exciting and absolutely true. The case of Duke of Argyll v Duchess of Argyll 1962 SC (HL) 88 involved a savage and brutal divorce, which captured the public’s attention.

A millionaire’s daughter, the Duchess of Argyll, was famed for her beauty and extravagant lifestyle, peppered as it was with designer clothing and multiple romances. Her life was lived in the public eye, long before this age of social media. Her first wedding, where she wore a fabulous gown designed by Norman Hartnell, was described by The Guardian as “the media event of the decade” and mobbed by 20,000 onlookers.

Her second marriage, to the Duke, was mired by suspicion, however. He believed she was being unfaithful and when she was away, he hired a locksmith to break into one of her cupboards where naked photos of his wife were found. She was wearing nothing but her signature three strand pearl necklace and was in a compromising position with another man, later known as the ‘headless man’. Various figures were accused of being the man pictured, including members of the royal family and a number of cabinet ministers. Lord Denning was asked to investigate and after handwriting analysis, decided it was a Hollywood film star. But the Duchess never uttered a word.

The case itself began in the Court of Session over her diary. The Duchess had recorded in her diary a number of meetings with her paramour in 1960 and the Duke moved for commission & diligence to recover the diary, in order to obtain excerpts of the entries and prove adultery. The Lord Ordinary refused to allow recovery of the diary on the grounds of confidentiality. Long before ECHR and the right to privacy, the court protected her rights to confidentiality. No doubt a considerable relief to all teenage girls!

During a reclaiming motion, the Duchess admitted she had recorded meetings in her diary but, after the hearing, she withdrew those admissions averring that it was in her possession, was confidential and should not be admitted to probation. The First Division refused the minute of amendment on the basis that by agreeing a proof before answer (PBA) the Duchess had waived her right to claim confidentiality for her diary.

She appealed to the House of Lords where they reversed the decision of the First Division on the basis that consent to PBA did not imply consent to waive confidentiality regarding the diary. A mere admission that a diary existed was not enough to affect the right to claim confidentiality.

Unfortunately for the Duchess, Lord Wheatley later decided that that the diaries could not be excluded from consideration at the proof as confidential and that, notwithstanding that they were deliberately stolen, they were admissible in evidence. He described her as a “wholly immoral” woman.

The case will form the backstory of a new BBC drama A Very British Scandal this year starring Claire Foy and Paul Bettany and I, for one, can’t wait!

Angela Grahame QC is vice chair of the Scottish Council of Law Reporting