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solicitor acting for an accused person in criminal
proceedings having failed to serve a witness sum
mons on a doctor whose evidence was desired at
the trial, instructed counsel during the trial to
apply to the judge for a bench warrant for the
doctors' arrest and then stated in the witness box
that the doctor had wilfully evaded the summons
—which the doctor denied—injuries suffered by
the reason of the solicitor's instructions and the
doctors consequent arrest and detention were not
maintainable. On appeal, it was submitted on
behalf of the plaintiff that the plaintiff did not
complain of the solicitor's evidence but of his
instructions to counsel to apply for a bench war
rant and thus by instituting proceedings which
led to the plaintiff's imprisonment. This, it was
submitted, was analogous to malicious prosecu
tion. Reference was made to a passage in Salmond
on Tort that it is an actionable injury to pro
cure the arrest and imprisonment of a plaintiff
by means of a judicial process whether civil or
criminal, if instituted maliciously and without
reasonable cause. It was also submitted that an
action in negligence would apply because the de
fendant owed a duty to the plaintiff to serve him
or at least to take proper care before he made
the application for a bench warrant. The Court
of Appeal rejected the submission on the same
grounds namely, that in whatever way the cause
of action was claimed, it must not be allowed to
defeat the principle that a witness was not liable
to a civil suit for words said in the witness box
(Roy v. Prior—
Times
newspaper, 15th July,
1969).
Compulsory Purchase—Compensation—Date for
assessing equivalent Value
When compensation for compulsory purchase is
assessed on the basis of equivalent reinstatement
under r.5 of s.2 of the Acquisition of Land
(Assessment of Compensation) Act 1919, the date
for which the assessment is to be made is not that
of the notice to treat, but the earliest date at which
reinstatement could reasonably have been begun.
(Decision of Court of Appeal affirmed).
Facts—In 1947 the respondent corporation's
order for the compulsory purchase of a chapel
owned by the appellants was approved by the
Minister of Town and Country Planning and
registered as a land charge; a notice to treat was
thus deemed to have been served. It was agreed
that the chapel was and would have been devoted
to a purpose of such a nature that there was no
general demand for the purpose, and that reinstate
ment was bona fide intended. Compensation,
therefore, fell to be assessed on the basis of
reasonable cost of equivalent reinstatement under
r.5 or s.2 of the 1919 Act. If reinstatement had
been possible in 1947 the cost would have been
£45,000. However, the respondent corporation
did not allocate another site until much later and
it was agreed that reinstatement could not reason
ably have been started before 1961.
Held, that the correct date for assessment of
compensation was 1961, and not 1947.
(Birmingham Corporation v. West Midland
Baptist Trust Association—H.L.—[1969] 3 All
E. R. 72.)
Solicitor wrong not to name client
A solicitor acting on behalf of the lessee of
premises under a lease within the protection of
the Leasehold Property (Repairs) Act, 1938 acted
improperly when, on his client's instructions, he
refused to disclose the lessee's name and address
to the landlords when they were seeking to bring
an action for forfeiture and damages for breach
of the repairing convenants in the lease, for there
is no privilege entitling a solicitor to refuse to
give a client's name to the Court or to interested
parties.
•
The Court of Appeal (Lord Denning, Winn
L.J., and Cross, L. J.) so stated in dismissing an
appeal by three defendants from the order of
Judge Moylan at Edmonton County Court last
December granting to the freeholders leave to
institute proceedings under section 1 of the 1938
Act for damages for breaches of repairing cove
nants in a long lease of the premises.
Per Lord Denning. M. R.—In the circum
stances of the present case, when Gale & Phelps
were acting, as they said, on behalf of a lessee, it
was, in his Lordships' view, their duty not only
to the court but also to the other side and all
concerned, to give the lesee's name when re
quested to do so. Mr. Gale, if subpoenaed as a
witness, could certainly be compelled to give the
name when requested to do so, if it was relevant
to the proceedings and could not assert the client's
privilege to protect him from such disclosure. Of
course, such disclosure would be contrary to his
client's interests, for the lessees would be liable
on the covenants. But it was quite clear from
Bursill v. Tanner (1885) 16 QBD 1) that there
was no privilege giving a solicitor permission to
refuse to disclose a client's name to the court. It
would be an impossible situation if a solicitor
paying rent, negotiating, and giving a counter-
notice on behalf of a client could refuse all the
time to give his name.
Even though the solicitor in the present case
was not in the witness box, his Lordship thought
that when he was conducting affairs on behalf of
a lessee, and the lessor, who was vitally concerned,
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