22 / 324
or, if not, they will say what the proper
sum
should
be. We were shown the form of application issued
by the Law Society when this procedure is invoked.
It seems to be well designed to enable the matter
to be properly investigated. The form contains a
questionnaire in which the solicitor has to set out
all the particular circumstances specified in the
Order of 1953. The investigation is held without
any expense to the client, and it is a great protection
for him. The only drawback about it is that the
client has no right to have a bill taxed by the taxing
master, and the new order expressly says ". .
.
it
shall be the duty of the solicitor to satisfy the taxing
master as to the fairness and reasonableness of his
charge."
The taxing master can therefore call for all the
details just as the Law Society could, and the taxing
master will no doubt see that the client and his
new advisers have full opportunity of considering
these details, so that the client can challenge them,
if he so desires.
Such being the effect of the new order, the question
is what must a solicitor's bill for non-contentious
business now contain ? I think that it must contain
a summarised statement of the work done, sufficient
to tell the client what it is for which he is asked
to pay.
Re A Solicitor
(1955 2
All E.R.
284)
Witnesses' Privilege.
A firm of solicitors acting for the defendants
in an action for damages for personal injuries,
having obtained a medical report from a doctor
on the plaintiff's injuries, wrote a letter to the plain–
tiff's solicitors in which they quoted extracts from
the report. The letter was shown by the plaintiff's
solicitors
to
their client who,
regarding
those
extracts as defamatory, commenced an action for
libel against the doctor, and claimed disclosure of
the full medical report and of correspondence
relating thereto. The doctor claimed the protection
of the privilege admitted to be possessed by the
defendants in the first action :
Held by the Court of Appeal (per Hodson and
Romer L.J.J., Singleton L.J. dissenting) reversing
Donovan J. that the privilege which was accorded
to litigants to protect them in the preparation of
their case belonged only to the litigant or his success–
ors in title and did not extend to a proposed witness
who became a party to a subsequent and different
action.
Per
Singleton L.J.
(dissenting): " It was
suggested that the Court might make an order for
discovery and inspection to take place after the
action for damages for personal injuries had ended.
I do not know that any such suggestion was made
to Donovan J., against whose order this appeal
is made.
In any event, I do not consider that any
such order should be made in this unusual case.
So far as I know, there is no precedent for it.
It
would be a kind of threat hanging over one who is
expected to be a witness in the action for damages
for personal injuries.
The plaintiff commenced
this action, and appears to have let the other action
lie. To make an order of the kind now suggested
would be a departure from the recognised practice
and would have the effect of deterring potential
witnesses
from giving statements
to
solicitors
whose clients were concerned in, or faced with
litigation. I would dismiss the appeal."
Per Hodson L.J. : " It is conceded by the defen–
dant that the medical reports which form the basis
of the libel action were brought into existence in
contemplation of the action brought by the plaintiff
against the company, and that privilege from pro–
duction accordingly attaches to the company in
the proceedings taken by the plaintiff against it.
The question is whether the privilege from pro–
duction extends beyond the company, so as to protect
the defendant in separate proceedings brought
against him, although the privilege is not his, but
that of the company.
"It is essential to bear in m'ind that the privilege
is the privilege of the litigant accorded to him in
order that he may be protected in preparing his
case, and not the privilege of his witnesses as such.
The litigant can waive the privilege if he chooses,
and if he does so the proofs of his witnesses can
be shown to the opposing party without the wit–
nesses having any ground for complaint. What is
being sought here is, in effect,
to extend the
umbrella of the protection which the privilege gives
the company to the defendant, who is, on the
hypothesis that he is the author of the libel, to be
looked at for the purpose of this application as a
proposed witness on behalf of the company.
In
this capacity not only has he no privilege of his
own, but he is under no duty to assert the right of
the company
to
resist the production of any
documents."
Per Romer L.J. : " In order to establish this
claim the defendant must show as it seems to me,
either that the privilege in the first action is one
which he as well as the company can assert, or that
he at least has such an individual right to share in
the protection which the privilege affords to the
company that the latter cannot waive the privilege
without his consent.
In my judgment, however,
neither of these views is capable of being sustained.
The privilege which exists in the first action is,
in my opinion, that of the company and of no one
else; and the company can at any time waive
16