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DECISIONS
OF
PROFESSIONAL
INTEREST.
Is a document which is dictated, checked, and then amended
in writing by a witness made or produced by him
with
his own hand, for the purpose of evidence
?
Yes.
Ij a
solicitor who prepares
the will of a
testator,
dictates a note to his typist in which he sets out
the
surrounding circumstances which when
type
written, was checked and amended, but not initialled
by the solicitor, is such a note admissible in evidence
?
Yes, because a solicitor was not a
" person
interested" within the meaning of the English
Evidence Act, 1938 and there was no likelihood
that his conduct at the time might subsequently
be questioned.
Per Sachs, J. :—" My own view is that a document
which is dictated, checked and then amended in
writing by a witness, certainly comes within the
ambit of S. i (4) of the Evidence Act, 1938, as being
a document that was made or produced by that
witness with his own hand.
It does not matter
if in fact he secured the intervention of someone
else to do the actual typewriting provided that he
himself sees it, checks it, and writes on it.
It is axiomatic that in almost every case a solicitor
keeps a record of an important conversation in case
there is any dispute. I do not think, however, that
in the present case at the time the document was
made on June 18, 1952, there was anything which
could be said to fall within sub-s.(3) so as to make
it a time when " proceedings were .
. .anticipated."
The next point argued was whether the witness
was a " person interested" within the meaning
of sub-s.(3). Counsel for the plaintiff put forward
the fact that the witness had at any rate a reasonable
chance of acting for the bank as constituting an
" interest." I do not think that a contingent prospect
of that sort can be an " interest" in the sense that
this sub-section contemplates.
I would add that
otherwise every solicitor acting in any matter in
which there could be any dispute, and in which
accordingly there was at any rate a chance he might
be employed, would never be able to make a record
which could be evidence in a court of law. It might
be said to be against a solicitor's reputation if a will
which he is charged with preparing and seeing
executed turns out not to be properly made.
One notes that if the risk that a solicitor's conduct
might
later be called,
into question were an
" interest" within the meaning of sub-s.(3), then
all records of solicitors on such matters would tend
to be excluded. That seems to me not only contrary
to commonsense but also contrary to the law
implicit, I think in many decisions concerned with
the records of deceased solicitors. These records
have regularly been admitted, when the solicitor
has died, under the rule that a statement made in
the course of his duty by a deceased person is
admissible providing he had, to use the words of
Phipson On Evidence
(gth Edn.), at p. 301, no " motive
to misrepresent " the facts related in the document."
(Re Pau'e Deed.
(1955), 3
All. E.K.
448.)
Indictment
founded
on
matters
disclosed
in
con
sequence of compulsory process of lam.
The accused, a solicitor, was the executor and
trustee of his deceased mother's estate. As a result
of proceedings instituted in the Chancery Division
by his brother, a beneficiary under the mother's
will, an order was made requiring him to lodge
certain accounts and a statement of outstanding or
undisposed of property. On failure to comply
therewith he was adjudged in contempt of court
and a writ of attachment was issued against him.
Having been subsequently released and re-arrested,
with the object of securing his release from prison,
the accused swore an affidavit in which he confessed
to converting the bulk of the assets of the estate
to his own use. This was the first disclosure of the
defalcations on which the indictment, containing
three counts of fraudulent conversion, was framed.
Before the accused's plea was taken counsel for the
accused moved to quash the indictment under the
provisions of section 43 (2) of the Larceny Act, 1916.
Held by Sellers J. (i) that should the application
to quash the indictment be successful, the court
would have no jurisdiction to try the offences
alleged in the indictment, and therefore it was
appropriate to consider the application before taking
the plea;
(2) that on the facts, as revealed in the
depositions, the offences were first disclosed on
oath in Court in consequence of a compulsory
process
bona fide
instituted by a person aggrieved
and accordingly section 43 (2) applied. The accused
was discharged.
(R. /'.
Maywhort
1955. i
W.L.R.,
848.)
County Registrar must give reasons on Taxation.
In an application for a review of the taxation of
costs by the Bournemouth District Registrar in an
undefended divorce suit, in which the registrar said
that he had had regard to all relevant circumstances,
and had reduced counsel's fee from 7 guineas to 5
guineas.
Sachs J., in granting the application, held that it
was perfectly obvious that a taxing officer was not
entitled to take cover under such an omnibus
statement, which tended to oust the jurisdiction of
the court. It was to be emphasised that the duty of
taxing officers when answering an objection was to