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merit fo r breach o f his contract o f service. The defendant
counterclaimedfo r damages fo r wrongful dismissal alleging
that while in the course o f preparing an audit o f the
accounts o f a limited company he had discovered certain
irregularities in the accounts audited by the plaintiffs fo r
previous years and that having refused to proceed with the
audit until the irregularities were adjusted he had been
summarily dismissed. Was the defendant entitled to
obtain discovery o f the plaintiffs'’ working papers and
schedules relating to the audit o f the company’s books,
the draft accounts in the possession o f the plaintiffs and
correspondence between the plaintiffs and the Inland
Revenue relating to these accounts?
It was held that in the preparation o f the audits
the relationship between the accountants and the
company was that o f a professional man and his
client and not that o f agent and principal, and that
as there was no question o f legal professional
privilege, the fact that the documents embodied
information which was the subject o f professional
confidence between the accountants and the com
pany was insufficient ground tor resisting production
and that the final accounts and the documents
incidental to their preparation were the property
of the plaintiffs and should be produced. As regards
the correspondence with the Inland Revenue it
was held that the relationship between the accoun
tants and the company was that o f agent and principal
and that an order should not be made for the
production of the correspondence which was the
property o f the company. Per Jenkins, L. J.,
this concession is not displaced by ex parte Horse-
fall (108, E. R. 820) in which drafts and copies of
deeds prepared by an attorney were held to be the
property o f the client. The case proceeded on the
short ground (per Lord Tenterden, C. J.), that
“ he who pays for the drafts, etc., by law has a right
to the possession of them,” and was, we think,
rightly explained by counsel for the defendant as
turning on the services rendered by an attorney or
solicitor and the system on which he is remunerated
for those services. Even in the case o f a solicitor
there must, we should have thought, been instances
o f memoranda, notes, etc., made by him for his
own information in the course o f his business which
remain his property although brought into existence
in connection with work done for clients. (Chantry
Martin & Co.
v.
Martin, 1953 2 A ll E. R. 691).
Note :
There is little authority on the right o f a
client o f the solicitor to possession o f documents
on payment o f solicitor’s costs. In re Thomson
(1855, 20 Beav. 545) it was held that on payment of
a solicitor’s bill the client is entitled to the possession
o f letters written to the solicitor by third parties
but not to copies o f letters written hy the solicitor
to third parties unless they are paid for by the client.
In re Wheatcroft (1877, 6 Ch. D. 97) it was held
4J
that a solicitor is not bound to deliver to his client
on the termination o f his retainer letters addressed
to him by his client, nor copies in his letter-book of
his own letters to his client. These cases were
however decided before the universal adoption of
the typewriter and have recently been questioned
in the High Court o f New Zealand.
The defendant acted as solicitor fo r the plaintiff on
the purchase o f property in
1950
f o r a sum o f £
6,000,
fo r which he received the commission scale fee. The
vendor had not a good title having purchased the property
from the trustees, o f which he was one, o f his father’s will
but the defendantfailed to notice this defect. The plaintiff
resold the property in
1951
fo r
£7,500
but was unable
to make good title fo r the purchaser’s solicitors and
obtained a verdict fo r damages fo r negligence against the
defendant. Was it the plaintiff’s duty to mitigate
damages by proceeding against the original vendor who had
sold as beneficial owner ?
No. The plaintiff was not obliged to proceed
against the original vendor even if he were given
by the defendant an adequate indemnity against
the costs.
,
Was the plaintiff obliged to resell in order to quantify
fo r damages ?
No. The measure of the solititor’s liability was
the difference at the time o f the conveyance in 1950
betweeh the value o f the property with a good title
and its value with a defective title.
This was
measured at £2,000.
Was the plaintiff entitled to recover against the
defendant:
(a)
hotel and other subsistence expenses which arosefrom
his inability to complete the sale o f the property
and to purchase another property with the proceeds ;
(b)
the fe e paid to a valuer fo r a valuation o f the
property in
1950;
(c)
the interest on an overdraft resulting from the
failure to complete the sale
?
No. These were not items within the reasonable
contemplation o f the parties when the defendant
assumed the duty o f advising the plaintiff. (Pilking-
ton
v.
Wood, 1953, 2 All E. R. 810).
SOLICITORS’ GOLFING SOCIETY
T
he
A
nnual
Autumn meeting was held at Port-
marnock on Thursday, the 1st o f October when an
18 hole Stableford competition was played in
perfect weather conditions. Members
greatly
appreciated the excellent condition o f the course,
as might be expected o f Portmamock, and also
the fact that the Society appeared to have the sole
and uninterrupted use of the links for the occasion.