The Gazette 1978

GAZETTE

(Continued from page 62)

disclosure, and the fact that they had been brought into

existence for the purposes of a particular action which

had been concluded was treated as immaterial. Lindley,

M.R., stated the rule succinctly — "once privileged

always privileged". It is, however, important to remember

that this simply means that, once a particular client's

privilege has attached to a document, it remains for his

benefit and that of his successors in title, but the maker of

the document may not rely on this principle to claim

privilege. Thus, in

Schneider v. Leigh

(1955) 2 Q.B. 195,

the plaintiff had claimed damages for personal injuries

against a company, whose solicitor obtained the usual

Medical report — a document in relation to which the

company enjoyed the ordinary litigant's privilege. The

report was made by the defendant and the plaintiff

contended that it libelled him. It was held that the

defendant could claim no privilege with regard to his

port. A plea of qualified privilege in the law of

defamation might have succeeded if the defendant could

show that he was not actuated by malicc or some other

'fripropcr motive and in discharge of some public or

Private duty but plea of legal professional privilege failed.

Finally as the privilege is that of i particular person or

class, matters covered by it may always be proved by the

evidence of other witnesses. In

Lloyd v. Mostvn

(1842) 10

.&W. 478, in the course of argument, Parke, B. said:

'Where an Attorney entrusted confidentially with a

document communicates the contents, or suffers another

to take a copy, surely the secondary evidence so obtained

may be produced. Suppose the instrument were even

olen, and a correct copy taken, would it not be

reasonable to admit it?" It is on the authority of this

remark that the Court of Appeal allowed copies of proofs

pf witnesses with notes on evidence in a former action

mstituted by the Plaintiff's predecessor in title to be used

by the defendant in the case of

Calcraft v. Guest

already

referred to above, the originals having been handed over

by the defendant's solicitor to the plaintiff to whom they

belonged. Whilst the originals were undoubtedly

Protected, the matters covered in the documents were

admitted in evidence by other means.

The rule has the effect of excluding evidence, though

admissible and relevant, on grounds of public policy. In

More

Weaver

(1928) 2 K.B. 520 the Court of Appeal

in England, following

Brown

Dunn

(1893) laid it down

APRIL 1978

that communications passing between j\ solicitor anil his

client on a subject upon which the client has retained the

solicitor, and which arc relevant to that matter, arc

absolutely privileged.- However, in

Minter v. Priest

T.L.R. 302. the House of Lords left open the question

whether the privilege resulting from the relationship is an

absolute or a qualified one. Nevertheless, in all the

established authorities, the strong indication is that the'

privilege, once established, is absolute and can only be set

aside by statute. Despite this a Crown Court Judge ruled

in the case of

Regina v. Barton

(1973) 1, W.L.R., 115

that the rules of Natural Justice require that any.

documents in the possession or control of a solicitor

which are both relevant and admissible to prove that a

defendant was innocent of the alleged criminal charge are

not privileged and that the solicitor should produce the

documents if they arc relevant and admissable. Caulfield

J. stated that he felt that he was obliged to consider the

matter on "basic principles". He did not review the

authorities but he considered the principle as set out in

Cross on Evidence,

3rd Ed. (1967) very briefly. The

Judge's ruling in this case has the effect of setting aside the

privilege to serve a higher public interest, namely, the

prevention of a miscarriage of justice. The writer feels

that this case will be of particular importance to the

development of the principle in Irish law in view of the

Constitutional obligation on our Judges to ensure that the

. rules of Natural Justice are applied. It will be recalled that

Gavan Duffy J. in

Cook

Carroll

(1945), I.R., 515

made it clear that the Irish Courts are obliged to

scrutinise all Common Law principles, however firmly

established, in the light of the Constitution. Furthermore,

in the course of his judgement in that case he stated that

"quite apart from the Constitution, a Judge, when

ascertaining the law, must reject interpretations of the

Common Law p l a i n ly u n r e a s o n a b le a nd

inconvenient..

By way of conclusion, it may be said that whilst the

principles are well settled and firmly rooted in the

Common Law there are certain aspects which need to be

clarified in the Irish Courts before the rule can be outlined

with confidence. The most important aspect of the

principle requiring clarification, in

the writer's view, is the

question whether the privilege is absolute or qualified

only. Hopefully, the Supreme Court will be called upon to

consider the rule in its entirety in the near future.

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