The Gazette 1958-61

143 / 338

that it was the plaintiff's fault, it would be quite
unfair to make him pay the costs himself. Perhaps
if the solicitors were made to pay the costs they
would appreciate these things better. (The Times,
18 July, 1959).
Agreement as to costs between two defendant joint
tortfeasors enforceable.
A passenger in a lorry, who had been injured in a
collision between the lorry and a bus, sued both
the owners of the lorry and the owners of the bus
for damages for his injuries. In the action neither
defendant pleaded contributory negligence or in
evitable accident against the plaintiff, who was
therefore bound to succeed, and his special damage
and the medical reports as to his injuries were agreed.
On April 17, 1958, the lorry owners made a written
offer to the bus owners " to contribute towards the
plaintiff's claim and costs to the extent of one-third
thereof." The offer was made with a denial of
liability, and the right was reserved to bring it to
the notice of the trial judge as it were a payment
into court. On September 26, 1958, the plaintiff
was awarded £255 damages, including £65 the
agreed special damage, and costs against the
defendants, as between whom liability was apportion
ed as to two-thirds against the bus owners and as
to one-third against the lorry owners. No order
was made as to the defendants' costs. On appeal
as to these costs only, the lorry owners contended
that by virtue of R.S.C., Ord. i6a, r. na, the county
court judge should have taken the offer made in the
letter of April 17, 1958, into account in exercising
his discretion as to these costs.
Held by th rt of Appeal (Hodson, Morris
and Willmer, .) allowing the appeal that as
between the d ants the bus owners should pay
all costs incurred after April 17, 1958, because the
contest in court was in reality between the two
owners only and had the offer of April 17 been
accepted by the bus owners there would have been
saved either all subsequent costs, as was probable,
or all except those incurred in assessing the damages.
(Bragg v. Crossvilk Motor Services (1959) i All E.R.
613).
Note— Order i6a, Rule iza, was added to the
English Rules of the Supreme Court in 1954 ;
briefly it states that, in an action between tortfeasors,
a party may, in making an offer for contribution
(even if without prejudice), bring notice of such
offer before the Judge, who may take the offer into
account in exercising his discretion as regards costs.
Documents privileged if bona fide obtained for purpose of
takingprofessional advice in view ofanticipatedproceedings.
In an action for damages brought against the
British Transport Commission by the widow of an
employee who had been killed in the course of his
employment, the commission claimed privilege from
producing the correspondence between and reports
made by the Commission's officers and servants on
their inquiries into the accident. Privilege was
claimed on the ground that these " came into exist
ence and were made by the commission or their
officers after this litigation was in contemplation
and in view of such litigation was wholly or mainly
for the purpose of furnishing to the commission's
solicitor evidence to enable him to conduct the
defence in the action and to advise the commission."
The documents were described as " correspondence
between and reports made by the (Commission's)
officers and servants." As a customary practice
accident returns had been rendered by local officers
in charge after the amalgamation of the railway
companies in 1924. These accident reports and
statements were prepared and taken for the purposes
of workmen's compensation or common law
claims ; they were also for submission to the
companies' solicitors, now the solicitor to the
commission, to enable them to advise as to legal
liability or to conduct anticipated proceedings.
Held by Havers J. that:—(i) The documents were
privileged because they had bona fide been obtained
for the purpose of taking professional advice from
the commission's solicitor in view of anticipated
proceedings, and the fact that these documents also
served other purposes did not place them outside
the scope of the privilege, (ii) The documents were
sufficiently identified by the description of them
quoted above and the court would not inspect them.
Per Havers J. :—The practice with regard to
discovery and the production and inspection of
documents, and the objections which can be made
on the ground of privilege, are really a reconciliation
between two principles. The first principle is that
professional legal advice and assistance is at times
essential in the interests of justice, and without the
assistance of some protection it could not be obtained
safely or effectually. Accordingly, the principle has
become established that confidential communica
tions passing between a person and his legal advisers
are absolutely privileged. On the other hand, there
is another principle of law that it is in the interests
of justice that all material and relevant documents
should be before the court to enable it to arrive at a
true and proper conclusion, and also in order that the
parties should not be taken by surprise. The practice
which has developed is, as I have said, a reconciliation
between those two principles.
Then there was this passage in the judgment of
Jenkins, L. J. in " Westminster Airways Ltd. v.
Kuwait Oil Co. Ltd. ((1950) 2 All E.R. 596).