152 / 338
statement of claim was absolutely privileged, and
the publication was made under the provisions and
in accordance with the authority of the Solicitors
Act, 1957, and the Solicitors (Disciplinary Proceed
ings) Rules, 1957.
(Addis
v.
Crocker—(1959)
2 All E.R. 773.)
Search fee. Solicitors to pay damages for witholding deeds.
" A
solicitor agreed at Boston County Court
yesterday that there was no legal right to retain a
client's deeds until a fee of two guineas was paid.
' It is the practice of solicitors, but apparently it is
not the law,' he said. The solicitors were sued by
Mr. J. G. Marshall, of Old Leake, Lincolnshire, for
the return of the deeds of his farm and £5 damages
for their retention. He was awarded £2 damages
and costs.
The solicitors were said to have told Mr. Marshall
that he could have the deeds back on payment of
the fee of two guineas. Mr. Edwin F. Jowitt (for
Mr. Marshall) told Judge R. S. Shove that the deeds
in question were in fact returned two days ago.
Judge Shove :
' What right had they to retain
the deeds after the costs of the conveyance had been
paid ?'
Mr. Jowitt:
' None, your honour.' "
(Manchester Guardian,
i4th August, 1959.)
Privilege not allowed on a ground that document might
furnish evidence to party's solicitor ; Court entitled to
adjudicate.
In March, 1955, shortly after an accident in
respect of which the plaintiff brought this action for
damages from the British Transport Commission,
his employer, the commission held a private inquiry
into the cause of the accident, in which the plaintiff
took part. At the time of the inquiry, the commission
did not know that the plaintiff intended to bring the
action and first became aware of this from a letter
dated July 5, 1955. The writ commencing the action
was issued by the plaintiff on February 29, 1956.
In a list of documents filed by the commission, the
commission claimed privilege from production for
inspection in respect of documents set out in the
first schedule to the list, which included the report
of the private inquiry, on the ground that the
documents came into existence " wholly or mainly
for the purpose of obtaining for and furnishing to
the solicitor of the (commission) evidence and
information for the use of the said solicitor " to
enable him to conduct the defence or to advise the
commission. Subsequently the commission filed an
affidavit in which privilege was claimed on the
ground that the documents came into existence " for
the purposes,
i'nter alia,
of obtaining for and furnish
ing evidence or information to the solicitor .
, ." The
report stated that at the inquiry it was explained to
the plaintiff that the purpose was to ascertain the
cause of the accident with a view to safeguarding
against future accidents, rather than to establish
guilt. On appeal from the order of a master requiring
the commission to produce the report for inspection
by the plaintiff.
Held by Diplock J. that:—(i) the claim of privilege
was not established by the ground put forward in
the affidavit, viz., that the documents including the
report were made for the purposes
inter alia
of
furnishing evidence or information to the solicitor,
without stating that that was the main purpose,
since privilege was not established by the mere fact
that one of the purposes of a document, however
improbable, might be to furnish evidence to the
party's solicitor ; accordingly the court was entitled
to and would look at the report itself.
Per Diplock J.: in the Seabrook Case the affidavit
claimed that the reports of which inspection was
sought had been made by the defendants or their
officers "after this litigation was in contemplation
and in view of such litigation wholly or mainly for
the purposes of obtaining for and furnishing to the
solicitor of the defendants evidence and informa
tion," etc.
Havers, J., adjourned the matter into open court
to deliver his judgment, of which I have a shorthand
note, in which he considered in detail many of the
authorities in the long string of authorities on this
subject dating from some ninety odd years ago,
and the decision is a valuable authority on this
branch of the law of procedure. Although I am
not bound by the judgment of another judge of
nisi priiis
I have no hesitation in saying that I agree
with every word that Havers J. said in his judgment.
That does not dispose of this case, because in
that case there was an affidavit, which Havers J.
accepted, that the documents were prepared wholly
or mainly for the purpose of being furnished to the
solicitor.
In this case there is no such claim on
affidavit and indeed there was a change from that
claim, which was made in the list of documents,
to a claim that the reports were prepared
inter
alia
for the appropriate purpose.
When I looked at the affidavit, and saw the des
cription of " correspondence between and reports
made by the defendants' officers and servants and
correspondence between the defendants and their
solicitor which came into existence after this claim
was anticipated and for the purposes,
inter alia,
of
obtaining and furnishing to the solicitor of the
defendants evidence and information " it seemed to
me that the description " Correspondence between
and reports made " was too wide to assist me to
say whether the nature of the documents was such