34 / 338
cause for not instituting proceedings within that
period.
(Marron
v.
Louth County Council, 72
I.L.T.R. 101 explained and distinguished.)
Per Kingsmill Moore J. : But what was
the
evidence ? Counsel for the plaintiff sought to rely
on the existence of a letter from the insurers of the
company
to
the plaintiff's solicitor dated
ijth
April, 1955, and an answer dated ipth April, 1955.
The letter of April i5th was marked "without
prejudice" and counsel said correctly
that the
answer would also be assumed
to be without
prejudice.
Although the defendant on whose
behalf the letter of April i5th was written, desired
to waive any question of prejudice and have this
letter read, counsel for the plaintiff would not agree
to that. His contention was that from the mere
existence of a letter marked " without prejudice,"
followed by an answer, the Court should conclude,
first that negotiations for settlement were com–
menced, and secondly that they continued to exist
from April i5th to July zist, when the six months
expired.
Counsel for the company, on the other
hand, was anxious to read the letters and to give
evidence of subsequent telephone conversations in
order to show that the letters had nothing whatsoever
to say to any negotiations for settlement.
In Matron's Case there was independent evidence
of negotiations
for settlement and when
those
efforts were followed by a series of letters headed
" without prejudice " it was a probable assumption
that those letters were a continuation of the negotia–
tions. If so, as the interchange of letters continued
beyond the expiration of the six months, reasonable
cause could be found.
In the present case there
was no evidence, apart from the " without prejudice"
heading to two letters, that any thoughts of settle–
ment were entertained; and the two letters passed
some ten weeks before the termination of the six
months period.
Counsel was forced to contend
first that the introduction of the words " without
prejudice" created a probable inference that the
letters opened up negotiations for settlement and,
secondly,
that although
there were no
further
letters so marked, the negotiations continued till
the six months had expired.
It may be conceded
that the most apt and most proper use of the words
" without prejudice ", is to protect negotiations for
settlement, but it would be to close one's eyes to
all experience of the way correspondence is con–
ducted between solicitors to suggest that all or even
the majority of letters so headed have to do with
attempts at settlement of the case.
The use of those
words has unfortunately become quite indiscriminate in legal
correspondence.
Hardly a case comes before the
Courts in which there is not a series of letters
unconnected with settlements but bearing
this
heading. With some solicitors the introduction of
the phrase seems
to be an automatic reaction.
Whilst his Lordship did not desire to encourage
such an abuse, he was not prepared to punish it
by making an assumption against a litigant that
appeared to him quite unwarranted.
" Moreover,"
his Lordship
continued,
" the
words may quite properly be used in correspondence
which has nothing to do with a settlement of the
action but with an agreement on minor points,
to facilitate the conduct of the action or save
expenses."
(Christie
v.
Odeon Ltd. 92 I.L.T.R. 107.)
Lien of solicitor on papers upon change of solicitor not
upheld.
The general rule that a solicitor, who is discharged
by his client during an action can retain any papers
in the cause in his possession until his costs have
been paid, does not apply to a petition for divorce
since divorce affects the status not merely of the
petitioner, but of one or more other parties. Further,
there is an overriding public interest in a full and
complete investigation of the facts of any divorce
case and the assertion of an absolute right to refuse
to deliver up material papers must be calculated
to embarrass
that full
investigation which
the
public interest requires in divorce proceedings.
A husband petitioner discharged his
original
solicitor and instructed a second solicitor who
obtained the papers on his undertaking to respect
the original solicitor's lien for costs. The petitioner
again changed his solicitor, and, on his application
the registrar ordered the second solicitor to deliver
up the papers on the undertaking of the present
solicitor to respect the liens of the first two. Against
that order the second solicitor appealed, contending
that he had a lien on the papers for his costs which
he was entitled to assert without qualification.
Held by Wrangham J. dismissing the appeal, that
the second solicitor did not possess the absolute
lien which he claimed.
Hughes
v.
Hughes (1958) 2 W.L.R. 934 ;
(1958)
2 All E.R. 366.
Note.—
This decision was reversed on appeal by
the Court of Appeal.
Vendor's charge for purchase of house arises the moment
the contract is executed and solicitor's costs for completing
unpaid purchase must be borne by testatrix' residuary
estate.
The testatrix by her will dated Sept. 8th, 1952,
bequeathed her residuary estate to charities. By a
codicil dated Jan. 2, 1953, she bequeathed £10,000
to K. On Mar. 31, 1953, the testatrix agreed to buy
a freehold dwellinghouse in Brighton for £3,500
30