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sought an interview, for the purpose of obtaining
a statement of evidence, with a witness who had
been summoned by the other party. The Council,
having referred to a statement published in the
Society's Gazette in November, 1943, page 25, and
February, 1944, page 44, decided to inform member
that any party to proceedings is entitled to seek
a statement of the evidence of any material witness,
including a witness who may have been summoned
by an opposing party, and
that
there
is no
impropriety in so doing provided that the statement
is taken fairly without any attempt to influence the
witness.
The statements which appeared in the
Society's Gazette are reproduced on this page and
the next page.
DEATH DUTIES. UNQUOTED SHARES
IN PRIVATE COMPANIES
WITH a view to saving time in reaching agreement
as to the value of property for death duty purposes
the following procedure has been arranged between
the Society and the Estate Duty Office. Members
are requested to adopt this procedure.
i. On being instructed and being given particulars
of an estate disclosing shares in a private company,
the solicitor should write to the Estate Duty Office
without waiting for the preparation of the schedule
of assets and should indicate in such letter:—
(a)
The name of the private company or companies
in which the shares are held.
(b)
The number and class of such shares.
(i)
The value which the executor places on such
shares, and the method by which the value is
determined.
((/) Particulars of any of such shares passing on
the death under any other title, whether under
any settlement, gift
inter vivos
etc.
2. The Estate Duty Office will thereupon inform
the solicitor whether the offered value is acceptable
and, if not, what further information is required.
3. The solicitor should lodge with the Estate Duty
Office the information requested.
On the issue of the Estate Duty Office queries
the solicitor should supply all further facts re
quired and to which the Estate Duty Office are
entitled.
4. When the Estate Duty Office requirements as to
facts have been satisfied and it is apparent that the
executor's value is not acceptable it is recommended
that the solicitor should seek an interview by appoint
ment with the appropriate examiner at the Estate
Duty Office to discuss the valuation.
5. The Estate Duty Office may agree a figure pro
visionally pending lodgment of the schedule of assets
but will not agree a final figure until the schedule
has been lodged.
6. If the foregoing procedure is adopted the value
of the shares in the private company should be agreed
by the time the schedule of assets is ready for as
sessment.
INTERVIEWING OPPONENT'S
WITNESSES
THE
Times,
of ijth July last, published an extract
from the remarks of Lewis J. in the course of a
criminal prosecution before him during which it
transpired that a woman, who had been summoned
as a witness by the prosecution, went at the request
of the solicitor for the accused, to his office, and was
taken through her statement by his clerk. The judge
was reported as having said that for a solicitor, or for
his clerk, when instructed by a prisoner, to interview
a witness for the prosecution was most reprehensible,
and he proposed to obtain a transcript of the evidence
and send it to the Law Society. His Lordship took a
serious view of the girl's evidence if true, and if it
was not true the solicitor ought to be cleared of such
a charge. The case does not appear to have been
officially reported and, as published in the
Times,
the
judge's remarks were divorced from their context.
There may have been circumstances connected with
this case not disclosed with the report which were
the real basis of the judge's condemnation of the
conduct with which he was dealing. If such circum
stances were not present many will feel that the pro
hibition laid down by the judge was too wide. Most
solicitors would be surprised to learn of any univer
sal rule whereby merely interviewing any witness,
whether already sub-poenaed or not by another party
to the proceedings, is regarded as a breach of pro
priety. Cases will occur in which common sense will
suggest that it would be improper to seek to inter
view a particular witness. There seems, however,
to be no valid reason why a solicitor, preparing in
structions for counsel for the defence in a criminal
prosecution should be obliged to rely upon deposi
tions or proofs of evidence taken down by the police
or someone else if he has reason to believe that they
may be incomplete or may omit to deal with matters
within the knowledge of a witness which he forsees
will be important for his client's defence. The popu
lar term "witness for the prosecution," though sanc
tioned by usage, is really a misnomer. Provided that
he scrupulously avoids anything which would con
stitute an abuse of his privilege the general view of
the profession has been that a solicitor is entitled to
interview any witness whose evidence may be neces
sary for the presentation of the facts of his client's
case to the court.
(The Gazette,
November 1943, page 25.)