The Gazette 1952-1955

merit fo r breach o f his contract o f service. The defendant counterclaimedfo r damages fo r wrongful dismissal alleging that while in the course o f preparing an audit o f the accounts o f a limited company he had discovered certain irregularities in the accounts audited by the plaintiffs fo r previous years and that having refused to proceed with the audit until the irregularities were adjusted he had been summarily dismissed. Was the defendant entitled to obtain discovery o f the plaintiffs'’ working papers and schedules relating to the audit o f the company’s books, the draft accounts in the possession o f the plaintiffs and correspondence between the plaintiffs and the Inland Revenue relating to these accounts? It was held that in the preparation o f the audits the relationship between the accountants and the company was that o f a professional man and his client and not that o f agent and principal, and that as there was no question o f legal professional privilege, the fact that the documents embodied information which was the subject o f professional confidence between the accountants and the com­ pany was insufficient ground tor resisting production and that the final accounts and the documents incidental to their preparation were the property of the plaintiffs and should be produced. As regards the correspondence with the Inland Revenue it was held that the relationship between the accoun­ tants and the company was that o f agent and principal and that an order should not be made for the production of the correspondence which was the property o f the company. Per Jenkins, L. J., this concession is not displaced by ex parte Horse- fall (108, E. R. 820) in which drafts and copies of deeds prepared by an attorney were held to be the property o f the client. The case proceeded on the short ground (per Lord Tenterden, C. J.), that “ he who pays for the drafts, etc., by law has a right to the possession of them,” and was, we think, rightly explained by counsel for the defendant as turning on the services rendered by an attorney or solicitor and the system on which he is remunerated for those services. Even in the case o f a solicitor there must, we should have thought, been instances o f memoranda, notes, etc., made by him for his own information in the course o f his business which remain his property although brought into existence in connection with work done for clients. (Chantry Martin & Co. v. Martin, 1953 2 A ll E. R. 691). Note : There is little authority on the right o f a client o f the solicitor to possession o f documents on payment o f solicitor’s costs. In re Thomson (1855, 20 Beav. 545) it was held that on payment of a solicitor’s bill the client is entitled to the possession o f letters written to the solicitor by third parties but not to copies o f letters written hy the solicitor to third parties unless they are paid for by the client. In re Wheatcroft (1877, 6 Ch. D. 97) it was held 4J

that a solicitor is not bound to deliver to his client on the termination o f his retainer letters addressed to him by his client, nor copies in his letter-book of his own letters to his client. These cases were however decided before the universal adoption of the typewriter and have recently been questioned in the High Court o f New Zealand. The defendant acted as solicitor fo r the plaintiff on the purchase o f property in 1950 f o r a sum o f £ 6,000, fo r which he received the commission scale fee. The vendor had not a good title having purchased the property from the trustees, o f which he was one, o f his father’s will but the defendantfailed to notice this defect. The plaintiff resold the property in 1951 fo r £7,500 but was unable to make good title fo r the purchaser’s solicitors and obtained a verdict fo r damages fo r negligence against the defendant. Was it the plaintiff’s duty to mitigate damages by proceeding against the original vendor who had sold as beneficial owner ? No. The plaintiff was not obliged to proceed against the original vendor even if he were given by the defendant an adequate indemnity against the costs. , Was the plaintiff obliged to resell in order to quantify fo r damages ? No. The measure of the solititor’s liability was the difference at the time o f the conveyance in 1950 betweeh the value o f the property with a good title and its value with a defective title. This was measured at £2,000. Was the plaintiff entitled to recover against the defendant: (a) hotel and other subsistence expenses which arosefrom his inability to complete the sale o f the property and to purchase another property with the proceeds ; (b) the fe e paid to a valuer fo r a valuation o f the property in 1950; (c) the interest on an overdraft resulting from the failure to complete the sale ? No. These were not items within the reasonable contemplation o f the parties when the defendant assumed the duty o f advising the plaintiff. (Pilking- ton v. Wood, 1953, 2 All E. R. 810). SOLICITORS’ GOLFING SOCIETY T he A nnual Autumn meeting was held at Port- marnock on Thursday, the 1st o f October when an 18 hole Stableford competition was played in perfect weather conditions. Members greatly appreciated the excellent condition o f the course, as might be expected o f Portmamock, and also the fact that the Society appeared to have the sole and uninterrupted use of the links for the occasion.