The Gazette 1958-61

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 the Court of Appeal (Hodson, Morris and Willmer, L.JJ.) allowing the appeal that as between the defendants 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).