The Gazette 1958-61

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