The Gazette 1958-61

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.)