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No. 6. — Southwark and Vauxhall Water Co. v. Quick. — Rale.
owner, and the captain of the former makes a report to the Lords of the Admiralty, the Court of Admiralty will not, in a cause against the captain in which an appearance has been entered by the Queen's Proctor by order of the Lords of the Admiralty, order the report to be produced for inspection, if the Secretary to the Lords of the Admiralty makes an affidavit that such production would prejudice the public service. The Bellerophon (1875), 44 L. J. Ad. 5, 31 L. T. 756, 23 W. R. 248. And see also the ruling case and the authorities cited above. It is true that in Kain v. Farrer (1877), 37 L. T. 469, which was an action against the Secretary of the Board of Trade for acts done by the servants of the board, it was held that the Secretary was not entitled to refuse production of documents in his official custody, though he had made an affidavit stating that he objected to disclose them on grounds of public policy. That case, however, according to Wills, J., in the ruling case, seems to be opposed to the weight of authority and therefore not entitled to prevail.
The Court will not inquire whether the objection of the State Authority to the production is well founded, except where an excuse is made which seems palpably futile and frivolous. Hughes v. Vargas (1894), 9 R. 661. Where production has been refused on the ground of public interest, secondary evidence of the contents of the document cannot be given. 16.
A member of parliament or the Speaker of the House of Commons may be asked whether a member spoke in a certain debate, but not what he said. Plunkett v. Cobbett (1804), 5 Esp. 136.
No. 6.-SOUTHWARK AND VAUXHALL WATER COM
PANY v. QUICK.
(c. A. 1878.)
DOCUMENTS prepared in relation to an intended action, whether at the request of a solicitor or not, and whether ultimately laid before the solicitor or not, are privileged from discovery if prepared with a bonâ fide intention of being laid before the solicitor for the purpose of taking his advice.
Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 315, 316.
Southwark and Vauxhall Water Company v. Quick.
3 Q. B. D. 315-323 (s. C. 47 L. J. Q. B. 258; 26 W. R. 341).
Discovery and Inspection of Documents. — Solicitor. — Privilege. Documents prepared in relation to an intended action, and with a bond  fide intention of being laid before the defendant's solicitor for the purpose of taking his advice, held to be privileged; and application for inspection of such documents refused.
Application on behalf of the defendant for the inspection of certain documents that had been scheduled by the plaintiffs in their affidavit of discovery. The application was referred by FIELD, J., froin chambers to the Court. The action was by the company against their former engineer to recover various sums of money which, it was alleged by the company, had been wrongly debited to them in accounts that had been settled between them and the defendant.
The documents in question were stated in the plaintiff's affidavits to be as follows :
1. A transcript of short-hand writer's notes of a conversation between a chimney-sweep employed by the company and the company's engineer, for the purpose of such engineer's obtaining information and reporting the same to the board of directors to be furnished to the company's solicitor for his advice in relation to the intended action.
2. Transcripts of shorthand writer's notes, of interviews between the chairman of the company and the engineer, and certain inspectors of the company, obtained with a view of submitting the same to the company's solicitor for advice in relation to the intended action. The transcripts of the notes were afterwards handed to such solicitor.
3. A statement of facts drawn up by the chairman of the company to be submitted to the company's solicitor for advice in relation to the intended action. It appeared that the statement of facts was afterwards submitted to the solicitor.
* Feb. 4. J. C. Mathew, for the defendant, moved for a [* 316] rule for inspection of the documents in question. The case of Anderson v. Bank of British Columbia, 2 Ch. D. 644, 45 L. J. Ch. 449, is an authority directly in the defendant's favour. It is
- Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 316, 317.
clear since that decision that it is not sufficient in order to make a document privileged that it should have come into existence in contemplation of litigation. It was there held by the Court of Appeal, that a written communication by an agent to his principal made in contemplation of litigation was not privileged.' Bustros v. White, 1 Q. B. D. 423, 45 L. J. Q. B. 642, is another decision of the Court of Appeal to the same effect. The effect of those decisions is to confine the privilege to communications between the party to the litigation and his solicitor. If, on the advice of the solicitor when consulted with reference to the litigation, at his instance, or at his request, written communications are procured from an agent of the party to be submitted to such solicitor, those communications would fall within the same rule as written communications by the party to his solicitor. But there can be no privilege until the relation as solicitor and client is established, and the solicitor is consulted, and then only with regard to documents that are in the nature of communications between the party and his solicitor. Communications spontaneously procured by the party from his agent to be submitted to his solicitor, are not privileged, and the other side is as much entitled to discovery of them as of any other document relating to the subject-matter of the action in the principal's possession. Knowledge that the principal procures from his agent with regard to the subject-matter of the action, before the relation of solicitor and client has commenced, is not within the principle upon which the privilege is based. Even if the documents that were actually submitted to the plaintiff's solicitor were privileged, document No. 1, which is not stated to have been actually submitted to the solicitor, is not privileged. In Friend v. London, Chatham, and Dover Ry. Co., 2 Ex. D. 437, 46 L. J. Ex. 696, the affidavit stated that the communications were written at the instance and for the use of the solicitors of the defendants, for the purpose of the legal proceedings.
Arthur Wilson, for the plaintiffs, showed cause. The [* 317] present * case is not within the authority of the decisions
that have been cited. It is admitted that the only privi. lege is with reference to the relation between solicitor and client. In those cases the documents in question had nothing to do with such relation. It is not disputed that communications procured by the advice of the solicitor are privileged. This is pointed out
No. 6. — Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 317, 318.
in the judgment of JESSEL, M. R., in Bustros v. White, 1 Q. B. D. 423, 45 L. J. Q. B. 642.
The documents in the present case are intermediate between those held not to be privileged in Anderson v. Bank of British Columbia, 2 Ch. D. 644, 45 L. J. Ch. 449, and those which it was laid down would be privileged in Bustros v. White. These documents, though not procured on the advice of the solicitor, and indeed procured before he was consulted, were nevertheless procured as instructions to the solicitor, or as materials for such instructions. It is submitted that document No. 3, which constituted the instructions to the solicitor for the action then determined on, was clearly privileged, and it is contended that documents Nos. 1 and 2, which were the materials for such instructions, fell within the same privilege. There being no decision exactly in point, it is necessary to look to the reason of the privilege. The reason of it is that it is essential to the interests of justice that there should be complete freedom of communication between the client and the solicitor. This freedom cannot be protected unless the privilege goes as far as is now contended for on behalf of the plaintiffs.
J. C. Mathew, in reply. The defendant's contention would really destroy the effect of the decisions in the Court of Appeal. Such communications are always submitted to the solicitor, and it would be always said that they were procured as materials for instructions to him.
COCKBURN, C. J. I am of opinion that this application should be refused. We are bound by the decisions of the Court of Appeal which have been cited, but the principle of those decisions does not appear to me to include the present case. The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of
justice and the well-being of society. Though it might (* 318] occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk. The question here is whether the documents of which inspection is sought are within the privilege. I think they are. It is clear that they were documents containing information which had been obtained by the plaintiffs with a view to consult
No. 6. — Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 318, 319.
ing their professional adviser. Two out of the three sorts of documents were actually submitted to him; as to the other it is not clear whether it was actually submitted to him or not. It is admitted upon the decisions that where information has been obtained on the advice of the party's solicitor it is privileged. I can see no distinction between information obtained upon the suggestion of a solicitor, with the view of its being submitted to him for the purpose of his advising upon it, and that procured spontaneously by the client for the same purpose. Again, I see no distinction between the information so voluntarily procured for that purpose and actually submitted to the solicitor, and that so procured but not yet submitted to him. If the Court or the Judge at chambers is satisfied that it was bona fide procured for the purpose, it appears to me that it ought to be privileged. Though fully recognizing the authority of the decisions of the Court of Appeal which have been referred to, I do not feel bound nor am I disposed to carry the doctrine of those decisions to the extent suggested on behalf of the defendant.
MELLOR, J. I agree with the opinion expressed by my Lord. I am satisfied that the decisions of the Court of Appeal, by which I am entirely prepared to abide, do not govern this case. It is conceded that information procured by the advice of a solicitor to be submitted to him is privileged. If so, I cannot understand the distinction between such information and that spontaneously procured for the same purpose. I cannot think that the Court of Appeal meant to decide that such information must be disclosed. I do not see any sound distinction between the document that was not actually submitted to the solicitor and those that were, provided the former was really intended to be submitted to
him. [* 319] * MANISTY, J. As to the documents that were actually
submitted to the solicitor, I entirely agree. As to the other document, I have some doubt; but the distinction is perhaps rather subtle, and I am not prepared to differ from my Lord and my Brother MELLOR. With regard to the statement of facts by the chairman, it would be monstrous that such a statement, made for the purpose of being laid before the company's solicitor, and actually laid before him, should not be privileged. What can be the difference between asking to see such a statement and asking what oral instructions were given to a solicitor? The same