No. 6. Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 319, 320.

principle also applies, I think, to the other set of documents that were submitted to the plaintiffs' solicitor. Order refused.

Feb. 20. The defendant appealed.
J. C. Mathew, for the defendant.
Arthur Wilson, for the plaintiffs.

The arguments and the cases cited were the same as in the Court below.

BRAMWELL, L. J. I am of opinion that this case is governed by the principle laid down in Anderson v. Bank of British Columbia, 2 Ch. D. 644, 45 L. J. Ch. 449, and that the appeal should be dismissed.

BRETT, L. J. I am of the same opinion. It seems to me that the case of Bustros v. White, 1 Q. B. D. 423, 45 L. J. Q. B. 642, is not in point; the documents which the plaintiff declined in that case to produce were letters forming part of a correspondence between the plaintiff and other persons, and not between the plaintiff and his solicitor; neither is the present case governed by Friend v. London, Chatham, and Dover Ry. Co., 2 Ex. D. 437, 46 L. J. Ex. 696, for in that case the communications were written" at the instance, and for the use of the solicitor." The question, therefore, depends upon what is the principle to be extracted from Anderson v. Bank of British Columbia. The facts of that case do not apply to the present, but the judgment lays down a rule upon which we ought to act. JAMES, L. J., lays down a rule, which I think is in effect what was said by JESSEL, M. R., * in the Court below, and also mentioned [* 320] by MELLISH, L. J., in his judgment; he says, "Looking at the dicta, and the judgments cited, they might require to be fully considered; but I think they may possibly all be based upon this, which is an intelligible principle, that as you have no right to see your adversary's brief, you have no right to see that which comes into existence merely as the materials for the brief. Now reading that passage with what was said by MELLISH, L. J., in the course of the argument, it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained" at the instance " or " at the request"

No. 6. Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 320, 321.

of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into " merely for the purpose of being laid before the solicitor for his advice or for his consideration." If this is the correct rule, the only question is whether the affidavits in the present case bring the documents under discussion within that rule. I think all the classes of documents mentioned are brought within the rule. The only document about which there can be any doubt is the transcript of the shorthand writer's note of the conversation between the chimney-sweep and the company's engi neer; but I think that the Queen's Bench Division construed the language of the affidavit to mean that the transcript was made in order that it might be furnished to the solicitor for his advice, although, before passing on to him, it was to be laid before the board of directors, or reported to the board, in order that they also might see it. The object for which the notes were taken, and the transcript made, was that they might be furnished to the solicitor for his advice. If that is so, then it stands on the same footing as the others, except that it was not sent to the solicitor; that cannot make any difference. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because after

wards it was not laid before the solicitor. It might not have [* 321] been laid before the solicitor, because the person making the statement had died or went away and could not be found. I think, therefore, that this document having been made bona fide merely for the purpose of being laid before the solicitor for his advice or his consideration, it is precisely like the other documents, and that all the documents are privileged.

COTTON, L. J. I am of opinion that the judgment of the Queen's Bench Division was right. We are discussing the question of discovery, but discovery in a particular way, and I call attention to that, because in the argument I think sufficient distinction was not taken between the particular modes of discovery: discovery by the production of documents, and discovery by compelling an opponent to answer interrogatories. As regards the latter, the directors of a company, in answering interrogatories, must not only answer as to their own individual knowledge, but in answering for the company they must get such information as

No. 6. Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 321, 322.

they can from other servants of the company who personally have conducted the transaction in question, and they cannot properly answer interrogatories by saying they know nothing about the matter, when it is in their power to obtain information from other servants of the company who may have personal knowledge of the facts; and it is perfectly clear if the information has been communicated to them from the other servants of the company, in answering interrogatories properly administered to them, they must disclose to their opponent the knowledge which they got from that communication, even though the communication itself may be a document which is privileged.

We are now dealing with the production of documents, and the question is, whether the documents do or do not come within what is called privilege? Privilege only extends to communications with legal advisers, or in some way connected with legal advisers; communications with a most confidential agent are not protected if that confidential agent happens not to be a solicitor. And this proceeds on the principle that laymen (by which I mean persons not learned in the law) cannot be expected to conduct their defence or litigation without the assistance of professional advisers; and, for the purpose of having the * litigation con- [* 322] ducted properly, the law has said that communications between the client and the solicitor shall be privileged, and that no one shall be entitled to call for the production of a document which has been submitted to the solicitor for the purpose of obtaining his advice, or for the purpose of enabling him to institute or to defend proceedings. There must be the freest possible communication between solicitor and client, and it is on this ground that professional communications are entitled to privilege, which excepts them from the general rule. The most obvious form of claiming privilege is when any litigant sends either directly or indirectly to his solicitor a document for the purpose of obtaining his advice, or for the purpose of enabling him to institute or defend an action. That is not quite the question here, but there is another class of cases, where information or evidence, which is usually obtained by the solicitor himself, is not obtained by him, but a document stating what evidence can be given is prepared to be communicated to the solicitor. It was conceded on behalf of the defendant, that if the documents had been obtained or prepared at the instance and by the instruction of the

VOL. IX.-38

No. 6. - Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 322, 323.

solicitor, they would be privileged, though not prepared by the solicitor himself, and the contention is, in fact, that there was no request beforehand by the solicitor that this information should be obtained. I am of opinion that would be an unsubstantial distinction. I believe there is no case directly in point, in which it has been held that the want of a request by the solicitor is fatal to the privilege claimed, but in Friend v. London, Chatham, and Dover Ry. Co., 2 Ex. D. 437, 46 L. J. Ex. 696, COCKBURN, C. J., pointed out the correct principle. He said: "I think that the defendants' affidavit, which is unanswered, and therefore must be assumed to be true, brings this case within the exception to the general rule mentioned in Bustros v. White, 1 Q. B. D. 423, 45 L. J. Q. B. 642. The defendants intended that the medical men should make the examination merely with the view of informing their solicitor." That, I think, is the true principle, that if a document comes into existence for the purpose of being communicated to the solicitor with the object of obtaining his advice, or of enabling him either to prosecute or defend an action, then it is

privileged, because it is something done for the purpose [*323]* of serving as a communication between the client and

the solicitor. I agree with BRETT, L. J., that except the transcript of the shorthand writer's note of the conversation between the chimney-sweep and the company's engineer, these are documents which clearly were prepared for the purpose of being laid before the solicitor of the company for obtaining his advice; and, as regards that document, though that is not stated quite so clearly, I think that in substance the transcript is also stated to have been prepared for the purpose of being laid before the solici tor. The fact that it was not laid before him can in my opinion make no difference; the object of the rule and the principle of the rule is that a person should not be in any way fettered in communicating with his solicitor, and that must necessarily involve that he is not to be fettered in preparing documents to be communicated to his solicitor. If such a distinction prevails, what is to be the rule where the application for production is made before a document is laid before the solicitor, but which it is intended should be laid before him? Is it, then, to be produced? If so, is it to be saved from production, because after the original application, but before the appeal is heard, the party has, in fact, laid the document before his solicitor? The distinction, in my opinion, is

No. 6. Southwark and Vauxhall Water Co. v. Quick, 3 Q. B. D. 323.

Notes.

not one which can be supported. All these documents must be looked upon as having been prepared for the purpose of being laid before the solicitor, either for the purpose of enabling him to prosecute the action contemplated, or for the purpose of obtaining his advice on the question at issue in the action, and in my opinion are privileged. The appeal should therefore be dismissed. Appeal dismissed.

ENGLISH NOTES.

The reason for the legal professional privilege is well stated by Lord BROUGHAM in Greenough v. Gaskell (1833), 1 My. & K. 103, where he says that "It is founded on a regard to the interests of justice which cannot be upholden, and to the administration of justice which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of all professional assistance; a man would not venture to consult any skilled person, or would only dare to tell his counsellor half his case." See also the ruling case, and per Lord BLACKBURN, in Kennedy v. Lyell (1883), 9 A. C. 81, at p. 86.

The privilege exists only in the case of legal advisers: per MASTER OF THE ROLLS (Sir G. JESSEL), in Wheeler v. Le Marchant (1881), 17 Ch. D. 675, 50 L. J. Ch. 793. It extends, however, to their clerks acting as such: Taylor v. Forster (1825), 2 C. & P. 195; Foote v. Hayne (1824), Ryan & Moody, 165, Carr. & Pay. 545. It does not apply in the case of a medical adviser: Rex v. Gibbons (1823), 1 C. & P. 97; Lee v. Hamerton (1864), 10 L. T. 730, 12 W. R. 975; steward: Falmouth (Earl) v. Moss (1822), 11 Price, 455; patent agent: Moseley v. Victoria Rubber Co. (1886), 55 L. T. 482; or pursuivant of the Heralds' College: Slade v. Tucker (1880),14 Ch. D. 827, 49 L. J. Ch. 644, 43 L. T. 49, 28 W. R. 807. But confidential communications to clergymen though not strictly privileged will be received with reluctance. Broad v. Pitt (1828), M. & M. 233; Reg. v. Griffin (1853), 6 Cox C. C. 219. See further, as to non-legal agents, Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644, 45 L. J. Ch. 449, 35 L. T. 76, 24 W. R. 624 (cited p. 598, post); Westinghouse v. Midland Railway Co. (1883), 48 L. T. 462; Kerr v. Gillespie (1844), 7 Beav. 572; Storey v. Lennox (1837), 1 Keen, 341, 6 L. J. Ch. 99 affirmed 1 M. & Cr. 525.

The privilege does not apply where the confidence was given before the relationship of solicitor and client was formed or after it has ceased.