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No. 6. - Southwark and Vauxhall Water Co. v. Quick.

Notes.

Gainsford v. Grammar (1809), 2 Camp. 9, 11 R. R. 648. But a person who is not a solicitor will not be compelled to disclose a communication made to him under the mistaken belief that he is a solicitor. Calley v. Richards (1854), 19 Beav. 401.

Communications between a solicitor and his client relative to a fraud which they are contriving will not be protected; for the contriving of a fraud forms no part of the professional occupation of a solicitor. Russell v. Jackson (1851), 9 Hare, 387 at p. 392; Follett v. Jefferyes (1850), 1 Sim. N. S.3; Reynell v. Sprye (1848), 11 Beav. 518. Where trustees were charged with making a fraudulent sale to one of themselves, communications between that trustee and another trustee who was said to have acted as solicitor for the first were held liable to production, Postlethwaite v. Richman (1887), 35 Ch. D. 722, 56 L. J. Ch. 1077, 56 L. T. 733, 36 W. R. 563.

On the same principle, communications made to a solicitor by his client for the purpose of being helped in the commission of crime will not be protected. Reg. v. Cox (1884), 14 Q. B. D. 153, 54 L. J. M. C. 41, 52 L. T. 25, 33 W. R. 396.

The privilege is that of the client, Parkhurst v. Louten (1819), 2 Swanst. 194, 19 R. R. 63; Herring v. Cloberry (1842), 11 L. J. Ch. 149; Gresley v. Mousley (1856), 2 Kay & J. 288, 9 Jur. (N. S.) 156; and may therefore be waived by him. Procter v. Smiles (1886), 55 L. J. Q. B. 527. But if he does not waive it no presumption adverse to him will arise, Wentworth v. Lloyd (1864), 10 H. L. Cas. 589; and a waiver as to some of the communications is not a waiver as to all. Procter v. Smiles, supra ; Lyell v. Kennedy (1884), 27 Ch. D. 1, 51 L. J. Ch. 937, 50 L. T. 730.

Generally speaking, whenever a client consults a legal adviser in good faith, whether with a view to litigation or not, all communications which pass between them for the purpose of enabling the former to obtain the advice of the latter, are privileged. Mostyn v. Iest Mostyn Coal Co. (1876), 34 L. T. 531; Turton v. Barber (1874), L. R., 17 Eq. 329, 43 L. J. Ch. 468, 22 W. R. 438; Minet v. Morgan (1873), L. R. 8 Ch. 361, 42 L. J. Ch. 627,28 L. T. 573, 21 W. R. 467. See also per KINDERSLEY, V. C., in Lawrence v. Campbell (1859), 4 Drew. 485. The communications must be confidential as well as professional. Gardner v. Irwin (1878), 4 Ex. D. 49 at p. 53; Bursill v. Tanner (1885), 16 Q. B. D. 1 at p. 5, 55 L. J. Q. B. 53, 53 L. T. 445, 34 W. R. 35; Smith v. Daniello (1874), L. R., 18 Eq. 649, 44 L. J. Ch. 189, 30 L. T. 752.

In these circumstances protection will be extended to documents prepared for that purpose by either the client or the legal adviser. Thus it appears from the ruling case that a statement of facts drawn

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No. 6. — Southwark and Vauxhall Water Co. v. Quick. — Notes.

up by the client or by his direction for submission to his solicitor is privileged. In Lowden v. Blakey (1889), 23 Q. B. D. 332, 58 L. J. Q. B. 617, 61 L. T. 251, 38 W. R. 64, which was an action for a libel alleged to be contained in an advertisement which the defendant had published, production was refused of a draft of the advertisement which before publication had been submitted to and revised by the defendant's counsel. Privilege will also be allowed to observations made by counsel on his brief. Walsham v. Stainton (1863), 2 H. & M. 1; Nichols v. Jones (1865), 2 H. & M. 588.

Where a document would not itself be privileged, the professional privilege will not attach to a copy of it. Chadwick v. Bowman (1886), 16 Q. B. D. 561, 54 L. T. 16; Wright v. Vernon (1853), 22 L. J. Ch. 447. But see Lyell v. Kennedy, post.

Where advice is sought in view of expected litigation, the privilege is still wider and may apply to communications and documents made by third parties. Its extent is sufficiently indicated in the rule which is borne out by the ruling case and other cases cited below.

The contemplated litigation must not be mere general litigation, but some definite action. Westinghouse v. Midland Railway Co. (1883), 48 L. T. 462. In need not however be the action in which the discovery is being sought. Bullock v. Corrie (1877), 3 Q. B. D. 358, 47 L. J. Q. B. 353, 26 W. R. 330; Norden v. Defries (1882), 8 Q. B. D. 508, 51 L. J. Q. B. 415, 30 W. R. 612.

As bearing more or less directly upon the rule the following cases may be referred to: M'Corquodale v. Bell (1876), 1 C. P. D. 471, 45 L. J. C. P. 329, 35 L. T. 261, 24 W. R. 399, where privilege was held to attach to correspondence between the solicitor of one of the parties to an action and a third party for the purpose of ascertaining facts, with a view to the action which was afterwards brought and was then anticipated, and of guiding the party as to the mode of carrying it on. Pacey v. London Tramways Co. (1876), 2 Ex. D. 440 n., in which privilege was allowed to reports of medical officers sent by the defendant company, before action but after the claim was made, to examine the plaintiff who had been hurt in an accident, the plaintiff consenting to be examined at the solicitor's request in view of the intended litigation. And Friend v. London, Chatham, & Dover Railway Co. (1877), 2 Ex. D. 437, 46 L. J. Ex. 696, 36 L. T. 729, 25 W. R. 735, where a similar conclusion was arrived at, the medical examination of the plaintiff being made under a judge's order. In Lyell v. Kennedy (1884), 27 Ch. D. 1, 51 L. J. Ch. 937, 50 L.T. 730, it was held that although copies of or extracts from pre-existing documents are not primâ facie privileged, yet a collection thereof will be privileged which has been made or obtained by a professional adviser, and which might afford a clue to the

No. 6. -- Southwark and Vauxhall Water Co. v. Quick. — Notes.

view of the case taken by such adviser. In Learoyd v. Halifax Joint Stock Bank (1893), 1893, 1 Ch. 686, 62 L. J. Ch. 509, 68 L. T. 158, 41 W. R. 344, protection was extended to a transcript of examination under section 27 of the Bankruptcy Act 1883, made to enable the trustee's solicitor to advise him whether the action should be brought; and in North Australian Territory Co. v. Goldsborough (1893), 1893, 2 Ch. 381, 62 L. J. Ch. 603, 69 L. T. 4, 41 W. R. 501, to depositions taken at the instance of the liquidator under sect. 115 of the Companies Act 1862. See also Wheeler v. Le Marchant and Young v. Holloway, p. 599, post.

The Court has also refused to allow production of surveyors' reports made at the plaintiff's request before and solely with a view to the action. The Theodor Kroner (1878), 3 P. D. 162, 47 L. J. P. 85, 38 L. T. 818, 27 W. R. 307.

Examples of cases in which privilege was held not to attach are to be found in Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644, 45 L. J. Ch. 449, 35 L. T. 76, 24 W. R. 624, in which a bill was filed against a banking company to compel them to replace a sum alleged to have been improperly transferred from one account to another at one of their branches. Before the bill was filed, but after litigation had become highly probable, the manager of the company telegraphed to the branch manager to send full particulars of the transaction; but the latter was not told that the particulars were to be submitted to lawyers for the purpose of obtaining advice. It was held that the letter sent in answer by the branch manager was not privileged. In Bustros v. White (1876), 1 Q. B. D. 423, 45 L. J.Q. B. 642, 34 L. T. 835, 24 W. R. 721, privilege was not allowed to letters written to the plaintiff in an action by his mercantile agent, and containing a mere volunteered opinion as to the plaintiff's chances of success founded on no more knowledge of the facts than was common to both parties to the action.

In English v. Tottie (1876), 1 Q. B. D. 141, 45 L. J. Q. B. 138, 33 L. T. 724, 24 W. R. 393, which was an action for not delivering goods according to contract, it appeared that the defendant shortly before the action had sent, to the agents of the company from whom he bought the goods, two letters from the plaintiff's solicitors relating to the claims made in the action, requesting them to obtain information, and that letters then passed between the defendant and the agents, some of them after the action was brought. It was held that the plaintiff was entitled to production of these letters. Martin v. Butchard (1877), 36 L. T. 732, decided that in an action for damages for improperly constructing a steam-tug, reports made by persons employed by the plaintiff to survey the tug for the purposes of the action were liable to

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No. 6. — Southwark and Vauxhall Water Co. v. Quick. — Notes.

production. Wheeler v. Le Marchant (1881), 17 Ch. D. 675, 50 L. J. Ch. 793, 44 L. T. 632, was an action for specific performance of a contract to take a building lease, and it was there held that the defendants must produce letters which had passed between their solicitors and their surveyors except such as the defendants should state by affidavit had been prepared after the dispute and for the purpose of obtaining information, evidence, or legal advice, with reference to existing or pending litigation. Young v. Holloway (1887), 12 P. D. 167, 56 L. J. P. 81, 57 L. T. 515, 35 W. R. 751, was an action in which the plaintiff sought to recall probate on the ground that the testator was not of sound mind and was subjected to undue influence by the defendants. After the commencement of the action, four anonymous letters relating to the matters in dispute were received, two by the plaintiff, one by her solicitor, and another by her counsel. It was held that the letters to the plaintiff must be produced, but that the others were privileged, for they must be taken to have been sent for the purposes of the action.

In Huth v. Haileybury College (1888), 4 Times Law Rep. 277, the affidavit claimed protection for communications from the infant plaintiff to his father and co-plaintiff, written at the latter's request and sent to him to be transmitted to their solicitors, but it was held that, as the affidavit did not show they had come into existence for transmission to the solicitors, they could not be treated as privileged.

Communications between the opposed parties to an action, or their solicitors, are not privileged. Foakes v. Webb (1884), 28 Ch. D. 287, 54 L. J. Ch. 262; Griffith v. Davies (1833), 5 B. & Ad. 502.

AMERICAN NOTES.

An attorney cannot be compelled to produce in evidence a paper left with him by a client in another case. Lynde v. Judd, 3 Day (Connecticut), 499.

Counsel entrusted by his client with papers relating to the action depending in Court is not obliged to produce them nor compellable as a witness to state their contents. Jackson v. Denison, 4 Wendell (New York), 558 (citing Jackson v. Burtis, 14 Johnson (New York), 391); Crosby v. Berger, 11 Paige (New York Chancery), 377; 42 Am. Dec. 117; Durkee v. Leland, 4 Vermont, 612, approving Cromack v. Heathcote, 2 Brod. & Bing. 4, as “the better law."

“ There must be at least a controversy anticipated between parties in relation to the subject of which the communications were made to counsel or the documents intrusted to him.” Peck v. Williams, 13 Abbott Practice Rep. 68; or a dispute, March v. Ludlum, 3 Sandford Chancery (New York), 35, a very learned examination of the English cases, citing Greenough v. Gaskell, 1 M. & K. 98 (Lord BROUGHAM), as giving "an able opinion examining the philosophy and true grounds of the privilege." That opinion is also specially approved in State v. Douglass, 20 West Virginia, 770,781. Compare

No. 6.

- Southwark and Vauxhall Water Co. v. Quick.

Notes.

Bank of Ulica v. Mersereau, 3 Barbour Chancery (New York), 528; 49 Am. Dec. 189.

Mr. Weeks (Attorney at Law), sect. 153, says, " to set the privilege in operation, the professional relation must exist, and some kind of professional employment is necessary.” “ The relation of attorney and client must exist, or the communication must have been made with a view to that relation." Brown v. Matthews, 79 Georgia, 1; Romberg v. Hughes, 18 Nebraska, 570; Caldwell v. Davis, 10 Colorado, 481; Randolph v. Quidnick Co., 23 Federal Reporter, 278; Tucker v. Finch, 66 Wisconsin, 17; State v. Cotton, 87 Alabama, 75; House v. House, 61 Michigan, 69; 1 Am. St. Rep. 570. If the communication was made to the attorney in anticipation of employing him, it comes within the letter, spirit, and reason of the law of privilege. Young v. State, 65 Georgia, 525; Nelson v. Beeker, Minnesota (to appear); Bacon v. Frisbie, 80 New York, 394; 36 Am. Rep. 627; Thorp v. Goewe, 85 Illinois, 611; Orlon v. McCord, 33 Wisconsin, 205; Cross v. Riggins, 50 Missouri, 335; Bean v. Quimby, 5 New Hampshire, 94. See a great number of cases cited in 19 Am. & Eng. Cyc. of Law, “ Privileged Communication.”

The American Courts do not seem to have gone so far as the principal case in protecting documents merely intended to be communicated.

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