The Gazette 1955-58

or, if not, they will say what the proper sum should be. We were shown the form of application issued by the Law Society when this procedure is invoked. It seems to be well designed to enable the matter to be properly investigated. The form contains a questionnaire in which the solicitor has to set out all the particular circumstances specified in the Order of 1953. The investigation is held without any expense to the client, and it is a great protection for him. The only drawback about it is that the client has no right to have a bill taxed by the taxing master, and the new order expressly says ". . . it shall be the duty of the solicitor to satisfy the taxing master as to the fairness and reasonableness of his charge." The taxing master can therefore call for all the details just as the Law Society could, and the taxing master will no doubt see that the client and his new advisers have full opportunity of considering these details, so that the client can challenge them, if he so desires. Such being the effect of the new order, the question is what must a solicitor's bill for non-contentious business now contain ? I think that it must contain a summarised statement of the work done, sufficient to tell the client what it is for which he is asked to pay. Re A Solicitor (1955 2 All E.R. 284) Witnesses' Privilege. A firm of solicitors acting for the defendants in an action for damages for personal injuries, having obtained a medical report from a doctor on the plaintiff's injuries, wrote a letter to the plain– tiff's solicitors in which they quoted extracts from the report. The letter was shown by the plaintiff's solicitors to their client who, regarding those extracts as defamatory, commenced an action for libel against the doctor, and claimed disclosure of the full medical report and of correspondence relating thereto. The doctor claimed the protection of the privilege admitted to be possessed by the defendants in the first action : Held by the Court of Appeal (per Hodson and Romer L.J.J., Singleton L.J. dissenting) reversing Donovan J. that the privilege which was accorded to litigants to protect them in the preparation of their case belonged only to the litigant or his success– ors in title and did not extend to a proposed witness who became a party to a subsequent and different action. Per Singleton L.J. (dissenting): " It was suggested that the Court might make an order for discovery and inspection to take place after the action for damages for personal injuries had ended. I do not know that any such suggestion was made

to Donovan J., against whose order this appeal is made. In any event, I do not consider that any such order should be made in this unusual case. So far as I know, there is no precedent for it. It would be a kind of threat hanging over one who is expected to be a witness in the action for damages for personal injuries. The plaintiff commenced this action, and appears to have let the other action lie. To make an order of the kind now suggested would be a departure from the recognised practice and would have the effect of deterring potential witnesses from giving statements to solicitors whose clients were concerned in, or faced with litigation. I would dismiss the appeal." Per Hodson L.J. : " It is conceded by the defen– dant that the medical reports which form the basis of the libel action were brought into existence in contemplation of the action brought by the plaintiff against the company, and that privilege from pro– duction accordingly attaches to the company in the proceedings taken by the plaintiff against it. The question is whether the privilege from pro– duction extends beyond the company, so as to protect the defendant in separate proceedings brought against him, although the privilege is not his, but that of the company. "It is essential to bear in m'ind that the privilege is the privilege of the litigant accorded to him in order that he may be protected in preparing his case, and not the privilege of his witnesses as such. The litigant can waive the privilege if he chooses, and if he does so the proofs of his witnesses can be shown to the opposing party without the wit– nesses having any ground for complaint. What is being sought here is, in effect, to extend the umbrella of the protection which the privilege gives the company to the defendant, who is, on the hypothesis that he is the author of the libel, to be looked at for the purpose of this application as a proposed witness on behalf of the company. In this capacity not only has he no privilege of his own, but he is under no duty to assert the right of the company to resist the production of any documents." Per Romer L.J. : " In order to establish this claim the defendant must show as it seems to me, either that the privilege in the first action is one which he as well as the company can assert, or that he at least has such an individual right to share in the protection which the privilege affords to the company that the latter cannot waive the privilege without his consent. In my judgment, however, neither of these views is capable of being sustained. The privilege which exists in the first action is, in my opinion, that of the company and of no one else; and the company can at any time waive 16