The Gazette 1955-58

DECISIONS

OF

PROFESSIONAL

the records of deceased solicitors. These records have regularly been admitted, when the solicitor has died, under the rule that a statement made in the course of his duty by a deceased person is admissible providing he had, to use the words of Phipson On Evidence (gth Edn.), at p. 301, no " motive to misrepresent " the facts related in the document." (Re Pau'e Deed. (1955), 3 All. E.K. 448.) Indictment founded on matters disclosed in con sequence of compulsory process of lam. The accused, a solicitor, was the executor and trustee of his deceased mother's estate. As a result of proceedings instituted in the Chancery Division by his brother, a beneficiary under the mother's will, an order was made requiring him to lodge certain accounts and a statement of outstanding or undisposed of property. On failure to comply therewith he was adjudged in contempt of court and a writ of attachment was issued against him. Having been subsequently released and re-arrested, with the object of securing his release from prison, the accused swore an affidavit in which he confessed to converting the bulk of the assets of the estate to his own use. This was the first disclosure of the defalcations on which the indictment, containing three counts of fraudulent conversion, was framed. Before the accused's plea was taken counsel for the accused moved to quash the indictment under the provisions of section 43 (2) of the Larceny Act, 1916. Held by Sellers J. (i) that should the application to quash the indictment be successful, the court would have no jurisdiction to try the offences alleged in the indictment, and therefore it was appropriate to consider the application before taking the plea; (2) that on the facts, as revealed in the depositions, the offences were first disclosed on oath in Court in consequence of a compulsory process bona fide instituted by a person aggrieved and accordingly section 43 (2) applied. The accused was discharged. (R. /'. Maywhort 1955. i W.L.R., 848.) County Registrar must give reasons on Taxation. In an application for a review of the taxation of costs by the Bournemouth District Registrar in an undefended divorce suit, in which the registrar said that he had had regard to all relevant circumstances, and had reduced counsel's fee from 7 guineas to 5 guineas. Sachs J., in granting the application, held that it was perfectly obvious that a taxing officer was not entitled to take cover under such an omnibus statement, which tended to oust the jurisdiction of the court. It was to be emphasised that the duty of taxing officers when answering an objection was to

INTEREST. Is a document which is dictated, checked, and then amended in writing by a witness made or produced by him with his own hand, for the purpose of evidence ? Yes. Ij a solicitor who prepares the will of a testator, dictates a note to his typist in which he sets out the surrounding circumstances which when type written, was checked and amended, but not initialled by the solicitor, is such a note admissible in evidence ? Yes, because a solicitor was not a " person interested" within the meaning of the English Evidence Act, 1938 and there was no likelihood that his conduct at the time might subsequently be questioned. Per Sachs, J. :—" My own view is that a document which is dictated, checked and then amended in writing by a witness, certainly comes within the ambit of S. i (4) of the Evidence Act, 1938, as being a document that was made or produced by that witness with his own hand. It does not matter if in fact he secured the intervention of someone else to do the actual typewriting provided that he himself sees it, checks it, and writes on it. It is axiomatic that in almost every case a solicitor keeps a record of an important conversation in case there is any dispute. I do not think, however, that in the present case at the time the document was made on June 18, 1952, there was anything which could be said to fall within sub-s.(3) so as to make it a time when " proceedings were . . .anticipated." The next point argued was whether the witness was a " person interested" within the meaning of sub-s.(3). Counsel for the plaintiff put forward the fact that the witness had at any rate a reasonable chance of acting for the bank as constituting an " interest." I do not think that a contingent prospect of that sort can be an " interest" in the sense that this sub-section contemplates. I would add that otherwise every solicitor acting in any matter in which there could be any dispute, and in which accordingly there was at any rate a chance he might be employed, would never be able to make a record which could be evidence in a court of law. It might be said to be against a solicitor's reputation if a will which he is charged with preparing and seeing executed turns out not to be properly made. One notes that if the risk that a solicitor's conduct might later be called, into question were an " interest" within the meaning of sub-s.(3), then all records of solicitors on such matters would tend to be excluded. That seems to me not only contrary to commonsense but also contrary to the law implicit, I think in many decisions concerned with