The Gazette 1978

GAZETTE

APRIL 1978

(Continued from page 62) disclosure, and the fact that they had been brought into existence for the purposes of a particular action which had been concluded was treated as immaterial. Lindley, M.R., stated the rule succinctly — "once privileged always privileged". It is, however, important to remember that this simply means that, once a particular client's privilege has attached to a document, it remains for his benefit and that of his successors in title, but the maker of the document may not rely on this principle to claim privilege. Thus, in Schneider v. Leigh (1955) 2 Q.B. 195, the plaintiff had claimed damages for personal injuries against a company, whose solicitor obtained the usual Medical report — a document in relation to which the company enjoyed the ordinary litigant's privilege. The report was made by the defendant and the plaintiff contended that it libelled him. It was held that the defendant could claim no privilege with regard to his re port. A plea of qualified privilege in the law of defamation might have succeeded if the defendant could show that he was not actuated by malicc or some other 'fripropcr motive and in discharge of some public or Private duty but plea of legal professional privilege failed. Finally as the privilege is that of i particular person or class, matters covered by it may always be proved by the evidence of other witnesses. In Lloyd v. Mostvn (1842) 10 M .&W. 478, in the course of argument, Parke, B. said: 'Where an Attorney entrusted confidentially with a document communicates the contents, or suffers another to take a copy, surely the secondary evidence so obtained may be produced. Suppose the instrument were even st olen, and a correct copy taken, would it not be reasonable to admit it?" It is on the authority of this remark that the Court of Appeal allowed copies of proofs pf witnesses with notes on evidence in a former action mstituted by the Plaintiff's predecessor in title to be used by the defendant in the case of Calcraft v. Guest already referred to above, the originals having been handed over by the defendant's solicitor to the plaintiff to whom they belonged. Whilst the originals were undoubtedly Protected, the matters covered in the documents were admitted in evidence by other means. The rule has the effect of excluding evidence, though admissible and relevant, on grounds of public policy. In More v. Weaver (1928) 2 K.B. 520 the Court of Appeal in England, following Brown v. Dunn (1893) laid it down

that communications passing between j\ solicitor anil his client on a subject upon which the client has retained the solicitor, and which arc relevant to that matter, arc absolutely privileged.- However, in Minter v. Priest 46 T.L.R. 302. the House of Lords left open the question whether the privilege resulting from the relationship is an absolute or a qualified one. Nevertheless, in all the established authorities, the strong indication is that the' privilege, once established, is absolute and can only be set aside by statute. Despite this a Crown Court Judge ruled in the case of Regina v. Barton (1973) 1, W.L.R., 115 that the rules of Natural Justice require that any. documents in the possession or control of a solicitor which are both relevant and admissible to prove that a defendant was innocent of the alleged criminal charge are not privileged and that the solicitor should produce the documents if they arc relevant and admissable. Caulfield J. stated that he felt that he was obliged to consider the matter on "basic principles". He did not review the authorities but he considered the principle as set out in Cross on Evidence, 3rd Ed. (1967) very briefly. The Judge's ruling in this case has the effect of setting aside the privilege to serve a higher public interest, namely, the prevention of a miscarriage of justice. The writer feels that this case will be of particular importance to the development of the principle in Irish law in view of the Constitutional obligation on our Judges to ensure that the . rules of Natural Justice are applied. It will be recalled that Gavan Duffy J. in Cook v. Carroll (1945), I.R., 515 made it clear that the Irish Courts are obliged to scrutinise all Common Law principles, however firmly established, in the light of the Constitution. Furthermore, in the course of his judgement in that case he stated that "quite apart from the Constitution, a Judge, when ascertaining the law, must reject interpretations of the Common Law p l a i n ly u n r e a s o n a b le a nd inconvenient.. By way of conclusion, it may be said that whilst the principles are well settled and firmly rooted in the Common Law there are certain aspects which need to be clarified in the Irish Courts before the rule can be outlined with confidence. The most important aspect of the principle requiring clarification, in 1 the writer's view, is the question whether the privilege is absolute or qualified only. Hopefully, the Supreme Court will be called upon to consider the rule in its entirety in the near future.

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