Butler v Board of Trade
| Jurisdiction | England & Wales |
| Date | 1970 |
| Year | 1970 |
| Court | Chancery Division |
Evidence - Privilege - Solicitor and client - Warning letter from solicitor - Criminal proceedings against client - Intention to adduce letter in evidence - Court's equitable jurisdiction in confidence - Conflict between private right and public interest.
Among papers at a solicitor's office handed over to a representative of the Official Receiver of a company in compulsory liquidation was a copy of a letter written to the plaintiff by his solicitor in which she volunteered a warning that he might incur serious consequences, which she described, if he did not take care. In criminal proceedings against the plaintiff under section 332 (3) of the
Held, (1) that the fact that the letter was relevant to criminal proceedings was not sufficient by itself to destroy the privilege, the correct test to apply being both whether there was a bona fide and reasonably tenable charge of crime or fraud and whether the letter could be shown prima facie to be preparatory to the commission of a crime or fraud.
(2) That on the limited facts before the court, the warning in the solicitor's letter could not be regarded as being in preparation for, or in furtherance of, or as part of any criminal designs on the plaintiff's part, and that, therefore, the letter was privileged and the copy confidential; that, accordingly, it was unnecessary to decide whether the charge of crime had been sufficiently averred.
(3) That although there had been a breach of confidence and in such circumstances an innocent recipient of information could be restrained, there were good reasons why it would not be proper for the court to interfere in cases where there was a conflict between the private right of the individual in equity and the duty of the state to prosecute offenders; accordingly, the recipient here being the Board of Trade, the court's equitable jurisdiction in confidence would not be exercised and the action must be dismissed.
Quaere. Whether the same result would obtain in the case of a private prosecution against a person who was seeking to restrain a breach of confidence (post, p. 828E).
The following cases are referred to in the judgment:
Argyll (Duchess) v. Argyll (Duke) [
Ashburton (Lord) v. Pape [
Bullivant v. Attorney-General for Victoria [
Calcraft v. Guest [
Chic Fashions (West Wales) Ltd. v. Jones [
Elias v. Pasmore [
Gartside v. Outram (
Ghani v. Jones [
Goodman and Carr and Minister of National Revenue, In re (
Initial Services Ltd. v. Putterill [
Kerr v. Preston Corporation (
Milner, In re (
O'Rourke v. Darbishire [
Reg. v. Cox and Railton (
Rumping v. Director of Public Prosecutions [
Saull v. Browne (
Weld-Blundell v. Stephens [
Williams v. Quebrada Railway, Land & Copper Co. [
The following additional cases were cited in argument:
Ainsworth v. Wilding [
Greenough v. Gaskell (
Kuruma v. The Queen [
Lloyd v. Mostyn (
Minter v. Priest [
Rex v. Dixon (
Russell v. Jackson (
Turquand v. Knight (
SPECIAL CASE.
By his writ dated March 2, 1970, the plaintiff, Ronald Morris Butler, claimed an injunction against the defendants, the Board of Trade, restraining them from, inter alia, using the contents of a letter written to him by a solicitor. As amended, the writ sought a declaration that the defendants were not entitled to publish, disclose, divulge or otherwise make use of the contents of the letter or any information contained in it.
On April 17, 1970, the plaintiff obtained from Master Neave an order that a special case be stated for the opinion of the court whether there was any equity to prevent the defendants from tendering a copy of the letter in evidence in criminal proceedings which were being taken against the plaintiff for alleged offences under section 332 (3) of the
Paul Pelham for the plaintiff.
P. J. Millett for the defendants.
July 9, 1970. GOFF J. In this action the plaintiff, who is being prosecuted by the Board of Trade for alleged offences under section 332 (3) of the
“that the defendants,” the Board of Trade, “are not entitled by themselves, their servants or agents to publish, disclose, divulge or otherwise make use of the contents of a letter dated July 31, 1964, written to the plaintiff by Phyllis Edith Newman, a solicitor, or any information contained therein.”
The object is to prevent the defendants from adducing in evidence against the plaintiff at the criminal trial a copy of a letter written to him by Mrs. Newman, a solicitor then in charge of the practice of another solicitor, one Miss Berman. As the defendants are a department of the Crown it is not possible to obtain interlocutory relief, since an injunction cannot be granted against the Crown, nor will the court make an interlocutory declaration. To overcome that difficulty, if possible, this special case has been presented under
The facts which have to be assumed are set out in the special case and it is unnecessary to recite them, save paragraphs 7, 8 and 12 which read as follows:
7. “Shortly after the dates of the respective winding up orders a representative of the Official Receiver being the provisional liquidator of Curzon and Capricorn called upon Miss Berman and collected the papers of the company concerned. A copy of the letter was found amongst these papers. 8. The department of the Official Receiver in Companies Liquidation is a...
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