Flight v Robinson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1844 |
| Date | 01 January 1844 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 9
ROLLS COURT
S. C. 13 L. J. Ch. 425; 8 Jur. 888. For Subsequent Proceedings, see 10 Beav. 73.
[22] flight v. robinson. June 7, 8, 10, July 31, 1844. [S. C. 13 L. J. Ch. 425; 8 Jur. 888. For subsequent proceedings, see 10 Beav. 73.] The general rule is, that a Defendant is bound to discover all the facts within his knowledge, and to produce all documents in his possession, which are material to the case of the Plaintiff. However disagreeable it may be to make the disclosure -however contrary to his personal interest-however fatal to his claims, he is compelled to set forth, on oath, all he knows, believes, or thinks in relation to the matters in question. The Court will not order the production of confidential communications between solicitor and client, which took place, either in the progress of the suit, or with reference to the suit previous to its commencement. Confidential communications between attorney, or counsel and client, anterior to the suit, and without reference thereto, are not privileged. In a suit for specific performance, cases submitted to counsel subsequent to the contract, relating to the sale, the objections taken by the purchaser to the vendors' title, the steps taken by the vendors to clear up the objections, &c., Held to be communications made with reference to the dispute which resulted in the litigation, and privileged. Communications between the assignees and the Commissioner of the Insolvent Debtors Court held not privileged. Books, &c., relating to the matters in question, in the possession, but the property, of the Defendant's solicitors, not ordered to be produced. This was a motion for the production of documents admitted to be in the Defendants' possession. The Defendants, Robinson and Gillett, were the assignees of Sir Thomas Champneys, an insolvent debtor. The insolvent being entitled to an estate during the continuance of the coverture between him and Lady Champneys, the assignees, on the 10th of November 1838, put it up for sale by auction "without reserve," and the Plaintiff Flight became the purchaser at £50,000. In November 1839 Sir Thomas Champneys died, and in consequence of disputes the Defendants, on the 24th of April 1840, filed their bill against Flight for a specific performance of the contract. On the other hand, Flight, on the 29th of October 1840, filed this crossbill of discovery against the assignees, for the purpose of obtaining a discovery of matters tending to affect the validity of the contract. The purchaser, by his cross-bill, insisted, that although the property had been sold " without reserve," still there [23] had been a reserved bidding, or a constructive R. in.-1* 10 FLIGHT V. ROBINSON 8 BEAT. 24. reserved bidding arising out of a provisional and anterior contract entered into on the 13th of August 1838 between the Defendants, Sir T. and Lady Champneys and Lord Mostyn. He also insisted that there had been puffing at the sale, that the contract had been abandoned, and that the estate being vested in the assignees under a previous insolvency of Sir Thomas Champneys, the Defendants had no right to sell. The Defendants, it appeared, had already been engaged in considerable litigation in respect of the property of their insolvent. Sir Thomas Champneys, in right of his wife, was entitled to a life-estate in real and other property, which came into possession in 1831. In 1827 Sir Thomas had taken the benefit of the Insolvent Act, and had executed the usual assignment to Mr. Sturgis the official assignee. He again took the benefit of the Insolvent Debtors Act in August 1835, under which the Defendants had become his assignees. In January 1835 Lord Mostyn and others, who were entitled to the estates in remainder, filed a bill against Sturgis and others to have the lease of part of the settled property renewed, and to compel the tenant for life and the assignees to contribute towards payment of the renewal fine. This suit was, in 1836, continued by a supplemental bill against the Defendants. Again, the legal estate of the estate being outstanding, Sturgis, in March 1836, filed a bill to recover the rents of the estates during the joint lives of Sir Thomas and Lady Champneys. Lady Champneys, in answer to the bill, stated, that she had derived no maintenance from her husband since 1824, and she claimed a settlement and maintenance out of the rents and profits of her estate. The Vice-Chancellor decided against her claim, [24] but it was allowed by Lord Cottenham on appeal (see Sturgis v. Champneys, 5 Myl. & Cr. 97), on the 7th of November 1839. The Defendants Robinson and Gillett, by their answer, admitted that they had in their possession the several documents mentioned in the second schedule, relating to the matters in the bill mentioned ; but they submitted that several of the documents were confidential and ought not to be produced. By a supplemental answer, the Defendants classified the documents, which they alleged to be privileged, as follows :- They said, that the first class of the said documents comprised Nos. 1, &c., and consisted of all cases submitted prior to the sale of the 10th day of November 1838 to counsel and others, the said Nos. 3 and 4 being cases submitted to an actuary and an auctioneer, and all the other numbers being cases submitted to counsel, on behalf of the Defendants, for the opinion of such counsel or others, for the guidance and safety of the Defendants, on various matters connected with the estate and interest of the Defendants sold at such sale to the Plaintiff, and of the opinions of counsel and others thereon.; and this class included all statements, instructions, and observations accompanying drafts, briefs and other papers, for the information and use of such counsel. And the Defendants submitted, that all the documents in the first class were privileged communications, passing between the solicitors of the Defendants and the counsel of the Defendants, and others; and that they were privileged at [25] the time they were made, and could never lose that protection. That the second class of the said documents comprised Nos. 36, &c., and consisted of all cases submitted, after the sale of the 10th of November 1838, to counsel on behalf of the Defendants, for the opinion of such counsel, for the guidance and safety of the Defendants on various matters connected with the said estate and interest of the [Defendants sold at such sale to the Plaintiff, and of the opinions of counsel thereon; and this class included all statements, instructions, and observations accompanying drafts, briefs and other papers, for the information and use of such counsel. And the Defendants submitted, that all the documents in the said second class were privileged communications passing between the solicitors of the Defendants and the counsel of the Defendants, on the very subject-matter of this suit, and after the questions now in litigation between the Defendants and the Plaintiff had arisen. And in particular the Defendants said, that such last-mentioned eases related to...
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