Goddard v Nationwide Building Society
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE MAY |
| Judgment Date | 27 June 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0627-1 |
| Docket Number | 86/0591 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 June 1986 |
and
[1986] EWCA Civ J0627-1
Lord Justice May
and
Lord Justice Nourse
86/0591
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
Royal Courts of Justice
MR. GAVIN A. LIGHTMAN, Q.C., MR. WINSTON RODDICK, Q.C. and MISS BEVERLY-ANN ROGERS (instructed by Messrs Sharpe Pritchard & Co., London agents for Messrs Grossman, Hermer & Seligman, Cardiff) appeared on behalf of the Appellants/Plaintiffs.
MR. JAMES ROBERT REID, Q.C. and MR. ROGER SIMON BERRY (instructed by Messrs Church Adams Tatham & Co.) appeared on behalf of the Respondents/Defendants.
This is an appeal from a judgment of Mr. Justice Hollings of 16th July 1985 which dismissed the plaintiff's applications of 29th January and 25th April 1985.
In 1981 the plaintiffs bought a house in Penarth for £19,500 with the help of a mortgage from the respondent building society. They instructed a firm of solicitors, Messrs Godfrey Evans & Co., to act for them in connection with their purchase. A Mr. Graham Carson, an assistant solicitor with that firm, had the conduct of the matter on their behalf. In the usual way those same solicitors also acted as solicitors for the respondent in respect of the grant of the mortgage. Before the purchase, the respondent's surveyor carried out a survey of the house and the contents of his two reports were communicated to the plaintiffs. These were very favourable, but recommended that £1,000 should be retained by the respondent from any advance to cover the cost of repairing a bulge in the rear wall of the property. It is contended that it was in reliance on these reports that the appellants went on with and completed their purchase. It subsequently transpired, so it is alleged, that the house was in a dangerous condition and had a value of not merely £1,000, but £7,500 less than the purchase price.
On 6th October 1983 the appellants issued their writ in this action and their statement of claim was served on 24th October 1983. The appellants claim damages from the respondent on the contention that the survey reports of the latter's surveyor were negligent. Alternatively, the appellants contend that in completing the purchase they relied not only upon the reports but also upon certain representations said to have been made by the respondent's local manager, or in the further alternative that when making the advance the respondent warranted that the purchase price of the property was reasonable.
In the course of acting in and about the purchase and mortgage transactions Mr. Carson dictated a note for the file dated 10th June 1981 recording information which he had received from the local building society manager and certain conversations that he had in consequence thereof with the male appellant. I will consider the precise capacity in which Mr. Carson prepared this note later in this judgment. However, on 9th November 1983 Messrs Godfrey Evans and Co., knowing of the proceedings, wrote a letter to the respondent enclosing the note for the file of 10th June 1981 to which I have just referred. The respondent thereupon pleaded the substance of the attendance note in his defence and subsequently amended defence. The appellants challenge the accuracy of the consultations recorded in the note, but nevertheless claim that it is both confidential and privileged. Their application of 29th January 1985 was to haves truck out passages from the defence based upon the contents of the note on the grounds that those contents are privileged and that the pleading would embarrass the appellants in the fair trial of the action and was an abuse of the process of the court. Further, by their application of 25th April 1985 the appellants sought an injunction against the respondent from using or relying in any manner on the note and requiring them to deliver up the document and any further copies of it that they may have made. Their applications were supported by the unchallenged expert evidence of a Mr. Roger Jones that Messrs Godfrey Evans and Co. owed a duty of confidentiality to the appellants, at least in respect of the note, independent of any duty which they owed to the respondent and that the release of the note to the latter constituted professional misconduct.
On behalf of the respondent Mr. Reid's first submission was that the learned judge had held, and held rightly that on the probabilities the solicitors were acting for both parties at the time when the attendance note was dictated, although they had been separately instructed. Thus the respondent was equally entitled to know of its existence and contents with the appellants. It followed, counsel contended, that no breach of privilege was committed when the solicitors disclosed the note to the respondent. Any legal professional privilege which attached to it was common to both parties. Consequently the appellants were in any event not entitled to the relief which they sought in respect of it.
I confess that I do not think that it is quite clear on the face of the judgment below whether the learned judge was indeed so finding. If he was, then with respect I think that he was in error. It is clearly undesirable to set out the terms of the note in this judgment and the learned judge below very properly did not do so in his judgment either. However, having considered such terms and the circumstances in which the note came into existence, I am quite satisfied that the only legal professional privilege attaching to it was and is that of the present appellants.
Whether or not the judge must be taken to have made the finding to which I have referred, he nevertheless also went on to consider the case on the basis that the disclosure by the solicitors to the respondent of a photocopy of the note was a breach of the appellants privilege. Having done so he concluded that although the appellants had no proprietary right to the note or its contents, they did have the right to prevent the contents of the conversations between the appellants and the solicitors from being revealed either in answer to interrogatories or by the production of the note or a copy of it. However, once the copy had come into the hands of the respondent, that was the end of the matter and the latter was entitled to make what use of it it wished. The learned judge consequently dismissed the appellants' applications and it is against that dismissal that they now appeal.
Before dealing with the substantive arguments which were addressed to us on the hearing of this appeal, I should just record that with a view to saving time and costs the respondents accepted that an application for an injunction made in the existing proceedings could be regarded in the same way as separate proceedings.
In essence the opposing arguments in this case deployed both before the learned judge and before us were these. For the appellants, that the content of any communication, with immaterial exceptions, between a solicitor and his client is confidential and only the client can waive that confidentiality. At least where it is the solicitor who breaches his fiduciary duty to his client in respect of such a communication, then any person who comes into possession of that communication, or a document or a copy of a document setting it out, can be restrained from making any use of the communication or the original or copy documents and can be ordered to return them to the client. See Ashburton v. Pape [1913] 2 Ch.469.
For the respondent it was contended that even though communications between solicitor and client are confidential, nevertheless if a document, original or copy containing or evidencing them, comes into the hands of a third party, even by dishonesty—which of course is not alleged in the instant case—then that third party is entitled to use that original or copy document as evidence in litigation between himself and the erstwhile client. See Calcraft v. Guest [1898] 1 QB 759.
In Ashburton v. Pape the latter was a bankrupt, whose discharge was opposed by amongst others, the plaintiff. One Nocton had been Ashburton's solicitor and he employed a clerk by the name of Brooks. By a trick Pape got possession from Brooks of a number of letters which Lord Ashburton had written to Nocton at a time when the relationship of client and solicitor had subsisted between them. Pape's solicitors took copies of these letters and then handed the originals back to Pape. Lord Ashburton then brought an action against Pape, Nocton and others for an injunction restraining them from disclosing or parting with any letters or other documents received by or communicated to Nocton as his solicitor, or the effect or copies of or extracts from them.
On a motion by Lord Ashburton in the action Mr. Justice Neville made orders that Pape should hand over to Nocton all the original letters which he had in his possession or control and restraining Pape, amongst others, until judgment or further order, from publishing or making any use of the copies of the letters or any information contained in them "except for the purpose of pending proceedings in the defendant Pape's bankruptcy and subject to the directions of the Bankruptcy Court".
Lord Ashburton appealed asking that the order of Mr. Justice Neville might be varied by striking out this exception. The Court of Appeal allowed his appeal.
There has been a considerable amount of discussion about the decision in Ashburton v. Pape since it was decided and it is unfortunate that in one important sentence the...
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Case Commentaries
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