Graham v Bogle and Mills
| Jurisdiction | Northern Ireland |
| Judgment Date | 22 February 1924 |
| Docket Number | (1923. No. 72.) |
| Date | 22 February 1924 |
| Court | Chancery Division (Northern Ireland) |
Ch. Div. (N. I.)
Practice - Discovery - Affidavit of documents - Privilege - Pre-existing document handed to solicitor for advice - Professional communications - Inspection by Court - E.S.C., 1905, Or. 31, r. 20 (2).
Motion by the plaintiff for an order on the defendants to produce for the plaintiff's inspection a document admitted to be in the possession of the defendants by the affidavit of documents, but for which they claimed privilege.
The action was brought by the plaintiff against the defendants as executors of one Sarah Greacen, deceased, to have it declared that certain securities registered in the name of the deceased were the property of the plaintiff.
The plaintiff applied for and obtained an order for discovery of documents by the defendants. In their affidavit of documents the defendants stated: "We object to produce the documents set forth in the second part of the first schedule hereto. The last-mentioned documents consist solely of professional communications of a confidential nature, which for the purpose of deceased in her lifetime obtaining . . . legal advice, have passed between deceased in her lifetime and her solicitor, Major Fitzgerald." One of the documents was described as"Memoranda or notes of deceased written in a book, and given by deceased to her solicitor, Major J. G. E. Fitzgerald, in connexion with the instructions for her will."
The plaintiff asked that, notwithstanding the objection, the defendants might be ordered to produce the said memoranda for inspection by the plaintiff.
In an affidavit filed to resist the motion, Major Fitzgerald stated that the said document "was written out by deceased in her own handwriting, and was handed to me as her solicitor and confidential adviser for the purpose of obtaining my advice thereon, and for the purpose of advising deceased as to the preparation of her will, and as instructions or part of the instructions for the preparation of deceased's will."
In an affidavit of documents defendants claimed privilege for a document described as "Memoranda or notes of deceased written in a book, and given by deceased to her solicitor in connexion with the instructions for her will."The defendants were the executors of the deceased.
Held, that the Court was entitled under Or. 31, r. 20 (2), to inspect the document for the purpose of deciding on the validity of the claim of privilege; and that the document...
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Ventouris v Mountain
...a solicitor for purposes of an action and not copied would seem to be even more remote from any sustainable claim to privilege. 28 Graham v. Bogle and Mills [1924] 1 I.R. 68 concerned a record of her investments and dividends which a testatrix had made for other purposes and later handed t......
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