Greenough v Gaskell
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1833 |
| Date | 31 January 1833 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 618
HIGH COURT OF CHANCERY
S. C. Coop. t. Brougham, 96; see Russell v. Jackson, 1851, 9 Hare, 391; Ford v. Tennant, 1863, 9 Jur. N. S., 293; Ross v. Gibbs, 1869, L. R. 8 Eq., 524; Ramsbotham v. Senior, 1869, L. R. 8 Eq., 579; Wilson. V. Northampton Railway Company, 1872, L. R. 14 Eq., 481; Anderson v. Bank of British Columbia, 1876, 2 Ch. D., 648; Queen v. Cox & Railton, 1884, 14 Q. B. D., 166; In re H. W. Strachan 1895, 1 Ch., 444.
'/ ) c\j. /fi.s,i,i£:. pjgj gseenough t . gaskell. Jaw. 17, 31, 1833. [S. C. Coop. t. Brougham, 96 ; see Russell v. Jackson, 1851, 9 Hare, 391 ; Ford v. Tennant, 1863, 9 Jur. N. S., 293 ; Moss v. Gibbs, 1869, L. E. 8 Eq., 524 ; Bamsbotliam v. Senior, 1869, L. E. 8 Eq., 579 ; Wilnon v. Northampton Railway Company, 1872, L. E. 14 Eq., 481 ; Anderson v. Bank of British Columbia, 1876, 2 Ch. D., 648; Queen v. Cox & Eailton, 1884, 14 Q. B. D., 166 ; In re H. W. Straehan [1895], 1 Ch., 444.] On a bill which sought to charge a solicitor with a fraud practised on the Plaintiffs in the course of proceedings on his client's behalf, the Court refused to order the production of entries and memorandums contained in the Defendant's books, or of written communications, made or received by him, relating to those proceedings, and admitted by the answer to be in the Defendant's custody. And, generally, it seems that a solicitor cannot be compelled, at the instance of a third party, to disclose matters which have come to his knowledge in the conduct of professional business for a client, even though such business had no reference to legal proceedings, either existing or in contemplation. 1 MY. & K. 99. GREENOUGH V. G ASK ELL 619 By an order made in the month of March 1831, in a suit for the administration of a testator's assets, a sum of £5000 was directed to be lent and advanced to one Thomas Darwell out of the fund in Court, upon Darvvell executing a bond for double the amount, by way of security for the repayment. Under another order, dated the 26th of the following April, a sum of £1600 being part of the aforesaid £5000 was accordingly paid to a country solicitor of the name of Gaskell, who received the money on Darwell's account, although, as was alleged, he was aware at the time that his client had uot given the required security. The mistake was soon afterwards discovered, and an order made for the repayment of the money ; and on Darwell failing to obey that order, an attachment issued against him, under which he was arrested. In this ;state of things, application was made on his behalf to the Plaintiffs, who were ultimately prevailed upon to join in signing and delivering to Gaskell a promissory note for £1698 (which sum included a balance due for costs), and Gaskell, on receiving the note, advanced the money ordered to be replaced, and his client was immediately set at liberty. Darwell became a bankrupt shortly afterwards ; and the present bill was then filed against Gaskell by the persons who had joined in executing the note, for the purpose of having it delivered up to be cancelled, and for an injunction against legal proceedings in the meantime. [99] The bill, after setting forth in detail the circumstances above mentioned, alleged that the Plaintiffs had been persuaded to execute the note in question, at the pressing instance and solicitation of the Defendant; that the more readily to induce them to sign it, the Defendant had fraudulently concealed the fact that Darwell was then in a state of insolvency, or had committed an act of bankruptcy, and had falsely represented his client's difficulties, as being temporary only, although at the time the Defendant made such representations, he well knew the contrary to be the truth; and that inasmuch as the note was given for the purpose of raising the money which the Court had ordered to be replaced, and that money had been originally advanced under an order improperly obtained, through the agency and management of the Defendant, the Defendant would himself have been held liable by the Court if Darvvell had failed to repay it; and the Defendant was therefore to be considered, in equity, as the principal debtor, for whom the Plaintiffs were no more than sureties. The bill moreover stated a variety of facts, tending to shew that the Defendant, who had acted for many years, and throughout the whole of the proceedings in the administration suit, and particularly upon the orders already mentioned, as the solicitor of Darwell, must have fully known the real situation and circumstances of his client. The Defendant, by his answer, wholly denied that the note in question had been òexecuted by the Plaintiffs at his instance or entreaty, but he admitted that he had lieen aware of the situation and circumstances of Darwell at the time of the transaction impeached by the bill; and, in answer to a charge to that effect, he also .admitted that he had in his possession clivers books, &c., containing entries and memorandums, and also divers papers and letters, relative to the matters in the bill mentioned; and he set forth a list of them in a schedule. [100] But he stated that such entries and memorandums were made, and such papers and letters were written, or received by him in his capacity of confidential solicitor for Darwell, for whom he had been professionally concerned for a number of years. Sir E. Sugden and Mr. Koe, for the Plaintiffs, now moved, by way of appeal from the Vice-Chaneellor, by whom the motion had been refused, that the scheduled books, papers, and letters might be produced, and that the Plaintiffs might have liberty to inspect them. The privilege which entitled solicitors to withhold a -discovery of matters coming to their knowledge in the course of their professional business, was a privilege granted solely for the benefit of the client, and could never be allowed to shelter a solicitor who was sought to be personally charged with a fraud. Mr. Pepys and Mr. Spence opposed the motion. Jan. 31. the lord chancellor [Brougham] this day delivered the following judgment. We are here to consider not the case which has frequently arisen in Courts of Equity, and more than once since I came into this Court, of a party called upon to produce his own communications with his professional advisers. How far he may be compelled to do so has, at different times, been a matter of controversy G20 GREKNOtTGH '('. GASKELL, 1 MY. & K. 101. And in t\vo cases before Lord Lyndhurst (Hur/hes v. Hul lvl-[ h, I'ent v. I'aefi/, 4- rush., 190, 193), and one since I sat here (fiolton v. Cttriioratim of Lhvrpool, \ My. & K., 88), the principle has been acted upon, that even the party himself cannot be compelled to disclose his own statements made to his counsel or solicitor in the suit pending, or with reference to that suit when in [101] contemplation. But the party has n...
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