Lord Walsingham v Goodricke, Bart
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 1843 |
| Date | 29 July 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 322
HIGH COURT OF CHANCERY
Distinguished, Manser v. Dix, 1855, 1 K. & J. 451. Not followed, Wilson v. Northampton and Banbury Railway Company, 1872, L. R. 14 Eq. 477; Minet v. Morgan, 1873, L. R. 8 Ch. 367.
[122] loed walsingham v. goodricke, Bart. July 21, 22, 29, 1843, [Distinguished, Manser v. Dix, 1855, 1 K. & J. 451. Not followed, Wilson v. Northampton and Baribury Railway Company, 1872, L. E. 14 Eq. 477; Minet v. Morgan, 1873, L. E. 8 Ch. 367.] Upon a motion that the Defendant might produce documents in the schedule to his answer: Held, that written communications which passed between the Defendant and his solicitor before any dispute had arisen between the parties to the suit were privileged, so far as they contained legal advice or opinions, but not otherwise, although relating to the matters which formed the subject of the suit. There is no essential difference, with respect to the privilege of professional confidence, between cases stated for the opinion of counsel and other communications. The bill prayed specific performance of the agreement thereby stated to have been made by the Defendant to sell to the Plaintiff an estate in Norfolk. The proposals for the sale were made through Mr. Dowbiggin, an upholsterer, on behalf of the Defendant, in July 1841, and the proposals to purchase by the Plaintiff, through his agents, Messrs. Webb & Chapman, in September 1841. The negotiations between Dowbiggin and Webb & Chapman continued until the 28th of January 1842, when the price was settled ; and instructions were given by Messrs. Webb & Chapman to Messrs. Boodle & Co. to prepare an agreement for the signature of the parties accordingly. The draft agreement was accordingly prepared by Messrs. Boodle & Co., and by them handed to the Defendant, who placed it in the hands of his solicitor, Mr. Murray; and the abstracts of title were laid by Mr. Murray before counsel, with a view to the introduction of such special stipulations in the agreement as the circumstances of the title might render necessary. On the 17th of October 1842 Mr. Murray informed Messrs. Boodle & Co. that the Defendant did not intend to sell the estate, and that he was directed to take no further steps in the matter. On the 24th of October the Plaintiff wrote to the Defendant, and intimated that he should use every means in his power to enforce the performance of the contract; and the bill was filed on the 12th of January 1843. SHARE, 123. LORD WALSINGHAM V. GOODRICKE 323 The Defendant, by his answer, denied that Dowbiggin had authority to sign any agreement for the sale of the estate without the concurrence of the Defendant's soli-[123]-citor, or that he was authorized to do more than ascertain the terms upon which the formal contract was to be made out; and that the agents of the Plaintiff knew that Dowbiggin's authority was limited in that respect; and the Defendant claimed the benefit of the Statute of Frauds. The Defendant also said that he had destroyed the letters he received from Mr. Murray, but he had since obtained copies of them, and had included them in his schedule; but such letters were written by Mr. Murray to the Defendant, as his solicitor and confidential adviser, and he insisted that he was not bound to produce the same. The Plaintiff moved for the production of the documents mentioned in the schedule, which consisted of certain letters that had passed between the Defendant and his solicitor, Mr. Murray, in and prior to the month of July 1842, relating to the said matters. Mr. Boupell and Mr. Spurrier, for the Plaintiff. Mr. Tinney and Mr. Howes, for the Defendant, argued that the letters between the Defendant and his solicitor were privileged from discovery. the vice-chancellor [Sir James Wigram], after stating the facts of the case, and the dates of the material communications between the parties and their agents. The dispute between the parties in this case dates from the 17th or the 24th of October 1842. Before that [124] date the Defendant had asked the advice of his solicitor in the matter of the treaty in which he was engaged; and the question on the motion is whether the letters from the Defendant to his solicitor before that date, and therefore before the dispute arose, although written for the purpose of obtaining advice, and the answers of the solicitor, so far as they contain statements of fact, and not the advice or opinion itself, are privileged communications which the Defendant himself will not be ordered to produce. Setting out of consideration the case upon the Statute of Frauds, the question in the cause between the parties is whether the agreement come to on the 28th of January 1842 was final or not; and whether the conditions as to the title under which the estate was to be bought and sold remained, on and after that day, to be settled, in order to make a final agreement between the parties. It is now settled that the communications between a party and his professional adviser may be privileged where the solicitor is the party interrogated, although they do not relate to any litigation either commenced or anticipated : Desborough v. Rawlins 3 Myl. & Cr. 515), Sawyer v. Birchmore (3 Myl. & K. 572), Herring v. Clobery (Phill. 91), Turner v. Pugh (Phill. 96). The extent of the privilege accorded to such communications, where the client and not the solicitor is interrogated, has been the subject of frequent controversy, and was almost unsettled so lately as the cases of Preston v. Carr (1 Y. & J. 175) and Newton v. Berresford (1 Younge, 378). The first point decided upon this subject was that communications between the solicitor and client, pending litigation and with reference to such litigation, were pri-£125]-vileged: upon this there is not at this day any question. The next contest was upon communications made before litigation, but in contemplation of, and with reference to, litigation, which was expected, and afterwards arose; and it was held that the privilege extended to these cases also. A third question then arose with regard to communications after the dispute between the parties, followed by litigation, but not in contemplation of, or with reference to, that litigation; and these communications were also protected : Boltonv. Corporation of Liverpool (3 Sim. 467 ; S. C. 1 Myl. & K. 88), Hughes v. Biddulph (4 Euss. 190), Vent v. Pacey (4 Euss. 193), Clagett v. Phillips (2 Y. & C. C. C. 82). A fourth point which appears to have called for decision was the title of a Defendant to protect from discovery in the suit of one party cases or statements of fact made on his behalf, by or for his solicitor or legal adviser, on the subject-matter in question, after litigation commenced, or in contemplation of litigation on the same subject, with other persons, with the view of asserting the same right. This was the case of Combe v. The Corporation of London (1 Y. & C. C. C. 631). The question in that suit was the right of the corporation to certain metage dues, and the answer stated that other persons had disputed the right of the corpora- 324 LOED WALSINGHAM V. GOODRICKE 3 HARE, 126. tion to metage, and that they had in their possession cases which had been prepared with a view to the assertion of their rights against such other parties, in contemplation of litigation, or after it had actually commenced. Sir L. J. Knight Brace held that those cases, relating to the same question, but having reference to disputes with other persons, were within the privilege ; and I perpectly concur in that decision. The case which is now before me is not within any of the cases which I have stated. I am asked to carry the [126] privilege further than any of those decisions have carried it. In this case, whilst the treaty for the sale and purchase of an estate was in progress (according to the Defendant's version of the case)-after the treaty had become ripened into a perfect contract (according to the Plaintiff's view of it)-but certainly (according to the representation of both parties) before any dispute had arisen, the Defendant from time to time consulted his solicitor on the subject, and written communications passed between them. The question is whether these communications are privileged, regard being had to the circumstance that they took place before any dispute arose, though with reference to the very subject in respect of which that dispute has since arisen. If the matter were res Integra I should scarcely hesitate to decide in favour of the privilege. The reasoning which applies to the ease of discovery sought from the solicitor, and which I take from the case of Greenough v. G-asTcell (1 Myl. & K. 103), would apply with equal force to the case of discovery sought from the client in this case. " If (said the Lord Chancellor) the privilege did not exist at all, everyone would be thrown upon his own legal resources ; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous." The same opinions are reiterated in Bolton v. Corporation of Liverpool (1 Myl. & K. 94), which was not the case of an application against the solicitor, but against the client [127] himself. These authorities are strongly in point. To me, in the absence of authority to the contrary, it would appear that the privilege must be allowed, or no one can be safe : a party must otherwise be his own lawyer. The question, however, has been too often the subject of consideration in Courts of Equity to admit of its being dealt with (by me at least) as an open question. The case of Eaddiffe v. Fursman (2 Bro. P. C. 514, Tom. ed.) is...
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