Minter v Priest

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Buckmaster,Viscount Dunedin,Lord Warrington of Clyffe,Lord Atkin,Lord Thankerton
Judgment Date20 Mar 1930
Judgment citation (vLex)[1930] UKHL J0320-1

[1930] UKHL J0320-1

House of Lords

Lord Buckmaster.

Viscount Dunedin.

Lord Warrington of Clyffe.

Lord Atkin.

Lord Thankerton.

Minter (Pauper)
and
Priest.

After hearing Counsel, as well on Thursday the 6th, as on Friday the 7th and Monday the 10th, days of February last, upon the Petition and Appeal of George Austin Minter, Pauper, of 107 Fairlop Road, Leytonstone, in the County of Essex praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of His Majesty's Court of Appeal, of the 25th of March, 1929, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of Thomas Priest, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 25th day of March, 1929, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Horridge, of the 7th day of November, 1928, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the said Costs in this House to be taxed in the manner usual when the Appellant sues in form? pauperis, and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Buckmaster .

My Lords,

1

The Appellant was the plaintiff in the action out of which this appeal has arisen—an action which was brought by him to recover damages for slander against the Respondent. The Appellant succeeded at the trial, and the jury awarded him £1,500 as damages. This verdict was set aside by the Court of Appeal on the ground that the slander was protected from disclosure because of privilege, and that and that only is the question on this appeal.

2

The privilege claimed is that which covers communications between a solicitor and his client, a privilege the maintenance of which is essential in the best interests of society; the examination, therefore, of the circumstances in which it is said that discussion between a solicitor and a person consulting him is not privileged needs careful scrutiny.

3

The Appellant is a man who deals in real property, the Responddent a solicitor, both carrying on their work in London.

4

In the course of his business the Appellant in the year 1923 bought certain premises known as 19, Hertford Street, London, for £8,250; whether he purchased the freehold or the leasehold interest is not explained, nor is it material.

5

The Respondent had acted as solicitor for the Appellant in this transaction and apparently the whole purchase price was provided by various mortgages, the original first mortgagee, from whom the purchase was made, leaving £7,000 as a first charge on the property.

6

The deposit on the purchase was provided by the Respondent's wife who ultimately sued the Appellant for the amount, and the Appellant in turn sued both the Respondent and his wife to set aside documents relating to the sale, the exact nature of which is not disclosed, and this litigation was compromisd in June, 1925. These incidents are only material for the purpose of showing that the relationship of the parties was not of a friendly nature. In 1925 at the instance of one of the puisne mortgagees a Receiver was appointed of the premises and the Appellant subsequently took steps to secure their sale. For this purpose he approached a man named Taylor who is an accountant, and gave him a commission note for £100 agreeing to pay him £100 if he found a purchaser for the property at the price of £9,500. The commission note is not in evidence and it seems uncertain whether it was conditional on finding a purchaser or on completion, but probably it was the latter. Taylor introduced a man named Simpson as a person prepared to purchase at this price, and made some arrangement with him to share the profit on a re-sale, an arrangement which, if Taylor were the agent of the Appellant, was in fraud of his principal. Simpson placed the matter in the hands of Messrs. Parker & Thomas as his solicitors. This firm was also acting as solicitors for Taylor in connection with the purchase by him from the Appellant of a house known as 107, Fairlop Road, an incident only deserving notice because of the disreputable arrangement said by Taylor to have been made between him and the Appellant by which the real purchase price of £1,050 was to be inflated in the conveyance by £300 in order to raise more money on mortgage from certain named persons. It is only right to add that this alleged contemplated crime is denied by the appellant and was not known to Messrs. Parker & Thomas.

7

The difficulty in effecting a contract with Simpson arose at an early stage over the proposed deposit. The draft contract had put the amount on the usual basis at £950. This had been altered on Simpson's behalf to 5 per cent, and Taylor, who was conducting the proceedings, had been instructed by the Appellant to agree it at £475. At this stage an interview took place, on January 9th, 1928, between Taylor and Simpson and Sir William Thomas, one of the partners of Messrs. Parker & Thomas, at their offices.

8

According to Taylor's evidence at that interview the finding of the deposit only was discussed, and Sir W. Thomas said, "You may see Mr. Priest (the Respondent) with Mr. Simpson; you may tell him that I stand down and he can act." This statement he subsequently modified by saying the gist of the conversation was "I cannot find the money. Mr. Priest might find the money; if he does, of course I have no objection to his acting for you." Taylor and Simpson then went to the Respondent's office, explained the purpose of their visit and in response the Respondent uttered the alleged slanders.

9

I have gone into this matter in some detail because it is contended that the relationship of solicitor and client never existed between the parties at this interview, since the employment of the Respondent was conditional on his lending the deposit.

10

Such a conclusion is, in my opinion, indefensible. I agree with the Court of Appeal upon this point. From one solicitor the parties were sent to another to see if he could do what the first would not, and the idea that it was possible to split the interview into two parts, treating the first as a proposal to lend money personally and the second, contingent on this, to act as a solicitor is, to my mind, outside the bounds of reasonable inference.

11

I am not prepared to assent to a rigid definition of what must be the subject of discussion between a solicitor and his client in order to secure the protection of professional privilege. That merely to lend money, apart from the existence or contemplation of professional help, is outside the ordinary scope of a solicitor's business is shown by the case of Hagart and Burn Murdoch v. Inland Revenue Commissioners, 1929 A.C. 386. But it does not follow that, where a personal loan is asked for, discussions concerning it may not be of a privileged nature.

12

In this case the contemplated relationship was that of solicitor and client, and this was sufficient.

13

There is much to be said in favour of the view that, so far as Taylor was concerned, this privilege was waived, but it does not follow that this enabled the conversation to be disclosed. Simpson was also present as a possible client and no authority has been quoted to establish that in these circumstances it was possible for Taylor to waive a privilege which was as much Simpson's as his own.

14

The relationship of solicitor and client being once established, it is not a necessary conclusion that whatever conversation ensued was protected from disclosure. The conversation to secure this privilege must be such as, within a very wide and generous ambit of interpretation, must be fairly referable to the relationship, but outside that boundary the mere fact that a person speaking is a solicitor, and the person to whom he speaks is his client affords no protection.

15

According to the evidence in this case the Respondent began by making statements as to the character of the Appellant, which might in the circumstances have been properly privileged, but he concluded by a proposal that he could get the first mortgagee to sell for £7,000 and then they would re-sell and the three divide the profit. The jury found that this was done maliciously, and found also that the time when the words complained of were uttered the relationship of solicitor and client did not actually exist between the Respondent and either Taylor or Simpson; this, in my opinion, means that the Respondent never really undertook the duty of solicitor but that the conversation from first to last was nothing but the disclosure of a malicious scheme to deprive the Appellant of any chance of effecting a contract with a view to the Respondent making and sharing with the others a profit on another disposition of the property. Such a finding is in close agreement with the direction given by the learned Judge who, after explaining what had taken place, adds:—

"It is said that that makes it quite clear that Priest was not using this occasion honestly for the purpose of...

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    ...para. 237. (18) Hirst, M. (1992) Andrews and Hirst On Criminal Evidence, 3rd edn, Sweet & Maxwell, p. 407. (19) See Minter v Priest [1930] AC 558. (20) [1987] 3 All ER 1025. (21) See R v Cox and Railton (1884) 14 QBD 153. (22) Above, ref. 18, p. 413. (23) The Law Society of England and ......

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