Privilege Of Communications Between A Solicitor And His Client*
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01043.x |
| Date | 01 January 1965 |
| Published date | 01 January 1965 |
PRIVILEGE
OF
COMMUNICATIONS
BETWEEN
A
SOLICITOR AND
HIS
CLIENT*
AN
interesting case came before Roskill
J.
some months ago, sitting
as judge in chambers, which touched upon certain aspects
of
the
law governing the privilege of communications made between a
solicitor and his client.
In
a
pending action in the District Court of Martigny in the
Canton of Valais, Switzerland, between a Swiss Bank and
a
Swiss
trading company the evidence of an English solicitor was sought by
both parties to the action on certain matters which were within his
knowledge by reason of his having acted as legal adviser to an
international organisation (not party to the action) from
1939
onwards and which were germane to the issues
in
dispute between
the litigants. To obtain this evidence a
Commission
Rogatoire
was
addressed to the High Court containing a list of questions set down
by the respective parties which were sought to be answered by the
solicitor.
In
this case some forty questions in all were asked. The
procedure for obtaining evidence in the courts
in
this country for
and at the request of foreign tribunals is governed by the provisions
of the Foreign Tribunals Evidence Act,
1856,
and certain rules of
the Supreme C0urt.l
An
examiner of the court was duly appointed
to take the evidence on oath. The conduct of the proceedings,
which meant in turn the responsibility of obtaining the evidence,
was, under Order
37,
rule
60,
undertaken by the Treasury Solicitor.
The solicitor, whose evidence was sought, took at first an
incorrect course. He appeared before the examiner, but refused to
be sworn considering
it
not to be necessary and made a statement
not on oath whereby he asserted that he had attended the hearing
of
the examination under protest and he declined
at
the request of
a
foreign court to answer questions touching advice that may
or
may
not have been given by him in a professional capacity.
The solicitor was subsequently advised that his approach to the
matter was wrong. He then appeared a second time before the
examiner and took a different course. He agreed to be sworn and
the questions were accordingly put to him. Such questions as dealt
solely with his status in certain transactions-whether
or
not he
was the legal adviser of a certain party-he answered, as he did
questions relating to the identity of his clients. Questions, however,
which related to advice he may have given,
or
information he may
*
We have obtained the leave of the judge concerned to report the case
upon
which this article
is
based but the statement
of
the facts is based
upon
the
recollection of the writer who
was
one
of
the counsel appearing in the case
and
who
has
verified them with opposing counsel and solicitors-En.
1
Ord.
37,
rr.
54-61.
18
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