Schneider v Leigh

This appeal raises questions on discovery and inspection of documents in an notion in which the Plaintiff claims damages for libel against the Defendant, Dr. Leigh. The defamatory matter la alleged to be contained in a report from Dr. Leigh to the solid tore for the Defendants in another action, The report is said to have been written and published in January or February of 1954.

The Plaintiff, Mr Schneider, was Injured in an accident on the 22nd December, 1952, and he claimed damages against the employers of the driver of the motor-oar, namely, Pedigree stock Farm Developments, Limited. The solicitors for the Defendants in that action were Messrs William Charles Crocker, acting, no doubt, for an insurance company. Some time towards the end of the year 1953 Messrs Crocker instructed Dr. Leigh to make a further examination of Mr Schneider. The examination was made on the 1st January, 1954, and it is said that in his report to Messrs Crocker, or to the insurance company. Dr. Leigh published defamatory matter of the Plaintiff. For some reason which I do not understand, the solicitors, in their letter to the Plaintiff's solicitors of the 4th February, 1954, set out two paragraphs of Dr. Leigh's report. I will read the letter in full. It is addressed to Messrs Israel, Joslin & Co. and dated the 4th February, 1954. The reference number is given, and the letter reads as follows: "As you know, Dr. Denis Leigh made a further examination of your Client Mr Abraham (Alfred) Schneider at St. Ann's Hospital, Can ford Cliffs, Bournemouth on January 1st 1954 in the presence of Doctors Taylor and Parfitt, and his report thereon has been shown to our Clients who have instructed us forthwith to bring this matter to a head. We quote, for your information, part of this report: I then asked Schneider what he would do If I recommended that he go back to work at once. He replied that he would do, but that he would need three secretaries, a chauffeur and sundry other bodies to dothe work be formerly carried out single banded, because be would be usable to do the work himself. I then asked him how long be thought it would be before he recovered, and he stated that he could wait 50 or 60 years if necessary. His demeanor during this interview was almost a caricature - lying In bed smoking a cigar in his private single room, the picture of comfort, with his radio and photographs. He was cocksure, arrogant and self-opiniated. It is our medical evidence that if your client had gone back to work el thin a fee days of receiving the slight bump on the head in the accident of December 1992, he would have forgotten all about the matter forthwith and would have suffered only a few pounds worth of damage. Instead he has chosen for many months to live in luxurious idleness at St. Ann's Hospital and he still shows no sign whatsoever of making any attempt to diminish his damages. From this interview of January 1st 1954 and from earlier interviews with doctors examining him on behalf of our Clients, it is abundantly clear that he has every expectation of living in luxury at the expense of our Clients for many years to come. We have let the matter go this far because it has been stated thathis own medical advisers have agreed to and advised the course he has taken. We must now Inform you that such advice will be strongly contested, and that our clients have no intention whatever of paying one penny piece to your client for any reputed loss caused by further idleness. Our clients have endeavored to put aside their Indignation athis behaviour and to view the measure off damage in an impartial way and though they dislike doing so, they are prepared to offer and do offer now a total sum of £2,500.0.0. (Two thousand five hundred pounds) to your Client in full and final settlement of any claim he may have against our Clients. if tills offer is not accepted within fourteen days, we hope you will understand that any proceedings brought in the future by your Client will be

regard to the Plaintiff'sa claim for damages for personal injuries, though a Writ bad been issued in September, 1953. It is obvious that the Defendants to that claim may be put into considerable difficulty if, as the result of the letter of the 4th February, 1954, the report, or reports, of the witness have to be disclosed in this action.

On behalf of the Plaintiff it is submitted that the letter of 4th February amounts to a withdrawal of privilege in respect of the report of Dr. Leigh. I am unable to see that this is so. There is no statement to that effect; the mere recital by solicitors to the solicitors on the other side of a part of a report doe a not mean that their clients had authorised them to waive the question of privilege - entirely apart from the question as to whether the letter was written on behalf of the Defendants or of the insurance company, by whom, presumably, the making of an offer was authorised. the Defendant, Dr. Leigh, in his list of documents, disclosed under the First Schedule, part II - letter and copies of letters passing between the Defendant and Messrs William Charles Crocker and the Defendant's notes and reports of his examinations of the Plaintiff - and he claims that those documents are privileged on the grounds set out in Paragraph 2. This is the basis of the claim: "The said Defendant objects to produce the documents set forth in the second Part of the First Schedule hereto on the grounds that those numbered 1, 2 and 3 are, as appears from their nature and description, privileged from production, and as to those numbered 4, these consist of instructions by Messrs William Charles Crocker, Soiled tors, to the Defendant to carry out examinations of the Plaintiff on behalf of their clients Pedigree Stock Farn Developments Limited. and or The alliance Assurance Co. Limited. with whom the said Pedigree Stock Farm Developments Limited. were insured, and the Defendant's replies thereto and the Defendant's Notes and reports on hisexaminations of the Plaintiff, and which, letters, Notes and reports came into existence and were made in respect of a claim for damages by the Plaintiff against the said Pedigree Stock Fars Developments Limited, and in contemplation of litigation therein, for the purpose of obtaining for and furnishing to the Solicitors to the said Pedigree stock Farm Developments Limitd. evidence and information for the use of the said Solicitors to enable them to conduct the Defence to the said action and to advise the Defendants and their insurers therein."

The Plaintiff claims that all those documents should be produced for inspection as the privilege does not exist for Dr. Leigh, but is the privilege of Pedigree Stock Farm Development, Limited.

Both the Master and Mr Justice Donovan declined to make an Order for inspection. The Plaintiff appeals to this Court.

This branch of the law of privilege is for the purpose of enabling a litigant, or a party to an impending litigation, to prepare his case. Statements must be taken, and sometimes reports must be obtained. Prima facie they are the subject-matter of privilege. The privilege is that of the litigant, but it enures for the benefit of the one who makes the statement or report. If it did not, the difficulties in litigation would be almost impossible. Who would make a statement to a solicitor if he was faced with the risk of an action for libel by the opposite party? It is not so much the fear of the result, but the worry of proceedings, which would deter potential witnesses from giving statements. A statement so given should, generally speaking, be regarded for this purpose in the same light as if it was given in Court. In Wheeler v. Le Merchant (1981), reported in 17 Chancery Division at page 675, at pages 681 and 682, SirGeorge Jessel, Master of the Rolls, said:" The protection is of a very limited character, and in this country is restricted to the obtaining the assistence of lawyers, as regards the conduct of litigation or the rights to property. It has never gone beyond the obtaining legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisers are protected from production or discovery IN order that that legal advise may be obtained safely and sufficiently."

There has been no of the privilege which is claimed, and the Court is not concerned with what might happen if it had been waived. Sir Nathaniel Lindley, Master of the Rolls, said in Calcraft v. Guest, reported in 1898 1 Queen's Bench Division at page 759, at page 701: "I take it that, as a general rule, one may say once privileged, always privileged."

It was suggested by Mr Hewser test the Court might make an Order for discovery inspection to take place After the action, for damages for...