Watson v Cammell Laird & Company (Shipbuilders and Engineers) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER of THE ROLLS,LORD JUSTICE WILLMER |
| Judgment Date | 21 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0421-2 |
| Court | Court of Appeal |
[1959] EWCA Civ J0421-2
The Master of The Rolls (Lord Evershed) and
Lord Justice Willmer
In The Supreme Court of Judicature
Court of Appeal
Mr. C.M. CLOTHIER (instructed by Messrs. Carpenters, Agents for Messrs. Laces A Co., Liverpool) appeared on behalf of the Appellants (Defendants).
Mr. DAVID McNEILL (instructed by Messrs. Field, Roscoe & Co., Agents for Messrs. Berkson & Berkson, Birkenhead) appeared on behalf of the Respondent (Plaintiff).
: I am clearly of opinion that the learned judge rightly rejected the defendant-Appellants' claim to disclosure of the document with which we are concerned.
The action is one for damages for personal injuries. It seems that after the Plaintiff had returned to work in the beginning of 1957 he developed meningitis; and it id, I gather, his case in the action that the meningitis - which has had permanent disabling effects - was a result of the accident. That, therefore, is an important issue in the case.
The Writ was issued on the 4th December, 1957. But a year before it had been made plain by those advising the Plaintiff that proceedings would be taken to recover the damage alleged. Upon Ms unhappy affliction with meningitis, the Plaintiff went to the Birkenhead Hospital, and, in accordance no doubt with routine practice, case notes were made and kept by the hospital of this man's condition. I should perhaps explain that (ac Mr. Clothier pointed out, no doubt rightly) meningitis may be of two kinds at any rate: it may be what is called traumatic, or it may be infective; and according as it is one or the other so may it be deduced whether it was or was not the result of the accident. However that may be, the affidavit of documents of the Plaintiff contains, in the second part of the first schedule, the following item: "Copy of Birkenhead Hospital Management Committee's Case Notes relating to the Plaintiff"; and under the column "Date" is the word "Various". In regard to it, following a common enough form, the Plaintiff has said: "I object to the production of the documents set forth in the second part of the First Schedule hereto on the ground that such documents are privileged".
Now I did venture to point out to Mr. McNeill that that bare statement of itself might not have sufficed. But that is a point which was not taken in this Court, in the exercise of what probably is common sense; because the facts are clear: this document, this copy of the case notes, was undoubtedly and admittedly prepared by MM solicitors for the Plaintiff after the litigation had either commenced or was - clearly - contemplated; and also it is not in doubt that the document wae prepared by the solicitor's for the purpose of assisting and advising their client, the Plaintiff, In connection with his claim.
Prima facie, therefore, it would appear clear that the document is privileged, being of the class which is described in the notes at page 691 of the current Annual Practice - copies which have come into existence or have been made "for the purpose of obtaining for or furnishing to the solicitor evidence to be used in the litigation, or information which might lead to the obtaining of such evidence"; etc. It has, however, been contended with vigour by Mr. Clothier that that general rule ought not to apply where the document is a mere verbatim copy of a document not itself the subject of privilege, because, he says, the making of such a copy involves in itself no exercise of skill, properly so called. He says that if the solicitor had exercised some kind of eclectic judgment In making the copy, leaving out bits...
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