Day 262 - 13 Jun 96 - Page 72


     
     1        sense of conveyancing property in this case) on other
     2        transactions that they had conducted on behalf of the
     3        plaintiffs, the property developers, where the plaintiffs
     4        had ignored the advice of the solicitors.
     5
     6        The plaintiffs (the property developers) sought an order
     7        for the delivery up of the files of papers in relation to
     8        six other matters of a similar nature.  At first instance,
     9        the order was granted and, on appeal by the solicitors, the
    10        Court of Appeal overturned that ruling.  They were entitled
    11        to rely on the series of transactions that the plaintiffs
    12        were engaged in with the defendants over a period of time
    13        in order to found a defence.  The plaintiffs had claimed
    14        that those other transactions were privileged and, if my
    15        recollection of reading the report is correct, they were
    16        not relevant as well.
    17
    18        One can clearly see that, on first face, they may not have
    19        been relevant because they related to other parcels of land
    20        and the transactions had been successful.  But what was at
    21        issue was not, as it were, to use the term loosely, the
    22        dominant purpose of those other transactions, but the
    23        nature of the plaintiffs and the way they conducted
    24        themselves within that series of transactions.
    25
    26        Perhaps the most relevant passage of the judgment is to be
    27        found in the judgment of Lord Justice Russell at page 731
    28        beginning about paragraph G, just before paragraph G, where
    29        he says:
    30
    31             "However, in my judgment, once it is conceded
    32             that there is implied waiver of privilege when
    33             proceedings are instituted against a solicitor,
    34             I can see no warrant for the submission that the
    35             waiver is confined to the documents and
    36             communications between solicitor and client
    37             within the specific retainer forming the subject
    38             matter of the proceedings.  The parameters of
    39             the retainer, to my mind, erect an artificial
    40             barrier.  In my judgment, by bringing civil
    41             proceedings against his solicitor, a client
    42             impliedly waives privilege in respect of all
    43             matters which are relevant to the suit he
    44             pursues and, most particularly, where the
    45             disclosure of privileged matters is required to
    46             enable justice to be done.  This is another way
    47             of expressing the view that May J expressed in
    48             the passage to which Dillon LJ referred."
    49
    50        I accept, of course, that the Plaintiffs may wish to 
    51        distinguish that authority on the grounds of it being a 
    52        particularly specialised form of civil action, that is 
    53        suing a solicitor for negligence where, of course, in
    54        relation to the particular matter that the solicitor has
    55        been retained to deal with, privilege is thereby waived by
    56        virtue of the fact that the litigation has begun.  Of
    57        course, I accept that.  The solicitor is entitled, when
    58        claiming negligence, to say, "Well, we still dispute the
    59        causation.  We say the client would have acted in that way
    60        regardless.  Therefore, those other matters could become

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