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
