Where counsel has with regard to a witness, ‘an intention to impeach the credibility of the story he is telling’, he must give that witness notice of his intention by putting that to him during cross examination, unless such intention was entirely clear from earlier circumstances.
Counsel who proposes to lead evidence of a material fact, must put that fact in cross-examination to any witness who might be expected to be able to confirm or deny the evidence. In order to give the witness the opportunity to confirm or deny it. A witness must be given a proper opportunity to answer a suggestion of dishonesty.
Where a solicitor receives information anticipating receiving instructions to act for a client, but then does not in fact reveive such instructions, nonetheless, those communications are protected against disclosure by legal advice privilege. Lord Herschell said: ‘It seems to me that when communications pass between a solicitor and those who he reasonably believes will desire to retain him, and to whom he makes a communication in relation to that, and who do retain him, the whole of those communications leading up to the retainer and relevant to it, and having that and nothing else in view, are privileged communications, that the whole occasion is throughout privileged. There is no authority, so far as I know, to the contrary, and it seems to me that to lay down any other doctrine would be very gravely contrary to the public interest.’
Lord Bowen said: ‘I myself have no doubt at all, in the absence of authority, that if a solicitor has reason to believe that his services may be required by a possible client who does afterwards retain him, what passes between the solicitor and the client on the subject of the retainer, and relevant to the retainer, is covered by professional privilege,’ and: ‘There is another and more serious point, a point of law, which I desire to keep open so far as my opinion is concerned. I very much doubt whether, when a professional relation is created between a solicitor and client, and communications pass between the solicitor and the client with reference to the prosecution of a third person, or with reference to proceedings being taken against him, the fact that the solicitor is animated by malice in what he says of the third person would render him liable to an action, provided he does not say anything which is outside what is relevant to the communications which he is making as solicitor to his client. I very much doubt whether malice destroys that kind of privilege, unless it is shown that what passed was not germane to the occasion.’
Lord Herschell LC said: ‘Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.’
Judges:
Lord Herschell LC, Lord Bowen
Citations:
[1893] 6 R 67
Jurisdiction:
England and Wales
Cited by:
Cited – More v Weaver CA 11-Jul-1928
The appellant brought the latest of several actions, this time alleging defamation in letters from the respondent to her own solicitors making certain statements about the appellant. Those letters had become public in the course of the earlier . .
Cited – MBR Acres Ltd and Others v McGivern QBD 2-Aug-2022
Contempt Procedures Not to be abused
Reasons for dismissal of contempt application.
Held: The contempt application against Ms McGivern was dismissed and certified as being totally without merit.
The court does not grant injunctions to parties to litigation to be used as a . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Legal Professions, Natural Justice
Leading Case
Updated: 04 August 2022; Ref: scu.468829