A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The papers included proofs of witnesses. The papers had been prepared on behalf of John Calcraft, a predecessor in title of the plaintiff. The defendant was allowed to inspect them and copies were handed to the defendant by the grandson of the late Mr Calcraft’s solicitor, in each case without any authority. On the appeal, there were two questions: first, whether the documents were privileged, and, second, whether the appellant could give secondary evidence of their contents.
Held: If a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means They remained privileged: ‘once privileged always privileged’ However, notwithstanding the privilege, the appellant could give secondary evidence of their contents.
Citations:
[1898] 1 QB 759
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v Governor of Pentonville Prison, Ex Parte Osman QBD 30-Mar-1988
The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international . .
Explained – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Cited – L v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Applied – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Legal Professions
Updated: 20 December 2022; Ref: scu.181101
