The court approved the proposition that the starting point for the court in addressing the selection of documents for discovery is that the court should accept a solicitor’s affidavit claiming privilege as conclusive ‘unless it can be seen distinctly that the oath of the party cannot be relied on’ and rejected a submission that the Lyell v. Kennedy principle could not apply to a selection made from own client documents: ‘At one stage the plaintiffs submitted that [the Lyell v. Kennedy principle] could not apply to copies made by a solicitor of his own client’s pre-existing documents which were not themselves privileged, but it seems to me that, as the plaintiff’s counsel ultimately accepted, there is no warrant for such a distinction. There is no authority to support it. As a matter of principle the selection of own client documents is just as likely to betray the trend of advice as a selection of third party documents, if not more so. And if I am right that the photocopies are discoverable there is every reason to uphold the application of the principle in respect of own client documents.’
Morritt J
[1992] 1 WLR 106
England and Wales
Citing:
Cited – Lyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .
Cited by:
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 20 January 2022; Ref: scu.247420