The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s current engineer) was not so used. Inspections was sought of the documents.
Held: If a party seeks to inspect a document which comes into existence merely as the materials for the brief, or the equivalent, the document cannot be seen. It is privileged. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because afterwards it was not laid before the solicitor. Cockburn CJ: ‘The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk’ Brett LJ: ‘. . it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained ‘at the instance’ or ‘at the request’ of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into ‘merely for the purpose of being laid before the solicitor for his advice or for his consideration”.
Cockburn CJ and Brett LJ
(1878) 3 QBD 315
England and Wales
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Litigation Practice
Updated: 27 April 2022; Ref: scu.180867