Posted by Anton Hughes on Monday, November 12, 2012 with No comments
Defamation -- Privilege -- Solicitor and Client -- Retainer -- Malice -- Practice -- Evidence -- Cross-examination of Witness -- Point not raised at Trial argued on Appeal.I'm attaching a PDF of the whole judgment. The scanned photocopy which I have (the only version I could find) is barely legible. The case is from 1894, so on my reckoning, that makes it in the public domain. I've paginated it according to the original, so it should remain useful four pinpointing purposes.
If a solicitor reasonably believes that his services may be required by a possible client who does afterwards retain him, all communications passing between the solicitor and the client, leading up to the retainer and relevant to it, and having that, and nothing else, in view are privileged.
If the retainer is a genuine proceeding, the fact that the soiclitor is not well disposed to the person said to be defamed is not evidence of malice.
Per Lord Bowen: Whether, when a professional relation is created between a solicitor and a client, and communications pass between the solicitor and the client with reference to the prosecution of a third person, or with refence 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 whcih he is making as solicitor to his client. Quare.
If in the course fo a case it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross-examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless it be otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of his storym or (per Lord Morris) the story is of an incredible and romancing character.
If one party at a trial deliberately elects to fight one question on which he is beaten, he cannot afterwards on appeal raise another question, although that question was at the trial open to him on the pleadings and on the evidence.
Martin v Great Northern Railway (1) approved.
Browne v Dunn (1894) 6 R. 67