United Kingdom House of Lords Decisions

Lord Chancellor (Loreburn)—I cannot see any reasonable room for doubting that this case was rightly decided in the Court of Appeal, nor can I see how that decision puts at a disadvantage those who are obliged to co-operate in order to obtain legal advice or assistance. The question arises as follows:—The appellant Jones, a servant of the respondent railway company, had a dispute with his official superiors which ended in his dismissal. He thought himself aggrieved and brought this action. He was a member of a trade union upon terms which entitled him to a variety of benefits, among others being the right to receive legal assistance in case of unjust dismissal. In such a case he was bound by the rules of the union to give full particulars to the, head office, and the sanction of the executive committee or of the general secretary was needed before a solicitor was engaged. In the present case certain letters passed between Jones and the officials of the union containing information about his dismissal. They were written before the action was commenced in order to satisfy the union authorities that they ought to sanction the employment of a solicitor, and to furnish information by which the solicitor should be enabled to conduct the action which the workman contemplated and desired. The question is whether or not these documents are privileged from discovery. The rule on this branch of the law of discovery is that in order to enable to confide unreservedly in his legal advisers, all communications between solicitor and client are protected. The rule was expressed by James, L.J., in the case of Anderson v. Bank of British Columbia ( 2 Oh. Div. 645) as follows:—“The old rule”—meaning the rule which still exists—“was that every document in the possession of a party must be produced if it was material or relevant to the cause, unless it was covered by some established privilege. It was established that communications that had passed directly or indirectly between a man and his solicitor were privileged, and the privilege extended no further.” Both client and solicitor may act through an agent, and therefore communications to or through an agent are within the privilege. But if the communications are made to him as a person who has to act himself in confidence upon them, then the privilege is gone. This is because the principle which protects communications between solicitor and client only no longer applies. The document is in existence relating to the matter in dispute which is communicated to someone who is not a solicitor, nor a mere alter ego of the solicitor. I would merely add that disclosure is constantly required of letters between partners, or between a firm and its agent. It is rare in litigation that communications are confined to letters passing between a solicitor and a client, and every large concern, whether a railway company or a trade union, or whatever it may be, that must needs conduct business by correspondence, is amenable to the same rule—a rule in itself wholesome, for it favours the placing before a court of justice of all the material circumstances that may lead to a just decision.

Lord Macnaghten—I am of the same opinion, and I think it a very clear case.

Lord James of Hereford and Lord Shaw concurred.