where an attorney employed an agent, who was not his clerk, to collect evidence, he was held to be within the protection (i). So as to an agent of the client. Where, to interrogatories seeking a discovery of communications between a solicitor and the defendant's brother, relating to a purchase, the solicitor demurred, stating, that in such communication he considered and treated the defendant's brother as representing his client, and as being the medium of communication between him and his client, it was held that he had brought the case within the rule as to protection (j). The privilege does not, however, extend to communications which pass between co-defendants, though it is intended that they should be communicated to their solicitor. In a recent case (k), letters which had been written from one defendant abroad to another in England for the purpose of being communicated to the solicitor, were held not to be protected.

Client.

The privilege of a client as to discovery is by no Privilege of means co-extensive with that of his solicitor; there are many cases in which, although the solicitor would be protected from discovery, the client is not (1); for where an inspection of documents is claimed against the client, he can resist it only by showing that they relate to the litigation in respect of which the discovery is sought. The cases on this

Steele v. Stewart, 1 Phill. 471; S. C. 7 Jur. 640.

Carpmael v. Powis, 9 Beav. 16; Bunbury v. Bunbury, 2 Beav. 173. See as to persons who are not solicitors, post, p. 46.

(k) Goodall v. Little, 15 Jur. 309.

(1) See per Lord Langdale, in Greenlaw v. King, 1 Beav. 137, 144.

subject, in which the privilege has been allowed, have been classed by Vice-Chancellor Wigram (m), in the order in which they were decided, as follows: First, communications between a solicitor and his client pending litigation and with reference to it. Secondly, communications made before litigation, but in contemplation of it (n). Thirdly, communications made after the dispute between the parties, followed by litigation, but not in contemplation of, or with reference to, that litigation (o). Fourthly, the title of a defendant to protection has been upheld in the suit of one party in respect of cases or statements of fact made on his behalf, by or for his solicitor or legal adviser, on the subjectmatter in question, after litigation commenced, or in contemplation of litigation on the same subject, with other persons, with the view of asserting the same right. Thus, in Combe v. The Corporation of London (p), where the question was as to the right of the corporation to certain metage dues, and the answer stated that other persons had disputed the right of the corporation to metage, and that they

(m) In Lord Walsingham v. Goodricke, 3 Hare, 122, 124. (n) Garland v. Scott, 3 Sim. 396; Flight v. Robinson, 8 Beav. 22.

(0) Bolton v. Corporation of Liverpool, 3 Sim. 467; S. C. 1 Myl. & K. 88; Hughes v. Biddulph, 4 Russ. 190; Vent v. Pacey, 4 Russ. 193; Clagett v. Phillips, 2 Y. & C., C. C., 82; Holmes v. Baddeley, 1 Phill. 476; Reece v. Toye, 9 Beav. 316. In Hughes v. Garnon, 6 Beav. 352, a correspondence had taken place between a solicitor and his client during the progress of a suit. A compromise was effected, but afterwards a second suit was instituted to set it aside, and to prosecute the original suit. It was held, that the correspondence was privileged in the second suit.

(p) 1 Y & C., C. C., 631.

had in their possession cases which had been prepared with a view to the assertion of their rights against such other parties, in contemplation of litigation, or after it had actually commenced, ViceChancellor Knight Bruce held, that those cases, relating to the same question, but having reference to disputes with other persons, were within the privilege.

To the above cases must be added that of Lord Walsingham v. Goodricke (q), in which a bill for a specific performance was filed by the purchaser of an estate. Whilst the treaty for the sale was in progress, but before any dispute had arisen, the defendant from time to time consulted his solicitor on the subject, and written communications passed between them. It was held, that although they related to the matters which formed the subject of the suit, they were privileged so far only as they contained legal advice or opinion, but not otherwise; and in a more recent case the rule was clearly recognized, that confidential communications between an attorney or counsel and his client, anterior to the suit and without reference thereto, are not privileged (r).

It would seem that a communication which is made by a client to his attorney, under a bonâ fide, although mistaken, belief that it is necessary to his case, is privileged (s).

One of the most important of all documents Case stated

(q) 3 Hare, 122. See also Hawkins v. Gathercole, 15 Jur. 186.

(r) Flight v. Robinson, 8 Beav. 22.

(s) See the judgment of Martin, B., in Cleave v. Jones, 7 Exch. 428; S. C. 21 L. J., Exch., 108.

for Counsel.

which may come under the head of privileged communications, is a case stated for the opinion of counsel. It has been said by Vice-Chancellor Wigram (t), that in principle there can be no distinction between cases stated for opinions and other communications. In the same judgment, however, his Honor alluded to Radcliffe v. Fursman (u), saying: "In that case, the respondent Fursman sought, by her bill in Chancery, to recover from the defendant the payment of a legacy, and of two bond debts. The bill charged that the appellant well knew or believed that the bonds were never paid, and, as demonstration thereof, that the appellant himself, or some person on his behalf, so declared or stated in some case for the opinion of counsel, and prayed a discovery. The appellant demurred to so much of the bill as required him to discover the alleged case, the name of the counsel, and the opinion given upon the case. The demurrer was overruled as to the first point, but allowed as to the second and third, by Lord King: and the decision was affirmed by the House of Lords. This decision has been disapproved by almost every Judge under whose notice it has been brought, and the Courts have almost uniformly declared that it ought not to be extended: but, as Lord Brougham intimated in Bolton v. The Corporation of Liverpool (x), "that being a decision of the House of Lords, there is no alternative but submission to whatever that case has

(t) In Lord Walsingham v. Goodricke, 3 Hare, 127. (u) 2 Bro. P. C. 514.

(x) 1 Myl. & K. 95.

decided.

Now, upon that case I presume to observe, that the discussions which the subject of professional confidence has undergone in modern cases plainly show, that, at the time that case was decided, the subject was not developed to the same extent as it is at the present day; and it may admit of a question, whether the doctrine of professional confidence, as clearly established by modern cases, can be reconciled in principle with the decision in Radcliffe v. Fursman. I venture also to express a doubt, whether the order in that case (an order overruling a demurrer) necessarily enforces the conclusion that the Courts should upon motion, except in special circumstances, compel any communication made by a client to his solicitor, for the purpose of obtaining legal advice, to be disclosed (y)." With respect to cases stated for the opinion of counsel which have reference to the question in the cause in which their production is sought, it is clear that they are privileged communications, and consequently protected from inspection (2); and not only is this so in the suit then in contemplation, but the protection has been held to extend to any subsequent litigation with third parties respecting the same subject-matter, and involving the question to which such cases relate (a).

(y) See also Greenlaw v. King, 1 Beav. 137; Reynell v. Sprye, 10 Beav. 51.

(2) Nias v. Northern and Eastern Railway Company, 3 Myl. & Cr. 355; Combe v. City of London, 1 Y. & C., C. C., 631; Bunbury v. Bunbury, 2 Beav. 173; Bolton v. Corporation of Liverpool, 1 Myl. & K. 95; Flight v. Robinson, 8 Beav. 22; Woods v. Woods, 4 Hare, 83.

(a) Holmes v. Baddeley, 1 Phill. 476.