KELLY v PICKERING AND ANOTHER 1980 ZLR 44 (G)

KELLY v PICKERING AND ANOTHER 1980 ZLR 44 (G)

1980 ZLR p44

Citation 1980 ZLR 44 (G)

Case No Details not supplied

Court General Division, Salisbury

Judge Beck J

Heard 12th February, 1980? 13th February, 1

Judgment 13th February, 1980

Counsel A P de Bourbon, for the defendant.

I A Donovan, for the third party.

Case Type Civil

Application Annotations No case annotations to date

Flynote

Evidence — attorney and client privilege — whether precludes attorney representing two parties from disclosing to

one party statement made by other party — when privilege waived. E

Headnote

The defendant applied for the strikingout of portions of his own affidavits and affidavits filed by the

insurance company which was the third party to the action, on the ground that they referred to a

privileged statement he had made to an attorney instructed by the company to defend him in a

criminal trial. The company’s affidavits had originally been filed in previous proceedings F between

the parties, and the defendant had not then claimed privilege but sought to explain the

statement. He had subsequently consented to the affidavits being allowed to stand as pleadings.

Held that by his prior conduct the defendant had probably waived the protection of any privilege. G

Held, further, that the affidavits contained secondary evidence obtained as a result of the

defendant’s statement and, while the Court had an equitable jurisdiction to exclude illegally

obtained evidence, the defendant had not been so unfairly dealt with by the attorney and the

insurance company that the H secondary evidence should be excluded.

Held, further, that in the circumstances the confidentiality of the statement did not prevent its being

revealed to the insurance company, because when one attorney is engaged by two parties a

communication made to him in his

Beck J character of attorney for both parties may be used against one of them, and, in any event,

there was a strong indication that the defendant in fact intended the statement to be passed on

to the insurance company. A

Cases cited

1 ZLR p45

S v Mushimba and Ors 117 (2) SA 829 (AD)?

Baugh v Cradocke (1832) 1 Moo & R 182? 174 ER 62?

Perry and Ors v Smith (1842) 9 M & W 682? 152 ER 288 B

Case information

A P de Bourbon, for the defendant.

I A Donovan, for the third party.

Judgment

Beck J: In April, 1977, the plaintiff was injured in a motor C accident. She was a passenger in a car

driven by the defendant and comprehensively insured by the third party. It is common cause that

the defendant negligently caused the accident, and it is now common cause that the plaintiff’s

damages total $18 786. The only issue that remains to be tried concerns the defendant and the

third party alone, and that D is whether the third party is liable to indemnify the defendant in this

amount in terms of the insurance policy that the third party issued to the defendant. It is the third

party’s contention that the policy is vitiated by reason of a material nondisclosure by the defendant

when completing the proposal form for the policy, and the trial of this solitary issue is E about to

commence before me.

Before any witnesses are called, I am required to rule on the admissibility of certain evidence that

the third party (to whom I shall henceforth refer as “the insurer”) proposes to rely on. The matter

arises this F way. When the defendant was sued by the plaintiff, the defendant applied by way of

notice of motion for the joinder of the insurer as a third party to the action. The insurer

unsuccessfully resisted that application. In the affidavits that were then filed on the insurer’s behalf,

reference was made to a statement that had been uttered by the defendant to a Mr Powell, G which

reveals, so the insurer contends, that when that portion of the proposal form was completed which

reads: “Do you suffer from defective vision or hearing or from any physical or mental infirmity?” the

defendant was guilty of a material nondisclosure. H

Mr Powell was the insurer’s attorney, who was nominated by the insurer to defend the defendant in

a magistrates Court against a criminal charge of reckless or negligent driving, arising out of the

accident. The nomination was made in terms of the following clause in the insurance policy:

1980 ZLR p46

Beck J

“The company will pay solicitor’s fees for defending in any magistrates court any criminal proceedings in

respect of any act causing or relating to any event which may be the subject of indemnity under this

section, provided always that the company shall be entitled to nominate its own solicitor, A but where

such nomination is not made, the company’s liability for such fees shall be limited to the sum of $50 in

respect of any one accident.”

In the course of interviewing the defendant with a view to undertaking his defence, Mr Powell

elicited from him a statement the admissibility of which is now in dispute. I might say that, in

consequence of that B statement, Mr Powell concluded that the insurance policy was vitiated ab initio

and that the insurer was thus not liable to cause the defendant to be defended at its expense.

Accordingly, he did not undertake that defence and the defendant was thereafter defended at the

criminal trial C by another attorney.

When the defendant filed his answering affidavit in the notice of motion proceedings for the insurer

to be joined as a third party, he said that when he spoke to Mr Powell he was under the impression

that the D statement would be privileged. He did not, however, seek to rely on any such privilege as

against the insurer and did not seek to have all reference to what he told Mr Powell struck from the

affidavits .. on the contrary, he admitted having communicated to Mr Powell something of the kind

that Mr Powell recorded, but disputed that Mr Powell had accurately E reflected what it was that he

had said, and he went on to explain just what it was that he had sought to convey to Mr Powell

concerning any physical infirmity affecting him.

After he had granted the application for the joinder of the insurer as F a third party, PITTMAN J, was

approached in chambers for directions that all the affidavits that had been filed be allowed, by

consent of the parties, to stand as pleadings between the defendant and the insurer, and that

application was acceded to. G

It is against this background that the insurer claims to be allowed to rely on all the evidence in these

affidavits that arises from the communication made by the defendant to Mr Powell and revealed by

Mr Powell to the insurer, whereas the defendant now contends that all this evidence, including the

defendant’s own sworn admissions and H explanations in regard to what he communicated to Mr

Powell, should be struck out as being part of or inextricably connected with a confidential utterance

to his own attorney for the purpose of obtaining legal assistance.

1980 ZLR p47

Beck J

It seems to me, in the first place, that when the defendant elected to join issue with the insurer as

to just what it was that he told Mr Powell, A and to place before this Court his own version of what he

said, and again when the defendant made common cause with the insurer in asking the Court to

direct that the affidavits in which this issue had been canvassed stand as pleadings, the defendant

very probably waived the protection of any privilege to which he might otherwise have been

entitled. In the B second place, it is to be noted that the privilege, if it extended to precluding Mr

Powell from revealing to the insurer what he learned from the defendant, has already been breached

by Mr Powell, and there is in the affidavits secondary evidence that is prima facie relevant to the

issue of material nondisclosure, and that has probably come into being as a C result of Mr Powell’s

disclosure of what the defendant told him, Accepting that the Court has an equitable jurisdiction to

temper the rule that evidence that has been illegally obtained is not for that reason inadmissible

(and compare in this connection the decision in S v Mushimba &

Ors 1977 (2) SA 829 (AD)), I do not consider that the D conduct of Mr Powell or of the insurer was

such that the defendant was so unfairly dealt with that even the secondary evidence to which

objection has also been taken should be excluded. The defendant must be taken to have known

from the outset that Mr Powell was the insurer’s solicitor whom the insurer had nominated in terms

of ‘its policy to defend him, E but whom he was not obliged to accept and confide in. The defendant

obviously knew that the insurer was jointly interested with him in the accident and in its

consequences for both of them, since the insured vehicle had been severely damaged and a

passenger seriously injured, so that as between himself, the insurer and the joint attorney, Mr

Powell, F the defendant had every reason to contemplate that what he told Mr Powell was not

intended to be kept secret from the insurer. Moreover, it is common cause on the affidavits that Mr

Powell at once expressly drew the defendant’s attention to the fact that he, Mr Powell, intended to

inform the insurer of what the defendant had said to him concerning G a possible physical infirmity,

and the defendant does not claim to have raised any protest against such intended disclosure. In

the face of this apparent initial acquiescence, as well as the defendant’s later attitude, to which I

have already referred, when he chose in his notice of motion proceedings to meet and elaborate on

the evidence concerning what he H told Mr Powell, I do not consider that dictates of fairness now

require me to strike from the affidavits the secondary evidence relative to a possible material

nondisclosure that has come into being because Mr Powell revealed to the insurer what he had been

told by the defendant.

1980 ZLR p48

Beck J

But thirdly, and in any event, I do not think in the particular circumstances of this case that the

confidentiality of what the defendant said to Mr Powell extended to nonrevelation to the insurer. It

is a settled A principle that when one attorney is employed, a communication made to him in his

character of attorney for both parties may be used against one of them (Baugh v Cradocke (1832) 1

Moody & Robinson 182? 174 ER 62? Perry & Ors v Smith (1842) Meeson & Welsby 682? 152 ER

288). Wigmore (McNaughton Revision) volume VIII, section 2312, gives B at page 604 the following

illustration of the application by the Federal Supreme Court of the principle that a communication by

A to X as the common attorney of A and B who afterwards become party opponents, is not

privileged as between A and B since there is no secrecy between them at the time of

communication: a communication by an insured C to the attorney of the insurer is made while both

had a joint interest with respect to the accident, held not privileged in a subsequent action by the

insurer for a declaratory judgment of nonliability for lack of cooperation by the insured. D

In the instant case, there is a very strong indication that no secrecy between the defendant and the

insurer concerning the defendant’s medical history was contemplated when the defendant spoke to

Mr Powell and that what the defendant said to Mr Powell that was relevant to a possible material

nondisclosure, such as might vitiate the insurance, far from being E intended for Mr Powell’s ears

only, was, on the contrary, actually intended by the defendant to be passed on by Mr Powell to the

insurer, because it is common cause that the defendant told Mr Powell that the insurer had long

since been assured by a neurosurgeon on the defendant’s behalf that the defendant had been

examined and found safe to drive a F motorvehicle. In short, what was said to Mr Powell by the

defendant concerning his medical history is, on the one hand, not suggested to have been relevant

in any way to the criminal charge that had been preferred against him and thus to have been said

for the purpose of obtaining Mr Powell’s professional assistance in that regard, while, on the other G

hand, all the indications are that the defendant did not intend, at the time that it was said, that the

information was to be withheld by Mr Powell from his principal, the insurer. H

Accordingly, I hold that none of the passages to which objection has been taken in the affidavits that

have been directed to stand as pleadings falls to be struck out, and the application to do so is

accordingly dismissed.

1980 ZLR p49

Beck J

Any extra costs that may have been occasioned by the argument for striking out are reserved for

decision at the conclusion of the trial. A Granger & Archer, attorneys for the defendant. Atherstone

& Cook, attorneys for the third party. B