Harris v Lambert

• Jurisdiction: Ireland
• Judgment Date: 07 July 1932
• Date: 07 July 1932
• Court: High Court (Irish Free State)

Harris v. Lambert

HARRIS AND OTHERS

Plaintiffs

and

LAMBERT AND ANOTHER

Defendants.

Practice - Evidence - Admissibility - Entries in diary of deceased solicitor - Entries made in discharge of a general, as distinguished form a specific duty to client.

Question as to the admissibility of evidence which arose on the trial of an action.

During the hearing of the action, which was for the administration of the real and personal estate of a deceased trader, and in which the plaintiffs claimed £21,506 4s. 3d. under a family deed of settlement, the defendants, the executors, sought to prove that the deed of settlement did not purport to transfer the said sum to the plaintiffs; that it was executed under a mistake, and that it should be rectified. In support of their contentions the defendants sought to put in evidence entries made in the diary of a Mr. Giltrap, who had been the solicitor for the defendants, but who had since died. The entries recorded what transpired at interviews with a Mr. Mills, the English solicitor for the plaintiffs, in regard to the proposed settlement. The plaintiffs objected to the evidence being admitted, contending that Mr. Giltrap had made the entries solely for the purpose of drawing his costs, and not in pursuance of a duty to his client. The defendants, on the other hand, submitted that it was part of the duty of the solicitor to keep a record of what transpired at interviews on his client's behalf. He had to advise his client as to the nature of the interviews, and to refresh his memory as to what occurred at those interviews, and, accordingly, the entries were admissible. The question of the admissibility of the entries was then argued.

Notes made by a deceased solicitor for the primary purpose of having a record of what transpired at interviews in regard to negotiations for a deed of family settlement (the negotiations extending over a considerable time), and which it was advisable for the solicitor to keep in order properly to discharge his ultimate duty of approving or not of the settlement, wereheld admissible in evidence.

Cur. adv. vult.

Meredith J. :—

The question which I am now deciding as to the admissibility of Mr. Giltrap's notes arises in this way. Mr. Mills was being cross-examined as to evidence which he gave of interviews with Mr. Giltrap in reference to the negotiations as to the terms of a settlement which ultimately materialised in the deed of the 31st December, 1915. Mr. Jellett was proceeding to read out certain entries from Mr. Giltrap's notes and cross-examining Mr. Mills in reference to those entries. Mr. Overend objected, contending that Mr. Jellett could put any question, but could not simply read notes as if they were evidence unless he was able subsequently to put those notes in evidence. My first comment is this. If the notes are inadmissible as evidence then there is a very serious hiatus between the law of evidence inherited from the English system and science and common sense, because Mr. Mills, who gave his evidence in a most candid manner, repeatedly admitted that, after the lapse of so many years his memory did not go beyond the notes. He just remembered what was in the notes themselves. Consequently...