Calcraft v Guest

Facts

The action concerned a right of fishing. Privileged proofs and notes of the plaintiff's predecessor had, years before, been in the hands of the other side's solicitor, who had taken copies. The originals had been returned. The defendant wanted to use the copies.

Issue

Can a party who has obtained a copy of a privileged document be made to produce it, or stopped from using it?

Held

The Court of Appeal held that the originals remained privileged, so the owner could not be made to produce them. The copies, which the other side already had, were admissible as secondary evidence.

Principle

Privilege protects the client from being compelled to disclose. It does not make the information inadmissible in the hands of a stranger who has already obtained it.

Why it matters

R v Tompkins, the note on the courtroom floor, and R v Cottrill, the statement that reached the prosecution without consent, apply the same rule in crime.

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