That goddam dictum of Denning about file notes and conflicts of evidence

Many a smug lawyer has grinned at me across a mediation table and trotted out some version received by Chinese whisper of Lord Denning’s typically over-reaching dictum in his dissenting judgment in Griffiths v Evans [1953] 1 WLR 1424 at 1428; [1953] 2 All ER 1364 at 1369 said to prove conclusively that the absence of a file note is a slam dunk for the plaintiff in any contest of evidence between solicitor and client. The dictum was confined to disputes as to retainers; it harks from a species of cases decided long ago on affidavit and not oral evidence; and it is at best a reflection of the public policy in favour of the formality of legal relationships than a principle of evidence. So say the judges in the cases extracted below. Justice Byrne said in Equuscorp Pty Ltd v Wilmoth Field Warne (a firm) (No 3) [2004] VSC 164:

“61 … Reference was made to the dictum of Denning LJ in Griffiths v Evans in support of the proposition that, in the event of conflict between the evidence of a solicitor and that of the client with respect to an oral retainer, that of the client should be given greater weight. This dictum has been considered and explained recently by the Queensland Court of Appeal in Adamson v Williams [2001] QCA 38 at [19] where the court concluded that it should be understood as a reflection of the public policy which is against informality in a solicitor’s retainer rather than as an a priori directive to prefer the evidence of one class of witness to that of another. If I may say so, with respect, this is the way I would prefer to understand his Lordship. I see my task as a trial judge to assess the evidence of the solicitor and that of the client on its merits and to resolve conflicts between them in the usual way in the light of my impressions of the witnesses and in the light of the surrounding circumstances. I do not approach this task with a predisposition to prefer either witness.”

The case referred to by his Honour contained this passage:

“[19] The magistrate clearly misdirected herself in her approach to findings of credit. There was a contest between a solicitor on the one hand and a client on the other. Her Worship observed “an oath taken before any court by … a legal practitioner is never lightly taken, and ordinarily, the evidence of a solicitor must be heard by the court and accepted as evidence given seriously, truthfully and honest (sic)”. This suggests an incorrect approach. Courts have taken a fairly hard attitude towards solicitors who come before them relying on oral retainers. Cordery on Solicitors[14] suggests that more weight is given to the client’s affidavit than to that of the solicitor. Denning LJ in Griffiths v Evans[15] stated:

‘On this question of retainer, I would observe that where there is a difference between a solicitor and his client on it, the courts have said for the last 100 years or more that the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it.

The reason is plain. It is because the client is ignorant and the solicitor is, or should be, learned. If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.’

[20] Such an approach originated in courts confronted with the task of deciding which affidavit to rely upon when there was a conflict between affidavits and no oral evidence: cf Allen v Bone;[16] re Gray v Coles;[17] Morgan v Blyth.[18] The above statements are perhaps more reflections on matters of policy than directives to a court to favour one party over the other when such contests emerge. However plainly the magistrate’s approach in the present case was conducive to error.”

Compare O’Donnell v N.T. Legal Aid Commission [1999] NTSC 118, a decision of Bailey J:

“[60] In Griffiths v Evans …, Denning LJ observed: …

[61] In commenting upon this passage in Dew v Richardson, Supreme Court of Queensland, unreported, writ no. 4264 of 1997, delivered 18 August 1999, Chesterman J said:

‘The judgment was a dissenting one. The other Lord Justices merely noted that the solicitor’s evidence had been accepted by the trial judge and, conventionally, decided the case in accordance with the finding on credit. I cannot accept it is a principle of law that wherever a solicitor and his client disagree about the terms of a retainer (or advice) and the solicitor has not made a written note of the communication the client’s evidence must be accepted. Findings of fact, especially those based upon an opinion as to the creditworthiness of witnesses, are to be made from a careful and objective examination of the evidence adduced with respect to those facts. To introduce the notion that in a given circumstance facts must be found a certain way is to replace justice in the individual case determined by the application of legal principle to idiosyncratic facts with the arbitrariness of a determination made by reference to a mindless ritual.

I approach the critical question on the basis that both client and solicitor, plaintiff and defendant, have an equal right to be believed. Which of their respective versions is to be accepted will depend upon the persuasiveness of their evidence as judged by surrounding, objective circumstances.’

[62] With respect, I agree with the observations of Chesterman J above. There can be no inflexible rule that the evidence of a client is to be preferred to that of a solicitor whenever the latter’s version of events is not corroborated by a contemporaneous note. The existence (or not) of such a note is, of course, an important factor to be considered, but it would be an abrogation of judicial responsibility to determine issues of credit solely on the basis of whether a solicitor made a note at the time or, even worse, whether a note which was made was still in existence at the date of a trial.”

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