Legal Professions - 1992

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This page lists 20 cases, and was prepared on 28 October 2012.

Johnson -v- Reed Corrugated Cases Ltd [1992] 1 All ER 169
1992	Legal Professions, Costs	Casemap 1 Citers
	The costs principles set out in the Masters' Practice Notes and which endorsed the dual approach of assessing and adding an element to reflect the value at stake in litigation as well as the hourly expense rate of providing that service in all contentious work was applied.

Price Waterhouse -v- BCCI Holdings (Luxembourg) SA (1992) BCLC 583
1992 CA Millett LJ	Legal Professions, Evidence	Casemap 1 Citers
	A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice even at a stage when litigation is not in contemplation. It does not matter whether the communication is directly between the client and his legal adviser or is made through an intermediate agent of either.

K/S Norjarl A/S -v- Hyundai Heavy Industries Co Ltd [1992] QB 863; [1991] 3 All ER 211; [1991] 3 WLR 1025
1992 CA Legatt LJ	Arbitration, Legal Professions	Casemap 1 Citers
	A third arbitrator appointed by the arbitrators already appointed, accepted office on the basis that the hearing would take place by a specified date and would last for a specified period. Three years later, the plaintiffs’ solicitors requested the arbitrators to fix a period for the hearing over twice as long and in two further years’ time. The third arbitrator replied that the tribunal might consider this but that the parties should consider the fees likely to be incurred and he set out a statement of the fees chargeable including a non-refundable commitment fee payable in advance of the hearing. The defendants’ arbitrator took no part in the ensuing discussion of fees. The parties did not accept the proposal but invited its withdrawal. The third arbitrator and the plaintiffs’ arbitrator offered their resignations. The plaintiffs’ solicitors made a proposal acceptable to the arbitrators but sought an assurance that the defendants’ solicitors had no objection to the plaintiffs making the payments proposed. The defendants’ solicitors maintained that the two arbitrators had no power to demand advance fees; the fees were excessive, and that it was inappropriate for one party to pay the fees demanded to the two arbitrators. They did not allege partiality. They later wrote that both arbitrators should continue on the terms as appointed but withdrawing the new fees demand. The plaintiffs sought declarations that the arbitrators were fit and proper persons to act and that their acceptance of the plaintiffs’ fee arrangements would not raise any imputations of bias. The defendants applied for an order that the two arbitrators be removed. Held: For an arbitrator to insist upon a fee without the consent of all parties constitutes misconduct: "Any fee upon which (the arbitrators) wish to insist should be made known at the outset before acceptance of appointment." However, the express disavowal by the defendants of any imputation of actual bias and their request that the arbitrators continue to act, precluded the exercise by the court of its discretion to remove them but, that the conclusion of an agreement between the arbitrators and the plaintiffs on the basis of the plaintiffs’ revised proposal would be improper. The majority took the view that by reason of the change in circumstances the request for a commitment fee was justified, that a mere request by an arbitrator for a commitment fee did not amount to misconduct and that, in any event, even if the entry by the arbitrators into separate negotiations with the plaintiffs for their fees amounted to misconduct, the express disavowal of bias and request of the arbitrators to continue to act precluded their removal.

Loveday -v- Renton (No 2) [1992] 3 All ER 184
1992 Hobhouse J	Costs, Legal Professions	Casemap 1 Cites 1 Citers
	A brief fee might include work done during the course of a trial. The appropriateness of the approach and the need for elements to be calculated according to the value at stake and the hourly expense rate are to be calculated realistically.

Gran Gelato Ltd -v- Richcliff (Group) Ltd [1992] Ch 560; [1992] 1 All ER 865
1992	Legal Professions, Professional Negligence	Casemap 1 Citers
	A solicitor will not usually be liable to a purchaser of land for a negligent misrepresentation given on behalf of a Vendor of land. The word "right" may have a wider meaning than an accrued right.

Re A Barrister (Wasted Costs Order); Re A (No 1 of 1991) [1993] QB 293; [1992] 3 All ER 429; [1992] 3 WLR 662
1992 CA	Legal Professions	Casemap 1 Citers
	The court adopted the practice of not naming barristers subject to applications for wasted costs orders.

Giles -v- Thompson [1993] 3 All ER 321
1992 CA Steyn LJ	Litigation Practice, Legal Professions, Costs	Casemap 1 Citers
	The interest that the rule of champerty exists to protect (the individual interest) is that of the opposite party. Steyn LJ described contingency fee agreements as "nowadays perhaps the most important species of champerty" and were "still unlawful". He added that, while champerty had not "wither[ed] away", its "scope . . has been shrunk greatly". The correct question was whether "in accordance with contemporary public policy, the agreement has in fact caused the corruption of public justice. The court must consider the tendency of the agreement."

Merck & Co -v- Interpharm [1992] 3 FC 774
1992 Giles ASP	Commonwealth, Legal Professions	Casemap 1 Citers
	(Federal Court of Canada) Giles ASP said: "Solicitor and client privilege is one of the basic principles which permit the operation of our justice system and public confidence in it. In order to support the public interest in the inviolability of the solicitor and client relationship the courts have imposed great inconvenience and have overridden without question personal rights such as the right of a person to choose his own counsel. In this case there is no suggestion that a lawyer who once acted for the defendant is now with the plaintiffs' firm. There is no suggestion of a solicitor and client relationship having been established between the defendants and anyone at Gowling's. The public interest in solicitor and client relationship is not engaged. In my view the implied undertaking would be most impractical if it resulted in an ability to remove from a case any solicitor who was bound by an implied undertaking. The implied undertaking is not of sufficient public interest when balanced against the right of a party to choose his own solicitors and the public interest in the efficient administration of justice to require the court to disqualify any solicitor who might wrongly deploy information subject to the undertaking. If a solicitor fails to observe the undertaking the remedy is to cite him for contempt, not to remove him. A lawyer who takes cases regularly must have acquired a great deal of information subject to implied undertakings. In these days of specialized education and long work hours for junior lawyers, it is possible that a significant percentage of a lawyer's general knowledge will have been acquired in his practice of law, there having been little other opportunity for him to acquire the same. It is equally possible that a large portion of that general knowledge will be subject to implied undertakings. If the defendant's submissions are correct, few lawyers who have been called for any length of time will be able to take part in litigation. It is to be remembered that the undertaking is to the Court and is not limited to deploying information in cases involving one or more of the same parties."

Company, Re a (No 0012209 of 1991) [1992] 2 All ER 797; [1992] 1 WLR 351
1992	Legal Professions	Casemap 1 Citers

Regina -v- Legal Aid Board ex parte Bateman
29 Apr 1992 QBD	Legal Aid, Legal Professions, Costs
	A Legally Aided client had no locus standi to challenge the taxation of his own solicitors' costs bill.

Barclays Bank Plc -v- Khaira and Another [1992] 1 WLR 623
6 May 1992 ChD Deputy Judge Morison QC	Banking, Legal Professions
	A Bank owed no duty of care to explain the effect of a charge despite the chargee having an account with them. However, if a bank, or its solicitors, elect to give an explanation of documents then it has a duty to explain them accurately

In Re A Solicitor [1993] QB 69
13 May 1992 QBD Lord Lane CJ	Legal Professions	Casemap 1 Cites 1 Citers
	In disciplinary proceedings before the Solicitors Disciplinary Tribunal, allegations must be proved to the criminal standard, and certainly so where the allegations are serious and may result in suspension or disqualification. Hearsay evidence should not be admitted. "It seems to us, if we may respectfully say so, that it is not altogether helpful if the burden of proof is left somewhere undefined between the criminal and the civil standard. We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, to put it another way, proof beyond reasonable doubt. This would seem to accord with decisions in several of the Provinces of Canada." Lord Llane referred to the provision in the Bar's Code of Conduct requiring the tribunal to apply the criminal standard of proof and observed: "it would be anomalous if the two branches of the profession were to apply different standards in their disciplinary proceedings".

Ex P H (A Barrister)
24 Jun 1992 CA	Legal Professions
	Guidelines for procedures for courts to make wasted costs orders.
	Costs in Criminal Cases (General) (Amendment) Regulations 1991 (1991 No 789)

Regina -v- Legal Aid Board ex parte Bruce
9 Sep 1992 HL	Legal Aid, Legal Professions
	Bought in benefits advice is outside scope of green form assistance scheme. The advisor was not an employee of the solicitor.

Napier & Ettrick -v- R F Kershaw
9 Sep 1992 CA	Insurance, Legal Professions	Casemap 1 Cites 1 Citers
	Money held by solicitors for names was subject to subrogation for insurers.

Regina -v- Master of Rolls ex parte Mckinnell [1993] 1 WLR 88
16 Sep 1992 QBD	Legal Professions	Casemap 1 Citers
	The Law Society may appeal against a decision of the disciplinary tribunal.
	Solicitors Act 1974 49(1)(a)

In Re A Debtor (No 1594 of 1992)
20 Nov 1992 ChD Knox J	Legal Professions, Contract	Casemap 1 Cites
	A one-sided term inserted into a contract between solicitors and their clients by the solicitors was to be construed against the solicitors and in the client's favour where any ambiguity allowed this. The contra preferentem rule was to be applied.

In Re A Debtor (No 88 of 1991) [1993] Ch 286
2 Dec 1992 ChD Sir Donald Nicholls V-C	Legal Professions
	A solicitor may issue a statutory demand for the payment of his untaxed bill before the one month has expired following its delivery. Sir Donald Nicholls V-C said: "The possibility that the amount of the bills might be reduced on a taxation which has still not been initiated is not a sufficient reason in this case for setting aside the demand."
	Solicitors Act 1974 69

Regina -v- Southampton Crown Court ex parte J and P [1993] Crim LR 962
21 Dec 1992 Watkins LJ, Auld LJ	Police, Legal Professions, Legal Professions	Casemap 1 Citers
	A special material warrant was quashed, partly because it was too widely drawn. It was suspected that there had been thefts from the solicitor's firms client account. Watkins LJ discussed the need for a judge to give reasons for a decision under section 9 of the 1984 Act allowing the police to have access to special procedure materials: "The Act does not require a circuit judge to give reasons when making an order inter partes or issuing a warrant ex parte for access to special procedure material. However, challenges to decisions of circuit judges which have come before this Court demonstrate, in my opinion, especially as to ex parte applications, the need for this to be done. Reasons need not be elaborate, but they should be recorded and be sufficient to identify the substance of any relevant information or representation put before the judge in addition to the written information. They should set out what inferences he has drawn from the material relevant to the statutory conditions governing the content and form of the order or warrant sought. Where he has considered the question of legal privilege he should explain why, if he does, he has included in the order or warrant material which is prima facie privileged, or why he has excluded material as subject to privilege. In the latter case, where the excluded material consists of particular documents or categories of documents which might otherwise be included in the material to which access is given, he should explain why, if he does, he has included in the order or warrant material which is prima facie privileged, or why he has excluded material as subject to privilege. In the latter case, where the excluded material consists of particular documents or categories of documents which might otherwise be included in the material to which access is given, he should carefully describe and identify them in the order or warrant. These requirements may seem onerous for the exercise of a power to which the police often seek recourse as a matter of urgency. But a Circuit Judge has a responsibility not only to assist the effective investigation of crime, but also to protect as needs be the holder of and the person in respect of whom he holds material in confidence from unjustified intrusion into their private affairs." Auld LJ said: "the fact that a solicitor is himself under investigation is not of itself necessarily a sufficient reason for ordering such an intrusion into his affairs and those of his clients. All the circumstances of the individual application must be taken into account, including, for example, the seriousness of the matter being investigated, the evidence already available to the police to found a prosecution based on it, and the extent to which the solicitor has already been put on notice of interest on his affairs such as might have caused him to hide or destroy or otherwise interfere with incriminating documents."
	Police and Criminal Evidence Act 1984 9

Regina -v- Southampton Crown Court ex parte J and P [1993] Crim LR 962
21 Dec 1992 Watkins LJ, Auld LJ	Police, Legal Professions, Legal Professions	Casemap 1 Citers
	A special material warrant was quashed, partly because it was too widely drawn. It was suspected that there had been thefts from the solicitor's firms client account. Watkins LJ discussed the need for a judge to give reasons for a decision under section 9 of the 1984 Act allowing the police to have access to special procedure materials: "The Act does not require a circuit judge to give reasons when making an order inter partes or issuing a warrant ex parte for access to special procedure material. However, challenges to decisions of circuit judges which have come before this Court demonstrate, in my opinion, especially as to ex parte applications, the need for this to be done. Reasons need not be elaborate, but they should be recorded and be sufficient to identify the substance of any relevant information or representation put before the judge in addition to the written information. They should set out what inferences he has drawn from the material relevant to the statutory conditions governing the content and form of the order or warrant sought. Where he has considered the question of legal privilege he should explain why, if he does, he has included in the order or warrant material which is prima facie privileged, or why he has excluded material as subject to privilege. In the latter case, where the excluded material consists of particular documents or categories of documents which might otherwise be included in the material to which access is given, he should explain why, if he does, he has included in the order or warrant material which is prima facie privileged, or why he has excluded material as subject to privilege. In the latter case, where the excluded material consists of particular documents or categories of documents which might otherwise be included in the material to which access is given, he should carefully describe and identify them in the order or warrant. These requirements may seem onerous for the exercise of a power to which the police often seek recourse as a matter of urgency. But a Circuit Judge has a responsibility not only to assist the effective investigation of crime, but also to protect as needs be the holder of and the person in respect of whom he holds material in confidence from unjustified intrusion into their private affairs." Auld LJ said: "the fact that a solicitor is himself under investigation is not of itself necessarily a sufficient reason for ordering such an intrusion into his affairs and those of his clients. All the circumstances of the individual application must be taken into account, including, for example, the seriousness of the matter being investigated, the evidence already available to the police to found a prosecution based on it, and the extent to which the solicitor has already been put on notice of interest on his affairs such as might have caused him to hide or destroy or otherwise interfere with incriminating documents."
	Police and Criminal Evidence Act 1984 9