swarb.co.uk - law index
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Legal Professions - From: 1996 To: 1996
This page lists 42 cases, and was prepared on 02 April 2018.
In re Ronald A Prior and Co (Solicitors) [1996] Cr App R 248
1996
Crime, Legal Professions
1 Citers
Wardrope v Dunne [1996] 1 Qd R 224
1996
Derrington J
Commonwealth, Legal Professions, Litigation Practice
(Queensland) Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the existence of that state of mind, legal privilege may be lost.
Derrington J said: "The same basic principle is relevant to this issue, that is, whether the original privilege has been lost because the state of mind of Mr Johnston, which may or may not have been influenced by the privileged material, is in issue. In the resolution of that issue it is necessary to investigate all relevant matters in his mind at the time in order to determine whether he was so induced by the alleged representations at all. Cognate to this is the question whether other factors constituted the inducement. The recommendations of Mr Miller and the terms of all advice concerning the recommendations which Mr Johnson says provided the material upon which he made his decision is obviously highly relevant to the enquiry. It would be grossly unjust to the plaintiff to deny him access to it in order to investigate and test the claim.
Notwithstanding the high status of professional privilege and the careful protection which the law affords it, when the contents of a privileged communication become the subject of a legitimate and reasonable issue in the litigation, then the privilege is lost."
1 Citers
Smith v Linskills Gazette, 28 February 1996; Times, 07 February 1996; [1996] 1 WLR 763; [1996] 2 All ER 353
1996
CA
Sir Thomas Bingham, MR
Professional Negligence, Legal Professions, Litigation Practice
The claimant, a convicted burglar took proceedings against his former solicitors. He alleged that the negligence of the solicitor caused his wrongful conviction. Held: The case was dismissed. The claimant was seeking to re-litigate issues which had already been litigated in proceedings in the criminal court in which he had been a participant. The case of Hunter does not lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to be within it.
CS Sir Thomas Bingham MR identified: "the affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction. Such would, we think, be the case here if there were a subsisting Crown Court decision that Mr Smith was, beyond reasonable doubt, guilty of aggravated burglary and a subsisting civil court decision that if his defence been properly prepared he would and should have been acquitted. No reasonable observer could view this outcome with equanimity. " and "It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted . . It is certainly true that in his speech in Hunter's case . . Lord Diplock attached considerable significance to the ulterior purpose which lay behind the proceedings brought by the intending plaintiff in that case. We have no doubt at all but that the existence of such an ulterior motive provides a strong and additional ground for holding proceedings to be an abuse. The question is whether such an ulterior motive is a necessary ingredient of abuse."
1 Cites
1 Citers
Reeves v Thrings and Long [1996] PNLR 265
1996
CA
Sir Thomas Bingham MR, Simon Brown LJ, Hobhouse LJ
Legal Professions, Professional Negligence
Solicitors were sued for failing to advise their client fully as to the wisdom of the transaction he was entering into. The client was an experienced businessman. Held: The claim failed.
Hobhouse LJ said: "Once Mr Reeves was told what the legal position was, he required no further advice from Mr Sheppard in order to evaluate its implications and commercial significance. Mr Reeves was an experienced businessman and under no disability."
Simon Brown LJ said: "I cannot accept that Mr Sheppard was under any further duty to his client, any duty to advise him upon the commercial implications or importance of the access provision or to warn him against the risks that it might pose for the future development, operation or sale of the hotel. These matters are well within the client's competence to appreciate and evaluate for himself, business considerations rather than legal ones."
Sir Thomas Bingham MR, dissenting, said: "It will always be relevant to consider what the solicitor is asked to do, the nature of the transaction and the standing and experience of the client. Thus on the facts here Mr Sheppard was not retained to advise on the wisdom of offering the price Mr Reeves had informally agreed to pay . . But it was in my view Mr Sheppard's duty to draw Mr Reeves' attention to any pitfall, particularly any hidden pitfall, the contract might contain."
1 Citers
Stewart v Secretary of State for Scotland 1996 SLT 1203
1996
IHCS
Lord Coulsfield
Legal Professions
The House considered the test of unfitness of a Sherriff: ". . what has to be shown is that he is not really capable of performing the proper function of a judge at all."
1 Cites
1 Citers
Hayes v Dowding [1996] PNLR 578
1996
Jonathan Parker J
Legal Professions, Litigation Practice
Disputes over the running of a private company had been compromised by the plaintiffs' solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of privileged documents, particularly those passing between the plaintiffs and their solicitors. Held: Jonathan Parker J discussed the judgments in NRG and in Lillicrap and said: "As I read the judgment of Dillon LJ, in accepting the judge's formulation of the scope of the waiver Dillon LJ was accepting (a) that the fact which gives rise to the implication of waiver is the fact that the plaintiff has invited the court to adjudicate on the particular issue and (b) that implicit in that invitation is an acceptance on the part of the plaintiff that in making its adjudication the court must have access to all the evidential material which is required to enable it to do so fully and fairly . . In my judgment the decision in Lillicrap v. Nalder is authority for the proposition that it is not a necessary condition of an implied waiver of privilege by a plaintiff that the documents in question should be privileged as between the plaintiff and the defendant. As I read the decision in Lillicrap v. Nalder, the principles expressed by the Court of Appeal in that case are applicable to privileged communications between a plaintiff and a third party."
As to Wardrope, he said: "Moreover, as I indicated earlier, Derrington J's decision and his reasoning is, in my judgment, entirely consistent with and covered by the decision of the Court of Appeal in Lillicrap v. Nalder. The same consideration applies, in my judgment, to the decision in the American case of Hearn v. Rhay considered by Colman J in NRG v. Bacon & Woodrow. It appears from the reports of those cases - although I must make it clear that in relation to Hearn v. Rhay I have only seen the report of the NRG case - that the principles of implied waiver based upon the contents of the pleadings in the action are substantially the same in each of the three jurisdictions."
1 Cites
1 Citers
Conoco (UK) Ltd v The Commercial Law Practice Times, 13 February 1996
13 Feb 1996
OHCS
Legal Professions
Professional privilege as to the identity of a client lost when the client profits from a fraud.
Administration of Justice (Scotland) Act 1972
Aberdeen Solicitor's Property Centre Ltd and Another v Director General of Fair Trading; RPC 20-Feb-1996 - Times, 20 February 1996
Ismail and Another v Richards Butler (A Firm); QBD 23-Feb-1996 - Gazette, 06 March 1996; Times, 23 February 1996
Barclays Bank Plc v Weeks Legg and Dean; ChD 26-Feb-1996 - Times, 28 February 1996; Ind Summary, 26 February 1996
In Re A Solicitor; QBD 18-Mar-1996 - Times, 18 March 1996
Regina v Lambeth Borough Council, Ex Parte Wilson Times, 21 March 1996
21 Mar 1996
QBD
Costs, Legal Professions, Local Government
Individual local government officers can be made subject to wasted costs orders in appropriate circumstances.
Supreme Court Act 1981 51
In Re L (A Minor) (Police Investigation: Privilege) Times, 22 March 1996; Gazette, 24 April 1996; [1997] 1 AC 16
22 Mar 1996
HL
Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Steyn
Legal Professions, Children
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given to the police. Litigation privilege is essentially a creature of adversarial proceedings and thus cannot exist in the context of non-adversarial proceedings. (Lord Mustill and Lord Nicholls of Birkenhead dissenting).
Children Act 1989 Part IV
1 Cites
1 Citers
Bristol and West Building Society v May May and Merriman and Others Gazette, 22 May 1996; Times, 26 April 1996
26 Apr 1996
ChD
Legal Professions
A solicitor acting for both a purchaser and a lender had a duty to advise the lender of all the relevant facts about his other client.
Regina v Batt Times, 30 May 1996
30 May 1996
CACD
Legal Professions
Co-habiting counsel should not appear on either side of criminal case.
Regina v Johnstone (Darren) Times, 18 June 1996
18 Jun 1996
CACD
Criminal Sentencing, Legal Professions
Prosecuting and Defence counsel have a duty to warn the Judge if he was passing an unlawful sentence.
Gray v Richards Butler (A Firm); ChD 24-Jun-1996 - Gazette, 02 August 1996; Times, 23 July 1996
Farrow Mortgage Services Pty Ltd (in Liq) v Webb and others [1996] 39 NSWLR 601; 14 ACLC 1
5 Jul 1996
Meagher, Sheller JJA, Waddell AJA
Commonwealth, Legal Professions
Austlii (Court of Appeal of New South Wales) COMPANY LAW - s556 (1) Companies (NSW) Code; s592 (1) Corporations Law; liability of directors for debt of company - legal professional privilege - distinction between joint and common interest privilege - waiver.
1 Citers
[ Austlii ]
Gough v Chivers and Jordan (A Firm) Gazette, 10 July 1996
10 Jul 1996
CA
Costs, Legal Professions
A transfer of funds to pay a solicitor's bill with the client's approval starts the 12 months period for challenging it.
Solicitors Act 1974 70(4)
Re C (Disclosure) Gazette, 17 July 1996; [1996] 1 FLR 797
17 Jul 1996
FD
Children, Legal Professions
A disclosure to a solicitor, necessarily requires allowance of disclosure of the same material to his client.
Mothew (T/a Stapley and Co) v Bristol and West Building Society Times, 02 August 1996; [1996] EWCA Civ 533; [1998] Ch 1; [1997] 2 WLR 436; [1996] 4 All ER 698
24 Jul 1996
CA
Millett LJ
Professional Negligence, Legal Professions, Equity, Agency
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust. Held: A claim for damages for a solicitor's failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: "A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary."
He is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary: "A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as 'the double employment rule.'" and
"Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability."
As to breach of the duty: "Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty."
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as "primarily restitutionary or restorative rather than compensatory".
1 Citers
[ Bailii ]
Regina v Solicitors Complaints Bureau ex parte Wylde [1996] EWHC Admin 98
9 Oct 1996
Admn
Legal Professions
[ Bailii ]
Anderton and Co (a Firm) ex parte v George F Cawood [1996] EWCA Civ 721
15 Oct 1996
CA
Legal Professions, Administrative
[ Bailii ]
Bentley and Hewett and Co v Gaisford and Sinclair Roche and Temperley [1996] EWCA Civ 777
21 Oct 1996
CA
Legal Professions, Costs
1 Cites
[ Bailii ]
Regina v London Borough of Camden ex parte Margarita Martin Times, 11 November 1996; [1997] 1 All ER 307; [1996] EWHC Admin 151
25 Oct 1996
Admn
Costs, Legal Professions
The court has no power to make a wasted costs order in favour of a party opposing an ex parte application.
1 Cites
1 Citers
[ Bailii ]
Regina v Visitors To Inns of Court ex parte Matthew Peter Fearnside [1996] EWHC Admin 176
31 Oct 1996
Admn
Legal Professions
[ Bailii ]
Mortgage Express Limited v S Newman and Co Solicitors Indemnity Fund Limited [1996] EWCA Civ 851
31 Oct 1996
CA
Legal Professions, Professional Negligence
[ Bailii ]
Bentley and Another v Gaisford and Another Times, 04 November 1996
4 Nov 1996
CA
Legal Professions
An Undertaking to hold a file for another firm was broken by the photocopying the file in order to defeat the other firm's lien.
First National Commercial Bank Plc v Loxleys (a Firm); CA 6-Nov-1996 - Gazette, 20 November 1996; Times, 14 November 1996; [1996] EWCA Civ 886
Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) [1996] EWCA Civ 942
13 Nov 1996
CA
Millett LJ
Contract, Legal Professions
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: "'Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract between the two principals which contemplates two possible alternative future events and by which the parties agree to pay a sum of money to a stakeholder to abide the happening of one or other of them . . The second contract is the tripartite contract which results from the deposit of the money with the stakeholder on terms that he is to keep it until one or other of the relevant events happens and then pay it to one or other the parties accordingly. The stakeholder is a party to the second contract but not the first. His rights and obligations are not normally expressly spelled out. They are implicit in the transaction itself, and must be discovered not by implying terms, but by analysing the relationship of the parties which arises from the deposit of the money.
The following propositions emerge from the authorities:
(1) The relationship between the stakeholder and the depositors is contractual, not fiduciary. The money is not trust money; the stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors: Potters v Loppert [1973] Ch. 399, 406; Hastingwood Ltd v Saunders Bearman [1991] Ch. 114, 123. The underlying relationship is that of debtor and creditor, and is closely analogous to the relationship between a banker and his customer.
(2) Until the specified event occurs, the stakeholder is entitled to retain the interest on the money. This is usually as his reward for holding the money: see Harington v Hoggart (1830), I B&Ad 577. The right may be excluded by special arrangement, and was excluded in the present case.
(3) Until the event happens the stakeholder holds the money to the order of both depositors and is bound to pay it (strictly speaking an equivalent sum) to them or as they may jointly direct: Rockeagle v Alsop Wilkinson [1992] Ch. 47.
(4) Subject to the above, the stakeholder is bound to await the happening of the event and then to pay the money to one or other of the parties according to the event. The money is payable to the party entitled on demand, and if the stakeholder fails to pay in accordance with a proper demand he is liable for interest from the date of the demand: Lee v Munn [1817] EngR 769; (1817) 8 Taunt. 45; Gaby v Driver (1828) 2 Y&J 549.
(5) If the occurrence of the event is disputed, the stakeholder cannot safely pay either party, for if he mistakenly pays the party not entitled the payment will not discharge his liability to the other. In these circumstances he may (i) interplead and pay the money into Court; (ii) retain the money pending the resolution of the dispute; or (iii) take the risk of paying one party. The choice is entirely his.
(6) If he takes the second course, he may notify the parties that he is content to abide the outcome of the dispute. There is then no need to join him in any proceedings which are taken to resolve it. If he is not joined, the Court cannot order the money to be paid to the successful party. All it can do is to declare that the successful party is entitled to give a good receipt for the money: see Smith v Hamilton [1951] Ch. 175.
(7) If the stakeholder is not content to abide the outcome of the proceedings, he may be joined in order to bind him. This was done in the present case, albeit on the application of the stakeholder."
1 Cites
1 Citers
Nettlefold v Pearson Lowe (a Firm) [1996] EWCA Civ 974
15 Nov 1996
CA
Legal Professions, Professional Negligence
[ Bailii ]
Shepherd v Law Society [1996] EWCA Civ 977
15 Nov 1996
CA
Legal Professions
[ Bailii ]
Bristol and West Building Society v Baden Barnes Groves Unreported, 22 November 1996
22 Nov 1996
Chadwick LJ
Legal Professions
The court considered a solicitor's duties to avoid a conflict of interest in a conveyancing transaction as between a lay client and a lender. Chadwick LJ said: "In my view, the words 'if in the course of doing the work he is instructed to do' reflect an important and significant qualification to the solicitor's duty to disclose information relevant to the lending risk. A solicitor is obliged to disclose information which comes into his possession in the course of doing the work which the lender has instructed him to do; but he is not obliged to disclose information which has come into his possession independently of any work which the lender has instructed him to do - including, for example, information which has come into his possession as a result of earlier transactions in which he has been retained by the borrower."
1 Citers
Regina v Law Society ex parte Fawzia Shuttari; CA 25-Nov-1996 - [1996] EWCA Civ 1033
Neill v Crown Prosecution Service [1996] EWHC Admin 309
2 Dec 1996
Admn
Legal Professions
Appeal against wasted costs order made against solicitor. He had information suggesting that an essential prosecution witness might not appear, but she did. Held: The solicitor had acted correctly: "The function of committal is to see if there is a prima facie case. As a result of that there would be no prima facie case." and "the result was unsuccessful in the sense that the girl did come to court and did express a willingness to give evidence. It does not follow, however, that the solicitor acted improperly or unreasonably. In the same way it does not matter if other solicitors night have decided to take the cautious course of getting in touch with the police or the Crown Prosecution Service and suggesting that the girl was thinking of not giving evidence. I am happy to apply the test which seems to me the right one as to whether or not his conduct permits of a reasonable explanation. I think that it does and he has provided that explanation. I would therefore allow the appeal and quash the wasted costs order. "
1 Cites
[ Bailii ]
Jones and Another v Secretary of State for Wales and Another Times, 03 December 1996; [1997] 1 Costs LR 34
3 Dec 1996
QBD
Legal Professions
Specialist provincial solicitors' firm's hourly cost rates were not limited by local average rates.
1 Citers
Nelson v Nelson; CA 6-Dec-1996 - Gazette, 15 January 1997; Times, 08 January 1997; [1996] EWCA Civ 1140; [1997] 1 WLR 233; [1997] 1 All ER 979
Reiseburo Broede v Sandker C-3/95; [1996] ECR I-6511; [1997] 1 CMLR 224; [1996] EUECJ C-3/95
12 Dec 1996
ECJ
J.C. Moitinho de Almeida, P
European, Legal Professions
ECJ (Judgment) 1 Freedom to provide services - Restrictions - Whether permissible - Conditions
(EC Treaty, Art. 59)
2 Freedom to provide services - Judicial recovery of debts - Restrictions - Obligation to use the services of a lawyer - Justification on grounds of the general interest - Protection of recipients of services and proper administration of justice - Permissible
(EC Treaty, Art. 59)
3 A national rule preventing nationals of other Member States from engaging in the provision of services does not fall outside the prohibition laid down by Article 59 of the Treaty unless four conditions are fulfilled, namely that it must be applied in a non-discriminatory manner, must be justified by imperative requirements in the general interest, must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it, and restrictions justified by overriding reasons in the general interest are permissible only if that interest is not already safeguarded by the rules to which the provider of the service is subject in the Member State where he is established.
4 Article 59 of the Treaty does not preclude a national rule which prohibits an undertaking established in another Member State from securing judicial recovery of debts owed to others on the ground that the exercise of that activity in a professional capacity is reserved to the legal profession. Such a prohibition is not discriminatory, since it applies without distinction to national providers of services and to those of other Member States, is intended to protect recipients of services against the harm which they could suffer as a result of using the services of persons not possessing the necessary professional or personal qualifications and to safeguard the proper administration of justice, is capable of achieving that objective on account of the guarantee of competence attaching to the services of a lawyer, and cannot be described as disproportionate, even if it is not applied in other Member States, since it is for the Member States to decide the extent to which activities are to be reserved to the legal profession.
"the application of professional rules to lawyers, in particular those relating to organization, qualifications, professional ethics, supervision and liability, ensures that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience".
1 Citers
[ Bailii ]
Bristol and West Building Society v Baden Barnes and Groves; QBD 13-Dec-1996 - Unreported, 13 December 1996
Regina v Justices of Luton Family Proceedings Court; Her Honour Judge Pearce of Luton County Court; Director of Social Services of Bedfordshire County Council ex parte Abdul Rahman and Azra Bi [1996] EWHC Admin 368
16 Dec 1996
Admn
The Master Of The Rolls (Lord Woolf) Lord Justice Aldous Lord Justice Chadwick
Legal Professions, Costs, Children
In the course of urgent children proceedings, counsel advised solicitors inappropriately to seek judicial review of a court decision. The application was persisted with despite warnings from the respondents that they intended to seek a wasted costs order against the solicitor and counsel personally. Such an order was made, and appealed. Held: The proposition that a solicitor who acts on counsel's advice must bear responsibility for that advice in all circumstances cannot be supported. Earlier orders had not been entirely correctly obtained. The local authority had made a decision which would have made any proceedings unnecessary, but did not communicate it to the solicitors. The order against the solicitor could not stand. Similarly the procedure for claiming an order against counsel had not been followed. Both orders were set aside.
Supreme Court Act 1981 51 - Courts and Legal Services Act 1990 4
1 Cites
[ Bailii ]
Regina v Law Society ex parte Mortgage Express Limited; Regina v Law Society ex parte Alliance and Leicester Building Society; CA 17-Dec-1996 - [1996] EWCA Civ 1234; [1997] 2 All ER 348
National Home Loans Corporation Plc v Giffen Couch and Archer (A Firm) Times, 31 December 1996; Gazette, 15 January 1997
31 Dec 1996
QBD
Legal Professions, Professional Negligence
A solicitor acting for both a borrower and a lender has a duty to tell the lender of his other, lay client's bad payment record.
