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		Legal Professions - From: 1999 To: 1999 This page lists 95 cases, and was prepared on 02 April 2018. Â Â Gray and Another v Buss Merton (a firm); 1999 - [1999] PNLR 882 Â Regina v Governor of Whitemoor Prison, Ex parte Main [1999] QB 349 1999 QBD Kennedy LJ, Judge LJ Prisons, Legal Professions The court considered whether prison staff should be able to read letters between a prisoner and his legal advisers before proceedings were actually commenced. Held: The policy represented the minimum intrusion into the rights of prisoners consistent with the need to maintain security, order and discipline in prisons. Kennedy LJ "In my judgment legal professional privilege does attach to correspondence with legal advisers which is stored by a prisoner in his cell, and accordingly such correspondence is to be protected from any unnecessary interference by prison staff. Even if the correspondence is only inspected to see that it is what it purports to be that is likely to impair the free flow of communication between a convicted or remand prisoner on the one hand and his legal adviser on the other, and therefore it constitutes an impairment of the privilege." Judge LJ "Prisoners whose cells are searched in their absence will find it difficult to believe that their correspondence has been searched but not read. The governor's order will sometimes be disobeyed. Accordingly I am prepared to accept the potential 'chilling effect' of such searches." 1 Cites 1 Citers Â Â Twinsectra Limited v Yardley, and similar; CA 1999 - [1999] EWCA Civ 1774 Â Nationwide Building Society v Balmore Radmore [1999] 1 Lloyd's Rep PN 241, per 1999 ChD Blackburne J Legal Professions, Professional Negligence Although the Bowerman duty is a species of obligation which the court will ordinarily imply where a solicitor acts for a lender, it will not imply such an obligation when to do so is inconsistent with the express terms of the retainer or with the surrounding circumstances of the relationship 1 Cites 1 Citers Â Â Dubai Aluminium Co Ltd v Al Alawi and Others; QBD 6-Jan-1999 - Times, 06 January 1999; [1999] 1 WLR 1964; [1998] EWHC 1202 (Comm); [1999] 1 Lloyd's Rep 478; [1999] 1 All ER 703; [1999] 1 All ER (Comm) 1 Â Regina v Law Society ex parte Nielsen Times, 13 January 1999 13 Jan 1999 QBD Legal Professions Guidelines in the Solicitors Compensation Scheme stating claims which would not be admissible for compensation were not an unlawful restriction on the compensation fund committee. Solicitors Act 1974 36(2) - Solicitors Compensation Fund Rules 1995 Â Lovell White Durrant (a Firm) v Gaskell-Syms [1999] EWCA Civ 559 13 Jan 1999 CA Legal Professions [ Bailii ] Â Al-Sabah v Ali and Others [1999] EWHC 840 (Ch); [1999] EG 11 22 Jan 1999 ChD Ferris J Torts - Other, Land, Legal Professions, Professional Negligence The claimant alleged the fraudulent transfer of properties by use of a forged power of attorney. Held. The power was fraudulent. Solicitors had acted under the instructions of the agent. The court referred to the Law Society's practice guidance after Penn and said "If instructions come to a solicitor not from the client himself but from a third party claiming to represent the client, the solicitor needs to take special care to satisfy himself that the client wishes him to act, by seeking the client personally or obtaining written confirmation from the client or taking some other step which is sufficient, in the circumstances, to show that the client wants the solicitor to act for him in the matter in question." Nor had the solicitors verified that the vendor had received the proceeds of sale. They were liable in negligence. Any indemnity from the Land Registry would be reduced according to the contribution from the solicitors. Land Registration Act 1925 83(2) 1 Cites [ Bailii ] Â Â Midland Bank Plc v Cox McQueen (A Firm); CA 26-Jan-1999 - Times, 02 February 1999; Gazette, 10 February 1999; Gazette, 17 February 1999; [1999] EWCA Civ 656; [1999] Lloyd's Rep PN 223; [1999] PNLR 593 Â Â Milne v Kennedy and Others; CA 28-Jan-1999 - Times, 11 February 1999; [1999] EWCA Civ 668 Â Â Regina v Legal Aid Board ex parte Purveen and Sharif; Admn 29-Jan-1999 - [1999] EWHC Admin 74 Â Â Regina v Manchester Crown Court ex parte Rogers (Legal Professional Privilege); Admn 2-Feb-1999 - Times, 15 February 1999; Gazette, 10 March 1999; [1999] EWHC Admin 94; [1999] 1 WLR 832 Â Abbey National Plc v Frost (Formerly Practising As Harold Weston Frost and Co) and Solicitors' Indemnity Fund Limited Intervenor [1999] EWCA Civ 707 4 Feb 1999 CA Professional Negligence, Legal Professions [ Bailii ] Â Â Regina v Bowden (BT); CACD 10-Feb-1999 - Gazette, 10 March 1999; Times, 25 February 1999; [1999] EWCA Crim 331; [1999] 1 WLR 823; [1999] 4 All ER 43; (1999) 163 JP 337; [1999] 2 Cr App R 176 Â Mercantile Credit Co Ltd and Another v Fenwick and Others; Same v Speechly Bircham Gazette, 10 March 1999; Times, 23 February 1999; [1999] EWCA Civ 778 12 Feb 1999 CA Legal Professions, Professional Negligence, Banking Solicitors retained to obtain signatures to a bank's charge by husband and wife to secure his debts was required to act in accordance with current good practice. No duty to ensure certificate obtained that husband and wife had separate advisers. [ Bailii ] Â In the Matter of a Solicitor and In the Matter of Solicitors Act 1974 [1999] EWHC Admin 145 16 Feb 1999 Admn Legal Professions [ Bailii ] Â Gregory v Shepherds Gazette, 17 February 1999; Gazette, 24 February 1999 17 Feb 1999 ChD Professional Negligence, Legal Professions An English solicitor, employing a lawyer in another jurisdiction to purchase land for a client, was not himself negligent, for a failure of that foreign lawyer. The lawyer was not employed as a kind of sub-contractor. 1 Citers Â Â Powell v Haywards (a Firm); CA 18-Feb-1999 - Gazette, 31 March 1999; Gazette, 10 March 1999; [1999] EWCA Civ 816; Times, 11 March 1999; [1999] 1 FLR 1182 Â Regina v ex parte Mealing-Mcleod [1999] EWCA Civ 814 18 Feb 1999 CA Legal Professions Formal order acknowledging settlement in favour of the applicant. 1 Cites 1 Citers [ Bailii ] Â Regina v McFarlane Times, 24 March 1999; [1999] EWCA Crim 496 23 Feb 1999 CACD Legal Professions, Criminal Practice A solicitor may properly delay taking instructions from his criminal client until he has seen the details of the prosecution case, but must take care not to become embroiled in attempt to procrastinate the choice of defence, and must not mislead counsel. [ Bailii ] Â Â Secretary of State for Trade and Industry v Smith; Impierrez; Murray; Matthews and Liggins; CA 2-Mar-1999 - [1999] EWCA Civ 882 Â Ann Deborah Alban Davies v Ifor John David Davies [1999] EWCA Civ 890 4 Mar 1999 CA Family, Legal Professions The marriage was unhappy. The wife consulted briefly but did not instruct a solicitor, Mr Tooth. Some 7 years later as divorce proceedings were considered, the husband did instruct Mr Tooth. She sought to prevent him acting, but then wanted to withdraw her summons. The husband would only agree if she paid the costs. She refused. Held. The summons was quite properly issued. There was a real matter to be considered. The point of view of the petitioner wife was put forward moderately it seems to me. It was met with a very strong rebuff which indicated that, come what may, the respondent husband was going to seed the dismissal of the matter with costs. There remained a real and not just fanciful risk of conflict. The husband's appeal against the costs order failed. 1 Cites [ Bailii ] Â Globe Equities Ltd v Globe Legal Services Ltd and others [1999] EWCA Civ 3023; [1999] BLR 232; [2000] CPLR 233 5 Mar 1999 CA Butler-Sloss LJ, Morritt LJ, Sedley LJ Legal Professions, Costs The defendant's solicitors appealed an order making it liable for costs in defending an action brought by the landlord. Supreme Court Act 1981 51(1) 51(3) 51(6) [ Bailii ] Â Â Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm); CA 11-Mar-1999 - Times, 22 March 1999; Gazette, 19 May 1999; [1999] EWCA Civ 955; [1999] 1 WLR 1183 Â Gordon Coutts Thomson and Another v Council of Law Society of Scotland [1999] ScotCS 77 12 Mar 1999 SCS Legal Professions The petitioner solicitors appealed against a decision striking them off for dishonesty. They said that the allegations of dishonesty had been withdrawn. Held: The appeals succeeded, but since not all the allegations had been withdrawn the case must be remitted for further consideration. Solicitors' (Scotland) Act 1980 1 Citers [ Bailii ] Â Hussen v Mather Solicitors (a Firm) [1999] EWCA Civ 994 16 Mar 1999 CA Legal Professions [ Bailii ] Â Pearless De Rougemont and Company v Stuart John Pilbrow [1999] EWCA Civ 1011; [1999] 2 FLR 139; [1999] 2 Costs LR 109; [1999] 3 All ER 355 17 Mar 1999 CA Legal Professions, Costs The defendant had instructed the claimant solicitors to represent him. He had asked to see a solicitor, but had in fact seen an unqualified but very experienced person whose status was not made clear to him. He later refused to pay the bill. Held. The firm had broken the practice rules. The defendant had contracted for the supply of legal services by a solicitor. Though there was nothing to suggest that he had been disadvantaged by the breach: "a firm of solicitors which is asked for a solicitor and, without telling the client that the advisor is not a solicitor, provides an advisor who is not a solicitor should not be entitled to recover anything. " The client should not be obliged to pay the bill. [ Bailii ] Â Regina v Common Professional Examination Board (ex parte Sally Mealing Mcleod) [1999] EWHC Admin 317 19 Apr 1999 Admn Legal Professions 1 Cites 1 Citers [ Bailii ] Â Laker Airways Inc v FLS Aerospace Ltd [1999] EWHC B3 (Comm); [2000] 1 WLR 113 20 Apr 1999 ComC Rix J Arbitration, Legal Professions The court was asked: "whether a barrister who has been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers has been instructed in the arbitration by the appointing party". The arbitrator had offered to recuse himself if both parties requested, but not only at the request of one. The claimant said that the members of chambers shared office space and administration, and that there was no formal system to protect confidential materials. Arbitration Act 1996 24(1)(a) 1 Citers [ Bailii ] Â Regina v Common Professional Examination Board ex parte Sally Mealing-Mcleod [1999] EWCA Civ 1224 21 Apr 1999 CA Legal Professions 1 Cites 1 Citers [ Bailii ] Â Flynn v Robin Thompson and Partners [1999] EWCA Civ 1258 26 Apr 1999 CA Legal Professions, Litigation Practice Application for leave to appeal. [ Bailii ] Â Etridge v Pritchard Englefield (Merged With Robert Gore and Co) [1999] EWCA Civ 1273; [1999] EWCA Civ 1280 28 Apr 1999 CA Land, Equity, Banking, Legal Professions, Undue Influence [ Bailii ] - [ Bailii ] Â In Petition of the Council of the Law Society of Scotland v Mcintyre [1999] ScotCS 109 7 May 1999 SCS Scotland, Legal Professions [ Bailii ] Â In the Matter of a Solicitor and In the Matter of Solicitors Act 1974 [1999] EWHC Admin 413 10 May 1999 Admn Legal Professions [ Bailii ] Â In the Matter of a Solicitor and In the Matter of Solicitors Act 1974 [1999] EWHC Admin 422 11 May 1999 Admn Legal Professions [ Bailii ] Â Â Regina v Lewes Crown Court and Chief Constable of Sussex Police ex parte Nigel Weller and Co; Admn 12-May-1999 - [1999] EWHC Admin 424 Â Â Thomson and Another v Law Society of Scotland; IHCS 13-May-1999 - Times, 13 May 1999 Â In the Matter of a Solicitor and In the Matter of Solicitors Act 1974 [1999] EWHC Admin 443 17 May 1999 Admn Legal Professions Solicitors Act 1974 [ Bailii ] Â Abbey National Plc v Clive Travers and Co (a Firm) [1999] EWCA Civ 1426 18 May 1999 CA Lord Justice Simon Brown , Lord Justice Auld, Lord Justice Thorpe Professional Negligence, Litigation Practice, Legal Professions The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the privilege without having asked the clients who owned it. Held: The issue of fraud or impropriety had been raised sufficiently in the pleadings to justify the request for dicslosure. 1 Cites [ Bailii ] Â Locabail (UK) Ltd v Bayfield Properties Ltd and Another; Locabail (UK) Ltd and Another v Waldorf Investment Corporation and others (No 2) Times, 18 May 1999 18 May 1999 ChD Legal Professions, Natural Justice A solicitor sitting as a judge was not obliged to disqualify himself even though his firm might not have been able to act for one of the parties to the case, unless a reasonable third party might properly think that he could not be impartial. 1 Citers Â Â Donsland Limited v Nicholas Van Hoogstraton; Barnhill Investments Limited and Selective Management Limited; CA 19-May-1999 - [1999] EWCA Civ 1434 Â In Re Mere Property Ltd Times, 19 May 1999 19 May 1999 ChD Legal Professions Wasted costs orders are by their nature required to be decided quickly, and the court must bear in mind the need for proportionality. If the proceedings are allowed to drag on the cost of them can exceed the original costs of the action. Â On Appeal from an order for Wasted Costs against the Appellant Solicitors' practice CA Civ 1443 20 May 1999 CA Legal Professions [ Bailii ] Â Birmingham Midshires Building Society v Infields (A Firm) [1999] EWHC Technology 232 20 May 1999 TCC Judge Bowsher QC Professional Negligence, Trusts, Legal Professions The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. The betrayal of trust inherent in a breach of duty must be a deliberate act. They alleged that he knew the property was to be used for letting in breach of their offer terms. The solicitor understood the lender to know of this intention, and was negligent in not confirming it, but there was no deliberate act in breach of trust. To extend the limitation period under s32, the claimants must show that they could not have discovered the breach with reasonable diligence. They also knew of the possibility of a claim before receiving the file. The could not extend the limitation period under s 14A by their delay in obtaining expert advice. Limitation Act 1980 14A 32 1 Cites Â Regina v Secretary of State for Home Department ex parte Carl O'Brien Wilkinson [1999] EWHC Admin 477 21 May 1999 Admn Legal Professions [ Bailii ] Â Â Laker Airways Inc v FLS Aerospace Ltd and Another; ComC 21-May-1999 - Times, 21 May 1999; [2000] 1 WLR 113; [1999] 2 Lloyd's Rep 45; [1999] CLC 1124; Independent, 24 May 1999 Â Regina v Law Society ex parte Shuttari [1999] EWHC Admin 483 24 May 1999 Admn Legal Professions [ Bailii ] Â Regina v Secretary of State for Home Department ex parte George Anthony Daly [1999] EWCA Civ 1476 25 May 1999 CA Prisons, Legal Professions, Human Rights 1 Citers [ Bailii ] Â Connolly-Martin v Davis Times, 08 June 1999; Gazette, 09 June 1999; [1999] EWCA Civ 1509; [1999] Lloyds Rep PN 790; [1999] PNLR 826; [1999] All ER (D) 552 27 May 1999 CA Brooke, Beldam, Mummery LJJ Legal Professions, Professional Negligence A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client. Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the court an undertaking on behalf of his client had no duty of care to his own client's opponent, unless there was something to indicate a particular adoption of such a duty. This applies even where the undertaking was given in excess of his authority and proved unenforceable. The authorities did not support the proposition "that counsel for one party may in the absence of circumstances evidencing a voluntary assumption of responsibility to that other party owe a legally enforceable duty of care to that party" and " as a general principle counsel owes a duty to his lay client to do for him all that he properly can, with due care and attention. Counsel owes no such duties to those who are not his clients. He is no guardian of their interests, and indeed what he does for his client may be hostile and injurious to his opponents. In the ordinary course of adversarial litigation counsel or solicitor owes no duty to the lay client’s adversary." 1 Cites 1 Citers [ Bailii ] Â Worby, Worby and Worby v Rosser Times, 09 June 1999; Gazette, 16 June 1999; [1999] EWCA Civ 1520; [2000] PNLR 140 28 May 1999 CA Lord Justice Peter Gibson Lord Justice Ward Lord Justice Chadwick Professional Negligence, Wills and Probate, Legal Professions Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he lacked testamentary capacity and was subject to the malign influence of a third party. They succeeded, and sought their costs direct from the solicitor. Held: The estate had suffered no proven loss. A solicitor, following his client's instructions on the drafting of a new will, carried no duty of care to the expectancies of beneficiaries under an earlier will which was to be revoked by the new one. An estate facing an unmeritorious claim could not recover its costs from a solicitor who did not have a duty to the claimants. 1 Cites 1 Citers [ Bailii ] Â In Petition To the Nobile Officium By Gordon Coutts Thomson and Maria Teresa Thomson [1999] ScotCS 140 9 Jun 1999 SCS Lord President Legal Professions First Division, Inner House. The petitioner solicitors had been dsiciplined by the Law Society of Scotland. Their appeal had been successful, but the court indicated that since it appeared that not all allegations of dishonesty had been withdrawn, the matter should be remitted. The petitioners now pointed out that all such claims had in act been withdrawn and now requested that the opinion be withdrawn or corrected. Held: History could not be rewritten: "None the less, as the petitioners point out, the opinion of the court has been published on the Internet and elsewhere. If the Law Society's position is actually that the Fiscal at the original hearing withdrew the allegations of personal dishonesty and that the Society do not allege personal dishonesty, then it is proper that this state of affairs should be given equivalent publicity. In the course of the short hearing we accordingly asked Mr. Macdonald to clarify the position of the Law Society. He readily did so. Based on what he told us, for the avoidance of doubt, we record that the Law Society of Scotland agree that the findings of the Discipline Tribunal issued on 8 June 1995, so far as inferring personal dishonesty on the part of the petitioners, did not reflect the pleas tendered by the petitioners and accepted by the Fiscal and those findings should therefore not have been made by the Tribunal." 1 Cites 1 Citers [ Bailii ] Â Solicitors Indemnity Fund Limited v John Paul [1999] EWCA Civ 1557 10 Jun 1999 CA Legal Professions [ Bailii ] Â Regina v MJ Reilly (Solicitors) [1999] EWCA Crim 1632 14 Jun 1999 CACD Crime, Legal Professions, Costs The applicant firm had been subject to a wasted costs order for a negligent assessment of the length of a trial. Held: The estimate had proved correct. The order was set aside. Â Breeze v John Stacey and Sons Ltd Gazette, 14 July 1999; Times, 08 July 1999 21 Jun 1999 CA Legal Professions The introduction of the Civil Procedures Rules has done nothing to change the rules or principles affecting the receipt of privileged and confidence protected documents inadvertently disclosed to a party. He had no obligation to examine them carefully to ascertain whether they were privileged and to ask whether the privilege and confidence had been waived. 1 Citers Â Worldwide Corporation Limited v Marconi Communications Ltd (Formerly Gpt Limited) and Gpt (Middle East) Limited Gazette, 14 July 1999; Times, 07 July 1999; [1999] EWCA Civ 1636 21 Jun 1999 CA Legal Professions, Litigation Practice Counsel, giving assurances in open court on behalf of his client, bound that client. This applied even though counsel might have been negligent, and / or might, in turn, be immune from suit. Courts must be able to rely, and act, upon assurances given by counsel. Decisions may be made as part of a litigation strategy which cannot be unwound. 1 Cites [ Bailii ] Â Winston Alderson Cooper and Vanessa Ann Cooper v Smith Llewelyn Partnership [1999] EWCA Civ 1692 25 Jun 1999 CA Legal Aid, Legal Professions 1 Cites [ Bailii ] Â Â Penna v Law Society; ChD 29-Jun-1999 - Times, 29 June 1999 Â Mohammed v Alaga and Co (A Firm) [2000] CP Rep 87; [1999] 3 All ER 699; [1999] 2 Costs LR 169; [2000] 1 WLR 1815; [1999] EWCA Civ 3037 30 Jun 1999 CA Lord Bingham LCJ, Otton LJ, Robert Walker LJ Legal Professions, Contract A party appealed against a finding that an agreement as to fee sharing with a solicitors' firm, being in breach of the Solicitors Practice Rules, was unenforceable and void. Held: The appeal failed. Bingham LJ summarised the arguments of the plaintiff: "(1) In the absence of any statutory or other legal restriction everyone is free to make any contract they like and such contracts are enforceable. (2) While the Solicitors Act confers power on the Law Society to make rules to regulate the conduct of solicitors, the Law Society has no power to regulate the conduct of the public at large who are not solicitors. (3) Thus, while the Law Society may lawfully forbid solicitors to make fee-sharing agreements, it has no power to forbid anyone else, nor to ordain that such agreements shall be unenforceable save by solicitors. (4) In the absence of an effective legal prohibition a non-solicitor party who makes a fee-sharing agreement with a solicitor is entitled to enforce it. (5) it would be repugnant if the party prohibited from making such an agreement (the solicitor) were free to take the benefits accruing to him under the agreement, but were then entitled to plead the illegality of the agreement when called upon to pay the consideration due to the other contracting party, particularly when (as assumed here) that party is ignorant of the prohibition binding on the solicitor." He then rejected the arguments, saying: "(1) Section 31 confers power on the Law Society to make, with the concurrence of the Master of the Rolls, subordinate legislation governing the professional practice and conduct of solicitors. (2) When making such subordinate legislation the Law Society is acting in the public interest and not (should there be any conflict) in the narrower interests of the solicitors' profession: see Swain v the Law Society [1983] 1AC 598. The concurrence of the Master of the Rolls is required as a guarantee that the interests of the public are fully safeguarded. (3) By rule 3 of the Practice Rules, and by the Referral Code, solicitors are permitted to accept referrals and introductions only provided that introducers are not rewarded by commission or otherwise. (4) By rule 7 solicitors are prohibited from sharing fees or agreeing to do so. (5) Thus there is a prohibition on the making by solicitors of agreements of the kind assumed to have been made in this case. (6) Although it is true that the prohibition is only imposed in terms on solicitors, and they alone are liable to imposition of a professional penalty for breach, a contract requires the concurrence of at least two parties and the effect of the prohibition, if observed, is to outlaw the making of such agreements. (7) There are substantial reasons why, in the public interest, such agreements should be outlawed, some of those reasons being described by Lightman J. (8) It follows that it would defeat the public interest, which rule 7 in particular exists to promote, if a non-solicitor party to a fee sharing agreement could enlist the aid of the court to enforce against a solicitor an agreement which the solicitor is prohibited from making. (9) If the court were to allow its process to be used to enforce agreements of this kind, the risk would inevitably arise that such agreements would abound, outwith the knowledge of the Law Society, to the detriment of the public. This is in my judgment plainly a case in which the relevant legislation (rule 7) prohibits not only the act but the contract to perform it also." Addressing the "restitutionary" claim for payment at the contractual rate, Lord Bingham said: "If, contrary to his first submission, the contract between the parties was illegal and unenforceable, Mr McCombe contended that the plaintiff was entitled to pursue a claim in quasi-contract or restitution. In the pleading, and before the judge (and initially before this court), that claim was pursued as a ground for claiming 50 per cent of legal aid fees earned by the defendant, namely the same reward as would have been recovered under the alleged agreement if it had not been illegal or unenforceable. In response to questions by the court, however, Mr. McCombe accepted that if recovery under the contract was precluded on the grounds of public policy, the plaintiff could scarcely hope to recover exactly the same relief by relabelling his ground of claim. He would, as was acknowledged have no ground for claiming 50 per cent, save by reference to the contract which the court has held to be illegal and unenforceable." Robert Walker LJ spoke of the claim in quantum meruit: "In the present case, by contrast, it was common ground that the judge should approach the summons under R.S.C., Ord 14A on the footing that the claimant was innocent in the sense of being unaware of the prohibition on fee-sharing contained in rule 7 of the Solicitors' Practice Rules. Rule 7 was not of course made for the purpose of protecting persons in the position of the claimant. It was made for the benefit and the protection of the general public, as the judge clearly explained in a passage already read by Lord Bingham of Cornhill C.J. Nevertheless, the claimant may be able to establish at trial that he was not culpable, or was significantly less culpable than the defendant solicitors, and that they should not be unjustly enriched as the result of unremunerated services such as interpreting and translating actually performed by the claimant for the solicitors' clients. Remuneration which the claimant received on that basis would be a proper disbursement and would not, it seems to me, involve either a payment for introduction or the sharing of part of the solicitors' own profit costs." 1 Cites 1 Citers [ Bailii ] Â Abdul Matin v Sandra Briggs-Watson [1999] EWCA Civ 1757; [1999] EWCA Civ 1840 5 Jul 1999 CA Legal Professions, Defamation [ Bailii ] - [ Bailii ] Â Secretary of State for Home Department ex parte Carl Wilkinson [1999] EWHC Admin 654 8 Jul 1999 Admn Legal Professions [ Bailii ] Â Ronald Caskie Mckenzie v The Law Society of Scotland 9 Jul 1999 SCS Lord Prosser Scotland, Legal Professions [ ScotC ] Â Ronald Caskie Mckenzie v The Law Society of Scotland [1999] ScotCS 168 9 Jul 1999 SCS Scotland, Legal Professions [ Bailii ] Â Graham Stanley Hessell v Law Society [1999] EWCA Civ 1819 13 Jul 1999 CA Legal Professions [ Bailii ] Â In Re A Solicitor Gazette, 14 July 1999 14 Jul 1999 ChD Legal Professions The regulatory function of the Law Society in intervening in a legal practice was not merely protective, and a solicitor facing accusations of past dishonesty could not expect to be relieved of the consequences merely because he had completed the transactions at issue without loss. The intervention could proceed. Solicitors Act 1974 35 Â Goulden v Wilson Barca Times, 20 August 1999; Gazette, 11 August 1999; Gazette, 13 October 1999; [1999] EWCA Civ 1828; [1999] EWCA Civ 1837 14 Jul 1999 CA Legal Professions, Legal Aid Obligations under contract between a solicitor and an expert witness to appear in a legally aided case were not limited by Legal Aid Regulations, and a solicitor agreeing to pay a witness's fees for attending as a witness was bound to pay them. The contract was not void for illegality, despite the statutory arrangements for payment for such attendances out of central funds. Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 (1989 No 344) 55 [ Bailii ] - [ Bailii ] Â In Re Mintz (Wasted Costs Order) Times, 16 July 1999 16 Jul 1999 CACD Legal Professions A judge should before making a wasted costs order consult the written texts on the subject now available and which set out the elements he should allow for. Here counsel was at fault, but rather than delaying the start of a trial by a day, the judge could have allowed the case to start with arrangements being made in that day to cure the defect. Â Â In Re a Firm of Solicitors; TCC 16-Jul-1999 - [ 1997] Ch 1 Â Â General Mediterranean Holdings SA v Patel and Another; QBD 19-Jul-1999 - Times, 12 August 1999; Gazette, 11 August 1999; [1999] EWHC 832 (Comm); [1999] Lloyds Rep PN 919; [1999] 2 Costs LR 10; [2000] 1 WLR 272; [1999] 3 All ER 673; [2000] UKHRR 273; [1999] PNLR 852; [2000] HRLR 54; [1999] CPLR 425 Â Â Virdi v Law Society; ChD 20-Jul-1999 - Times, 20 July 1999; Gazette, 21 July 1999 Â Ogilvy and Mather Limited v Rubinstein Callingham Polden and Gale [1999] EWCA Civ 1896 20 Jul 1999 CA Legal Professions, Professional Negligence The claimant appealed against a finding on its claim for professional negligence against its former solicitors in the conduct of a claim against it. [ Bailii ] Â Hirst v Etherington and Another Times, 21 July 1999; Gazette, 11 August 1999; [1999] EWCA Civ 1850; [1999] Lloyds Rep PN 938 21 Jul 1999 CA Legal Professions, Professional Negligence A solicitor, who re-assured a lender that his guarantee of a borrower's loan, was given by him in the normal course of business, was not in fact so acting. The lender, if wanting to rely upon that re-assurance to claim against the solicitor's partner, was to show reasonable care and competence in assessing whether the assurance was given in the normal course of a solicitor's practice. 1 Citers [ Bailii ] Â In Re Sternberg Reed Taylor and Gill (A Firm) Times, 26 July 1999; Gazette, 11 August 1999; [1999] EWCA Crim 1870 26 Jul 1999 CACD Criminal Practice, Legal Professions, Costs Negligence on the part of a solicitor was capable of falling within the range of 'unnecessary or improper act or omission' so as to leave him open to a wasted costs order. A clerk, having stood near the place where the jury assembled, discussed the case with the defendant. A re-trial was necessary, and could easily have been avoided. Costs in Criminal Cases (General) Regulations 1986 (1986 No 1335) 3(c) [ Bailii ] Â O Palomo Sa v Turner and Co; Turner and Co v O Palomo Sa Times, 30 August 1999; Gazette, 08 September 1999; [1999] EWCA Civ 2007; [2000] 1 WLR 37 28 Jul 1999 CA Evans LJ Legal Professions, Contract A solicitor's bill could only be taxed within one year of its delivery, but the common law right to challenge a bill on the grounds that the amount charged was unreasonable could continue after that time limit. The common law right to object to paying more than was reasonable was not displaced by the Act, and could allow a court to tax a bill outside the one year limit. Evans LJ said: "the position apart from the Act is broadly as follows. If the solicitor wishes to be paid and is not in funds he will need to sue and prove that his charges were either expressly agreed or are reasonable charges. If he is in funds and purports to deduct the amount of his bill but the client challenges the deduction, the solicitor will still need to prove that the charges were either expressly agreed or were reasonable charges. The question is whether the client loses these rights to challenge the amount of the bill after the period for taxation has passed . . a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now s. 70 of the 1974 Act has expired. . Nor do we consider that the solicitor is disadvantaged by the possibility that the client is entitled to have the reasonableness of the charges assessed by the court after the statutory periods for taxation have expired. He can himself claim an order for taxation under s. 70(2), without any time limit, and obtain a form of summary judgment when the taxation certificate is issued . . We do not see any difficulty in holding that the solicitor's claim is for a reasonable sum, whether by statute or at common law, and not for a liquidated sum. Again in accordance with general principles, the burden of proving that the sum is reasonable rests upon him. This is supported, if authority is needed, by the judgments in Re Park [Re Park, Cole v. Park (1889) 41 Ch D 326] and Jones & Son v. Whitehouse [[1918] 2 KB 61]…" Solicitors Act 1974 70 1 Cites 1 Citers [ Bailii ] Â UCB Bank Plc v Hepherd Winstanley and Pugh (a Firm) Gazette, 08 September 1999; [1999] EWCA Civ 2029 29 Jul 1999 CA Legal Professions Where the losses to a lender arising from a claim against a solicitor could properly be seen as in breach of an implied term requiring a retainer to be exercised with reasonable care and skill, that was akin to a claim for negligence, and contributory negligence of the lender could be applied to reduce the damages. Law Reform (Contributory Negligence) Act 1945 [ Bailii ] Â Â Regina v Law Society ex parte Birkett; Admn 30-Jul-1999 - [1999] EWHC Admin 770 Â Re: Howells (Solicitors) [1999] EWCA Crim 2171 5 Aug 1999 CACD Legal Professions, Costs, Criminal Practice Appeal Under Section 3(c) of Costs In Criminal Cases (General) (Amendment) Regulations 1991 Against a Wasted Costs Order Costs In Criminal Cases (General) (Amendment) Regulations 1991 3(c) [ Bailii ] Â In Re Harry Jagdev and Co (Wasted Costs Order) (No 2 of 1999) Gazette, 02 September 1999; Times, 12 August 1999 12 Aug 1999 CA Costs, Legal Professions, Criminal Practice A wasted costs order must specify the amount payable when it is made. It is not open to a judge to go back later and amend the order to correct the defect, and particularly not to do so by awarding a sum greater than the amount claimed. In this case in any event, the award had been at best borderline, the costs incurred had contributed to the swifter disposal of the case. Prosecution of Offences Act 1985 19A - Costs in Criminal Cases (General) Regulations 1986 (1986 No 1335) Â Hesford v General Council of the Bar Times, 20 August 1999 20 Aug 1999 IoC Legal Professions When a barrister had accepted a brief, the duty to appear on a fixed date hearing could only be set aside by conflict with another professional duty. Counsel, who were also Members of Parliament, attending at votes in the House of Commons were not, in that act, attending to such a professional duty, and so breached the Code if they failed to attend at court. Code of Conduct of the Bar of England and Wales 1990 Â Wasted Costs Order (No 5 of 1997) Times, 02 September 1999 2 Sep 1999 CACD Criminal Practice, Legal Professions Witness orders for the production of documents in the speculative hope that they might contain matters of assistance should be discouraged, and particularly so in respect of documents held by social services departments. This should now be well known and expected, and counsel breaking this rule should expect a wasted costs order. 1 Cites Â Re G, S and M (Wasted Costs) [1999] EWHC Fam 828; [2000] 1 FLR 52; [1999] 4 All ER 371; [1999] 3 FCR 303; [2000] Fam 104; [2000] 2 WLR 1007; [2000] Fam Law 24 20 Sep 1999 FD Wall J Legal Professions, Litigation Practice, Children The court discussed the duty of counsel and their instructing solicitors in proceedings under the Children Act 1989 to ensure that expert witnesses are kept up to date with events in the case; and, in particular, that before expert witnesses are called to give oral evidence, they have been sent and have read all relevant documents, particularly those which have emerged since their reports were written. Children Act 1989 [ Bailii ] Â Â Edmonds v Lawson; QBD 13-Oct-1999 - Times, 11 October 1999; Gazette, 13 October 1999 Â In the matter of a Firm of Solicitors [2000] 1 Lloyd's Rep. 31 18 Oct 1999 ComC Timothy Walker J Legal Professions Solicitors instructed to act for ex member of P&I Club in dispute with Club over unpaid calls - Solicitors also acting for Club's Managers E&O Underwriters in another dispute - Chinese wall held to effective - Bolkiah v KPMG applied. Â Copeland v Smith Times, 20 October 1999; Gazette, 08 December 1999 20 Oct 1999 CA Legal Professions Advocates appearing before tribunals should make themselves properly aware of current decisions reported in their field so that the court was properly able to decide the case before them. Such a failure is a discourtesy to the court. Â Â Law Society v KPMG Peat Marwick and Others; ChD 3-Nov-1999 - Times, 03 November 1999; Gazette, 17 November 1999; Gazette, 10 November 1999 Â Mortgage Express Ltd v S Newman and Co and Others Gazette, 10 November 1999 10 Nov 1999 ChD Legal Professions The defendant firm of solicitors were held liable to a lender. They claimed indemnity from the Solicitors Indemnity Fund but this was refused on the basis that the solicitor had acted dishonestly acting in a back to back sale at 165,000 less than the asking price. The solicitor claimed that the duty to the lender was restricted to the duty to obtain good title with vacant possession. Though wrong, the solicitors behaviour was not dishonest, and an indemnity was granted. Â Starrs v Ruxton [1999] ScotHC HCJ_259; [2000] UKHRR 78; 2000 SLT 42; [2000] HRLR 191; 8 BHRC 1; 1999 GWD 37-1793; 1999 SCCR 1052; 2000 JC 208; 1999 SCCR 1052 11 Nov 1999 HCJ Lord Reed, Lord Justice-Clerk Cullen Legal Professions, Human Rights, Constitutional The court was asked "whether the Lord Advocate has acted in a way which was incompatible with the rights of the accused under art 6(1) of the Convention to fair trial by 'an independent and impartial tribunal' within the meaning of that article." Under consideration was the office of Temporary Sheriff. Such temporary trial judges were appointed by the Secretary of State on the advice of the Lord Advocate, himself also a member of the Executive. They were appointed for one year at a time. There was a power to terminate ("recall") the appointment during its currency, but this power was scarcely used. The occasion for it did not arise because the temporary sheriffs depended on annual renewal. Although the appointment was renewable, and generally was renewed, there was no certainty that it would be. Held: The arrangements were held to be inconsistent with the security of tenure necessary to guarantee the independence of the judges in question. The objective observer would see a real risk that the judge might be affected, consciously or unconsciously, by the control maintained by the Executive. The judge would be dependent upon the good regard of the Executive not only for renewal but also for the permanent appointment to which he might well aspire. The brevity of the term of appointment was therefore a critical part of the flaw in the system. The court set aside a conviction because the trial court was not an independent and impartial tribunal, having been presided over by a temporary judge. Lord Reed said: "Conceptions of constitutional principles such as the independence of the judiciary, and of how those principles should be given effect in practice, change over time. Although the principle of judicial independence has found expression in similar language in Scotland and England since at least the late seventeenth century, conceptions of what it requires in substance - of what is necessary, or desirable, or feasible - have changed greatly since that time." Lord Justice-Clerk Cullen said that any temporal limit upon a judicial appointment raises a question about independence. 1 Citers [ Bailii ] Â Â Wells and Another v Barnsley Metropolitan Borough Council; Leeds City Council v Carr; QBD 12-Nov-1999 - Times, 12 November 1999; Gazette, 17 December 1999 Â Â Locabail (UK) Ltd, Regina v Bayfield Properties Ltd; CA 17-Nov-1999 - [2000] QB 451; [2000] IRLR 96; [2000] 1 All ER 64; [1999] EWCA Civ 3004; [2000] HRLR 290; [2000] 2 WLR 870; 7 BHRC 583; [2000] UKHRR 300 Â Mannesmann Aktiengesellschaft v Goldman Sachs International and Others [1999] EWHC 837 (Ch) 18 Nov 1999 ChD Lightman J Legal Professions 1 Citers [ Bailii ] Â Regina v Cornwall County Council, Ex P L Times, 25 November 1999; Gazette, 25 November 1999; Gazette, 17 December 1999 25 Nov 1999 QBD Local Government, Legal Professions, Children A local authority did not have the right to exclude solicitor representatives from child protection case conferences, and must provide minutes of any part of a meeting from which the parent is excluded. To do so would be to fail to follow the guidelines set out by the Secretary of State, which the authority was bound to follow. Children Act 1989 37 - Local Authority Social Services Act 1970 7(1) Â Geraghty and Co v Awwad and Another [1999] EWCA Civ 3002; [1999] EWCA Civ 3036; [2001] QB 570; [2000] 3 WLR 1041; [2000] 1 All ER 608; [2000] 1 Costs LR 105 25 Nov 1999 CA Schiemann LJ, May LJ, LCJ Legal Professions, Costs The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules. Held: The court refused to follow Thai Trading. There should no longer be any common law developments in this field. Now that Parliament had modified the law which had prohibited all arrangements for receiving a contingency fee in relation to litigation services, there was no room for the court to go beyond that which Parliament had now permitted. 1 Cites 1 Citers [ Bailii ] - [ Bailii ] Â Hazlett v Sefton Metropolitan Borough Council [2000] 4 All ER 887; [2001] 1 Costs LR 89 2 Dec 1999 QBD Lord Bingham of Cornhill CJ and Harrison J Legal Professions, Costs, Litigation Practice The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The complainant can rely on the presumption in his favour. The defendant must raise a genuine issue as to whether the complainant is liable for his solicitors’ costs before the complainant has to adduce evidence to show that his entitlement. The complainant is presumed to be personally liable for his solicitors’ costs and it should not normally be necessary for the complainant to have to adduce evidence to that effect. Harrison J said: "there is normally a presumption that the complainant will be personally liable for his solicitors' costs and it should not normally be necessary for the complainant to have to adduce evidence to that effect." and "Where, however, there is a genuine issue raised by the defendant as to whether the complainant has properly incurred costs in the proceedings, the position will be different. A defendant may, for instance, have grounds for believing that the complainant will not be liable to pay his solicitor's costs, whether because he has entered into an unlawful and unenforceable conditional fee arrangement with his solicitor or for any other reason. In those circumstances, where the defendant has raised a genuine issue as to whether the complainant has properly incurred costs in the proceedings, the complainant will be at risk if he continues to rely on the presumption that he is liable for his solicitor's costs. If he does not then adduce evidence to prove that he has properly incurred costs in the proceedings and the defendant can show by evidence or argument, that he has not, he would be most unlikely to succeed in recovering his costs. The need for a complainant to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour will not, however, arise if the defendant simply puts the complainant to proof of his entitlement to costs. The complainant would be justified in relying on the presumption in his favour. It would be necessary for the defendant to raise a genuine issue as to whether the complainant is liable for his solicitors' costs before the complainant would be called upon to adduce evidence to show that he is entitled to his costs. It will be for the trial judge to decide whether or not the defendant has raised an issue which calls for proof by the complainant of his liability to costs. Prior notice of the issue to be raised by the defendant should be given to the complainant in sufficient time before the hearing to enable the complainant to deal with it properly at the hearing and to avoid the necessity of an adjournment at the defendant's expense." and "the mere non-acceptance by a defendant that an agreement between the complainant and his solicitor is a proper private fee agreement would not of itself be sufficient to call for evidence from the complainant. The defendant must show that there is a genuine reason for believing that it is not a proper private fee agreement before the complainant should need to consider adducing evidence to support the presumption in his favour." 1 Citers Â Â Memory Corporation v Sidhu (No 2); CA 3-Dec-1999 - Times, 15 February 2000; Gazette, 27 January 2000; Times, 03 December 1999; [2000] EWCA Civ 9; [2000] 1 WLR 1443 Â Potter v Law Society Unreported, 20 December 1999 20 Dec 1999 Legal Professions The Law Society intervened in the solicitor's practice where there were considerable grounds to suspect that the solicitor was knowingly allowing his firm to be used in connection with a large fraud, even if he was not a participant in the fraud himself. Solicitors Act 1974 1 Citers Â Mann v Carnell [1999] HCA 66; [1999] 201 CLR 1; [1999] 168 ALR 86; [1999] 74 ALJR 378 21 Dec 1999 Gleeson CJ, Gaudron, Gummow and Callinan JJJ Commonwealth, Legal Professions, Litigation Practice Austlii (High Court of Australia) Practice and procedure - Preliminary discovery - Legal professional privilege - Loss of privilege - Waiver by disclosure to third party. Australian Capital Territory - Separation of powers - Representative government - Nature of relationship between the ACT Legislative Assembly and the ACT Executive. Words and phrases - "client legal privilege". "What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some over-riding principle of fairness operating at large. . Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect . . considerations of fairness may be relevant to a determination of whether there is such inconsistency." 1 Citers [ Austlii ] Â
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