Edmonds v Lawson, Pardoe, and Del Fabbro: CA 10 Mar 2000

A contract of apprenticeship is synallagmatic. The master undertakes to educate and train the apprentice (or pupil) in the practical and other skills needed to practise a skilled trade (or learned profession) and the apprentice (or pupil) binds himself to serve and work for the master and comply with all reasonable directions. In the case of a pupil barrister the freedom of the pupil to earn fees on her own account counted against her being an apprentice. The contract of pupillage did not require the pupil master to provide any work. The object of the Act was not to enlarge the categories of those entitled to be paid wages but to ensure that those entitled to be paid wages are not paid at anything less than a specified minimum level. A bar pupil was not a ‘worker,’ within the meaning of the Act, and was not therefore entitled to the national minimum wage. A pupil, though under contract, was not an apprentice. The pupil master was only one of several people for whom the pupil might carry out duties. The majority of obligations were set not by contract, but by regulations governing the profession, and there was insufficient mutuality.
Lord Bingham CJ said: ‘Whether the parties intended to enter into legally binding relations is an issue to be determined objectively and not by enquiring into their respective states of mind. The context is all important.’

Bingham LCJ, Pill, Hale, LJJ
Times 16-Mar-2000, Gazette 06-Apr-2000, [2000] All ER 31, [2000] EWCA Civ 69, [2000] 2 WLR 1091
Bailii
National Minimum Wage Act 1998 54, National Minimum Wage Regulations 1999 (SI 1999 No. 584) 12
England and Wales
Citing:
CitedWallace v CA Roofing Services Ltd 1996
An employer can less easily terminate an apprentice than other employees. An oral apprenticeship contract is enfoirceable, but only once it is acted upon. . .
CitedNewell v Gillingham Corporation 1941
A contract of apprenticeship is, in law, less readily terminable by the employer than an ordinary contract of employment. . .
CitedMcDonald v John Twiname Ltd 1953
Apprenticeships are less easily terminable by the employer than an ordinary contract of employment. An executory apprenticeship contract must be in writing to be enforceable, though an employer who has acted upon an oral contract of apprenticeship . .
CitedThe Parish of St Pancras, Middlesex v The Parish of Clapham, Surrey 1860
An attorney’s clerk, articled by indenture, was held to be an apprentice and to gain a settlement as such for poor law purposes. In legal acceptation an apprentice is a person who is bound to and who serves another, for the purpose of learning . .
CitedKirkby v Taylor 1910
Though an apprenticeship contract need no longer be by deed, an executory apprenticeship contract must be in writing to be enforceable. . .
CitedWaterman v Fryer 1922
Shearman J said: ‘The authorities show that in the early days there was the greatest reluctance to break any contract of apprenticeship. It was considered of very great importance that children should be taught a trade, and the Courts, in view of . .
CitedDunk v George Waller and Sons Ltd CA 1970
‘A contract of apprenticeship secures three things for the apprentice: it secures him, first, a money payment during the period of apprenticeship. . .’ the range of remedies may be wider than under standard form of employment contact. It is of a . .
Appeal FromEdmonds v Lawson QBD 13-Oct-1999
A pupil barrister was engaged in a form of apprenticeship, which had sufficient characteristics of employment to make the pupil a worker within the Act, and so entitled to payment of the minimum wage. The contract was either of employment or for . .

Cited by:
CitedParties Named In Schedule A v Dresdner Kleinwort Ltd and Another QBD 28-May-2010
The defendant merchant banks resisted two group claims for annual bonuses for 2008 made by the employee claimants. They now sought summary judgment against the claims. The employer had declared a guaranteed minimum bonus pool available to make the . .
CitedDresdner Kleinwort Ltd and Another v Attrill and Others CA 26-Apr-2013
The bank appealed against judgment against it on claims by former senior employees for contractual discretionary bonuses.
Held: The appeal failed. The bank’s unilateral promise made within the context of an existing employment relationship to . .

Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Contract

Updated: 27 January 2022; Ref: scu.147102

Eurosaneamientos and Others v ArcelorMittal Zaragoza SAand Others: ECJ 8 Dec 2016

ECJ (Judgment) Reference for a preliminary ruling – Services provided by Procuradores de los Tribunales – Tariff – Jurisdictions – Derogation impossible

ECLI:EU:C:2016:932, [2016] EUECJ C-532/15
Bailii
European

Human Rights, Legal Professions

Updated: 27 January 2022; Ref: scu.572320

Avonwick Holdings Ltd and Another v Shlosberg: CA 18 Nov 2016

Appeal from order directing firm of solicitors to cease acting for a bankrupt’s trustees on the basis that the solicitors had had access to substantial volumes of privileged materials when previously acting for the bankrupt.

Sir Terence Etherton MR, Gloster, Sharp LJJ
[2016] EWCA Civ 1138
Bailii
England and Wales

Insolvency, Legal Professions

Updated: 25 January 2022; Ref: scu.571418

Impact Funding Solutions Ltd v AIG Europe Insurance Ltd: SC 26 Oct 2016

Solicitors had arranged loans to cover for clients the disbursements to be made for litigation. The solicitors had then acted so as to breach the agreements, and upon being called on themselves to repay, the solicitors went into liquidation. The court was now asked whether their professinal insurers were liable to the cients, when the insurance contracts excluded ‘trading liabilities’.
Held: The insurers’ appeal succeeded.

Lord Mance , Lord Sumption , Lord Carnwath , Lord Toulson , Lord Hodge JJSC
[2016] UKSC 57, [2016] 3 WLR 1422, [2016] WLR(D) 558
Bailii, WLRD
England and Wales

Insurance, Legal Professions

Updated: 25 January 2022; Ref: scu.570981

Gilham v Ministry of Justice: EAT 31 Oct 2016

Jurisdictional Points: Worker, Employee or Neither – The Employment Judge made no error of law in concluding that District Judges are office – holders and do not also work under a contract of employment or for services.

Simler DBE P J
[2016] UKEAT 0087 – 16 – 3110
Bailii
Employment Rights Act 1996 230(3)
England and Wales

Employment, Legal Professions

Updated: 24 January 2022; Ref: scu.570731

Isteed v London Borough of Redbridge: EAT 21 Jul 2016

Practice and Procedure: Costs – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
On appeal against a wasted costs order made against the opposing party’s solicitor, the appeal was allowed.
It was common ground that the Employment Judge made no positive findings on causation and gave no reasons for considering such an order ‘right’. The jurisdiction to make a wasted costs order extends only to impugned conduct that has caused a waste of costs and only to the extent of such wasted costs, demonstration of a causal link being essential. These findings were not implicit in the particular circumstances. The Employment Judge erred in failing adequately to deal with causation and the justice of such an order.
Separately, there was procedural unfairness. Given the fluid and changing nature of the application, the paying solicitors did not have proper or adequate notice of its basis that would enable them to respond. By the time of the final hearing of the application (which had taken four days separately listed), the comments and conduct of the Employment Judge led to the appearance of bias, and the Employment Judge should have recused himself.

Simler DBE P J
[2016] UKEAT 0442 – 14 – 2107
Bailii
England and Wales

Employment, Costs, Legal Professions

Updated: 24 January 2022; Ref: scu.570383

Mortgage Agency Services Number One Ltd (T/A Britannia Commercial Lending) v Cripps Harries Llp: ChD 12 Oct 2016

Action in which a lender sought damages for fraud, conspiracy and (originally) inducing breach of contract against a borrower’s solicitors, the defendants, on the basis that two employees of the defendant firm deliberately misled the claimant in a manner which led to its lending to a property owner and developer. There has been a serious shortfall in recovery in respect of the loan and the lender seeks to recover its losses accordingly.

Mann J
[2016] EWHC 2483 (Ch)
Bailii
England and Wales

Torts – Other, Legal Professions

Updated: 24 January 2022; Ref: scu.570344

Torresi v Consiglio Dell’Ordine Degli Avvocati Di Macerata: ECJ 10 Apr 2014

(Opinion) Notion of ‘court or tribunal of a Member State’ – Consiglio Nazionale Forense – Independence – Impartiality – Article 3 of Directive 98/5/EC – Validity – Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained – Abuse of rights – Respect for national identities

C-59/13, [2014] EUECJ C-59/13 – O, ECLI:EU:C:2014:265, [2015] 1 QB 331
Bailii
European

Legal Professions

Updated: 24 January 2022; Ref: scu.569145

Wave Lending Ltd v Batra and Another: ChD 13 Sep 2016

The claimant had brought proceedings against the two defendants in 2009. A private settlement was reached with the first defendant, but the second, a then bankrupt firm of solicitors took no part. The claimant now sought to restore the claima against the solicitors. It was now said that the claim should be dismissed on the basis that the claimant and the solicitors had acted dishonestly and there were no funds for payment of any damages, insurance cover having been repudiated.
Held: The 2010 Act was not in force at the time of the application.

Marsh, Chief Master
[2016] EWHC 2238 (Ch)
Bailii
Third Party (Rights Against Insurers) Act 2010
England and Wales

Litigation Practice, Legal Professions, Insurance

Updated: 23 January 2022; Ref: scu.569415

Connell v Odlum: 1993

(New Zealand Court of Appeal) Prior to his marriage to W, the claimant wished to enter with her into an agreement of which the statutory effect would be to contract them out of the law’s general provisions for the making of financial adjustments between them in the event of separation. Pursuant to one of the statutory requirements, the defendant, who was W’s solicitor, certified that, prior to her signing the agreement, he had explained its effect to her. Following separation a judge found that he had not explained its effect to her and held that the agreement was void. The agreement settling their ancillary affairs was found to be invalid after the wife’s solicitors had failed properly to explain its effect to her. The husband sued her solicitor in negligence. The solicitor applied to have the claim struck out on the basis that he owed no duty of care to the husband in advising the wife. He did not succeed before the High Court and appealed.
Held: The husband had an arguable claim against the solicitor, so that the application to strike out was properly declined. The solicitor had in effect stepped outside his role as his client’s solicitor and accepted with the act of certification a direct responsibility to the other party to the agreement. Once a solicitor has assumed the obligation under the New Zealand statute to certify its requirements have been met, he or she has ‘undertaken a duty which is ‘separate and different’ from their professional duty to their client and one which they must contemplate will be relied upon by the other party to the agreement.’
Thomas J explained that the claimant had relied, and had been expected by the defendant to rely, on the certificate as a feature of the validity of the agreement and that there had been the necessary assumption of responsibility towards him on the part of the defendant.

Thomas J
[1993] 2 NZLR 257
England and Wales
Cited by:
CitedConnolly-Martin v Davis CA 27-May-1999
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 . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 22 January 2022; Ref: scu.424849

In re a Solicitor (Taxation of Costs): CA 1955

Matrimonial proceedings were in contemplation but the instructions to solicitors were terminated before a petition for judicial separation was filed. The client complained as to the costs bill submitted by the solicitors.
Denning LJ disposed of the submission that the line should be drawn between contentious and non-contentious business according to the date of the issue of the writ in the following way: ‘Let me test the position by taking a case where a client asks his solicitor to bring an action. The solicitor thereupon instructs counsel to draft the writ and the statement of claim to be served with it. If the action goes for trial, the costs of that work are recoverable as costs in the action. They are not disallowed simply because the work was done before the writ was issued. It is clearly contentious business. Now suppose that in that very case the solicitor had to take statements from witnesses so as to enable counsel to settle the statement of claim. If the action goes for trial, the cost of that work would also be recoverable as costs in the action . . It would also be contentious business.
Now suppose that after the solicitor had done all that work, but before the writ was actually issued, the case was settled by the defendant paying the claim. Does the work take on a different character simply because the case was settled? Surely not. If it is contentious business when the case goes for trial, it is also contentious business when the case is settled before the writ is issued. The issue of the writ does not alter the nature of the business; nor should it alter the method or amount of the solicitor’s charges. He should get the same reward for the same work, no matter whether the case goes for trial or is settled the moment before the writ issued or the moment after it.’
He said of what was required to be contained in a bill of costs for non-contentious business as follows: ‘[I]t must contain a summarized statement of the work done, sufficient to tell the client what it is for which he is asked to pay. A bare account for ‘professional services’ between certain dates, or for ‘work done in connection with your matrimonial affairs’ would not do. The nature of the work must be stated, such as, advising on such and such a matter, instructing counsel to do so and so, drafting such and such a document, and so forth.’

Denning, Parker LJJ
[1955] 2 QB 252
Solicitors’ Remuneration Order 1929
England and Wales
Cited by:
CitedRalph Hume Garry (a Firm) v Gwillim CA 22-Oct-2002
The appellant sought to have struck out the claimant’s action to recover their costs having represented him. He said that the detail in the bill was so deficient as not to comply with the requirements of the Act.
Held: Though the detail given . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 22 January 2022; Ref: scu.182390

Hunter v Chief Constable of the West Midlands Police: HL 19 Nov 1981

No collateral attack on Jury findigs.

An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many years after conviction for IRA pub bombings in Birmingham.
Held: This was a collateral attack amounting to an abuse of process, not because of the limits of police immunity, but to provide an effective immunity. The purpose of the action was not in truth to obtain damages from the Chief Constable but to undermine the conviction. Unless debarred from doing so, defendants convicted after a full and fair trial who failed to appeal successfully, may challenge their convictions by suing advocates who appeared for them. Public policy requires a defendant, who seeks to challenge his conviction, to do so directly by seeking to appeal his conviction.
Lord Diplock said: ‘My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.’
. . And ‘The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.’

Lord Diplock, Lord Russell of Killowen, Lord Keith of Kinkel, Lord Roskill, Lord Brandon
[1982] AC 529, [1981] 3 WLR 906, [1981] UKHL 13, [1981] 3 All ER 727
Bailii
Civil Evidence Act 1968 11
England and Wales
Citing:
CitedReichel v Magrath PC 1889
The new vicar of Sparsholt, Dr Magrath, was able to rely on the abuse of process even though he had not been party to earlier proceedings between Reichel and the Bishop of Oxford and the Queen’s College and so was not bound by any issue estoppel . .
CitedStevenson v Garnett 1898
AL Smith LJ: ‘The court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious yet it ought to do so when as here, it has been shown that the identical question sought to be raised has . .
Appeal fromMcIlkenny v Chief Constable of the West Midlands CA 1980
The appellant had been convicted of an IRA bombing, causing loss of many lives. The appellant and his other co-accused alleged that their confessions had been induced by police violence. The trial judge ruled that their confessions were voluntary . .

Cited by:
CitedGribbon v Lutton and Another CA 19-Dec-2001
The defendant solicitors acted in obtaining and holding a deposit on the sale of land. They issued interpleader proceedings which decided that the deposit was payable to the purchaser. The vendor then sued the solicitors in negligence. The . .
CitedThe Secretary of State for Trade and Industry v Bairstow CA 11-Mar-2003
The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The . .
CitedSmith v Linskills CA 1996
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 . .
CitedArthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
CitedDarker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
CitedSweetman v Nathan and others CA 25-Jul-2003
The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: . .
CitedRegina v Chichester Justices ex parte Crowther Admn 14-Oct-1998
The defendant sought judicial review of an order made in 1998 issuing a warrant for his committal for failure to pay a confiscation order made in 1991. He had served 6 years imprisonment, and in default of payment a further 18 months. He was . .
CitedGood Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
CitedKent Pharmaceuticals Ltd, (Regina on the Application of ) v Serious Fraud Office and Another Admn 17-Dec-2003
The claimant sought judicial review of the decision of the respondent to disclose documents obtained by it from them during an investigation.
Held: The decisions to disclose material to the DoH were ‘in accordance with law’ within the meaning . .
CitedPolanski v Conde Nast Publications Ltd HL 10-Feb-2005
The claimant wished to pursue his claim for defamation against the defendant, but was reluctant to return to the UK to give evidence, fearing arrest and extradition to the US. He appealed refusal of permission to be interviewed on video tape. Held . .
CitedRegina v Shanks CACD 19-Mar-2003
The appellant appealed his conviction for murder. He had shot his lover as she walked away from an argument. The fact of his conviction following mention of a guilty plea to possession of the firearm was complained of.
Held: The judge had . .
CitedRegina v Leeds Magistrates Court ex parte Serif Systems Limited and Hamilton Admn 9-Oct-1997
The applicant sought that summonses be set aside as an abuse of process, being begun to embarrass him as he set out to become an MP. Thirty one private summonses had been issued.
Held: Of the summonses to be continued it could not be said that . .
CitedLevey, Regina v CACD 27-Jul-2006
The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
CitedRegina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
CitedLaing v Taylor Walton (A Firm) QBD 20-Feb-2007
The claimant sought to pursue an action for professional negligence against his solicitors. They said that the action was an abuse being an attempted relitigation of matters already settled when a judge had decided that the defendants had not owed a . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedTaylor Walton (A Firm) v Laing CA 15-Nov-2007
The appellants appealed against a refusal to strike out as an abuse of process the respondent’s claim against them for professional negligence in the drafting of development agreements.
Buxton LJ considered the nature of the enquiry on such an . .
CitedAshley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
CitedIn re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
CitedSpecialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
CitedCheltenham Borough Council v Laird QBD 15-Jun-2009
The council sought damages saying that their former chief executive had not disclosed her history of depressive illness when applying for her job.
Held: The replies were not dishonest as the form could have been misconstrued. The claim failed. . .
CitedCalzaghe v Warren QBD 20-Jan-2010
The claimant boxer had secured judgement for fight fees from a company operated by the respondent manager and promoter. After the judgment the defendant had put the company into administration. The claimant now sought payment from the defendant . .
CitedVaughan v London Borough of Lewisham and Others QBD 11-Apr-2013
The claimant sought an order to restrain anticipated defamatory comments and evidence to be given to an employment tribunal.
Held: It could not be said as the claimant asserted that dfeences were bound to fail, and no determination should be . .
CitedHi-Lite Electrical Ltd v Wolseley UK Ltd QBD 17-Jul-2009
The claimant sought a contribution from the defendant towards its liability for a fire at its premises, as found in earlier proceedings against the now claimant. The defendant had filed a defence merely not admitting, and not denying, responsibility . .
CitedOMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .
CitedMichael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
CitedSpicer v The Commissioner of Police of The Metropolis QBD 6-Jul-2020
The claimant alleged defamation. He had been acquitted of a criminal offence and said that material published by the defendant continued to imply or assert his guilt of the offence. The defendant argued truth. The claimant now sought a strike out of . .
CitedAmin v Director General of The Security Service and Others CA 26-Jun-2015
The claimant’s claims against the police had been struck out as a collateral attack on a criminal court decision.
Held: ‘If the former decision was made in criminal proceedings leading to a conviction, it is proper to focus attention on the . .
CitedAmin v Director General of The Security Service (MI5) and Others QBD 26-Jun-2013
The claimant sought damages for personal injury and false imprisonment.
Held: The claim was struck out as an abuse of process. There was an overlap with findings made against him in the Crown Court in a voir dire taking place in the course of . .
CitedTakhar v Gracefield Developments Ltd and Others SC 20-Mar-2019
The claimant appellant alleged that properties she owned were transferred to the first defendant under undue influence or other unconscionable conduct by the second and third defendants. The claim was dismissed. Three years later she claimed to set . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Police, Estoppel

Updated: 21 January 2022; Ref: scu.181062

Dormeuil Trade Mark: ChD 1983

Parties had together applied to register a trade mark. Later one applied and the other opposed, and application. At various times they had been represented by trade mark agents and solicitors. Protection against discovery was now sought as to communications with the trade mark agents.
Held: Nourse J refused to extend the protection of legal advice privilege. The 1968 Act had extended the privilege to patent attorneys, but not to trade mark agents.
Nourse J noted that historically cases had been conducted only by solicitors and counsel and added this: ‘[Counsel for the defendants] says that in those days it was never necessary for anybody to consider whether the privilege should apply in a case where other professional men, far less non-professional men, were concerned in advising clients, or indeed in conducting litigation on their behalf. He says that in these days the rule should be different. Like the learned Master, I see great force in that submission. It does seem to me to be a little odd and possibly perverse, that if a trade mark agent is entitled to advise a client in relation to certain legal matters and to conduct certain legal proceedings on his behalf, the same privilege should not apply as would certainly apply in a case where the advice was being given and the proceedings were being conducted by a solicitor. Nevertheless I do not think it is open to me in this court to fly in the face of the established rule, as enunciated in Wheeler v Le Marchant, the statement of Chitty J in Moseley v Victoria Rubber Company, and the fact that in 1968 the legislature seemed to think it was necessary expressly to extend the privilege to the case of patent agents.’

Nourse J
[1983] RPC 13
Civil Evidence Act 1968 15, Patents Act 1977 104
England and Wales
Cited by:
CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 20 January 2022; Ref: scu.470878

Sumitomo Corporation v Credit Lyonnais Rouse Limited: CA 20 Jul 2001

Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The court ordered disclosure. Whatever level of privilege attached to the original applied also to the translation, and no additional confidentiality was created. In this case there was no element of selection from various materials to create a confidence under Lyell v Kennedy exception. That exception included documents themselves protected from disclosure.

Phillips MR, Parker LJ, Mustill L
Times 15-Aug-2001, Gazette 06-Sep-2001, [2001] EWCA Civ 1152, [2001] 2 Lloyd’s Rep 517, [2002] 4 All ER 68, [2002] CP Rep 3, [2001] CPLR 462, [2001] 2 LLR 517, [2002] 1 WLR 479
Bailii
England and Wales
Citing:
CitedLyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .
CitedAnderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .
CitedThe Palermo 1883
A copy of an original document which is not itself privileged is privileged only if (a) the copy came into existence for the purpose of litigation, and (b) the original document is not and has not at any time been in the control of the party . .
CitedVentouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
CitedWatson v Cammell Laird and Co Ltd CA 1959
Referring to the case of Chadwick v. Bowman: ‘…. the essential fact was that certain letters which the defendant had received, and copies of letters which he had written, had been at some stage destroyed by the defendant, and in order to replace . .
CitedDubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .
CitedWheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
CitedChadwick v Bowman CA 1886
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against . .

Cited by:
CitedImerman v Tchenguiz and Others QBD 16-Nov-2009
The claimant sought an ‘unless order’, saying that the defendant had failed to comply with orders for delivery up of documents. Though the order had been agreed, the defendants said that the documents might be needed for an appeal. The claimants . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 20 January 2022; Ref: scu.147629

Ventouris v Mountain: CA 1991

It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege.’ That requirement was supported by legal professional privilege, but privilege does not attach to a document obtained by a party or his adviser for the purpose of litigation if the document did not come into existence for that purpose. ‘The ratio of the decision [in Lyell v. Kennedy] is, I think, that where the collection of documents which a solicitor has copied or assembled betrays the trend of the advice which he is giving the client the documents are privileged.’ The Oregon manager’s letter in Anderson v Bank of British Columbia would be regarded as privileged as a letter written for the purpose of laying before a solicitor in order to obtain legal advice.
Bingham LJ said: ‘The expression ‘legal professional privilege’ is unhappy, because it falsely suggests a privilege enjoyed by the legal profession when in truth it is not the legal profession but the client who enjoys the privilege. It also suggests, surely wrongly, that a litigant in person is denied in preparing his litigation, the protection of secrecy which is enjoyed by a litigant who instructs a lawyer. The expression ‘litigation privilege,’ which has also and perhaps increasingly been used, avoids that objection but is itself open to the objection that it suggests a privilege pertaining to litigation, whereas it is clear that the privilege covers communications between the client and his agent and his professional legal adviser even when no litigation is pending or contemplated.’
He also said: ‘The doctrine of legal professional privilege is rooted in the public interest, which requires that hopeless and exaggerated claims and unsound and spurious defences be so far as possible discouraged, and civil disputes so far as possible settled without resort to judicial decision. To this end it is necessary that actual and potential litigants, be they claimants or respondents, should be free to unburden themselves without reserve to their legal advisers, and their legal advisers be free to give honest and candid advice on a sound factual basis, without fear that these communications may be relied on by an opposing party if the dispute comes before the court for decision. It is the protection of confidential communications between client and legal adviser which lies at the heart of legal professional privilege . . ‘

Bingham LJ
[1991] 1 WLR 607, [1991] 3 All ER 472
England and Wales
Citing:
CitedLyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .
CitedAnderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .

Cited by:
CitedBrown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
CitedSumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
CitedX v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Evidence

Updated: 20 January 2022; Ref: scu.180869

Brown and Another v Bennett and Others (No 3): ChD 17 Dec 2001

When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in counsel’s brief, even though that might be an incidental consequence.

Mr Justice Neuberger
Times 04-Jan-2002, Gazette 21-Feb-2002
England and Wales
Citing:
CitedLyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s . .
CitedVentouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
CitedRegina v Board of Inland Revenue, ex parte Goldberg 1989
Photocopies of documents were sent to leading counsel. The Inland Revenue sought their production under s20.
Held: The copies had been produced for purposes attracting legal professional privilege, and were not discoverable to the Revenue even . .
CitedDubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 20 January 2022; Ref: scu.167321

Lyell v Kennedy (No 3): CA 8 Apr 1884

The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’s possession barred the plaintiff’s claim. This in turn raised issues as to the intestate’s pedigree and as to the heirship to her estate. In the course of preparing the defendant’s defence in the action, his solicitors had obtained copies of and extracts from certain entries in public registers, together with photographs of certain tombstones and houses. By his affidavit of documents the defendant objected to produce these documents on the ground firstly that they had come into existence for the purpose of the litigation, and secondly: ‘that for the purpose of his defence . . he had through his solicitors to obtain the assistance of counsel, and for that purpose to make searches and inquiries, and obtain copies of entries in registers, public records, and other original documents, not in his possession, and that his solicitors employed confidential clerks, and confidential agents, and his solicitors and their clerks and agents in the course of such employment and for the purposes aforesaid, made and obtained the copies, and procured the photographs’. The plaintiff sought disclosure, contending that the documents in question were unprivileged. Opposing disclosure, the defendant argued that: ‘…. the discretion exercised by the solicitor …. in the choice of a series of extracts and copies, records and registers, and the omission of others, prevents it being a mere servile copying of public documents, which would not be privileged, but that it represents the work of the solicitor’s mind, and might be a means of showing to the Plaintiff the idea entertained by him of his client’s case.’
Held: As to privilege: ‘What ought we to do here? Here is a litigation about pedigree and the heirship to a lady who died many years ago; and it is sworn by the Defendant that for the purpose of defending himself against various claimants he has made inquiries, and that he has obtained every one of those documents for the purpose of protecting himself, and that he has got them, not himself personally, but that his solicitors have got them, for the purpose of his defence, for the purpose of instructing his counsel, and for the purpose of conducting this litigation on his behalf. Now no case has been quoted where documents obtained under such circumstances have been ordered to be produced. In my opinion it is contrary to the principle on which the court acts with regard to protection on the ground of professional privilege that we should make an order for their production; they were obtained for the purpose of his defence, and it would be to deprive a solicitor of the means afforded for enabling him to fully investigate a case for the purpose of instructing counsel if we required documents, although perhaps publici juris in themselves, to be produced, because the very fact of the solicitor having got copies of certain burial certificates and other records, and having made copies of the inscriptions on certain tombstones, and obtained photographs of certain houses, might shew what his view was as to the case of his client as regards the claim made against him. There is no case, as I have said before, which is exactly in point, but Walsham v. Stainton, though different in its circumstances, somewhat illustrates the principle to which I am referring, because there, when that case came before Vice-Chancellor Wood, he protected the records and extracts from books which had been made by an accountant for the defendants, who had collected together a number of entries, because the extracts, when put together, shewed the view which he and the solicitor of the defendants took of the particular fraud which they were there investigating, and the Judge considered that to order the defendants to produce them would be not only giving production to the parties who were asking for production, but giving them a clue to the advice which had been given by the solicitor, and giving them the benefit of the professional opinion which had been formed by the solicitor and those who had acted in a professional capacity for the defendant. In my opinion, therefore, in this case, without saying what ought to be done if there were any different case made before the Court with regard to documents like these, it would not be in accordance with the rules which have guided this Court in deciding what is professional privilege in regard to the production of documents, to order their production.’

Cotton LJ, Bowen LJ
(1884) 27 ChD 1, [1884] UKLawRpCh 102
Commonlii
England and Wales
Cited by:
CitedSumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
CitedBrown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
CitedVentouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
CitedDubai Bank Ltd v Galadari (No 7) ChD 1992
The court approved the proposition that the starting point for the court in addressing the selection of documents for discovery is that the court should accept a solicitor’s affidavit claiming privilege as conclusive ‘unless it can be seen . .
See AlsoLyell v Kennedy HL 1-Aug-1889
The true owner may recover money which was rightfully his from a person to whom the money in question had been wrongly paid by the collector of the money. A fiduciary is one who has undertaken, whether on request or without request, of his own . .
CitedImerman v Tchenguiz and Others QBD 16-Nov-2009
The claimant sought an ‘unless order’, saying that the defendant had failed to comply with orders for delivery up of documents. Though the order had been agreed, the defendants said that the documents might be needed for an appeal. The claimants . .

Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 20 January 2022; Ref: scu.180911

FPH Law (A Firm) v Brown (T/A Integrum Law): QBD 14 Jul 2016

The Claimant firm of solicitors sought damages for breach of contract from a former partner in the firm. The claim was based on an alleged breach of an undertaking given by the Defendant to the Claimant on the transfer of certain client files to him following his retirement as a partner with the firm.

Slade DBE J
[2016] EWHC 1681 (QB)
Bailii
England and Wales

Legal Professions, Contract

Updated: 19 January 2022; Ref: scu.567065

Radford and Another v Frade and Others: QBD 8 Jul 2016

The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of re-hearing; the question was whether the rulings had been shown to be wrong in their construction of Conditional Fee Agreements.
Held: The court should properly take into account the full range of materials setting out the arrangements between the solicitor and the client.
Held: The appeal failed. ‘The risk assessment does serve the purpose of explaining the solicitors’ reasons for setting the success fee at the chosen level. But it is also a contemporaneous statement by the solicitors to their clients, identifying their understanding of the clients’ aim, the issues with which they would be dealing, the nature of the risks they were taking on in doing so, and what would amount to success. It is therefore objective evidence as to the scope of the work for which the parties intended to contract. It supports the narrow interpretation of the words ‘your claims . . ‘ which the Costs Judge adopted.’
Warby J said: ‘the effect of a costs order is to create a liability to pay, subject to assessment, those costs which a party has paid or is liable to pay at the time the order is made. The liability to pay costs crystallises at that point and, although its quantum will remain to be worked out, that process must be governed by the liabilities of the receiving party as they stand at that time. To allow enforcement of a retrospective agreement which increases those liabilities would be to alter retrospectively the effect of the court’s order.’

Warby J
[2016] EWHC 1600 (QB)
Bailii
England and Wales
Citing:
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
See AlsoRadford and Another v Frade and Others QBD 28-Jul-2014
. .
CitedJones v Wrexham Borough Council CA 19-Dec-2007
The claimant appealed against a decision that the conditional fee agreement with her solicitors had been unenforceable because the solicitors had not disclosed to her a conflicting interest in recommending insurers. The issue was whether the CFA was . .
CitedAdams v London Improved Motor Coach Builders Ltd CA 1921
The plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff’s union who had retained the solicitors in the case, and it was the union to which the solicitors looked . .
CitedWay v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
CitedKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
CitedWhitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd HL 1970
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract . .
CitedLewis v Averay (No 2) CA 1973
The defendant had been unable to obtain legal aid, and resorted to the Automobile Association which indemnified him for his costs of his successful appeal. The respondent was legally aided on the appeal and the appellant sought an order for his . .
CitedSwainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
CitedThornley v Lang CA 29-Oct-2003
The claimant had pursued the case under a collective conditional fee agreement, organised by her trade union. The defendant challenged an order for payment of the costs, arguing that under the indemnity principle, the claimant would be under no duty . .
CitedKitchen v Burwell Reed and Kinghorn Ltd QBD 3-Aug-2005
The court considered the effect of collective conditional fee agreements. The defendant appealed against the decision of the Costs Judge whereby he held that the Claimant was entitled to claim a success fee and that there had been no breach of the . .
CitedOyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
CitedDavies v Taylor (No 2) HL 2-Jan-1974
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, . .
CitedOyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
CitedBirmingham City Council v Forde QBD 13-Jan-2009
Christopher Clarke J upheld the validity of a retrospective CFA entered into between solicitor and client on the eve of a settlement, in the knowledge that the existing arrangement might be vulnerable to challenge. The paying party alleged undue . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions.

Updated: 19 January 2022; Ref: scu.566789

Ablitt v Mills and Reeve (A Firm) and Another: ChD 24 Oct 1995

A solicitor receiving privileged documents where there had been an obvious, error should return them. The defendant solicitors who, on their client’s instructions, reviewed privileged information sent to them in error by counsel for the other party, were restrained from continuing to act. Blackburne J said: ‘it offends elementary notions of fairness and justice’ if, by knowingly taking advantage of the mistaken delivery of privileged papers, a party to litigation, ‘although not itself told what those papers contain, can continue to have the services in the action of those who on its instructions have read all the papers and who, as a result, have a very accurate perception of just how those who act for the plaintiff view the merits of the plaintiff’s claim and of the steps, tactically and otherwise, which they are advising the plaintiff to take in pursuit of his claim’.

Blackburne J
Times 25-Oct-1995
England and Wales
Cited by:
CitedStiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 19 January 2022; Ref: scu.77610

Austin, Regina (on The Application of) v Parole Board for England and Wales: Admn 17 Jan 2022

Parole Board Publication Scheme Unduly Complicated

This claim for judicial review raises important issues about the lawfulness of the Parole Board’s policy and practice in relation to the provision of a summary of a Parole Board decision to victims and victims’ families and the media. The protocol required advance disclosure of the summary to legal representatives against their undertaking for non-disclosure in certain noteworthy cases. In this case, the undertaking was refused, citing professional obligations.
Held: There were potential conflicts between the protocol, and the solicitor’s professional duties to his client. The requirement in the Protocol of an undertaking by the solicitor not to disclose the content of the full decision letter and the draft summary to his client was, in the context of the mischief at which the Protocol was aimed, unreasonable, disproportionate, unfair and consequently unlawful. It could be simplified.

Mr Justice Spencer
[2022] EWHC 63 (Admin)
Bailii
Parole Board Rules 2019 27, Criminal Justice Act 2003, Solicitors’ Regulation Authority Code of Conduct 6.4
England and Wales
Citing:
CitedHazell v Hammersmith and Fulham London Borough Council HL 1991
Swap deals outwith Council powers
The authority entered into interest rate swap deals to protect itself against adverse money market movements. They began to lose substantial amounts when interest rates rose, and the district auditor sought a declaration that the contracts were . .
CitedDickins v Parole Board for England and Wales Admn 6-May-2021
The panel had made its decision on release of a life sentence prisoner and had sent its reasoned decision to the case manager. A question then arose as to whether new information could be received by the panel entitling it to reopen its decision. . .
CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
CitedGifford-Hull v Parole Board for England and Wales Admn 28-Jan-2021
The prisoner’s solicitor declined to give an undertaking because he considered it to be contrary to his professional duty to his client to disclose all information to
his client about his case.
Held: HH Judge Cotter QC found it . .
CitedDSD and NBV and Others Regina (on The Application of) v Admn 28-Mar-2018
Challenge to decision of parole board for release of notorious criminal. – Whether Parole Board should take account of allegations made but neither prosecuted nor admitted. Whether Parole Board hearings were public.
Held: Granted
Sir . .
CitedOsborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
CitedThe Lord Chancellor v Detention Action CA 29-Jul-2015
The claimant challenged the legality of the Fast Track Rules 2014 which govern appeals to the First-tier Tribunal (Immigration and Asylum Chamber) against refusals by the Secretary of State for the Home Department (‘SSHD’) of asylum applications. . .
CitedA, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2021
Standards to be applied by a court when it is asked to conduct a judicial review of the contents of a policy document or statement of practice issued by the Government. The Supreme Court set out the principles governing the test that should be . .

Lists of cited by and citing cases may be incomplete.

Prisons, Media, Legal Professions

Updated: 19 January 2022; Ref: scu.671309

Azam and Co Solicitors v Legal Services Commission: CA 10 Sep 2010

Claim a declaration that their exclusion by the Legal Services Commission from a tendering process for the carrying out of publicly funded work in relation to immigration was unlawful.

[2010] EWCA Civ 1194, [2011] Eu LR 131
Bailii
Public Contracts Regulations 2006
England and Wales

Legal Professions, European

Updated: 18 January 2022; Ref: scu.425605

Engeham v London and Quadrant Housing Trust and Another: CA 1 Dec 2015

This appeal raised a question of the proper construction of a conditional fee agreement, and, in particular, whether the outcome of the action represented a ‘win’ for the claimant.

Lord Dyson MR, Floyd, Simon LJJ
[2015] EWCA Civ 1530
Bailii
England and Wales

Legal Professions, Costs

Updated: 17 January 2022; Ref: scu.565661

Target Holdings Ltd v Redferns (A Firm) and Another: HL 21 Jul 1995

The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two intermediate purchaser companies, Panther and Kohli, with Kohli then selling to Crowngate at a stated price of andpound;2,000,000. Crowngate applied to Target for a loan to fund the purchase from Kohli based on this higher sale price, supported by a valuation of the property at andpound;2m. The solicitors also acted for Target and were aware of the chain arrangement that inflated the purchase price, but did not disclose it to Target which agreed to lend andpound;1.7m on the security of the property, of which about andpound;1.5m was to fund the price payable to Kohli.
The solicitors received the andpound;1.5m on 28 June 1989. The following day they paid most of it to Panther (not Kohli) and on 30 June Panther used part of those funds to complete its purchase from Mirage at the agreed price of andpound;775,000.
Held: A solicitor, when he receives the money, does so as agent of the lending institution and holds it as bare trustee for the lending institution. Such a trustee acting in breach of trust is liable only for damages flowing from the breach itself. Trustees are not liable for a beneficiary’s loss if that loss is not a consequence of the breach. Damages payable for money paid out in breach of trust may be reduced by inevitable losses which would have run in any event.
Lord Browne-Wilkinson held the basic rule to be: ‘that a trustee in breach of trust must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach or compensation for such loss. Courts of Equity did not award damages but, acting in personam, ordered the defaulting trustee to restore the trust estate. If specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient compensation to the trust estate to put it back to what it would have been had the breach not been committed.’ and ‘Equitable compensation for breach of trust is designed to achieve exactly what the word compensation suggests: to make good a loss in fact suffered by the beneficiaries and which, using hindsight and common sense, can be seen to have been caused by the breach.’

Lord Browne-Wilkinson
Gazette 06-Sep-1995, Times 21-Jul-1995, Independent 10-Aug-1995, [1996] 1 AC 421, [1995] UKHL 10, [1995] 3 All ER 785
Bailii
England and Wales
Citing:
Appeal FromTarget Holdings Ltd v Redferns and Another CA 24-Nov-1993
Solicitors were liable to mortgagees for mortgage monies which had been out by them paid in advance of the completion of the purchase which would allow the mortgagee’s loan to be charged. The basic liability of a trustee in breach of trust was not . .

Cited by:
CitedHulbert and Others v Avens and Another ChD 30-Jan-2003
The claimant sought damages for breach of trust against the defendant solicitors, who had acted as trustees under deeds of trust. They claimed for losses incurred by way of penalties for the late payment of capital gains tax. The defendants said . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedRegina v Preddy; Regina v Slade; Regina v Dhillon (Conjoined Appeals) HL 10-Jul-1996
The appellants were said to have made false mortgage applications. They appealed convictions for dishonestly obtaining property by deception.
Held: A chose in action created by an electronic bank transfer was not property which was capable of . .
CitedDon King Productions Inc v Warren and Others ChD 13-Apr-1998
Where partnership terms required benefit of all contracts to be assigned to the partnership, this included unassignable personal contracts which were to be held in trust for partnership, unless stated otherwise.
Lightman J said: ‘The existence . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
CitedBarbados Trust Company Ltd v Bank of Zambia and Another CA 27-Feb-2007
The creditor had assigned the debt, but without first giving the debtor defendant the necessary notice. A challenge was made to the ability of the assignee to bring the action, saying that the deed of trust appointed to circumvent the reluctance of . .
CitedHarris v Kent and Another ChD 14-Mar-2007
The claimant said the defendant had failed to complete his promise to arrange for the issue of shares in a company in return for a loan. The defendant denied the contract.
Held: It had been agreed to treat the claimant as a fifty per cent . .
CitedLloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
CitedCook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
CitedAIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
See AlsoTarget Holdings Limited v Redferns (a Firm) Alexander Stevens and Company Limited (T/a Alexander Stevens Druce) CA 16-Oct-1998
. .
CitedPurrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .
CitedRevenue and Customs v Joint Administrators of Lehman Brothers International (Europe) SC 13-Mar-2019
The Court was asked whether interest payable under rule 14.23(7) of the Insolvency Rules 2016 is ‘yearly interest’ within the meaning of section 874 of the Income Tax Act 2007. If so, the administrators must deduct income tax before paying interest . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Trusts, Damages

Updated: 17 January 2022; Ref: scu.89715

Hellas Telecommunications (Luxembourg) Ii Sca, Joint Liquidators of v Slaughter and May (A Firm): CA 24 May 2016

The court was asked whether, where a firm of solicitors provides legal services to a company in administration, Hellas Telecommunications (Luxembourg) II SCA (‘the Company’), and the firm and the administrators agree the amount of their fees, subsequently appointed liquidators of the company can ask the companies court to assess, that is, determine the amount of, those costs, either under Rule 7.34 (as in force at the date relevant to these proceedings) of the Insolvency Rules 1986 (‘IR’) or under the inherent jurisdiction of the companies court.

Arden, Jackson, Kitchin LJJ
[2016] EWCA Civ 474
Bailii
England and Wales

Legal Professions, Insolvency

Updated: 16 January 2022; Ref: scu.564690

MK Law Solicitors Ltd, Regina (on The Application of) v The Lord Chancellor: Admn 20 May 2016

Challenge by the claimant solicitors to a decision by the Lord Chancellor made through the Legal Aid Agency, that the claimant was not entitled to join an additional duty solicitor scheme, in circumstances where it determined that certain additional firms who had succeeded in the duty procurement tender, that was then abandoned by the Lord Chancellor, should be permitted to join additional schemes in certain circumstances.

Patterson DBE J
[2016] EWHC 1194 (Admin)
Bailii
England and Wales

Legal Professions, Legal Aid

Updated: 16 January 2022; Ref: scu.564651

Shlosberg v Avonwick Holdings and Others: ChD 7 Mar 2016

Application for order disallowing a firm from acting for the defendants.

Arnold J
[2016] EWHC 416 (Ch)
Bailii
England and Wales
Citing:
CitedCrescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd 1972
The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 January 2022; Ref: scu.564438

Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc: HL 11 Oct 2001

Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of one person over the will of another, though it should not always be presumed to arise from the existence of certain close relationships. A bank should be put on enquiry whenever a wife gives security for her husband’s debts, even where she may be jointly liable, or is a director. The independent advice given has often been superficial. The bank should take reasonable steps to satisfy itself that the wife has had brought home to her the practical implications of the proposed transaction. The solicitor should ensure that the wife properly understands the documentation and risks. He should explain that his involvement may mean that she cannot later challenge the charge. The advice should be given face to face, and in the absence of the husband. Provided the solicitor feels he can properly represent her interests, he may also act for the husband. The decision must be hers.
The court listed other steps to be taken by the bank and by the solicitors.
Lord Nicholls said: ‘Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. To this end the common law developed a principle of duress. Originally this was narrow in its scope, restricted to the more blatant forms of physical coercion, such as personal violence. Here, as elsewhere in the law, equity supplemented the common law. Equity extended the reach of the law to other unacceptable forms of persuasion.’ and
‘the high degree of trust and confidence and emotional interdependence which normally characterises a marriage relationship provides scope for abuse. One party may take advantage of the other’s vulnerability. Unhappily, such abuse does occur. Further, it is all too easy for a husband, anxious or even desperate for bank finance, to misstate the position in some particular or to mislead the wife, wittingly or unwittingly, in some other way. The law would be seriously defective if it did not recognise these realities.’

Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Clyde Lord Hobhouse of Wood-borough Lord Scott of Foscote
Times 17-Oct-2001, [2001] UKHL 44, [2001] 3 WLR 1021, [2002] 2 AC 773, [2002] HLR 4, [2002] 1 Lloyd’s Rep 343, [2001] NPC 147, [2001] Fam Law 880, [2001] 43 EGCS 184, [2001] 2 All ER (Comm) 1061, [2001] 4 All ER 449, [2001] 2 FLR 1364, [2002] 1 P and CR DG14, [2001] 3 FCR 481
House of Lords, Bailii
England and Wales
Citing:
CitedBarclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
DisapprovedRoyal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedHuguenin v Baseley 1807
When undue influence is alleged, the law will investigate the way the intention to enter into the transaction was secured. Lord Eldon LC said: ‘Take it that she (the plaintiff) intended to give it to him (the defendant): it is by no means out of the . .
CitedBainbrigge v Browne ChD 19-May-1881
An impoverished father had prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement to pay his mortgage debts. Undue influence was claimed.
Held: The defendants who were not . .
CitedCIBC Mortgages Plc v Pitt and Another HL 21-Oct-1993
Mrs Pitt resisted an order for possession of the house saying that she had signed the mortgage only after misrepresentations by and the undue infuence of her husband who was acting as the bank’s agent.
Held: A bank was not put on enquiry as to . .
CitedNational Westminster Bank plc v Morgan HL 7-Mar-1985
Undue influence was alleged.
Held: Equity avoids dispositions of property procured by the improper or unconscientious use of the influence of one person over another, that cannot be explained on the grounds of friendship, charity or other . .
CitedAllcard v Skinner CA 1887
The donor had parted with almost all her property. She now sought to have the transaction set aside for undue influence.
Held: Where a wife has entered into a gratuitous transaction with her husband, the burden was on the husband as donee to . .
CitedZamet v Hyman CA 1961
In considering a claim of undue influence the court referred to relationships where one party owed the other an obligation of candour and protection. A presumption of undue influence arose only where it is proved that the gift was made by the donor . .
CitedBank of Credit and Commerce International SA v Aboody CA 1989
In a case where the defendant said that a mortgage had been signed from undue pressure the court may find actual undue influence as opposed to presumed undue influence. Slade LJ said: ‘Ever since the judgments of this court in Allcard v Skinner a . .
CitedRoyal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedBank of Montreal v Stuart PC 1911
The court used the phrase ‘immoderate and irrational’ to describe the character of a transaction which might of its nature suggest undue influence. A solicitor who is advising a client about a transaction and has reason to suspect that the client is . .
Appeal fromBarclays Bank Plc v Coleman and Others CA 5-Jan-2000
It is still the case that a claimant, arguing for a charge to be set aside for undue influence must show some manifest and clear disadvantage arising from the charge. This may be subject to change in the future, but still applies now. A document . .
CitedIn re Lloyds Bank Ltd, Bomze v Bomze 1931
Where there is evidence that a husband has taken unfair advantage of his influence over his wife, or her confidence in him, ‘it is not difficult for the wife to establish her title to relief.’ . .
CitedMassey v Midland Bank Plc CA 1995
Where a woman executes a mortgage charging her property in favour of the bank to secure her partner’s debts, the bank is fixed with notice of the possibility of undue influence. It was not necessary that the couple should be married or cohabit. . .
CitedCobbett v Brock CA 1855
Knowledge of the undue influence of a husband over his wife in securing her signature to a charge is required before a lender is bound by that undue influence. . .
CitedRe Coomber, Coomber v Coomber ChD 1911
A father had been assisted in his business by his second son. After the father’s death, the mother transferred the business assets to that second son. After her death, the elder son sought the transfer of those assets back into her estate, saying . .
CitedCredit Lyonnais Bank Nederland NV v Burch CA 1-Jul-1996
A Bank was to assume that undue influence existed where they knew that an employee was giving security for his employer’s debt to the bank. An unlimited guarantee given by an employee to his employer’s bank was set aside as unconscionable. The . .
CitedBank of Baroda v Rayarel and Others CA 19-Jan-1995
A bank may assume that a solicitor advising a customer’s wife had acted properly. The solicitors acted for both the husband and the wife before they also gave their instructions to the solicitors. . .
CitedInche Noriah v Shaik Allie Bin Omar PC 1928
Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough . .
CitedSmith v Governor and Company of The Bank of Scotland HL 6-Feb-1997
A bank which did not warn its customer of the of risks of a loan and of the need for independent advice was bound by misrepresentations made by customer. The House referred to ‘the broad principle in the field of contract law of fair dealing in good . .
CitedIn re Craig, Decd 1971
Undue influence was found to have been exercised by a secretary companion over her elderly employer. . .
CitedTurnbull and Co v Duval PC 1902
Mr Duval owed three separate sums to a firm Turnbull and Co including andpound;1,000 owed to the Jamaican branch for beer. Turnbulls’ manager and agent in Jamaica was a Mr Campbell. Mr Campbell was also an executor and trustee of a will under which . .
CitedWatt or Forsyth (Assisted Person) v the Royal Bank of Scotland Plc SCS 26-Jul-1999
It appeared to the creditor that the wife had already had the benefit of professional legal advice, and it did not recommend that she should seek independent legal advice. . .
CitedBanco Exterior Internacional SA (Formerly Banco Exterior – UK a Limited Liability Company Incorporated Under the Laws of Spain) v Thomas and Barry the Executors of Patricia Dempsey CA 31-Jul-1996
The bank sought to enforce a guarantee against the estate of the deceased guarantor. The executors alleged undue influence. The bank appealed.
Held: Where the other contracting party had had actual knowledge of the undue influence or . .
CitedCommission for the New Towns v Cooper (Great Britain) Ltd, (Formerly Coopind UK Ltd) CA 4-Mar-1995
The trial judge had dismissed a claim for rectification on the basis that the defendant hoped and suspected, but did not know, of the relevant mistake by the plaintiff.
Held: Rectification was ordered because the defendant had sought to . .
CitedKenyon-Brown v Desmond Banks and Co 2000
. .
CitedHamilton v Watson 1845
Although a would-be surety is, in general, expected to acquaint himself with the risk he is undertaking, the creditor is under an obligation to disclose to the intending surety ‘anything which might not naturally be expected to take place between . .
CitedSeaton v Heath CA 1899
A suretyship contract is not a contract uberrimae fidei. Romer LJ said: ‘The risk undertaken is generally known to the surety and the circumstances generally point to the view that as between the creditor and surety it was contemplated and intended . .
CitedBanco Exterior Internacional v Mann and Others CA 19-Dec-1994
A charge to secure a husband’s borrowings was enforceable where the wife’s signature had been taken before a solicitor who had explained it. Hobhouse LJ (dissenting) ‘It must be remembered that the starting point of this exercise is that the wife’s . .
CitedLondon General Omnibus Co Ltd v Holloway 1912
Lee was employed by the bus company in a position which involved receiving money on their behalf. The bus company required him to obtain a fidelity bond from a third party. The bond was given by Holloway, a relative of Lee, without either the bus . .
Appeal fromGovernor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998
The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been . .
CitedPooraka Holdings Pty Ltd v Participation Nominees Pty Ltd 1991
The court considered the creditor’s duty of disclosure to a surety.
Held: The duty of disclosure extends to any unusual feature surrounding the transaction between the creditor and the surety (a) of which the creditor is or ought to be aware, . .
ApprovedGovernor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .

Cited by:
CitedNational Westminster Bank Plc v Amin and Another HL 28-Feb-2002
The respondents resisted an application for possession of their property by the bank. They claimed undue influence, and that because of an inability to speak English, the charge should be avoided. They appealed an order striking out their defence . .
CitedU v Centre for Reproductive Medicine CA 24-Apr-2002
The claimant appealed a refusal to grant an order preventing the destruction of the sperm of her late husband held by the respondent fertility clinic. The clinic had persuaded her husband to sign a form of consent for this purpose. The claimant said . .
CitedHammond v Osborn and Another CA 27-Jun-2002
Where there was any relationship of trust and confidence between parties, and a substantial gift was made by the one in whom that trust was placed, there would be a presumption of undue influence. Undue influence is a matter of public policy. In a . .
CitedPadgham and another v Rochelle and another ChD 1-Aug-2002
The testator occupied farmland and buildings. He was helped in maintaining the farm by his son, but gave the land to his grandchildren by his will. The son claimed to have been granted an informal written agricultural tenancy by his father before . .
CitedFranklyn Dailey v Harriet Dailey PC 2-Oct-2003
PC (British Virgin Islands) The husband and wife had developed a business together. Transfers between the parties had taken place and there were suspicions about misappropriation of money.
Held: The . .
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedUCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
CitedSandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
CitedNiersmans v Pesticcio CA 1-Apr-2004
A house have been given by a man with learning difficulties to her sister. The case appealed an order that undue influence had applied.
Held: The gift failed despite the attempt at independent legal advice. The court reviewed the law of undue . .
CitedVale v Armstrong, Armstrong ChD 21-May-2004
The claimant sought to set aside a transfer of his house to the defendants made at an undervalue and under an enduring power of attorney, who had charged it to raise money for their business. He had received independent advice.
Held: The . .
CitedYorkshire Bank Plc v Tinsley CA 25-Jun-2004
The defendant’s husband had charged the matrimonial home on several occasions to the claimant. It was found that the first charges were affected by undue influence and could not be enforced. The defendant argued that the last charge which replaced . .
CitedAnthony Papouis v Valerie Gibson-West ChD 4-Mar-2004
The deceased had purchased her flat using the discount available as a tenant, and money contributed by the defendant. A deed of trust had been executed, which the claimant now asserted had been obtained by undue influence.
Held: The principles . .
CitedR v Her Majesty’s Attorney-General for England and Wales PC 17-Mar-2003
PC (From Court of Appeal of New Zealand) T had been a member of the British SAS. Other members had written books and the Army sought to impose confidentiality contracts or to impose a return to their unit. R . .
CitedDaniel v Drew CA 6-May-2005
The Aunt had succeeded in her claim that her retirement from a family trust of a farm had been procured by the undue influence of her nephew. The nephew now appealed. She had assigned her interest to her son, who then fell into disagreement about . .
CitedRandall v Randall ChD 30-Jul-2004
The executor sought to set aside gifts made by the deceased, an elderly aunt before her death to his brother, alleging undue influence.
Held: The recipient had acted falsely in failing to declare overpayments of benefits. The deceased had been . .
CitedBowser v Caley and others ChD 16-Mar-2006
The claimant alleged that the transfer by him of his land to his sister and her husband had been obtained by any of several wrongful means and should be set aside.
Held: The allegations of undue influence failed. The claimant did not establish . .
CitedHalpern and Another v Halpern and others ComC 4-Jul-2006
The court considered whether a party can avoid a contract procured by duress in circumstances where he cannot offer the other party substantial restitutio in integrum.
Held: Unless the claimant could offer counter-restitution, the remedy of . .
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedHalpern and others v Halpern and Another (No 2) CA 3-Apr-2007
The parties had settled by compromise a dispute about the implementation of a will before the Beth Din. It was now said that the compromise agreement had been entered into under duress and was unenforceable. The defendant said that rescission could . .
CitedDe Wind v Wedge ChD 19-Mar-2008
Brother and sister contested the devolution of their mother’s house. The sister had fallen into debt and been given much financial assistance by other members of the family. The brother said that to rebalance that, the mother had given the house to . .
CitedGoodchild v Branbury and others CA 15-Dec-2006
Application was made to set aside transfers of land for undue influence, and that the second transfere was aware of the deficiency in the first.
Held: The appeal suceeded, and the transfers were set aside. Chadwick LJ said: ‘A gift which is . .
CitedGreene King Plc v Stanley and others CA 30-Nov-2001
The claimant challenged an order that the two defendant chargors were discharged from liability to the claimants under their individual voluntary arrangement and on the basis that it had been entered under undue influence. . .
CitedHewett v First Plus Financial Group Plc CA 24-Mar-2010
The appellant appealed against a mortgage possession order, saying that she had been misled into signing the charge by a non-disclosure by her husband of an extra-marital affair he was conducting. The bank had not met the standards set in Etridge, . .
CitedLink Lending Ltd v Bustard CA 23-Apr-2010
The respondent had been detained in a secure mental unit for a year. In that time her home was charged to the appellant. She asserted that she had been a person in actual occupation. The chargee now appealed against a finding that the respondent had . .
CitedBrown v Stephenson ChD 23-Aug-2013
The claimant sought to have set aside transfers and declarations of trust made by her in the defendant’s favour, saying that they had been given under his undue influence taking advantage of her dyslexia, and by bullying.
Held: The claims of . .
CitedDay v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .

Lists of cited by and citing cases may be incomplete.

Banking, Legal Professions, Undue Influence, Equity

Leading Case

Updated: 15 January 2022; Ref: scu.166567

Commission v Poland C-791/19: ECJ 8 Apr 2020

(Order) Interim application – Article 279 TFEU – Request for interim measures – Article 19, paragraph 1, second subparagraph, TEU – Independence of the Izba Dyscyplinarna (disciplinary chamber) of the Sad Najwyzszy (Supreme Court, Poland)

C-791/19, [2020] EUECJ C-791/19_CO, ECLI: EU: C: 2020: 277, [2021] EUECJ C-791/19
Bailii, Bailii
European

Legal Professions

Updated: 14 January 2022; Ref: scu.654971

Blacker (The Lord Harley) v The Law Society: QBD 27 Apr 2016

The claimant solicitor sought the release to him of six closed complaints files. The court now heard preliminary applications.
Held: The claim was struck out.

Fraser J
[2016] EWHC 947 (QB)
Bailii
Freedom of Information Act 2000
England and Wales

Legal Professions, Litigation Practice, Information

Updated: 14 January 2022; Ref: scu.563184

Dubai Aluminium Company Limited v Salaam and Others: HL 5 Dec 2002

Partners Liable for Dishonest Act of Solicitor

A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to the activities which a solicitor would normally undertake, that in favour of third parties, it must be assumed that he acted in the ordinary course of his business, and the partners were vicariously liable. It had been said that the acts were equitable wrongs, and did not fall within the compass of common law torts or deceit, but nothing in the 1890 Act restricted the applicability of the section to exclude these acts. Explicit authorisation by each partner of the acts of other partners could not be expected or required for vicarious liability to be established. ‘Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.’
Lord Millett said: ‘Vicarious liability is a loss distribution device based on grounds of social and economic policy. Its rationale limits the employer’s liability to conduct occurring in the course of the employee’s employment. ‘The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on . . .the ultimate question is whether or not it is just that the loss resulting from the servant’s acts should be considered as one of the normal risks to be borne by the business in which the servant is employed.’
He also said that it is preferable to substitute dog Latin for bastard French.
Lord Nicholls said that: ‘This ‘close connection’ test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged. It provides no clear assistance on when, to use Professor Fleming’s phraseology, an incident is to be regarded as sufficiently work-related, as distinct from personal’ . . This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable.’
and ‘The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.’
Lord Millett explained the structure and effect of section 9 of the 1980 Act: ‘Section 9 is not concerned with the liability of the firm at all but with the liability of the individual partners. It provides that every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he was a partner. Section 12 makes every partner jointly and severally liable for loss for which the firm was liable under sections 10 and 11 while he was a partner in the firm. Where section 10 makes the firm vicariously liable for loss caused by a partner’s wrongdoing, therefore, section 12 makes the liability the joint and several liability of the individual partners. Sections 11 and 13 are not concerned with wrongdoing or with vicarious liability but with the original liability of the firm to account for receipts. . . Section 11 deals with money which is properly received by the firm in the ordinary course of its business and is afterwards misappropriated by one of the partners. The firm is not vicariously liable for the misappropriation; it is liable to account for the money it received, and cannot plead the partner’s wrongdoing as an excuse for its failure to do so. Section 13 deals with money which is misappropriated by a trustee who happens to be a partner and who in breach of trust or fiduciary duty afterwards pays it to his firm or otherwise improperly employs it in the partnership business. The innocent partners are not vicariously liable for the misappropriation, which will have occurred outside the ordinary course of the firm’s business. But they are liable to restore the money if the requirements of the general law of knowing receipt are satisfied.’

Slynn of Hadley, Nicholls of Birkenhead, Hutton, Hobhouse of Woodborough, and Millett LL
Times 06-Dec-2002, [2003] 1 Lloyd’s Rep 65, [2002] UKHL 48, [2002] 3 WLR 1913, [2003] 2 AC 366, [2003] 1 All ER 97, [2003] 2 All ER (Comm) 451, [2003] 1 LLR 65, [2003] 1 BCLC 32, [2003] IRLR 608, [2003] 1 CLC 1020, [2003] WTLR 163
House of Lords, Bailii
Civil Liability (Contributions) Act 1978 1(1), Partnership Act 1890 10, Limitation act 1980 9 21
England and Wales
Citing:
Appeal fromDubai Aluminium Company Limited v Salaam and others CA 7-Apr-2000
The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who . .
CitedAttorney General v Stanyforth 1721
Co-partners are liable for penalties incurred, for instance, for breach of revenue laws. . .
CitedBarnes v Addy 1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .
CitedMorris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .
CitedBarwick v English Joint Stock Bank 1867
When considering the vicarious liability of a master for the acts of his servant, no sensible distinction could be drawn between the case of fraud and any other wrong. The general rule was that: ‘the master is answerable for every such wrong of the . .
CitedHamlyn v John Houston and Co CA 1903
One side of the defendant’s business as grain merchants was to obtain, by lawful means, information about its competitors’ activities. Houston, a partner in the firm, obtained confidential information on the plaintiff Hamlyn’s business by bribing . .
CitedLloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
CitedPlumb v Cobden Flour Mills Co Ltd HL 1914
In looking at restrictions by an employer to limit his vicarious liability, the court must distinguish between prohibitions which limit the sphere of employment and those which only deal with conduct within the sphere of employment:’ ‘there are . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedBugge v Brown 1919
When an employee acts ‘so as to be in effect a stranger in relation to his employer with respect to the act he has committed’, his employer does not have vicarious liability for his acts. . .
CitedLister and others v Hesley Hall Ltd CA 7-Oct-1999
Where a residential worker at a children’s home committed sexual abuse on children within his care, the company running the home were not vicariously liable for the acts themselves, but also were not responsible where the worker did not report his . .
CitedKooragang Investments Pty Ltd v Richardson and Wrench Ltd PC 27-Jul-1981
(New South Wales) An employee of the defendants was authorised to carry out valuations, but he negligently carried out an unauthorised private valuation.
Held: In doing so he was not acting as an employee of the defendant company. The company . .
CitedGenerale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
CitedMara v Browne HL 1896
In a marriage settlement, the first defendant, a solicitor, advised the persons who were acting as trustees, though not yet formally appointed as such. He suggested a series improper of investments for the trust funds. The money was to be lent on . .
CitedRoyal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
DoubtedIn re Bell’s Indenture 1980
A firm of solicitors was held not to be vicariously liable for an act of dishonest assistance made by a partner. . .
CitedFisher v CHT Ltd (No 2) 1966
Where more than one defendant is liable in damages, the court will make allowance for the insolvency of one when ordering a contribution from the others. . .
CitedK v P ChD 1993
The court considered when orders might be made under the Act for a contribution to be made to damages payable. Ferris J said: ‘In my judgment the ex turpi causa defence is not available as an answer to a claim for contribution under the Act of 1978. . .
CitedBrydges v Branfill 1842
A tenant for life of settled land set out on an elaborate fraud aiming for the capital. It required first a private Act of Parliament to enable the estate to be sold under the direction of the court and the proceeds paid into court and invested in . .
CitedSt Aubyn v Smart 1868
. .
CitedAshworth v Stanwix QBD 1860
Innocent partners are vicariously liable for the torts of their co-partner. . .
CitedMeekins v Henson 1964
The section in the 1890 Act produced ‘a necessary equation of a partnership firm with employers for this purpose [vicarious liability]’. Vicarious liability is a ‘secondary liability as the liability of one person for the act of another who is . .
CitedRe Fryer 1857
The acts of a solicitor as an express trustee are not within the scope of the ordinary business of a solicitor. . .
CitedTaylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .
CitedClarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
CitedNavarro v Moregrand Ltd 1951
The vicarious liability of an employer does not depend upon the employee’s authority to do the particular act which constitutes the wrong. It is sufficient if the employee is authorised to do acts of the kind in question. . .
CitedParagon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
CitedSelangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
CitedCoulthard v Disco Mix Club Ltd CA 2000
The expression ‘constructive trustee’ creates a trap.This ‘type of trust is merely the creation by the court . . to meet the wrongdoing alleged: there is no real trust and usually no chance of a proprietary remedy.’ . .
At First InstanceDubai Aluminium Company Ltd v Salaam and Others QBD 17-Jul-1998
A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later . .
See AlsoDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:
CitedNIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
CitedMattis v Pollock (T/A Flamingo’s Nightclub) CA 1-Jul-2003
A nightclub employed an unlicensed bouncer/doorman. After an altercation in and outside the club, he went home, and returned armed and seriously assaulted the customer.
Held: The club had vicarious liability for his acts. There was a . .
CitedJ J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
CitedBakhitar v Keosghgerian and Others QBD 3-Dec-2003
Employer liable for employee with criminal record
An employee of a firm of solicitors took pawned jewellery to show to a third party possible purchaser. The jewels were misappropriated.
Held: The person involved, who was known to have a criminal record for fraud was for all relevant purposes . .
CitedCochlan v Ruberella Limited CA 21-Jul-2003
The issue arose as to the liability of a firm for the acts of a partner who had made statements to the claimant regarding the rate of return on a proposed investment amounting to some 6,000 per cent per annum.
Held: The following propositions . .
CitedThe Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
CitedBernard v The Attorney General of Jamaica PC 7-Oct-2004
PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
CitedBrown v Robinson and Sentry PC 14-Dec-2004
(Jamaica) The deceased claimant had been shot by a sentry employed by the respondent company. His estate appealed a finding that the sentry was not acting in the course of his employment.
Held: Older authorities had now been replaced by recent . .
CitedHawley v Luminar Leisure Ltd and others CA 24-Jan-2006
The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
CitedMajrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
CitedSt Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
CitedCharter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
CitedGravil v Carroll and Another CA 18-Jun-2008
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed from a finding that they were not vicariously liable. The defendant player’s . .
CitedMaga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
CitedWeddall v Barchester Healthcare Ltd CA 24-Jan-2012
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . .
CitedReynolds v Strutt and Parker LLP ChD 15-Jul-2011
The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .
CitedThe Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
CitedWilliams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
CitedGraham v Commercial Bodyworks Ltd CA 5-Feb-2015
The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .
CitedJackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
CitedCox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
CitedMohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
CitedDixon Coles and Gill (A Former Firm) v Baines, Bishop of Leeds and Another CA 20-Jul-2021
Innocent Co-Trustee not Liable for Default
Proceedings were brought by former clients against their former solicitors. One of the partners stole money held in the firm’s client account on behalf of the claimants. The other two partners were entirely innocent of, and in no way implicated in, . .
CitedChell v Tarmac Cement and Lime Ltd CA 12-Jan-2022
Explosive pellet not part of employee’s role.
The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant . .

Lists of cited by and citing cases may be incomplete.

Company, Vicarious Liability, Legal Professions, Limitation

Leading Case

Updated: 14 January 2022; Ref: scu.178327

Cockburn v Edwards: CA 2 Aug 1881

A solicitor advanced money to his client on a second mortgage, in which was inserted a power of sale exerciseable at any time without the usual proviso requiring that notice should be given, or some interest should be three months in arrear; and it was not shewn that he explained to the client that the power was not in the usual form. The solicitor afterwards took possession, and for several years received the rents, which, together with some payments made by the mortgagor, exceeded the interest on both mortgages. He then sold the property without notice. Held (affirming the decision of Fry, J), in an action by the mortgagor against the solicitor, that the omission from the power of sale of the usual qualifying clause was a breach of duty, and that the mortgagee was liable in damages as for an improper sale, unless it could be shewn that some interest was three months in arrear ; and whether the absence of explanation did not make it improper even if there was interest in arrear, quaere.
Held, that the fact that the mortgagee had received rents to an amount more than sufficient to pay the interest would not by itself prove that there was no interest in arrear if no appropriation was shewn to have been made.
The dictum in Brocklehurst v. Jessop overruled.
But held, that, as in an account sent by the mortgagee to the mortgagor the interest was treated as satisfied up to a certain day out of the rents, there was evidence of an arrangement that the rents should be applied in discharge of interest, and that, as the final account shewed that if the rents were thus appropriated there would be no interest in arrear at the time of sale, the sale was improper.
Whether a mortgagee in possession having a balance of rents in hand more than sufficient for payment of the interest and all expenses he has incurred can be heard to say that interest is in arrear so as to justify a sale
because no account has been rendered and no appropriation made, qnaere.
Held (reversing the decision of Fry, J), that the difference between party
and party costs and solicitor and client costs of the present action could not
be given to the Plaintiff by way of damages.

Jessel MR
[1881] UKLawRpCh 203, (1881) 18 Ch D 449, 50 LJCh 181
England and Wales
Cited by:
CitedRoss v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .

Lists of cited by and citing cases may be incomplete.

Negligence, Legal Professions, Damages

Updated: 13 January 2022; Ref: scu.654667

Midland Bank Plc v Cameron, Thom, Peterkin and Duncans: SCS 1988

(Outer House) The pursuer had made a loan to X in assumed reliance on a statement by the defenders, who were X’s solicitors, about the extent of his assets. The statement was materially inaccurate. But the pursuer’s claim against the defenders failed. Having referred to the Hedley Byrne case as the proper starting point and to the Allied Finance case, the Lord Ordinary observed: ‘In my opinion four factors are relevant to a determination of the question whether in a particular case a solicitor, while acting for a client, also owes a duty of care to a third party: (1) the solicitor must assume responsibility for the advice or information furnished to the third party; (2) the solicitor must let it be known to the third party expressly or impliedly that he claims, by reason of his calling, to have the requisite skill or knowledge to give the advice or furnish the information; (3) the third party must have relied upon that advice or information as matter for which the solicitor has assumed personal responsibility; and (4) the solicitor must have been aware that the third party was likely so to rely.’
The Lord Ordinary concluded that the pursuer was able to establish none of the first three of the four factors.

Lord Ordinary, Lord Jauncey
1988 SLT 611
Scotland
Cited by:
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Negligence, Legal Professions

Updated: 13 January 2022; Ref: scu.654668

Anglo Austrian AAB and Belegging-Maatschappij ‘Far-East’ v ECB: ECFI 15 Apr 2020

(Order) Interim application – Article 279 TFEU – Request for interim measures – Article 19, paragraph 1, second subparagraph, TEU – Independence of the Izba Dyscyplinarna (disciplinary chamber) of the Sad Najwyzszy (Supreme Court, Poland)

T-797/19, [2020] EUECJ T-797/19_CO, ECLI: EU: T: 2020
Bailii
European

Legal Professions

Updated: 13 January 2022; Ref: scu.654959

Massar v DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV: ECJ 7 Apr 2016

ECJ (Judgment) Reference for a preliminary ruling – Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Free choice of lawyer for an insured person – Inquiry or proceedings – Definition – Authorisation granted by a public body to an employer for the purpose of terminating an employment contract

C-460/14, [2016] EUECJ C-460/14, ECLI:EU:C:2016:216
Bailii
Directive 87/344/EEC

European, Legal Professions

Updated: 13 January 2022; Ref: scu.561987

Buyuktipi v Achmea Schadeverzekeringen NV, Stichting Achmea Rechtsbijstand: ECJ 7 Apr 2016

ECJ (Judgment) Reference for a preliminary ruling – Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Free choice of lawyer for an insured person – Inquiry or proceedings – Definition – Objection to refusal of authorisation for care)

C-5/15, [2016] EUECJ C-5/15, ECLI:EU:C:2016:218,
Bailii
Directive 87/344/EEC
European

Legal Professions

Updated: 13 January 2022; Ref: scu.561975

Allied Finance and Investments Ltd v Haddow and Co: 1983

(New Zealand Court of Appeal) The claimant had agreed to make a loan to X and to take security for it on a yacht. The defendants, who were X’s solicitors, certified to the claimant that the instrument of security executed by X in relation to the yacht was binding on him. In fact, as the defendants knew, it was not binding on him because he was not, and was not intended to become, the owner of the yacht.
Held: The fact that a certificate is sent by a solicitor to a lender confirming the giving of independent advice and that guarantors had signed the guarantee voluntarily may place a duty of care on the solicitor in relation to the lender.
Cooke J said: ‘the relationship between two solicitors acting for their respective clients does not normally of itself impose a duty of care on one solicitor to the client of the other. Normally the relationship is not sufficiently proximate. Each solicitor is entitled to expect that the other party will look to his own solicitor for advice and protection.’
Richardson J said: ‘This is not the ordinary case of two solicitors simply acting for different parties in a commercial transaction. The special feature attracting the prima facie duty of care is the giving of a certificate in circumstances where the [defendants] must have known it was likely to be relied on by the [claimant].’

Cooke J, Richardson J
[1983] NZLR 22
England and Wales
Cited by:
CitedConnolly-Martin v Davis CA 27-May-1999
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 . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.424848

Dean v Allin and Watts (a Firm): CA 23 May 2001

An unsophisticated lender running the business of a car mechanic wanted to lend money to borrowers on the security of real property owned by an associate of the borrowers. The borrowers instructed the defendant solicitors to give effect to this transaction. He was aware that the lender was not represented. The deeds were later purported to be charged by way of deposit only, which was ineffective at law.
Held: Though a solicitor is not normally liable to third parties who were not his clients, he could acquire such duties. Here, it was fair just and reasonable to impose such a duty. He should have known that the third party was relying upon him to set an effective security in place, and was liable in negligence when he failed to do so.

Lord Justice Robert Walker, Lord Justice Sedley, Mr Justice Lightman
Times 28-Jun-2001, [2001] 2 Lloyds Rep 249, [2001] EWCA Civ 758, [2001] 2 Lloyd’s Report 249, [2001] PNLR 39, [2001] All ER (D) 288
Bailii
England and Wales
Citing:
CitedClarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .

Cited by:
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.160049

Al-Kandari v J R Brown and Co: CA 1988

A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the children.
Held: The court should be prepared to find a duty of care on the part of someone who undertook to act in a particular capacity to the plaintiff and to the court as custodian of the plaintiff’s children’s passports, notwithstanding that the solicitor also owed a conflicting professional duty of care to his client. He had accepted a duty to act as an independent custodian of the passport subject to the direction of the court and the joint directions of the parties, and in that capacity owed the opposing party a duty to take reasonable care to keep the passport in his possession (save as the opposing party might otherwise agree) and to inform it if for any reason it ceases to be in his possession.

Donaldson L MR, Dillon LJ, Bingham LJ
[1988] 1 QB 665, [1988] EWCA Civ 13, [1988] 1 All ER 833
Bailii
England and Wales
Citing:
CitedMyers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .

Cited by:
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedConnolly-Martin v Davis CA 27-May-1999
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 . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 12 January 2022; Ref: scu.192620

Gran Gelato Ltd v Richcliff (Group) Ltd: ChD 1992

The claimant wished to purchase an underlease from the first defendant. The claimant’s solicitors inquired of the second defendants, a firm of solicitors acting for the first defendant, whether any provisions in the headlease might affect the length of the underlease. The negative answer of the second defendants was a misrepresentation, which, following its purchase of the underlease, caused loss to the claimant.
Held: The claimant had a valid claim against the first defendant but that the second defendants, the solicitors, had themselves owed no duty of care to it.
Only in special cases, such as the Allied Finance case, would a solicitor owe a duty of care to the opposite party and that there was nothing special about the case before him.
The word ‘right’ may have a wider meaning than an accrued right.

Sir Donald Nicholls V-C
Gazette 13-May-1992, [1992] Ch 560, [1992] 1 All ER 865
England and Wales
Cited by:
CitedDP Mann and others v Coutts and Co ComC 16-Sep-2003
The claimants were involved in litigation, They took certain steps on the understanding that the respondents had had deposited with them substantial sums in accounts under binding authorities. The bank had written a letter upon which they claim they . .
CitedSykes and Another v Taylor-Rose and Another CA 27-Feb-2004
The appellants purchased a property from the respondents. The house had been the site of a partiularly horrendous murder in 1980, but the respondents did not disclose the fact.
Held: The doctrine of caveat emptor still had application. As . .
CitedFirst National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
CitedSteel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.186285

Fitzpatrick and Others v The Commissioner of Police of The Metropolis: QBD 11 Jan 2012

The claimants, two solicitors and their employer firm sought damages alleging trespass and malicious procurement by police officers in obtaining and executing search warrants against the firm in 2007 when they were investigating suspected offences of money laundering. Clients of the firm had been arrested and convicted of drug dealing related offences. The firm was to be asked to act in a conveyancing matter. The solicitors told the police that they would inform the client of the approach, and if the client wished to proceed they would either seek consent to the transaction from the Serious Organised Crime Agency (SOCA), or, if the client objected, they would withdraw. The police officer said that the client should not be informed of their interest. Receiving instructions, the solicitor acted as requested, obtaining the SOCA consent, and notifying the police officer but not the client. Fuether notifications and conversations were held, and the client was coming under threat of violence. The officers sought arrest warrants against the solicitors, an arrest was made and search warrants executed. After many months on bail no action had been taken against the the claimants.
Held: All the claims failed. The court set out what must be established to justify the arrests – a genuine supsicion, a basis for that suspicion, sufficicient to a reasonable man, a genuine belief that an arrest was necessary, and a basis for that belief sufficient for a reasonable man in possession of the facts and the law.
Though there had been errors by the police there was intelligence to support the warrants, and the officer’s belief was genuine.
Here the first claimant had attended a former client at prison without informing his current representatives, and had made less than full disclosures to SOCA, even though acting in accordance with her understanding of the Guidance to the profession.
The officer’s belief was genuine and would have appeared proper to the reasonable man.
As to the arrests the officere belief in the nececssity fore the arrests was genuine and his actions would appear necessray to the reasonable man.

Globe J
[2012] EWHC 12 (QB)
Bailii
Criminal Justice and Police Act 2001 50, Constables Protection Act 1750 6, Criminal Justice and Police Act 2001 50 52 59
England and Wales
Citing:
CitedShields v Merseyside Police CA 17-Nov-2010
The claimant appealed against rejection of her claim for assault and false imprisonment. The officer arresting her wrongly believed that she had already been arrested, and it was said that he could not have gone through the steps necessary for an . .
CitedBritish Basic Slag Limited v Registrar of Restrictive Trading Agreements CA 1963
The court considered the meaning of section 6 of the 1956 Act. It was argued that the trial Judge had erred in holding that an arrangement within the meaning of the expression exists when, by communications between the parties, ‘each has . .
CitedAssociated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .
CitedHussien v Chong Fook Kam PC 7-Oct-1969
(Malaysia) The Board considered the propriety of an arrest by the police. Lord Devlin said: ‘An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when . .
CitedHolgate-Mohammed v Duke HL 1984
A police officer had purported to arrest the plaintiff under the 1967 Act, suspecting her of theft. After interview she was released several hours later without charge. She sought damages alleging wrongful arrest. The judge had found that he had . .
CitedHayes v Merseyside Police CA 29-Jul-2011
The claimant had been arrested after a complaint of harassment. The officer then contacted the complainant who then withdrew his complaint. The officer went to visit the complainant to discuss it further. On his return the claimant was released from . .
CitedO’Hara v Chief Constable of the Royal Ulster Constabulary HL 21-Nov-1996
Second Hand Knowledge Supports Resaobnable Belief
The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded . .
CitedCumming and others v Chief Constable of Northumbria Police CA 17-Dec-2003
The six claimants sought damages for wrongful arrest and false imprisonment. Each had been arrested on an officer’s suspicion. They operated CCTV equipment, and it appeared that tapes showing the commission of an offence had been tampered with. Each . .
CitedRegina v Lewes Crown Court ex parte Hill 1991
Bingham LJ said: ‘The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a . .
CitedRegina v Chief Constable for Warwickshire and Others Ex Parte Fitzpatrick and Others QBD 1-Oct-1997
Judicial Review is not the appropriate way to challenge the excessive nature of a search warrant issues by magistrates. A private law remedy is better. Jowitt J said: ‘Judicial review is not a fact finding exercise and it is an extremely . .
CitedGibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
CitedRegina v Chesterfield Justices and Others, Ex Parte Bramley QBD 10-Nov-1999
When police officers executed a search warrant, it was not proper to remove articles at large, in order later to sift through them, and then to return material not covered by the warrant. There is no absolute prohibition against removing articles . .
CitedKeegan and Others v Chief Constable of Merseyside CA 3-Jul-2003
The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
Held: The tort of malicious procurement of a search warrant required it to be established . .
CitedBell v The Chief Constable of Greater Manchester Police CA 19-Jul-2005
The claimant had sued over the way he was treated by the respondent in a fraud investigation. The court had dismissed his claims for wrongful arrest and false imprisonment. A prosecution had been commenced but dropped. The judge had held the arrest . .
CitedEnergy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court Admn 22-Jul-2005
The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. . .
CitedKeegan v United Kingdom ECHR 18-Jul-2006
The claimant had been the subject of a raid by armed police on his home. The raid was a mistake. He complained that the English legal system, in rejecting his claim had not allowed him to assert that the police action had been disproportionate.
CitedBates and Another v Chief Constable of the Avon and Somerset Police and Another Admn 8-May-2009
The claimant had had computers seized by the defendant under searches despite his assertion that they contained legally privileged material. The claimant had been discredited as an expert witness in cases relating to the possession of indecent . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Police, Legal Professions, Human Rights

Updated: 12 January 2022; Ref: scu.450312

Legal Services Commission v Henthorn: QBD 4 Feb 2011

The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the claims were defeated by limitation and laches and were an abuse of process because of long delay by the claimant.
Held: The case of Rasool was on point and settled it that the relation between the lawyer and his client under the legal aid system remained the same despite the funding arrangement under legal aid. Under that arrangement the claimant could have begun its claim, time ran from the date that the work under the certificate was actually completed and all but two of the claims were time barred.
The claimant also claimed in restitution. However, ‘the exclusive remedy available to the LSC is that provided for by regulation 100(8)’ and no restitutionary claim could arise on the basis of the claims pleaded, and if it were available it would now be defeated by laches and limitation. Similarly the claimant had been unreasonable or unfair in its use of its powers in this way. The claim for abuse of process succeeded.
‘the Regulations gave the LSC full powers to obtain all necessary information and also provided strict time limits for the assessment process. What regrettably occurred throughout the 1990s was a culture of acquiescence in which the LSC did not seek regular reports on stale cases, did not exercise its powers of discharge when cases went to sleep and were not reported on, did not ensure that bills that were lodged for taxation outside the three month period permitted by the RSC were subject to penalties so as to discourage such delays and did not require solicitors who delayed in lodging bills of costs to lodge them under threat of discharge and consequent non-payment. In any event, it is not possible to identify the ingredients of the relevant cause of action by reference to the relaxed way in which the regulations were implemented.’

Anthony Thornton QC J
[2010] EWHC 3329 (QB)
Bailii
Civil Legal Aid (General) Regulations 1989, Limitation Act 1980
England and Wales
Citing:
CitedCoburn v Colledge CA 1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
CitedLondon Borough of Hillingdon v ARC Limited CA 7-Apr-1998
The company sought compensation for land taken under compulsory purchase powers by the defendants several years before. It now appealed against the defeat of its claim as time-barred.
Held: The appeal failed. The limitation period for a claim . .
CitedLegal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
CitedLeivers v Barber Walker and Co Ltd CA 1943
Goddard LJ (dissenting) said that section 2(1)(d) of the 1939 Act changed the former position altogether, leaving the provision for limitation as regards specialties to apply only to deeds and other documents under seal (or to claims other than for . .
CitedCentral Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
CitedThe Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
CitedChild Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
CitedDoherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
CitedBarber v London Borough of Croydon CA 11-Feb-2010
The tenant who suffered learning and behavioural difficulties appealed against an order for possession of his council flat. He had become aggressive with the caretaker. The council sought possession, and he defended the claim saying that the council . .

Cited by:
Appeal fromLegal Services Commission v Henthorn CA 30-Nov-2011
The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity, Limitation, Legal Aid

Updated: 12 January 2022; Ref: scu.428706

Tomson v Judge: 25 Jun 1855

A, who was proved to have entertained feelings of peculiar personal regard for B, his solicitor, conveyed to him certain rea1 estate by a deed, on the face of it a purchase deed the consideration was andpound;1000, the real value upwards of andpound;1200. B. produced evidence to shew that no money passed ; that the transaction was never intended to be a purchase, but a gift for his services and from affection. B. had himself prepared the deed, and A. had no other advice. Held, that the rule is absolute that a solicitor cannot sustain a gift from his client made pending the relation of solicitor and client; and the deed was set aside.
Kindersley V-C said the solicitor must show that: ‘the transaction was perfectly fair, that the client knew what he was doing, and that a fair price was given’.

Kindersley VC
[1855] EngR 631, (1855) 3 Drew 306, (1855) 61 ER 920
Commonlii
Cited by:
CitedWright v Carter CA 1903
The plaintiff sought to set aside a gift that he had made to his solicitor asserting undue influence.
Vaughan Williams LJ said: ‘. . whenever you have these fiduciary relations (and in the present case we have to deal with the particular . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Undue Influence

Updated: 10 January 2022; Ref: scu.292553

Abbey National Plc v Frost (Formerly Practising As Harold Weston Frost and Co) and Solicitors’ Indemnity Fund Limited Intervenor: CA 4 Feb 1999

[1999] EWCA Civ 707, [1999] 1 WLR 1080
Bailii
England and Wales
Cited by:
CitedCameron v Liverpool Victoria Insurance Co Ltd SC 20-Feb-2019
The Court was asked in what circumstances is it permissible to sue an unnamed defendant? The respondent was injured when her car collided with another. The care was insured but by a driver giving a false name. The car owner refused to identify him. . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 10 January 2022; Ref: scu.145622

McKenzie, Regina (on The Application of) v Director of The Serious Fraud Office: Admn 27 Jan 2016

Rolled up application for permission to apply for judicial review of whether the procedure set out in the Operational Handbook of the Serious Fraud Office for dealing with material potentially subject to legal professional privilege embedded in electronic devices that have been seized using statutory powers, or produced in response to a notice, is lawful.
Held: The claim failed. The defendant’s use of in-house experts to isolate material potentially subject to Legal Professional Privilege was lawful.

Burnett LJ, Irwin J
[2016] EWHC 102 (Admin), [2016] WLR(D) 42
Bailii, WLRD
England and Wales

Criminal Practice, Legal Professions

Updated: 09 January 2022; Ref: scu.559357

In re a Company (No 0012209 of 1991): ChD 1992

It is an abuse of the process of the court to make a statutory demand or present a winding-up petition based on a claim to which there is a triable defence. Where a statutory demand is made but disputed on reasonable grounds, the creditor may find himself liable to indemnity costs on its dismissal.
Hoffmann J said: ‘It does seem to me that a tendency has developed, possibly since the decision in Cornhill Insurance plc v Improvement Services Ltd [1986] BCLC 26, [1986] 1 WLR 114, to present petitions against solvent companies as a way of putting pressure upon them to make payments of money which is bona fide disputed rather than to invoke the procedures which the rules provide for summary judgment. I do not for a moment wish to detract from anything which was said in the Cornhill Insurance case, which indeed followed earlier authority, to the effect that a refusal to pay an indisputable debt is evidence from which the inference may be drawn that the debtor is unable to pay. It was, however, a somewhat unusual case in which it was quite clear that the company in question had no grounds at all for its refusal. Equally it seems to me that if the court comes to the conclusion that a solvent company is not putting forward any defence in good faith and is merely seeking to take for itself credit which it is not allowed under the contract, then the court would not be inclined to re-strain presentation of the petition. But, if, as in this case, it appears that the defence has a prospect of success and the company is solvent, then I think that the court should give the company the benefit of the doubt and not do anything which would encourage the use of the Companies Court as an alternative to the RSC Ord 14 procedure.’

Hoffmann J
[1992] 2 All ER 797, [1992] 1 WLR 351, [1992] BCLC 865
England and Wales
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedBNY Corporate Trustee Services Ltd and Others v Neuberger SC 9-May-2013
Potential Insolvency effect under guarantee
The various parties had entered into complex and substantial financial arrangements incorporating guarantees. The guarantees were conditional upon the guaranteed party being solvent. The parties disputed whether a party which would otherwise be . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Company, Insolvency

Updated: 09 January 2022; Ref: scu.278997

Rees and Another v Gateley Wareing (A Firm) and Another: ChD 3 Dec 2013

Various defined issues in relation to a contingency fee agreement entered into by a firm of solicitors with their clients. In summary, the issues relate to the interpretation and application of the agreement and its enforceability, having regard to section 58 of the Courts and Legal Services Act 1990, Rule 8 of the Solicitors’ Practice Rules 1990 and the common law rules as to champerty.

Mr Justice Morgan
[2013] EWHC 3708 (Ch), [2014] 2 Costs LO 210, [2013] 50 EG 103
Bailii
Courts and Legal Services Act 1990 58
England and Wales

Legal Professions, Costs

Updated: 09 January 2022; Ref: scu.518583

Watson and Another v Jones and Another: CA 21 Jul 2015

Application by the defendants for permission to appeal against a judgment and consequential order finding and declaring that a settlement agreement was not binding upon the claimants because it was entered into by a solicitor, Mr Murtagh, without their express, implied or apparent authority.
Held: Leave refused.

Kitchin LJ
[2015] EWCA Civ 1093
Bailii
England and Wales

Legal Professions

Updated: 07 January 2022; Ref: scu.556226

Barton v Wright Hassall Solicitors Llp: CA 16 Jun 2015

Application for leave to appeal

Longmore LJ
[2015] EWCA Civ 757
Bailii
England and Wales
Cited by:
LeaveBarton v Wright Hassall Llp CA 23-Mar-2016
Application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service. . .
Application for LeaveBarton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 05 January 2022; Ref: scu.553837