Neill v Crown Prosecution Service: Admn 2 Dec 1996

Appeal against wasted costs order made against solicitor. He had information suggesting that an essential prosecution witness might not appear, but she did.
Held: The solicitor had acted correctly: ‘The function of committal is to see if there is a prima facie case. As a result of that there would be no prima facie case.’ and ‘the result was unsuccessful in the sense that the girl did come to court and did express a willingness to give evidence. It does not follow, however, that the solicitor acted improperly or unreasonably. In the same way it does not matter if other solicitors night have decided to take the cautious course of getting in touch with the police or the Crown Prosecution Service and suggesting that the girl was thinking of not giving evidence. I am happy to apply the test which seems to me the right one as to whether or not his conduct permits of a reasonable explanation. I think that it does and he has provided that explanation. I would therefore allow the appeal and quash the wasted costs order. ‘

Citations:

[1996] EWHC Admin 309

Links:

Bailii

Citing:

CitedRegina v Massaro QBD 1973
The defendant faced committal proceedings for an alleged sexual assault on a young girl. He told the prosecutor of his wish to cross-examine her. The prosecution refused to subject her to the experience of giving evidence at the preliminary hearing . .
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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 25 May 2022; Ref: scu.136857

Regina v London Borough of Camden ex parte Margarita Martin: Admn 25 Oct 1996

The court has no power to make a wasted costs order in favour of a party opposing an ex parte application.

Citations:

Times 11-Nov-1996, [1997] 1 All ER 307, [1996] EWHC Admin 151

Links:

Bailii

Citing:

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 . .

Cited by:

CitedRegina v Legal Aid Board ex parte T, a Firm of Solicitors Admn 25-Jun-1997
The firm of solicitors making an application for judicial review of the decision of the Board to institute criminal proceedings against them sought anonymity, saying that procedure which might prove them innocent would nevertheless damage their . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 25 May 2022; Ref: scu.136699

In re P (a Barrister) (Wasted Costs Order): CACD 23 Jul 2001

The procedure for making a wasted costs order was primarily compensatory, for costs wasted, rather than punitive for malpractice. The procedure is summary, and more in line with applications for costs made under the Civil Procedure Rules rule 44.3, rather than cases involving contempt of court. Usually there is no need for the judge in the case to distance himself from the decision. There is a three stage test. First, had there been improper, unreasonable or negligent conduct of a case, which secondly resulted in costs being incurred by another party, and, third, should the court use its discretion to make an order.

Judges:

Kennedy LJ, Wright J, Leveson J

Citations:

Times 31-Jul-2001, [2001] EWCA Crim 1728

Links:

Bailii

Jurisdiction:

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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 25 May 2022; Ref: scu.136159

Roiter Zucker (A Firm) v Minai: QBD 30 Nov 2005

The defendant resisted payment of her solicitors’ fees saying that they had failed in their duty to her not to exchange contracts without having finance in place to complete the purchase. It was alleged that she had tampered with documents produced to the court.

Judges:

Field J

Citations:

[2005] EWHC 2676 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 25 May 2022; Ref: scu.236702

Gilham v Ministry of Justice: SC 16 Oct 2019

The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Held: As an office holder, she was neither employee nor worker, and therefore could not have the advantage of protection as a whistleblower: ‘the definition of ‘worker’ which is in issue in the present case is far from unusual. It is also clear that Parliament has used a number of different formulae in order to define the scope of protection of different pieces of employment legislation. It may well be that the line which it has drawn is open to criticism from those who are dissatisfied with the lack of apparent protection for them. For example, they may qualify as ‘workers’ but may be excluded from the definition of ’employees’ for the purpose of the law of unfair dismissal. Nevertheless, that is the policy choice which the democratically elected Parliament of the United Kingdom has made.
In the present context, it seems to us that what is criticised . . is the policy choice which Parliament has made to give protection under the ‘whistleblowing’ provisions of the 1996 Act to a category of persons which has the effect of excluding office-holders and, in particular, judges. However, Parliament has not left those people totally without protection in the present context. ‘

Judges:

Lady Hale, President, Lord Kerr, Lord Carnwath, Lady Arden, Sir Declan Morgan

Citations:

[2019] UKSC 44, [2020] 1 All ER 1, [2020] HRLR 147, [2019] ICR 1655, [2019] 1 WLR 5905, UKSC 2018/0014

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2019 Jun 05 am Video, SC 2019 Jun 05 pm Video, SC 2019 Jun 06 am Video, SC 2019 Jun 06 pm Video

Statutes:

Employment Rights Act 1996 230(3)(b), European Convention on Human Right, Public Interest Disclosure Act 1998

Jurisdiction:

England and Wales

Citing:

CitedPerceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
CitedO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
At EATGilham 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. . .
Appeal from (CA)Gilham v Ministry of Justice CA 21-Dec-2017
Appeal by employment judge against dismissal of whistleblower’s claim.
Held: Dismissed. An employment judge is an office-holder, and neither office holder nor worker. . .
CitedMcMillan v Guest HL 1942
The House considered whether the taxpayer held a public office.
Held: Lord Wright: The word ‘office’ as applied in an employment law context is of indefinite content. Lord Atkin said: ‘Without adopting the sentence as a complete definition one . .
CitedMethodist Conference v Preston SC 15-May-2013
Minister was not an employee
The claimant asserted unfair dismissal. The Conference said that as an ordained minister she was not an employee, and was outwith the jurisdiction of such a claim.
Held: The Conference’s appeal succeeded (Baroness Hale dissenting). The essence . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedMiles v Wakefield Metropolitan District Council HL 1987
The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays. He had been told that if he failed to perform his full range of duties on a Saturday (including marriages), he . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed without being given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his behaviour. He . .

Cited by:

CitedMiller and Others v Ministry of Justice SC 16-Dec-2019
The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 25 May 2022; Ref: scu.642826

Miller and Others v Ministry of Justice: SC 16 Dec 2019

The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). The Appeals were allowed.
As judicial officers are not employed under a contract of employment, the PTWR must be construed artificially and references to the ‘terms of a contract’ must be applied by analogy. It must be borne in mind that the judicial pension scheme is not based upon individual appointments, but the composite term ‘qualifying judicial office’, may include a number of appointments.
That must be acknowledged when comparing part and full-time judges called for by the PTWR, as it may be misleading or unfair to direct
attention to the nature and timing of individual part-time appointments. Entitlement to pension should not be governed by the varied combinations of fee-paid or salaried offices undertaken by different individual judges. This would not sit with the aggregation provided for by the 1993 Act.
Unfavourable treatment may relate to the terms of a contract or ‘any other detriment’ resulting from an act or failure to act by the employer (Reg 5). By analogy,
in the context of judicial pensions,
A part-time judge may complain both: (1) during their period of service that their terms of office do not include proper provision for a future pension; and, (2) on retirement, that there no proper pension was available. The first does not exclude the latter. Case law, indicates that the point of unequal treatment occurs at the time the pension is paid, and accords with common sense.

Judges:

Lady Hale, President, Lord Reed, Deputy President, Lord Wilson, Lord Carnwath, Lady Arden

Citations:

[2019] UKSC 60

Links:

Bailii, Bailii Summary

Statutes:

Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Citing:

At EATThe Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
Appeal fromMinistry Of Justice v O’Brien and Others CA 9-Nov-2015
. .
Reference to ECJO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
CitedTen Oever v Stichting Bedrijfspensioenfonds voor het Glazenwassers- en Schoonmaakbedrijf (Judgment) ECJ 6-Oct-1993
Equal pay for men and women – Survivor’s pension – Limitation of the effect in time of the judgment in Case C-262/88 Barber.
As to Barber: ‘The Court’s ruling took account of the fact that it is a characteristic of this form of pay [scil, . .
At ECJO’Brien v Ministry of Justice ECJ 7-Nov-2018
Reference for a preliminary ruling – Social policy – Directive 97/81/EC – Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC – Clause 4 – Principle of non-discrimination – Part-time workers – Retirement pension – Calculation . .
CitedWalker v Innospec Ltd and Others SC 12-Jul-2017
The claimant appealed against refusal of his employer’s pension scheme trustees to include as a recipient of any death benefit his male civil partner.
Held: The appeal succeeded. The salary paid to Mr Walker throughout his working life was . .
CitedBarclays Bank Plc v Kapur and others EAT 3-Dec-1992
. .
CitedO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
CitedBarclays Bank Plc v Kapur HL 1991
The bank had decided not to credit re-located employees, for pension purposes, with their previous service in East Africa. The employees had been re-located to the United Kingdom some time in the early 1970s all upon terms that their prior service . .
CitedGilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
CitedSougrin v Haringey Health Authority EAT 31-Jul-1991
The applicant alleged discrimination arising out of a disputed grading. She claimed the grading she had received in 1988 amounted to direct discrimination on grounds of race, and that because this affected her pay there was a ‘continuing act’ of . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 25 May 2022; Ref: scu.645793

Dubai Bank v Galadari (No 6): ChD 22 Apr 1999

Morritt J said: ‘The rationale for the principle, and the decisions cited all pointed to the conclusion that communications in furtherance of a crime or fraud were not protected from disclosure if they were relevant to an issue in the action whether of not the plaintiff’s claim was founded on that crime or fraud.
Different considerations might apply to litigation privilege. It was plain from the authorities that litigation privilege was not displaced solely by virtue of the original fraud or crime: see R v Cox and Railton (at p 175); O’Rourke v Darbishire ([1920] AC 581, 622-3); R v Snaresbrook Crown Court, ex parte DPP ([1988] 1 QB 532, 537); and Francis and Francis . .
But none of those cases dealt with the situation where a client, having committed a fraud, sought to further that fraud by stifling it yet further after proceedings were anticipated or commenced by putting forward to his solicitors bogus defences.
The rationale behind the principle that by deceiving his solicitor the client deprived the communication of the necessary element of professional confidence was as applicable to communications after proceedings had been brought as to those which took place before.’

Judges:

Morritt J

Citations:

Times, 22 April 1999

Jurisdiction:

England and Wales

Cited by:

CitedOmar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 23 May 2022; Ref: scu.622383

Haigh v Westminster Magistrates Court and Others: Admn 8 Dec 2017

The Claimant sought judicial review of an order made against him for payment of defence wasted costs after he withdrew his private prosecution against the defendants. The claimant said that he had been dilatory in his claim.
Held: ‘wasted costs proceedings are ancillary to the substantive proceedings (in this case the substantive application for judicial review). For the reasons already given, there is an onus on the applicant for a wasted costs order in particular to proceed with due expedition. The applicants in the present matter have not done that.’

Judges:

Gross LJ, Nicol J

Citations:

[2017] EWHC 3197 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Costs, Legal Professions

Updated: 23 May 2022; Ref: scu.601437

Boodhoo (A Solicitor), Re (Wasted costs order): CACD 26 Jan 2007

The solicitor appealed a wasted costs order. He had been instructed by the defendant but the defendant had indicated his intention not to answer to his bail, and the solicitor had declined to continue his defence in the defendant’s absence, after an application for an adjournment had been refused.
Held: The appeal succeeded. Many issues might arise in a trial where the inability of a solicitor to take instructions might prove a professional embarassment: ‘while the solicitor’s presence might give an appearance of fairness, the fairness would be more apparent than real; it would be no more than a fig leaf to fairness. ‘

Judges:

Lord Justice Pill, Mrs Justice Rafferty and Mr Justice Griffith Williams, QC

Citations:

[2007] EWCA Crim 14, Times 05-Feb-2007

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice, Legal Professions

Updated: 23 May 2022; Ref: scu.248842

Pine v Law Society (1): Admn 13 Dec 2000

The court considered the independence of the Law Society’s disciplinary tribunal: ‘Standing back, and bearing in mind the statutory scheme for the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of the Law Society. There is no indication that the Law Society can influence its decisions, except in the sense of making submissions to the Tribunal as a party before the Tribunal. No evidence or suggestion has been made that the particular Tribunal demonstrated any partiality in any way. In my judgment, the submission that the Solicitors Disciplinary Tribunal does not meet the test of being an independent and impartial tribunal is not made out. I turn to the question of legal representation, which is the appellant’s main point. Returning to Article 6, he accepts, and authority confirms, that what was in question here was the determination of his civil rights and obligations, not of any criminal charge against him. It follows, therefore, that Article 6(3), which requires in certain circumstances legal representation in criminal cases, does not apply.’

Judges:

Crane J, Lord Wool,f Lord Chief Justice and Rafferty J

Citations:

Unreported, 13 December 2000

Jurisdiction:

England and Wales

Cited by:

See alsoPine v Law Society CA 20-Feb-2002
The solicitor had succeeded in his challenge to the respondent’s disciplinary procedures, and the Society now accepted its liability to pay his costs, but asserted that there must be a set-off for that sum against sums it said were otherwise due to . .
See AlsoPine v Law Society CA 20-Feb-2002
The applicant was a solicitor. The Respondent intervened in his practice, and a solicitor agent took it over. The agent submitted its accounts for payment by the Society and the applicant, who then sought to challenge the accounts under the Act. The . .
CitedHolder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 23 May 2022; Ref: scu.230902

Holder v The Law Society: Admn 26 Jul 2005

The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The reasonable by-stander, properly informed of the facts, could not consider otherwise.’ The tribunal had properly considered all the evidence as to the claimant’s honesty and was entitled to make a finding of dishonesty upon it.

Judges:

McCombe J

Citations:

[2005] EWHC 2023 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedStarrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs ScHC 11-Nov-1999
The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the . .
CitedPine v Law Society (1) Admn 13-Dec-2000
The court considered the independence of the Law Society’s disciplinary tribunal: ‘Standing back, and bearing in mind the statutory scheme for the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of . .
CitedBlunt v Park Lane Hotel Ltd CA 1942
The court considered the rule against self incrimination. Lord Justice Goddard said: ‘The rule is that no one is bound to answer any questions if the answer thereto would, in the opinion of the judge, have a tendency to expose the defendant to any . .
CitedPine v Law Society CA 20-Feb-2002
The applicant was a solicitor. The Respondent intervened in his practice, and a solicitor agent took it over. The agent submitted its accounts for payment by the Society and the applicant, who then sought to challenge the accounts under the Act. The . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedRank Film Distributors v Video Information Centre HL 1-Mar-1981
The plaintiffs claimed large-scale copyright infringement, and obtained Anton Pillar orders. The House considered the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had . .
CitedRegina v Institute of Chartered Accountants of England and Wales ex parte Nawaz Admn 25-Oct-1996
The privilege against self incrimination was lost by the act of voluntarily submitting to the rules of a professional institute. Leggatt LJ: ‘Waiver of privilege
We indicated to counsel that for the purposes of this appeal we were content to . .
CitedGreen v Weaver 1827
The plaintiff instructed the defendants, a firm of wool-brokers in the City of London, to buy foreign wool for him, in the belief that all the partners in the firm were duly qualified to act as brokers. It was of some importance to him to know who . .
CitedRobinson v Kitchin 1856
Contracting out of the privilege against self-incrimination. . .
CitedSaunders v United Kingdom ECHR 30-Sep-1994
Link between self-incrimination and presumption of innocence – use of compulsion. . .
CitedBishopsgate Investment Management Ltd (In Provisional Liquidation) v Maxwell and Another CA 13-May-1992
A company liquidator applied for an order under sections 235 and 236 of the Insolvency Act 1986 that a director should disclose information to that liquidator. The Director objected that to do so would infringe his privilege against . .
CitedTate Access Floors Inc v Boswell 1991
Senior employees were suspected of misappropriating the company’s funds.
Held: The authorities did not establish the wide proposition that where a defendant agrees to act as a fiduciary, he impliedly contracts not to raise the claim to the . .
See AlsoHolder v The Law Society CA 24-Jan-2003
The solicitor had sought an order to have set aside the Society’s intervention in his legal practice. His claim had been dismissed after considerable delay, but re-instated on appeal. The Society now appealed against the re-instatement. There had . .

Cited by:

CitedGadd v Solicitors Regulation Authority CA 6-Jun-2013
Renewed application for permission to appeal against grant of summary judgment n favour of the defendant. He had sought to have set aside the respondent’s intervention in his solicitor’s practise. He said that he shuld have had legal assistance in . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 23 May 2022; Ref: scu.230390

Majid v Revenue and Customs: FTTTx 20 Feb 2012

FTTTx VAT – registration – whether Appellant liable to register in respect of earnings from part-time judicial appointment in absence of earnings from practice as barrister – classification previously for income tax purposes as self-employed – EC Directive 2006 arts 9, 10 – held, not a taxable person so not liable to register – appeal allowed

Citations:

[2012] UKFTT 144 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

VAT, Legal Professions

Updated: 22 May 2022; Ref: scu.451977

D’Souza v The Law Society: Admn 27 Jul 2009

The applicant challenged a decision of the Solicitors Disciplinary Tribunal to impose a restriction on his practising certificate without first warning him that it was considering this and allowing him to make representations.

Citations:

[2009] EWHC 2193 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 22 May 2022; Ref: scu.374732

AM and S Europe Ltd v Commission of The European Communities: ECJ 18 May 1982

The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.’ and ‘Community law, which derives from not only the economic but also the legal interpretation of the member states, must take into account the principles and concepts common to the laws of those states concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirement, the importance of which is recognised in all of the member states, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it.’

Judges:

Advocate-General Sir Gordon Slynn

Citations:

C-155/79, [1982] EUECJ C-155/79, [1983] 1 All ER 705, [1982] FSR 474, [1982] ECR 1575, [1983] 3 WLR 17, [1982] 2 CMLR 264, [1983] QB 878

Links:

Bailii

Citing:

See AlsoAM and S Europe Ltd v Commission of The European Communities ECJ 4-Feb-1981
Sir Gordon Slynn AG discussed legal advce priviege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic . .

Cited by:

CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
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 . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
CitedPrudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
CitedAkzo Nobel Chemicals and Akcros Chemicals v Commission and Others (Competition) ECJ 29-Apr-2010
ECJ (Opinion) Appeal Competition – Administrative procedure – Commission’s powers of investigation – Documents copied in the course of an investigation and later placed on the file – Protection of confidentiality . .
CitedAkzo Nobel Chemicals and Akcros Chemicals v Commission ECFI 17-Sep-2007
Competition – Administrative procedure – Commission’s powers of investigation – Documents seized in the course of an investigation – Legal professional privilege protecting communications between lawyers and their clients – Admissibility. . .
CitedCalland v Information Commissioner and The Financial Services Authority IT 8-Aug-2008
The claimant, being in a prolonged dispute with the Authority had requested copies (internal and external) of correspondence and other communications relating to him. The request was resisted on several grounds according to the nature of the . .
Lists of cited by and citing cases may be incomplete.

European, Legal Professions

Updated: 21 May 2022; Ref: scu.132923

Hobson and others v Ashton Morton Slack Solicitors and others: QBD 18 May 2006

The applicants had instructed the various defendant firms of solicitors to act for them in recovering damages arising from their former emploment with British Coal. The defendants had charged them administrative fees, which under the scheme they said should not have been charged. A group litigation order was sought.
Held: The court severely criticised the claimants: ‘this application is, in my judgment, misconceived and constitutes a gross abuse of the system which has been devised for the pursuit of group litigation where there is a valid group litigation issue; as to which see later. Not only was the application itself misconceived, but also it has been pursued in a manner which is both heavy handed and inept.’
The claimants had not set out how the defendant solicitors would be liable, the claims would have different forms against different solicitors, and were fact sensitive as against each firm. The enforceability of the agreements had not been explored, nor any alternative form of dispute resolution, any proper exploration of other forms of funding by legal aid or insurance. Costs estimates indicated that the claimants had incurred costs of over one hundred thousand pounds pursuing claims against one firm amounting to one thousand pounds. The application failed.

Judges:

Sir Michael Turner

Citations:

[2006] EWHC 1134 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 21 May 2022; Ref: scu.242211

Stein v Blake: ChD 31 Oct 2000

When a Legal Aid certificate was withdrawn, leading to an opposing party suffering abortive costs in continuing the action, it was not a duty of the Legal Services Commission to inform the opposing side. They would have no access to arrangements made by the formerly assisted person for continuing the action or otherwise, and the duty must fall on the solicitor appointed to act.

Citations:

Times 31-Oct-2000, Gazette 09-Nov-2000

Jurisdiction:

England and Wales

Citing:

See AlsoStein v Blake CA 13-May-1993
The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision . .
See AlsoStein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
See AlsoStein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions

Updated: 20 May 2022; Ref: scu.89540

Secured Residential Funding plc v Douglas Goldberg Hendeles and Co (a Firm): CA 19 Apr 2000

Two linked companies were in business from the same premises lending money on mortgage. A loan from one company was made but supported only by documentation in the name of the other. The error was noticed, but new documents not prepared until after completion. In possession proceedings, the lender had to show that the money had been advanced by its associate as its agent. The operative date was the date on which the mortgage advance was made, not on completion.

Citations:

Times 26-Apr-2000, Gazette 25-May-2000, [2000] EWCA Civ 144

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Land, Legal Professions

Updated: 20 May 2022; Ref: scu.89148

Re Baggaley: FD 22 May 2015

‘I have before me a number of matters relating to Nigel Baggaley. Mr Baggaley comes before the court in four different capacities. First, he is a pertinacious litigant on his own account. Secondly (I put the matter descriptively, without pre-judging any issue I may have to decide), he is the moving spirit behind two limited liability companies that provide legal advice and legal services: McKenzie Friends 4U Limited and Diy Law Shop Limited. McKenzie Friends 4U Limited is seemingly dormant; Diy Law Shop Limited has as yet filed no accounts. They have operated out of premises in Hinckley in Leicestershire: previously at 77 Windrush Drive, more recently at 52 Rugby Road. Thirdly, he acts as a McKenzie friend. Fourthly, he has a Facebook account.’

Judges:

Sir James Munby P FD

Citations:

[2015] EWHC 1496 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Family, Legal Professions

Updated: 20 May 2022; Ref: scu.547087

Re West: CACD 17 Jul 2014

W, a barrister, appealed against a conviction for contempt of court. He had declined to comply with the directions asked of him by the judge at a pre-trial hearing, saying that the client’s instructions that he was not guilty were sufficient. He was found to have acted in contempt of court in refusing unreasonably to attend a hearing in a criminal case when he had been ordered so to do. His punishment was a fine of pounds 500.
Held: The Court overturned the finding of contempt because the alleged contemnor had not been served with a notice in advance of the hearing as required by the Rules.
Sir Brian Leveson P observed: ‘While Mr West was thus made aware in advance of the hearing that contempt of court would be considered, the notices provided clearly fell short of the procedural requirements set out in the Crim PR. In the normal course, compliance with the strict provisions of the Crim PR can be waived by the parties or the court; in cases of alleged contempt, however, we have no doubt that strict observance of the provisions is essential. As Mr Cox observed, the contempt jurisdiction is a powerful tool which can directly impact on the liberty of the subject. Compliance with the Crim PR allows the ‘charge’ to be fully formulated and beyond doubt; it provides a structure which forms the four corners of what is in issue and it avoids the very criticism that Mr Cox did advance in this case.
In the circumstances, given the significance of the jurisdiction of contempt of court, we have come to the conclusion that this failure of process invalidates the conclusion that the judge reached. We recognise that it is likely to have made little difference but we are not prepared to assert that; it is far more important to underline the vital importance, where issues of contempt arise in circumstances of this nature, of following the approach laid down by the Crim PR.’

Judges:

Sir Brian Leveson P QBD, Patterson DBE J, Sir Richard Henriques

Citations:

[2014] EWCA Crim 1480, [2015] 1 WLR 109, [2014] WLR(D) 321, [2014] 2 Cr App R 28

Links:

Bailii, WLRD

Statutes:

Administration of Justice Act 1960 13, Criminal Procedure Rules

Jurisdiction:

England and Wales

Citing:

CitedMorris v Crown Office CA 1970
The applicants had been engaged in a calculated and coordinated campaign of disruption of the court.
Held: ‘The archaic description of these proceedings as ‘contempt of court’ is in my view unfortunate and misleading. It suggests that they are . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .

Cited by:

CitedRe Yaxley-Lennon (Aka Tommy Robinson) CACD 1-Aug-2018
Need for clarity in Contempt Allegation
The defendant appealed from his convictions for contempt of court, being said to have broadcast details of criminal prosecutions despite orders to the contrary. He argued that any failure of procedure was fatal to the prosecutions.
Held: As to . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Legal Professions

Updated: 20 May 2022; Ref: scu.534425

O’Brien v Ministry of Justice: ECJ 17 Nov 2011

ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this connection, I would also point out that it is difficult to determine how the rights granted by the Framework Agreement in general, and an entitlement to a retirement pension in particular, can jeopardise the essence of the independence of a judge; on the contrary, an entitlement to a retirement pension strengthens the economic independence of judges, and thus also the essence of their independence.
Independence in terms of the essence of an activity is not therefore an appropriate criterion for justifying the exclusion of a professional category form the scope of the Framework Agreement.’

Judges:

Kokott AG

Citations:

C-393/10, [2011] EUECJ C-393/10

Links:

Bailii

Statutes:

Directive 97/81/EC

Jurisdiction:

European

Citing:

At EATDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At CAO’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At SCO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .

Cited by:

OpinionO’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
OpinionO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .
Lists of cited by and citing cases may be incomplete.

European, Employment, Legal Professions

Updated: 20 May 2022; Ref: scu.448725

The Ministry of Justice v O’Brien: EAT 4 Mar 2014

EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a matter of law, take into account only his period of service since the Directive had to be brought into force, 7th April 2000, and not any earlier period of service when discrimination against part-time workers had not been rendered unlawful under the Directive. This follows from many decisions of the ECJ/CJEU on occupational pensions and reflects the principle well-established in European law of legal certainty. This legal position is acte clair and no reference to the CJEU is required.
However, the Claimant was, as a matter of pleading, entitled to argue that his pension calculations should reflect a notional full-day’s pay for a full-day’s training, even though the fees actually paid had only been for a half-day.
For the purposes of comparison with the position of a full-time circuit judge and the pro-rata calculation of pension for the part-timer, the full-time judge should be taken to work for 210 days per annum.
Appeal by the Ministry of Justice allowed in part.

Judges:

Sir David Keene

Citations:

[2014] IRLR 440, [2014] UKEAT 0466 – 13 – 0403, [2014] ICR 773

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At SC (1)O’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .

Cited by:

Appeal fromO’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
At EATO’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
At EATMinistry Of Justice v O’Brien and Others CA 9-Nov-2015
. .
At EATMiller and Others v Ministry of Justice SC 16-Dec-2019
‘The issue in this appeal is when time starts to run for a claim by a part-time judge to a pension under the Part-time Workers’ Directive (Directive 97/81) (‘PTWD’), as applied by the Part-time Workers (Prevention of Less Favourable Treatment) . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Discrimination

Updated: 20 May 2022; Ref: scu.522144

Chandler v Church: 1987

(New Zealand) Disclosure was sought of papers said to be protected by litigation privilege on the basis of an exception because of alleged fraud.
Hoffmann J said: ‘The principle on which the plaintiffs seek disclosure is that laid down in the classic judgment of Stephen J in R v. Cox and Railton (1884) 14 QBD 153, namely that privilege does not attach to a communication between a client and his legal adviser ‘intended to facilitate or to guide the client in the commission of a crime or fraud’. This principle applies not only when the legal adviser is party to the crime or fraud but also when he is ignorant of the purpose for which his advice or assistance is being asked. As Stephen J said, in neither case can the client have been consulting his adviser in a confidential professional capacity: ‘The client must either conspire with his solicitor or deceive him.”

Judges:

Hoffmann J

Citations:

(1987) 177 NLJ 451

Jurisdiction:

England and Wales

Citing:

CitedRegina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .

Cited by:

CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedOmar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 19 May 2022; Ref: scu.224369

Omar’s Trustees v Omar: ChD 2000

A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally represented, had proceeded to judgment. The second action was a claim for fraud against D and others which was ongoing. Soon after the second action was commenced, D became bankrupt on her own petition. An order had been made for D’s private examination. Her trustee in bankruptcy had obtained possession of all the papers held by D’s previous solicitors. The trustee applied to the court for a direction that he be permitted to provide any documents he had received, including documents in respect of which D claimed privilege, to the administrators for the purposes of (i) the private examination and (ii) the second action. Two issues arose: whether the proposed uses of the documents, and in particular the use in the second action, was for the proper purposes of the bankruptcy, and whether the fraud exception to privilege applied.
Held: Jacob J answered ‘Yes’ to both questions, and ordered disclosure of documents used by the mistress’s previous lawyers for the advancement of her defence at the trial because she had been using her lawyers, who were innocent of any dishonesty, to advance a fraudulent defence in the course of which she perjured herself.
Although using to section 311(1), the trustee had taken possession of ‘papers in respect of which D claimed privilege, or more accurately, would have claimed privilege if they had not passed to the trustee’, and referred to ‘documents which, but for the bankruptcy, would be the subject of privilege’, the court did not find that the benefit of the privilege had passed to the trustee. Jacob J proceeded on the basis that, although it was no answer to the trustee’s claim for possession of the documents, D would continue to be entitled to maintain her privilege, and in particular to do so in the second action, unless the fraud exception applied: ‘Thus, if the matter had stood as simply between the administrators and Diana, I would have required disclosure. That being so, there is no reason for the court to say that the trustee should not do that which he thinks is best in the administration of his office.’

Judges:

Jacob J

Citations:

[2000] BCC 434

Jurisdiction:

England and Wales

Citing:

CitedChandler v Church 1987
(New Zealand) Disclosure was sought of papers said to be protected by litigation privilege on the basis of an exception because of alleged fraud.
Hoffmann J said: ‘The principle on which the plaintiffs seek disclosure is that laid down in the . .
CitedDubai Bank v Galadari (No 6) ChD 22-Apr-1999
Morritt J said: ‘The rationale for the principle, and the decisions cited all pointed to the conclusion that communications in furtherance of a crime or fraud were not protected from disclosure if they were relevant to an issue in the action whether . .

Cited by:

CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedShlosberg v Avonwick Holdings Ltd and Others ChD 5-May-2016
Application by a bankrupt, for an order directing that the Second Respondent should cease acting as solicitors for both the First Respondent (‘Avonwick’) and the Third Respondents, Moore Stephens LLP, his joint trustees in bankruptcy.
Held: . .
CitedDadourian Group International Inc and others v Simms and others ChD 25-Jul-2008
Applications arising from disclosure of documents . .
CitedJSC BTA Bank v Ablyazov and Others ComC 8-Aug-2014
The Claimant sought disclosure from the First and Second Respondents of documents relating to their assets which would attract legal professional privilege unless falling within the iniquity exception to such privilege, and which are currently held . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 19 May 2022; Ref: scu.224370

Dubai 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 purpose of advising his client and obtaining evidence and the solicitor has exercised skill and judgment in the selection.’

Judges:

Dillon LJ

Citations:

(1990) Ch 98

Jurisdiction:

England and Wales

Citing:

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 . .
See AlsoDubai Bank Ltd v Galadari (No 2) CA 1990
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the . .

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 . .
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 . .
See AlsoDubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
See AlsoDubai Bank Ltd v Galadari and Others (No 5) 25-Jun-1990
A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions, International

Updated: 19 May 2022; Ref: scu.181214

Regina v Cox and Railton: 1884

(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton to Cox in respect of his assets. The trial judge permitted the prosecution to call a solicitor to testify that the defendants had sought his advice as to whether anything could be done to prevent property being seized in execution by the judgment creditor and that, when he had told them that Railton could not give a bill of sale to Cox because of the partnership between them, nether Cox nor Railton had made any mention of the partnership having been dissolved; on the contrary, Railton asked whether anyone knew of the partnership, to which the solicitor replied that the only people who knew of it were Cox and Railton and himself and his clerks.
Held: A client must be free to consult his legal advisers without fear of his communications being revealed. However: ‘The question, therefore is, whether, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which his advice is wanted, the communication between the two is privileged? We expressed our opinion at the end of the argument that no such privilege existed. If it did, the result would be that a man intending to commit treason or murder might safely take legal advice for the purpose of enabling himself to do so with impunity, and that the solicitor to whom the application was made would not be at liberty to give information against his client for the purpose of frustrating his criminal purpose. Consequences so monstrous reduce to an absurdity any principle or rule in which they are involved. Upon the fullest examination of the authorities we believe that they are not warranted by any principle or rule of the law of England, but it must be admitted that the law upon the subject has never been so distinctly and fully stated as to shew clearly that these consequences do not follow from principles which do form part of the law, and which it is of the highest importance to maintain in their integrity.’
Legal privilege does not attach where the advice sought was being obtained for the purpose of committing a crime. ‘Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure.’
Referring to the rule on Greenough: ‘This rule has been accepted and acted upon ever since, and we fully recognise its authority, but we think that the present case does not fall either under the reason on which it rests, or within the terms in which it is expressed. The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not ‘come into the ordinary scope of professional employment’.’
Stephen J said, as regards the circumstances in which it can be assumed that the protection does not exist: ‘We have one other matter to notice. We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorized to say upon this matter is, that in each particular case the Court must determine upon the facts actually given in evidence or proposed to be given in evidence, whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it. We are far from saying that the question whether the advice was take before or after the offence will always be decisive as to the admissibility of such evidence. Courts must in every instance judge for themselves on the special facts of each particular case, just as they must judge whether a witness deserves to be examined on the supposition that he is hostile, or whether a dying declaration was made in the immediate prospect of death. In this particular case the fact that there had been a partnership (which was proved on the trial of the interpleader issue), the assertion that it had been dissolved, the fact that directly after the verdict a solicitor was consulted, and that the execution creditor was met by a bill of sale which purported to have been made by the defendant to the man who had been and was said to have ceased to be his partner, made it probable that the visit to the solicitor really was intended for the purpose for which, after he had given his evidence, it turned out to have been intended. If the interview had been for an innocent purpose, the evidence given would have done the defendants good instead of harm. Of course the power in question ought to be used with the greatest care not to hamper prisoners in making their defence, and not to enable unscrupulous persons to acquire knowledge to which they have no right, and every precaution should be taken against compelling unnecessary disclosures.’

Judges:

Stephen J

Citations:

(1884) 14 QBD 153

Jurisdiction:

England and Wales

Cited by:

CitedP v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
CitedUnited States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
CitedMiller Gardner Solicitors, Regina (on the Application of) v Minshull Street Crown Court Admn 20-Dec-2002
Police investigating crime obtained a warrant to search a solicitor’s offices for details of their clients. The solicitors appealed.
Held: The details required, namely dates of contacts with a certain telephone number were not legally . .
CitedRegina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions 1988
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing . .
CitedRegina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
CitedHallinan, Blackburn-Gittings and Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another Admn 15-Nov-2004
In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedCurtis v Curtis CA 8-Mar-2001
The mother sought leave to call in evidence in proceedings for contact, an affidavit sworn by the father’s previous solicitors when applying to be removed from the record, which related the contents of telephone calls from the father to their . .
CitedMcE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
CitedBrown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
CitedChandler v Church 1987
(New Zealand) Disclosure was sought of papers said to be protected by litigation privilege on the basis of an exception because of alleged fraud.
Hoffmann J said: ‘The principle on which the plaintiffs seek disclosure is that laid down in the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 19 May 2022; Ref: scu.187044

Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead: CA 19 Apr 2000

A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was paid into court, but the appeal was compromised in her favour. The judge ordered payment out to her opponent, to satisfy earlier unsatisfied costs orders. Her request for leave to appeal succeeded. The trust was as between her and the bank, and no need of others being notified arose. As trustee for the bank, she had a duty to act to recover it, and so had locus standi.

Citations:

Times 02-May-2000, [2000] EWCA Civ 138

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See AlsoRegina v Common Professional Examination Board ex parte Sally Mealing-Mcleod Admn 4-Nov-1997
The claimant challenged decisions taken as to the extension of time to allow her to pass the Common Professional Examination to become a member of the Bar. An application had some time before made for an oder under the 1981 Act. There was no taint . .
See AlsoRegina v ex parte Mealing-Mcleod CA 18-Feb-1999
Formal order acknowledging settlement in favour of the applicant. . .
See AlsoRegina v Common Professional Examination Board (ex parte Sally Mealing Mcleod) Admn 19-Apr-1999
. .
See AlsoRegina v Common Professional Examination Board ex parte Mealing-Mcleod CA 21-Apr-1999
. .
Appeal fromMcleod v Common Professional Examination Board SCCO 13-Mar-2000
. .
CitedBarclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
CitedJohnson v Valks CA 23-Nov-1999
A person requiring leave to issue proceedings as a vexatious litigant, had also to obtain leave again before entering an appeal to the Court of Appeal. The entering of an appeal is either the institution of new proceedings, or an application . .
CitedBrereton v Edwards 1888
Money in the control of the Court may be the subject of execution with the leave of the Court. The Judgments Acts did not apply to money held in Court. Lord Esher MR said: ‘section 14 does not apply to money . . it applies only to Government stock, . .
CitedIn re Prior CA 1921
The court considered its equitable powers over funds it held as security. The court ordered equitable execution. . .
CitedBarclays Bank Ltd v Quistclose Investments Ltd; etc HL 31-Oct-1968
R Ltd were in serious financial difficulties. The company’s overdraft with the appellant bank was almost twice its permitted limit. The company sought a loan of 1 million pounds from a financier, who was willing to lend the company that sum provided . .
CitedLondon County Council v Monks 1958
Danckwerts J considered the powers of the court over money paid in as security: ‘The real basis of those cases seems . . to be that where the court has the fund under its own control, as in the case of a fund standing to the credit to some account . .

Cited by:

CitedKris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions, Banking

Updated: 19 May 2022; Ref: scu.85198

O Palomo Sa v Turner and Co; Turner and Co v O Palomo Sa: CA 28 Jul 1999

A solicitor’s bill could only be taxed within one year of its delivery, but the common law right to challenge a bill on the grounds that the amount charged was unreasonable could continue after that time limit. The common law right to object to paying more than was reasonable was not displaced by the Act, and could allow a court to tax a bill outside the one year limit.
Evans LJ said: ‘the position apart from the Act is broadly as follows. If the solicitor wishes to be paid and is not in funds he will need to sue and prove that his charges were either expressly agreed or are reasonable charges. If he is in funds and purports to deduct the amount of his bill but the client challenges the deduction, the solicitor will still need to prove that the charges were either expressly agreed or were reasonable charges. The question is whether the client loses these rights to challenge the amount of the bill after the period for taxation has passed . . a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now s. 70 of the 1974 Act has expired. .
Nor do we consider that the solicitor is disadvantaged by the possibility that the client is entitled to have the reasonableness of the charges assessed by the court after the statutory periods for taxation have expired. He can himself claim an order for taxation under s. 70(2), without any time limit, and obtain a form of summary judgment when the taxation certificate is issued . .
We do not see any difficulty in holding that the solicitor’s claim is for a reasonable sum, whether by statute or at common law, and not for a liquidated sum. Again in accordance with general principles, the burden of proving that the sum is reasonable rests upon him. This is supported, if authority is needed, by the judgments in Re Park [Re Park, Cole v. Park (1889) 41 Ch D 326] and Jones and Son v. Whitehouse [[1918] 2 KB 61] . . ‘

Judges:

Evans LJ

Citations:

Times 30-Aug-1999, Gazette 08-Sep-1999, [1999] EWCA Civ 2007, [2000] 1 WLR 37

Links:

Bailii

Statutes:

Solicitors Act 1974 70

Jurisdiction:

England and Wales

Citing:

ApprovedThomas Watts and Co (a Firm) v Smith CA 16-Mar-1998
The court considered the status of an untaxed solicitor’s bill of costs against a client for whom he had acted in defamation proceedings. Sir Richard Scott V-C said: ‘It is a fact that [the client] never entered into any contract to pay the sums as . .

Cited by:

CitedTruex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.84402

Penn v Bristol and West Building Society and Others: CA 24 Apr 1997

The solicitor innocently accepted instructions to sell a property, but was misled as to the identity of the wife – one of the joint owners. Unknown to him, however, Mr Penn had forged his wife’s signature on the contract documents. He was sued by the lender to the buyer (who had also been involved in the fraud).
Held: The Solicitor acting for vendor was to be held liable as having given a warranty that he was instructed by the true owners.
Waller LJ having said that the solicitor thought he was acting for the wife as well as the husband and, in all the pre-contract correspondence, negotiations and completion, held himself out as duly authorised by the husband and wife jointly, held that the building society had to establish that a promise had been made to it by the agent, to the effect that the agent had the authority of the principal, and that it had provided consideration by acting in reliance on that promise. He concluded that all the necessary ingredients were present for establishing a warranty by the solicitor in favour of the building society that the solicitor had the authority of Mrs Penn.

Judges:

Staughton, Waite, Waller LJJ

Citations:

Times 24-Apr-1997, [1997] 3 All ER 470, [1997] EWCA Civ 1416, [1997] 1 WLR 1356, [1997] PNLR 607

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromPenn v Bristol and West Building Society and Others ChD 19-Jun-1995
Solicitors acting for a vendor were liable to the buyers’ mortgagees for breach of warranty of authority for vendor. The solicitor was negligent in not having verified the instructions from the wife who was the joint tenant. . .

Cited by:

Appealed toPenn v Bristol and West Building Society and Others ChD 19-Jun-1995
Solicitors acting for a vendor were liable to the buyers’ mortgagees for breach of warranty of authority for vendor. The solicitor was negligent in not having verified the instructions from the wife who was the joint tenant. . .
CitedA and J Fabrications (Batley) Ltd v Grant Thornton and Others ChD 1998
The plaintiffs, the majority creditors of a company in liquidation, alleged that they had agreed with Grant Thornton, the defendants, to support the appointment of one of the firm’s partners or employees as liquidator of the company, with a view to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 19 May 2022; Ref: scu.84653

Mohammed v Alaga and Co (A Firm): CA 2 Nov 1998

(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the solicitors for a quantum meruit rather than in restitution would stand.

Judges:

Lord Justice Simon Brown, Lord Justice Mantell

Citations:

Times 29-Jul-1999, [1998] EWCA Civ 1654

Statutes:

Solicitors Practice Rules 1990

Jurisdiction:

England and Wales

Citing:

Appeal fromMohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .

Cited by:

Leave to AppealMohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.83793

Memory Corporation v Sidhu (No 2): CA 3 Dec 1999

Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too closely to apportion blame. Here counsel had applied to and misadvised the court on the practice, and documents produced were unreliable and possibly from an unlawful source. Where a defending party risked contempt proceedings, and was ordered to file affidavit evidence in respect of that matter, any claim for privilege against self-incrimination should be made before the affidavit is made. It was inappropriate to be asked first to file the affidavit, and then to ask the court to inspect and decide. The privilege was available to be exercised in contempt proceedings within the same proceedings as the main action.
Mummery LJ said that: ‘It cannot be emphasised too strongly that in an urgent without notice hearing for a freezing order as well as for a search order or any other form of interim injunction, there is a high duty to make full, fair and accurate disclosure of material information to the court and to draw the court’s attention to significant factual, legal and procedural aspects of the case. It is the particular duty of the advocate to see that the correct legal procedures and forms are used, that a written skeleton argument and properly drafted order are prepared by him personally and lodged with the court before the oral hearing, and that at the hearing the court’s attention is drawn by him to unusual features of the evidence adduced, to the applicable law and to the formalities and procedure to be observed.’
Robert Walker LJ discussed the apparent gathering of evidence by unlawful means and said that this has not in general led to its exclusion under the English law of evidence. It was far from obvious that concerns of this nature ‘should be added to the heavy responsibilities already undertaken by lawyers who are making a without notice application, except perhaps in circumstances where the evidence in question is of central importance to the application’. Even when the evidence is of central importance, for example evidence relating to the sale of contraband goods in a case of piracy of intellectual property rights, trap orders and other conduct involving impersonation or deception have been commonplace in the Chancery Division for a century or more, and do not seem to have attracted censure.

Judges:

Mummery LJ, Robert Walker LJ

Citations:

Times 15-Feb-2000, Gazette 27-Jan-2000, Times 03-Dec-1999, [2000] EWCA Civ 9, [2000] 1 WLR 1443

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

On Appeal fromMemory Corporation Plc and Another v Sidhu ChD 21-May-1999
Where counsel proposing an asset freezing order fails to mention a case relevant to the issue, the order need not thereby be discharged. This is as against a failure to disclose a material fact, which would lead to a discharge of the order. . .
ApprovedDubai 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:

See AlsoMemory Corporation Plc, Datrontech Hong Kong Limited v Sukhbir Singh Sidhu, Sunsar Limited ChD 3-Nov-1999
. .
CitedJohn Louis Carter Fourie v Allan Le Roux and others CA 7-Mar-2005
The defendant’s company in South Africa had become insolvent and the claimant had recovered judgment for arrears of rent. They obtained a freezing order against the defendant. The defendant appealed saying the court did not have jurisdiction, and . .
CitedFourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
CitedFranses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
CitedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Human Rights, Contempt of Court

Updated: 19 May 2022; Ref: scu.83628

Law Society v KPMG Peat Marwick and Others: CA 29 Jun 2000

The respondent accountants had certified accounts for a firm of solicitors whose dishonest defaults later lead to substantial claims on the compensation fund set up by the claimants.
Held: The Law Society who collected funds from the profession at large and would have to pay out compensation were clearly owed a duty of care by the respondents.

Citations:

Times 04-Jul-2000, Gazette 27-Jul-2000, [2000] 1 All ER 515, [2000] 1 WLR 1921, A3/2000/0175, [2000] EWCA Civ 5563

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromLaw Society v KPMG Peat Marwick and Others ChD 3-Nov-1999
An accountant, auditing a firm of solicitors, and providing a certificate to the Law Society knew that the Society and its compensation fund would rely upon that certificate and so owed it a duty of care. A negligently given certificate could lead . .

Cited by:

CitedLaw Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 19 May 2022; Ref: scu.82963

In Re Sternberg Reed Taylor and Gill (A Firm): CACD 26 Jul 1999

Negligence on the part of a solicitor was capable of falling within the range of ‘unnecessary or improper act or omission’ so as to leave him open to a wasted costs order. A clerk, having stood near the place where the jury assembled, discussed the case with the defendant. A re-trial was necessary, and could easily have been avoided.

Citations:

Times 26-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Crim 1870

Links:

Bailii

Statutes:

Costs in Criminal Cases (General) Regulations 1986 (1986 No 1335) 3(c)

Jurisdiction:

England and Wales

Criminal Practice, Legal Professions, Costs

Updated: 19 May 2022; Ref: scu.82203

Hirst v Etherington and Another: CA 21 Jul 1999

A solicitor, who re-assured a lender that his guarantee of a borrower’s loan, was given by him in the normal course of business, was not in fact so acting. The lender, if wanting to rely upon that re-assurance to claim against the solicitor’s partner, was to show reasonable care and competence in assessing whether the assurance was given in the normal course of a solicitor’s practice.

Citations:

Times 21-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Civ 1850, [1999] Lloyds Rep PN 938

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 19 May 2022; Ref: scu.81393

Harley v McDonald; Glasgow Harley (A Firm) v McDonald: PC 10 Apr 2001

(New Zealand) A solicitor’s duty to the court was not breached merely because he had, on his client’s instructions, pursued a case which was hopeless. It was also inapposite to penalize him for work undertaken before the court had warned him of the view that the case was hopeless. The solicitor, as an officer of the court, has duties to achieve a minimum level of competence and not to abuse the court’s process. In its nature, the procedure of penalising a solicitor in costs, will be summary. The court should allow the solicitor proper opportunity to defend himself, and should restrain itself from investigating matters which were within judicial knowledge.

Citations:

Times 15-May-2001, [2001] UKPC 20, Nos 9 of 2000 and 50 of 2000, [2001] 2 WLR 1749, [2001] 2 AC 678, [2001] Lloyd’s Rep PN 584

Links:

Bailii, PC, PC

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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Commonwealth

Updated: 19 May 2022; Ref: scu.81242

Foxley v United Kingdom: ECHR 20 Jun 2000

A bankrupt was suspected of disposing of his assets to avoid a confiscation order. The trustee in bankruptcy obtained an order for the bankrupt’s post to be diverted to her whilst he was in prison. She opened all post and copied it before forwarding it to the bankrupt. This included correspondence with his legal advisers. The order and her practice infringed the bankrupt’s human rights insofar as no distinction was made with respect to correspondence protected by legal privilege, and insofar as the order continued in effect after the bankrupt’s discharge. ‘The Court can see no justification for this procedure and considers that the action taken was not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client. It notes in this connection that the Government have not sought to argue that the privileged channel of communication was being abused; nor have they invoked any other exceptional circumstances which would serve to justify the interference with reference to their margin of appreciation.’

Citations:

Times 04-Jul-2000, (2001) 31 EHRR 637, 33274/96, [2000] ECHR 223, [2000] ECHR 224

Links:

Worldlii, Bailii

Statutes:

Insolvency Act 1986 371, European Convention on Human Rights

Cited by:

CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Legal Professions

Updated: 19 May 2022; Ref: scu.80653

Edmonds 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 personal services and so was covered.

Citations:

Times 11-Oct-1999, Gazette 13-Oct-1999

Statutes:

National Minimum Wage Act 1998 1 (2) (a), 58

Cited by:

Appeal FromEdmonds 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 19 May 2022; Ref: scu.80252

Dubai 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 claim.

Judges:

Rix J

Citations:

Times 04-Sep-1998, [1998] EWHC 1204 (Comm), [1999] 1 Lloyd’s Rep 415

Links:

Bailii

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Cited by:

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 . .
At First InstanceDubai 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 . .
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, . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Company, Legal Professions, Torts – Other

Updated: 19 May 2022; Ref: scu.80148

Dubai 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, apparently using their agents to impersonate the defendant in order to discover information about his Swiss bank accounts. This was in breach both of Swiss law and an offence under section 5(6) of the 1984 Act. The defendant applied to discharge the order and the freezing injunction and also applied for disclosure of reports and associated documents relating to the investigation of his affairs by the claimants’ agents. The claimants said the documents were privileged.
Held: A document obtained unlawfully or even criminally by investigators appointed by solicitors, was so tainted that it could not benefit from legal professional privilege and so was discoverable. There was a ‘strong prima facie case of criminal or fraudulent conduct’ by the claimants’ investigative agents: ‘But it seems to me that criminal or fraudulent conduct for the purpose of acquiring evidence in or for litigation cannot properly escape the consequence that any documents generated by or reporting on such conduct and which are relevant to the issues in the case are discoverable and fall outside the legitimate area of legal professional privilege . . . Ultimately, it seems to me that criminal or fraudulent conduct undertaken for the purpose of litigation falls on the same side of the line as advising on or setting up criminal or fraudulent transactions yet to be undertaken, as distinct from the entirely legitimate professional business of advising and assisting clients on their past conduct, however iniquitous’

Judges:

Rix J

Citations:

Times 06-Jan-1999, [1999] 1 WLR 1964, [1998] EWHC 1202 (Comm), [1999] 1 Lloyd’s Rep 478, [1999] 1 All ER 703, [1999] 1 All ER (Comm) 1

Links:

Bailii

Statutes:

Data Protection Act 1984 5(6)

Jurisdiction:

England and Wales

Citing:

ConfirmedKuruma v The Queen PC 8-Dec-1954
(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord . .
See AlsoDubai 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 . .

Cited by:

ApprovedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedHughes v Carratu International Plc QBD 19-Jul-2006
The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had . .
ApprovedMemory Corporation v Sidhu (No 2) CA 3-Dec-1999
Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too . .
AppliedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .
See AlsoDubai 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 . .
See AlsoDubai 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 19 May 2022; Ref: scu.80147

Clark Boyce v Mouat: PC 4 Oct 1993

(New Zealand) No duty of wisdom is owed to client in full command of his faculties by a lawyer. If the client requires only action from his lawyer, that is what is required. Informed consent can be sufficient to allow a solicitor to act for two parties even if there may be a conflict: ‘When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in the carrying out of a particular transaction, that solicitor is under no duty whether before or after accepting instructions to go beyond those instructions by proffering unsought advice on the wisdom of the transaction.’ and ‘There is no general rule of law to the effect that a solicitor should never act for both parties in a transaction where their interests may conflict. Rather is the position that he may act provided that he has obtained the informed consent of both to his acting. Informed consent means consent given in the knowledge that there is a conflict between the parties and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction or may be disabled from giving advice to one party which conflicts with the interests of the other.’
Lord Jauncey of Tullichettle: ‘Their Lordships are accordingly satisfied that Mrs Mouat required of Mr Boyce no more than that he should carry out the necessary conveyancing on her behalf and explain to her the legal consequences of the transaction. Since Mrs Mouat was already aware of the consequences if her son defaulted Mr Boyce did all that was reasonably required of him before accepting her instructions when he advised her to obtain and offered to arrange independent advice. As Mrs Mouat was fully aware of what she was doing and had rejected independent advice, there was no duty on Mr Boyce to refuse to act for her. Having accepted instructions he carried these out properly and was neither negligent nor in breach of contract in acting and continuing to act after Mrs Mouat had rejected his suggestion that she obtain independent advice. Indeed not only did Mr Boyce in carrying out these instructions repeat on two further occasions his advice that Mrs Mouat should obtain independent advice but he told her in no uncertain terms that she would lose her house if Mr R.G. Mouat defaulted. One might well ask what more he could reasonably have done.
When a client in full command of his faculties and apparently aware of what he is doing seeks the assistance of a solicitor in the carrying out of a particular transaction, that solicitor is under no duty whether before or after accepting instructions to go beyond those instructions by proffering unsought advice on the wisdom of the transaction. To hold otherwise could impose intolerable burdens on solicitors.’

Judges:

Lord Jauncey of Tullichettle

Citations:

Independent 12-Oct-1993, Times 07-Oct-1993, Gazette 03-Nov-1993, [1994] 1 AC 428, [1993] UKPC 34

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedFarrington v Rowe McBride and Partners 1985
(New Zealand) When a solicitor acts for two clients and there is a conflict in his responsibilities, the solicitor must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting. There may . .

Cited by:

CitedPickersgill and Another v Riley PC 25-Feb-2004
PC (Jersey) The solicitor appealed a finding of negligence. He had failed to advise his client when he acted as a guarantor for a proposed assignee of a lease that the company may be a shell company. It had been . .
CitedHilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
CitedBurkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
CitedThe Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
CitedCredit Lyonnais Sa (A Body Corporate) v Russell Jones and Walker (A Firm) ChD 2-Jul-2002
The claimant sought damages for professional negligence against the defendant solicitors. A corporate lawyer had been assigned to deal with a property matter, and he had failed to appreciate the need to comply strictly with time conditions in a . .
CitedPhelps v Stewarts (A Firm) and Another ChD 2-Jul-2007
The claimant sought damages for the negligent drafting of a deed of trust, saying that he had not been advised of a charge to tax which would arise. The defendant said that her duties were limited, and did not include advice on this point, having . .
Lists of cited by and citing cases may be incomplete.

Negligence, Legal Professions, Commonwealth

Updated: 19 May 2022; Ref: scu.79183

Casado Coca v Spain: ECHR 24 Feb 1994

The right to freedom of expression is not personal to the individual and is capable of being enjoyed by corporate legal persons, and commercial advertising, such as that of the claimants, is protected by Article 10(1). However, the control of lawyers’ right to advertise their practices, was not a breach of the right of free expression.

Citations:

Times 01-Apr-1994, [1994] ECHR 8, 15450/89, (1994) 18 EHRR 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10(1)

Jurisdiction:

Human Rights

Cited by:

CitedNorth Cyprus Tourism Centre Ltd and Another, Regina (on the Application Of) v Transport for London Admn 28-Jul-2005
The defendants had prevented the claimants from advertising their services in North Cyprus on their buses, and justified this saying that the Crown did not recognise the Turkish Republic of North Cyprus since it was the result of an unlawful . .
CitedCore Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights, Media

Updated: 19 May 2022; Ref: scu.78930

Burrows v Vauxhall Motors Ltd; Mongiardi v IBBC Vehicles Ltd: CA 19 Nov 1997

After acceptance of money paid into court in proceedings issued unnecessarily quickly, the taxing officer alone has the power to disallow costs.
Powers of the County Court to deal with costs unnecessarily incurred as the result of the premature issue of proceedings in personal injury actions where liability was not in issue.

Judges:

Lord Woolf

Citations:

Gazette 10-Dec-1997, Times 17-Dec-1997, [1997] EWCA Civ 2756

Links:

Bailii

Statutes:

County Court Rules 1981 Order 11 r 3(3)

Jurisdiction:

England and Wales

Citing:

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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Personal Injury

Updated: 19 May 2022; Ref: scu.78763

Browell and Others v Goodyear: ChD 24 Oct 2000

When a partnership of solicitors was dissolved, the main asset was the work in progress comprised in substantial personal injury litigation being conducted, in effect, on a conditional fee basis. The question arose of how it could be valued. The court discarded foreign judgments which gave nil value to such assets for taxation purposes, and also the ‘realisation’ basis sometimes used in Britain. Instead the court had to assess the proportion of work which might prove successful, and to establish what proportion of the work had already been concluded, making allowance for the need for simplicity of calculation, the necessary inexactitude, and giving the benefit of any doubt to those who might complete the work.

Citations:

Times 24-Oct-2000

Company, Legal Professions

Updated: 18 May 2022; Ref: scu.78685

British Waterways Board v Norman: QBD 11 Nov 1993

A solicitor cannot claim payment from the other party of costs he would not ask his own client to pay. An implied contingency agreement with his client could defeat a claim for payment of costs from the other party. There was never any intention on the part of the solicitors to create any liability for their own costs if the proceedings failed. It therefore followed that they sought to conduct the case on a contingency basis, such basis being contrary to public policy in any criminal trial such as this.

Citations:

Ind Summary 29-Nov-1993, Times 11-Nov-1993, [1993] 22 HLR 232

Statutes:

Environmental Protection Act 1990 79

Costs, Legal Professions, Criminal Practice, Housing

Updated: 18 May 2022; Ref: scu.78651

Berkshire and Oxfordshire Magistrates’ Courts v Gannon and Another: QBD 10 May 2000

The applicants had been employed on the administrative staff of a Magistrates’ Court, spending 25-40% of their working day performing duties delegated to them by the clerk to the justices. The Tribunal held that, as an ‘appreciable’ part of their duties was in assisting the JC, they came within the definition in regulation 3(1)(b).
Held: The case was remitted to the Tribunal. The Tribunal had misdirected itself in holding that, for the purposes of the regulation, assisting the JC need be no more than an ‘appreciable’ part of the employment. More was required. Provided a person’s duties at work were predominantly devoted to providing assistance to the holder of the office of justices’ clerk, that person would be entitled to compensation upon termination of office under the Regulations.
Carnwath J explained the meaing of regulation 3: ‘Is it sufficient that assisting the justices’ clerk should be ‘an appreciable (as opposed to insignificant or negligible’) feature of the employment, as the tribunal concluded? Or is Mr Lynch right in submitting that the employment must be wholly or predominately devoted to providing such assistance? . . In my view Mr Lynch is correct on this issue. The words of regulation 3(1) itself are ambiguous. I accept that a person, only part of whose duties consist of assisting the justices’ clerk, could still properly be said to be ’employing in assisting’ him. However, the context is of an employment which is comparable to that of the office of justices’ clerk. That is much more readily understandable in relation to someone whose main job is to assist the clerk, rather than someone who merely spends part of his time assisting the clerk’.
He concluded ‘It would be convenient if one could treat that dividing-line, between delegated and non-delegated functions, as corresponding precisely to the relevant distinction under regulation 3. However, that is not how the regulation is drafted. Nor does it appear, from the Tribunal’s finding, that there was in practice a clear dividing-line. Even the non-delegated functions seem to have been considerably more significant than those of ‘typists, secretaries or ushers.’ A conclusion that these duties, or some of them, also amounted to ‘assisting the clerk’, in the sense defined by the Tribunal, would not necessarily be unreasonable.’

Judges:

Carnwath J

Citations:

Times 10-May-2000, [2000] ICR 1003, [2000] EWHC Admin 326

Links:

Bailii

Statutes:

Justices of The Peace Act 1949 (Compensation) Regulations 1978 (1978 No 1682)

Cited by:

ApprovedSlee v Secretary of State for Justice (1) Admn 19-Nov-2007
The claimant sought compensation under the Regulations as a result of her dismissal on the re-organisation of the Magistrates Court at Wimbledon from her position as court clerk. The EAT had allowed her claim for unfair dismissal. Her position on . .
CitedSecretary of State for Justice v Slee CA 24-Jan-2011
The claimant had been found to have been unfailry dismissed by respondent, on the termination of her employment as an assistant Clerk to the Justices. The EAT had upheld her claim, but had at first rejected her claim for long-term and retirement . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 18 May 2022; Ref: scu.78358

Chief Justice of Trinidad and Tobago v The Law Association of Trinidad and Tobago: PC 16 Aug 2018

Trinidad and Tobago – The Law Association having a constitutional duty to conduct any enquiry necessary as regards the Chief Justice. It resolved to establish a committee to enquire whether such a complaint was required, allegations having been made. The appellant’s objection that it had no power to do so was rejected, and he now appealed.
‘A vital element in any modern democratic constitution is the independence of the judiciary from the other arms of government, the executive and the legislature. This is crucial to maintaining the rule of law: the judges must be free to interpret and apply the law, in accordance with their judicial oaths, not only in disputes between private persons but also in disputes between private persons and the state. The state, in the shape of the executive, is as much subject to the rule of law as are private persons. An important part of the judicial task in a constitutional democracy is not only to ensure that public authorities act within their powers but also to enforce the fundamental rights of individuals against the state. Judicial independence is secured in a number of ways, but principally by providing for security of tenure: in particular this requires that a judge may only be removed from office, or otherwise penalised, for inability or misbehaviour and not because the government does not like the decisions which he or she makes. It is also required that removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.’

Judges:

Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption

Citations:

[2018] UKPC 23

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Constitutional, Legal Professions

Updated: 18 May 2022; Ref: scu.621124

Crescent 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 sell the land or any part of it. Within that period the first defendants contracted to sell, and then conveyed, the land to the second defendants without any release from the option. In the course of the proceedings for damages for, among other things, breach of contract and conspiracy, the plaintiffs issued a summons for disclosure from the second defendants of instructions to counsel by the first defendants and the opinion of counsel, which had been sent by the first defendants to the second defendants.
Held: The second defendants’ claim for privilege should be upheld and the plaintiffs’ summons dismissed. It was clearly established that privilege of a predecessor in title enures for the benefit of his successor. The second defendants had received the documents at issue as successors in title.

Judges:

Goff J

Citations:

[1972] Ch 533, [1971] 3 All ER 1192, [1972] 2 WLR 91

Jurisdiction:

England and Wales

Citing:

CitedMinet v Morgan CA 1873
A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps. . .

Cited by:

CitedIn re Konigsberg (A Bankrupt) 1989
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s . .
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. . .
CitedShlosberg v Avonwick Holdings and Others ChD 7-Mar-2016
Application for order disallowing a firm from acting for the defendants. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 18 May 2022; Ref: scu.621168

Prudential 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 passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. However that privilege extended only to advice by professional or qualified lawyers. Amongst other things, beyond the case law, this was demonstrated by a rejection of a proposal for it to be extended to accountants, and acceptance of its extension to patent agents, and other statutory distinctions.
Whilst there may be a logic in extending the privilege, a decision must come from Parliament.
Lord Sumption dissented saying: ‘the law is that legal professional privilege attaches to any communication between a client and his legal adviser which is made (i) for the purpose of enabling the adviser to give or the client to receive legal advice, (ii) in the course of a professional relationship, and (iii) in the exercise by the adviser of a profession which has as an ordinary part of its function the giving of skilled legal advice on the subject in question. The privilege is a substantive right of the client, whose availability depends on the character of the advice which he is seeking and the circumstances in which it is given. It does not depend on the adviser’s status, provided that the advice is given in a professional context. It follows, on the uncontested evidence before us, that advice on tax law from a chartered accountant will attract the privilege in circumstances where it would have done so had it been given by a barrister or a solicitor. They are performing the same function, to which the same legal incidents attach.’
Lord Clarke said: ‘Legal advice privilege is a creature of the common law. As such it should be capable of redefinition to cater for changed conditions. If principle requires that it should apply to situations to which it was previously thought not to apply, I can see no reason why this court should not so state, unless prevented from doing so, either expressly or necessary implication, by statute.’

Judges:

Lord Neuberger, President, Lord Hope, Deputy President, Lord Walker, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed

Citations:

[2013] WLR(D) 20, [2013] UKSC 1, UKSC 2010/0215

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

Taxes Management Act 1970 20(1)(a), Trade Mark Act 1994 87, Copyright, Designs and Patents Act 1988 280

Jurisdiction:

England and Wales

Citing:

At First InstancePrudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Appeal fromPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedBerd v Lovelace 1576
A solicitor served with process to testify, ordered not to be examined. Thomas Hawtry, gentleman was served with a subpoena to testify his knowledge touching the cause in variance ; and made oath that he hath been, and yet is a solicitor in this . .
CitedGreenough v Gaskell 17-Jan-1833
On a bill which sought to charge a solicitor with a fraud practised on the Plaintiffs in the course of proceedings on his client’s behalf, the Court refused to order the production of entries and memorandums contained in the Defendant’s books, or of . .
CitedUpjohn Company v United States 13-Jan-1981
Worldlii United States Supreme Court – When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made . .
CitedRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
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 . .
CitedSlade v Tucker CA 1880
Sir George Jessel MR said that legal advice privilege is to be ‘confined to communications between a client and his legal adviser, that is, between solicitor and client or barrister and client.’ . .
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. . .
CitedMinter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
CitedAttorney-General v Mulholland CA 1963
The court rejected a claim for protection from disclosure of matters passing between journalists and their sources: ‘it is said that however these questions were and however proper to be answered for the purpose of this inquiry, a journalist has a . .
CitedD v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
CitedDormeuil 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 . .
CitedLawrence v Campbell 1859
Legal privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London.
Held: ‘the same principle that would justify an Englishman consulting his English solicitor would . .
CitedMacfarlan v Rolt 1872
Communications between a client and his foreign lawyers were treated as being entitled as a matter of course to the same legal advice privilege as communications with English lawyers in like circumstances. . .
CitedWilden Pump Engineering Co v Fusfeld CA 1985
The 1977 Act conferred privilege on any communication involving patent attorneys made for the purpose of proceedings before the Comptroller of Patents or the Patents Appeal Tribunal. The defendants claimed privilege for all communications with their . .
CitedNew Victoria Hospital v Ryan EAT 3-Feb-1993
Privilege from disclosure is only to attach to ‘qualified legal advisers’.
Tucker J referred in an obiter passage to advisers ‘such as solicitors or counsel’, and thus it was said that he was not seeking to limit legal professional privilege . .
CitedIn re Duncan, decd, Garfield v Fay 1968
Ormrod J rejected a submission that where foreign lawyers are involved no privilege is recognised by an English Court if privilege is not recognised by the municipal law of the forum of the foreign lawyer. He said: ‘The basis of the privilege is . .
CitedGreat Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
CitedCreditors of Wamphray v Lady Wamphray 1675
An advocate was not bound to disclose ‘any private advice or secret of his calling or employment’ . .
CitedDorset Yacht Co Ltd v Home Office HL 6-May-1970
A yacht was damaged by boys who had escaped from the supervision of prison officers in a nearby Borstal institution. The boat owners sued the Home Office alleging negligence by the prison officers.
Held: Any duty of a borstal officer to use . .
CitedAM and S Europe Ltd v Commission of The European Communities ECJ 4-Feb-1981
Sir Gordon Slynn AG discussed legal advce priviege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic . .
CitedVan Der Mussele v Belgium ECHR 23-Nov-1983
There is discrimination only if the cases under comparison are not sufficiently different to justify the difference in treatment. This expressed by saying that the two cases must be in an ‘analogous situation’. The social security system is a . .
CitedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedDennis v Codrington 1579
A counsellor not to be examined of any matter, wherein he hath been of couunsel.- The plaintant seeks to have Master Oldsworth examined touching a matter in variance, wherein he hath been of counsel ; it is ordered he shall not be compelled by . .
CitedCalley v Richards CA 8-Jul-1854
Communications between a person and his legal adviser, who had been a solicitor, but at the time of the communications had, without his knowledge ceased to practise, are privileged. The communication had reference to the validity of a will, and . .
CitedMcLeod v McLeod 1744
. .
CitedMoseley v The Victoria Rubber Co ChD 1886
There is no general professional privilege covering communications between a person and his patent agent. Communications between a client and his solicitor who was also the client’s patent attorney were not privileged if the solicitor received them . .
CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
CitedJohnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
CitedWoolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
CitedBirmingham Corporation v West Midlands Baptist (Trust) Association Inc HL 1969
There had been a substantial delay of many years after the order for compulsory purchase was made, with a substantial increase in value after the service of the notice to treat.
Held: The physical condition of the reference land and its . .
CitedParry-Jones v The Law Society CA 1969
The Society had, for regulatory purposes, exercised a power under the 1957 Act to call upon the plaintiff, a solicitor, to produce for inspection accounts and other information relating to the conduct of his clients’ affairs. He sought an injunction . .
CitedAlfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners CA 1972
Legal advice given by employed lawyers to their employers, rather than lawyers in independent practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Taxes Management

Updated: 18 May 2022; Ref: scu.470523

Creditors of Wamphray v Lady Wamphray: 1675

An advocate was not bound to disclose ‘any private advice or secret of his calling or employment’

Citations:

(1675) Mor 347

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.

Scotland, Legal Professions

Updated: 18 May 2022; Ref: scu.470881

Slade v Tucker: CA 1880

Sir George Jessel MR said that legal advice privilege is to be ‘confined to communications between a client and his legal adviser, that is, between solicitor and client or barrister and client.’

Judges:

Sir George Jessel MR

Citations:

(1880) 14 Ch D 824

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

Updated: 18 May 2022; Ref: scu.470877

Regina v Samuel: CA 1988

The defendant had been arrested on suspicion of armed robbery. He asked for a solicitor, but one was refused under section 58 of the 1984 Act. He appealed against his conviction saying that he should have been allowed access to a solicitor.
Held: The appeal was allowed. He could not be refused access to a solicitor after charge where, as here, the initial charges had been of burglary, and the inspector refusing access had to justify the refusal of access to any particular solicitor. The right of a suspect to consult and instruct a lawyer ‘as one of the most important and fundamental rights of a citizen’.

Judges:

Hodgson J

Citations:

[1988] QB 615, [1988] 2 WLR 920, (1987) Cr App R 232

Statutes:

Police and Criminal Evidence Act 1984 58(1)

Cited by:

CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedBeeres v Crown Prosecution Service (West Midlands) Admn 13-Feb-2014
The defendant said that his confession should not have been admitted in evidence it having been given when he had not been advised of his rights whilst at the police station because of his inebriation.
Held: The appeal failed. A confession is, . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Police

Updated: 18 May 2022; Ref: scu.445392

Dennis v Codrington: 1579

A counsellor not to be examined of any matter, wherein he hath been of couunsel.- The plaintant seeks to have Master Oldsworth examined touching a matter in variance, wherein he hath been of counsel ; it is ordered he shall not be compelled by subpoena, or otherwise, to be examined upon any matter concerning the same, wherein he the said Mr. Oldsworth was of counsel, either by the indifferent choice of both parties, or with either of them by reason of any annuity or fee.

Citations:

[1579] EngR 37, (1579-80) Cary 100, (1579) 21 ER 53 (D)

Links:

Commonlii

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

Updated: 18 May 2022; Ref: scu.430919

Lewis v Samuel: 17 Apr 1846

Plaintiff, an attorney, undertook a prosecution for perjury on defendant’s behalf, and agreed not to charge him full costs, except money out of pocket. He disbursed 105 pounds towards carrying on the proceedings, but, by negligence, preferred a defective indictment, and, in consequence, the prosecution failed. Held that he could not recover against defendant for the disbursements. Defendant, in the course of the proceedings, advanced plaintiff 100 1. for carrying them on ; and he applied it accordingly. Held, that, in an action by plaintiff for professional charges and disbursements, defendant could not set off’ the 100 pounds. as money received by plaintiff to his use.

Citations:

[1846] EngR 543, (1846) 8 QB 685, (1846) 115 ER 1031

Links:

Commonlii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 18 May 2022; Ref: scu.302438

Dooly v The Great Northern Railway Company: 27 Jan 1860

By reason of stat. 11 Hen. 7, c. 12, and Reg. Gen. Hil. 1853, r. 121, where a plaintiff sues in forma pauperis, arid obtains a verdict arid the Judge’s certificate for costs, whatever be the amount recovered, nothing is to be allowed on taxation of costs in respect of fees to the plaintiffs counsel, or by way of remuneration for the services of the plaintiff’s attorney. In a case where the Court bad previously so held, the Court now refused an application by the plaintiff for a rule to enter a suggestion on the roll to deprive the plaintiff of costs; the object of the application being that error might be brought on the former decision, and the Court holding that error could riot be brought.

Citations:

[1860] EngR 393, (1860) 2 El and El 576, (1860) 121 ER 217

Links:

Commonlii

Jurisdiction:

England and Wales

Costs, Legal Professions

Updated: 18 May 2022; Ref: scu.285232

Bowman v Fels (Bar Council and Others intervening): CA 8 Mar 2005

The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the VAT on works carried out on his own property. Because of the delay which would ensue and the duty not to tell the other party, they applied ex parte to vacate the trial date.
Held: The court could continue to hear the public law element despite the fact that the parties had resolved the underlying dispute. ‘The issue at the very centre of this appeal is whether s 328 applies to the ordinary conduct of legal proceedings at all. There is also a narrower issue, namely if it does, whether Parliament can be taken, without using clear words to that effect, to have intended to override the important principles underlying legal professional privilege and the strict terms on which lawyers are permitted to have access to documents disclosed in the litigation process. ‘ In implementing the 2001 Directive, the UK had gone beyond what was required. The need to be able to receive legal advice in confidence is a fundamental part of the right to a fair trial: ‘ . . . the proper interpretation of s 328 is that it is not intended to cover or affect the ordinary conduct of litigation by legal professionals. That includes any step taken by them in litigation from the issue of proceedings and the securing of injunctive relief or a freezing order up to its final disposal by judgment. We do not consider that either the European or the United Kingdom legislator can have envisaged that any of these ordinary activities could fall within the concept of ‘becoming concerned in an arrangement which . . . facilitates the acquisition, retention, use or control of criminal property’. On the narrower ground ‘There is nothing in the language of s 328 to suggest that Parliament expressly intended to override legal professional privilege’. Clear language would have been required: ‘even if s 328 does apply to the ordinary conduct of legal proceedings, it does not override legal professional privilege. ‘

Judges:

Lord Justice Brooke (Vice President Of The Court Of Appeal, Civil Division) Lord Justice Mance Lord Justice Dyson

Citations:

[2005] 4 All ER 609, [2005] EWCA Civ 226, Times 14-Mar-2005, [2006] 1 WLR 3083

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002 328, Council Directive of 4th December 2001 (2001/97/EEC), Council Directive of 10th June 1991 (91/308/EEC), The Proceeds of Crime Act 2002 (Business in the Regulated Sector and Supervisory Authorities) Order 2003 (SI 2003 No 3074), European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

CitedSun Life Assurance Co of Canada v Jervis HL 1944
The parties had disputed the terms of an insurance policy. The House considered whether it could hear the case once the dispute had been settled.
Held: There was no remaining dispute for the House to settle. Viscount Simon LC said: ‘My Lords, . .
CitedP v P (Ancillary Relief: Proceeds of Crime) FD 8-Oct-2003
The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief . .
CitedAinsbury v Millington (Note) HL 1987
There had been a dispute between the parties as to a council house tenancy, but by the time it came before the House, the tenancy had ceased to exist, and the action was academic.
Held: Once the parties have settled their dispute there remains . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Salem HL 3-Mar-1999
The House of Lords has the power to hear a case where the parties have in effect settled and there remains no lis at issue, but the House will not hear such an academic case where no general issue of importance is at stake, or the facts are . .
CitedGolder v The United Kingdom ECHR 21-Feb-1975
G was a prisoner who was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer. The court construed article 6 of ECHR, which provides that ‘in the determination of his . .
CitedCallery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .
CitedAttorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedJohnston v Chief Constable of the Royal Ulster Constabulary ECJ 15-May-1986
The principles of the European Convention for the Protection of Human Rights must be taken into consideration in community law. The principle of effective judicial control laid down in article 6 of Council Directive 76/207, a principle which . .
CitedRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
CitedOcalan v Turkey ECHR 12-Mar-2003
The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none . .
CitedAM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
CitedFoxley v United Kingdom ECHR 20-Jun-2000
A bankrupt was suspected of disposing of his assets to avoid a confiscation order. The trustee in bankruptcy obtained an order for the bankrupt’s post to be diverted to her whilst he was in prison. She opened all post and copied it before forwarding . .
CitedS v Switzerland ECHR 28-Nov-1991
Access to legal advice on a private and confidential basis is a fundamental principle not lightly to be interfered with. Fair trial rights may require communications with lawyers to be protected, and that confidential communications between lawyers . .
CitedCampbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
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 . .
CitedRegina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
CitedHome Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
CitedMD Foods v Baines and others; Associated Dairies Ltd v Baines and Others HL 27-Feb-1997
The appellant dairy sold milk to the defendant roundsmen, each agreeing not to sell milk by retail to the others customers. The defendant began to buy his milk elsewhere, and claimed the agreement should have been registered as a restrictive trade . .
CitedRegina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
CitedRegina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .

Cited by:

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. . .
CitedBurkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
CitedRolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
CitedHutcheson v Popdog Ltd and Another CA 19-Dec-2011
The claimant had obtained an injunction to prevent the defendant publishing private materials regarding him. That injunction had been continued by consent but was no challenged by a third party news publisher.
Held: Leave to appeal was . .
CitedGH, Regina v SC 22-Apr-2015
Appeal against conviction for entering into an arrangement for the retention of criminal funds. The defendant said that at the time of the arrangement there were not yet any criminal funds in existence. A had set up websites intending to con . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Human Rights

Updated: 17 May 2022; Ref: scu.223272

Ashmore and Others v Corporation of Lloyds: HL 13 May 1992

A Judge’s interlocutory order for the trial of a preliminary point could be set aside only if it was clearly wrong: ‘In my opinion, when a judge alive to the possible consequences decides that a particular course should be followed in the conduct of the trial in the interests of justice, his decision should be respected by the parties and upheld by an appellate court unless there are very good grounds for thinking that the judge was plainly wrong.’ and ‘Litigants are not entitled to the uncontrolled use of a trial Judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial Judge’s time as is necessary for the proper determination of the relevant issues.’
There is an overriding duty on lawyers to assist in the prompt and economical disposal of litigation.
Lord Templeman referred to previous case where he had ‘warned against proceedings in which all or some of the litigants indulge in over-elaboration causing difficulties to judges at all levels in the achievement of a just result. He also said that the appellate court should be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in the course of a trial the decision should be respected by the parties and if not respected should be upheld by an appellate court unless the judge was plainly wrong . . An expectation that the trial would proceed to a conclusion upon the evidence [that the party wishing to call are sought] to be adduced is not a legitimate expectation. The only legitimate expectation of any plaintiff to receive justice. Justice can only be achieved by assisting the judge and accepting his rulings.’

Judges:

Lord Templeman, Lord Roskill

Citations:

Gazette 13-May-1992, [1992] 2 All ER 486, [1992] 1 WLR 446, [1992] 2 Lloyds Rep 1

Cited by:

CitedNoorani v Merseyside TEC Limited CA 19-Oct-1998
The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 17 May 2022; Ref: scu.77897

Arthur J S Hall and Co (A Firm) v Simons etc: CA 14 Dec 1998

The court considered the limits on liability for professional negligence for lawyers in conduct associated with litigation, but outside the courtroom.
Held: Though the court must balance the need for protection against negligence by lawyers with the need to avoid re-litigation of issues settled by courts, case law dictates some exemptions, but these must be limited and any doubt resolved against the practitioner.

Judges:

Lord Bingham of Cornhill LCJ, Mottitt LJ, Waller LJ

Citations:

Times 18-Dec-1998, [1998] EWCA Civ 1943, [1999] 3 WLR 873, [1998] EWCA Civ 3539, [1999] 1 FLR 536, [1999] PNLR 374, [1999] 2 FCR 193, [1998] NPC 162, [1999] Fam Law 215, [1999] Lloyd’s Rep PN 47

Links:

Bailii, Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromArthur 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 . .
CitedWorldwide Corporation Limited v Marconi Communications Ltd (Formerly Gpt Limited) and Gpt (Middle East) Limited CA 21-Jun-1999
Counsel, giving assurances in open court on behalf of his client, bound that client. This applied even though counsel might have been negligent, and / or might, in turn, be immune from suit. Courts must be able to rely, and act, upon assurances . .
CitedWorldwide Corporation Limited v Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited 22-Jun-1999
Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
Held: The claim had little prospect of success. Leave to appeal refused. . .
CitedXydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 17 May 2022; Ref: scu.77881

Regina v Southampton Crown Court ex parte J and P: 21 Dec 1992

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

Judges:

Watkins LJ, Auld LJ

Citations:

[1993] Crim LR 962

Statutes:

Police and Criminal Evidence Act 1984 9

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Lewes Crown Court and Chief Constable of Sussex Police ex parte Nigel Weller and Co Admn 12-May-1999
The applicant sought judicial review of a decision to grant a search warrant in respect of his offices, saying that the material covered was protected by legal privilege. The warrant had been unavailable under section 8 because of the privilege, and . .
CitedHafner and Hochstrasser (A Firm), Regina (on the Application of) v Australian Securities and Investments Commission Admn 5-Mar-2008
The Commission renewed its application for a review of a decision on their request for judicial assistance in obtaining evidence from the firm. The firm had produced confidential documents to the court, and not disclosed to the Commission.
CitedFaisaltex Ltd and others, Regina (on the Application of) v Crown Court Sitting at Preston and others etc Admn 21-Nov-2008
Nine claimants sought leave to bring judicial review of the issue of search warrants against solicitors’ and business and other premises, complaining of the seizure of excluded material and of special procedure material. There were suspicions of the . .
Lists of cited by and citing cases may be incomplete.

Police, Legal Professions

Updated: 17 May 2022; Ref: scu.260138

In re Konigsberg (A Bankrupt): 1989

The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s entitlement to legal professional privilege vests in the trustee so that neither the bankrupt nor the bankrupt’s solicitor can claim privilege under examination.
Peter Gibson J said: ‘Finally I return to the first ground on which Mr Walker relies for his submission that privilege cannot be asserted by Mrs Konigsberg against the trustee. Mr Walker referred me to the following passage in Phipson on Evidence, 13th ed., para.15-11, under the heading ‘Joint retainer’: ‘When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other – e.g. a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though it is otherwise as to communications made to the solicitor in his exclusive capacity.’
Thus if the communication with or from the solicitor in his joint capacity must be disclosed, privilege cannot be asserted by one of the two parties against the other in proceedings against each other. This is established by Shore v. Bedford (1843) 5 M. and G. 271. In that case the plaintiff having a claim against the defendant went with the defendant to the plaintiff’s solicitor, who agreed to write on the defendant’s behalf to a third party. The defendant made a statement in the plaintiff’s presence to the solicitor and the plaintiff subsequently brought an action against the defendant. It was held that the statement was not a privileged communication and questions could be asked of the solicitor’s clerk as to what had been said.’

Judges:

Peter Gibson J

Citations:

[1989] 1 WLR 1257

Jurisdiction:

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 . .

Cited by:

ApprovedFulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
CitedHellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
CitedFord, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Insolvency

Updated: 17 May 2022; Ref: scu.240160

Regina v Crown Court ex parte Baines and Baines: 1988

The court considered special procedure material arising out of the Brinks-Mat robbery.
Held: The records of the financing of a transaction for the purchase of a property were not to be subject to legal professional privilege under section 10 of the Police and Criminal Evidence Act as the conveyancing matter was wholly unconnected with litigation.

Citations:

[1988] QB 579

Statutes:

Police and Criminal Evidence Act 1984 10

Jurisdiction:

England and Wales

Cited by:

CitedMiller Gardner Solicitors, Regina (on the Application of) v Minshull Street Crown Court Admn 20-Dec-2002
Police investigating crime obtained a warrant to search a solicitor’s offices for details of their clients. The solicitors appealed.
Held: The details required, namely dates of contacts with a certain telephone number were not legally . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 May 2022; Ref: scu.197741

Collins v London General Omnibus Company: 1893

The court adopted a narrow definition of when documents would be protected by legal professional privilege because of anticipated litigation. Will J postulating circumstances being such that ‘no reasonable person could doubt that an action would follow’, and Charles J defining a case in which litigation was reasonably apprehended as being one ‘when there is a high probability, amounting to certainty, that an action will ensue’.

Judges:

Wills J, Charles J

Citations:

(1893) 68 LT NS 831

Jurisdiction:

England and Wales

Cited by:

CitedUnited States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.195747

Minet v Morgan: CA 1873

A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps.

Judges:

Lord Selborne LC

Citations:

(1873) LR 8 Ch 361, (1873) 8 Ch App 361

Jurisdiction:

England and Wales

Citing:

AdoptedLawrence v Campbell 1859
Legal privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London.
Held: ‘the same principle that would justify an Englishman consulting his English solicitor would . .

Cited by:

CitedMinter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend 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 . .
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 May 2022; Ref: scu.194266

Regina v Governor of Whitemoor Prison, Ex parte Main: QBD 1999

The court considered whether prison staff should be able to read letters between a prisoner and his legal advisers before proceedings were actually commenced.
Held: The policy represented the minimum intrusion into the rights of prisoners consistent with the need to maintain security, order and discipline in prisons. Kennedy LJ ‘In my judgment legal professional privilege does attach to correspondence with legal advisers which is stored by a prisoner in his cell, and accordingly such correspondence is to be protected from any unnecessary interference by prison staff. Even if the correspondence is only inspected to see that it is what it purports to be that is likely to impair the free flow of communication between a convicted or remand prisoner on the one hand and his legal adviser on the other, and therefore it constitutes an impairment of the privilege.’ Judge LJ ‘Prisoners whose cells are searched in their absence will find it difficult to believe that their correspondence has been searched but not read. The governor’s order will sometimes be disobeyed. Accordingly I am prepared to accept the potential ‘chilling effect’ of such searches.’

Judges:

Kennedy LJ, Judge LJ

Citations:

[1999] QB 349

Jurisdiction:

England and Wales

Citing:

See alsoRegina v Governor of HM Prison Whitemoor ex parte Main Admn 17-Feb-1997
. .

Cited by:

See AlsoRegina v Governor of HM Prison Whitemoor ex parte Main Admn 17-Feb-1997
. .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Lists of cited by and citing cases may be incomplete.

Prisons, Legal Professions

Updated: 16 May 2022; Ref: scu.190129

Balabel v Air India: CA 1988

When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be extended with it. ‘Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purpose of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required [as] appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as ‘please advise me what I should do’. But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context.’ However: ‘ to extend privilege without limit to all solicitor and client communication upon matters within the ordinary business of a solicitor and referable to that relationship [would be] too wide.’ And ‘Once solicitors are embarked on a conveyancing transaction they are employed to ensure that the client steers clear of legal difficulties, and communications passing in the handling of that transaction are privileged (if their aim is the obtaining of appropriate legal advice) since the whole handling is experience and legal skill in action and a document uttered during the transaction does not have to incorporate a specific piece of legal advice to obtain that privilege.’

Judges:

Taylor LJ, Parker LJ and Lord Donaldson MR

Citations:

[1988] Ch 317, [1988] ANZ Conv R 417, [1988] 2 All ER 246, [1988] 2 WLR 1036

Jurisdiction:

England and Wales

Citing:

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:

CitedUnited States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
CitedRegina on the Application of Davies (No 2) v HM Deputy Coroner for Birmingham CA 27-Feb-2004
The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position . .
CitedUnited States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
CitedRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
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 . .
CitedNederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
CitedCurtis v Curtis CA 8-Mar-2001
The mother sought leave to call in evidence in proceedings for contact, an affidavit sworn by the father’s previous solicitors when applying to be removed from the record, which related the contents of telephone calls from the father to their . .
CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 May 2022; Ref: scu.188692

Shuttleworth and Co v Commissioners of Customs and Excise: 1994

The transfer of funds by a solicitor was part of the overall conveyancing service provided by a solicitor to his client. Therefore, a telegraphic transfer fee could not for VAT purposes, be treated as a disbursement in the solicitor’s bill to his client.

Citations:

Lon/94/986A

VAT, Legal Professions

Updated: 16 May 2022; Ref: scu.187350

Langley Holdings v Seakens: QBD 19 Oct 2000

The claimant sought recovery from one of two partners in a solicitors’ firm of solicitors of sums paid to the firm and misappropriated by the partner, who had conspired with others to offer a fraudulent investment. The claimant admitted that the promised return was incredible. The funds were received on an undertaking that they would not be used absent documentation. That undertaking was broken. It was in a solicitor’s ordinary course of business to hold money for his client. Nevertheless the defendant contended that the ‘underlying transaction’ had been ‘extraordinary’ and ‘outlandish’ and no reasonable person could have acted in it; and that the claimant could have had no genuine belief.
Held: The claimant was so dazzled by the promised profits that they had not asked whether there was a genuine investment. The recipt of the funds could not have been in the ordinary course of the business of a solicitor, and it followed that the partner was not liable.

Citations:

Unreported, 19 October 2000

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Cited by:

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, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 16 May 2022; Ref: scu.186089

Chamberlain v Boodle and King: 1982

A second solicitor’s bill was not susceptible to taxation because it related to what was in effect one continuous matter for which a bill had already been taxed.

Judges:

Lord Denning MR

Citations:

[1982] 3 All ER 188

Jurisdiction:

England and Wales

Cited by:

CitedAaron v Okoye CA 15-Jan-1998
The plaintiff solicitor had acted for the respondent barrister in legal proceedings. The respondent was unhappy with work done on her behalf by counsel instructed by the plaintiff, and declined to pay. The solicitor taxed his bill excluding . .
CitedAaron v Okoye CA 19-Mar-1997
. .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 16 May 2022; Ref: scu.183327

In re Ronald A Prior and Co (Solicitors): 1996

Citations:

[1996] Cr App R 248

Cited by:

CitedWasted Costs Order (No 5 of 1997) CACD 2-Sep-1999
Witness orders for the production of documents in the speculative hope that they might contain matters of assistance should be discouraged, and particularly so in respect of documents held by social services departments. This should now be well . .
Lists of cited by and citing cases may be incomplete.

Crime, Legal Professions

Updated: 16 May 2022; Ref: scu.183205

Heslop v Metcalfe: 1837

The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, after embarking in a cause, he finds that he cannot get the necessary funds wherewith to carry it on. But, on the other hand, extreme hardship might arise to the client if – to take the case which is not uncommon in the smaller practice in the country – a solictor, who finds a poor man having a good claim, and having but a small sum of money at his command, may go until that fund is exhausted, and then, refusing to proceed further, may hang up the cause by withholding the papers in his hands. That would be great grievance and means of oppression to a poor client, who in the clearest right in th eworld, might still be without the means of employing another solicitor. The rule of the Court must be adapted in every case that may occur, and be calculated to protect suitors against such conduct.’ and ‘I then take the law as laid down by Lord Eldon, and, adapting that law, must holdthat Mr Blunt is not to be permitted to impose upon the Plaintiff the necessity of carrying on his cause in an expensive, inconvenient, and disadvantageous manner. I think the principle should be, that the solicitor claiming the lien, should have every security not inconsistent with the progress of the cause.’

Judges:

Lord Cottenham LC

Citations:

[1837] 3 My and Cr 183

Jurisdiction:

England and Wales

Cited by:

CitedIsmail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
ApprovedGamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 May 2022; Ref: scu.183177

Goddard v Nationwide Building Society: CA 1986

A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, and he disclosed his note of the attendance on the plaintiff to the defendant. The note was protected by legal professional privilege. The defendant referred to the note in its defence, which was subsequently the subject of litigation between them, sent to the defendant a copy of his file note of the information which he had given to the plaintiff prior to the completion of the transaction. The defendant pleaded the substance of the contents of the note in its Defence. The plaintiff sought to restrain its use. The defendant now appealed against an order striking out those elements of its defence.
Held: The defendant’s appeal succeeded. In the circumstances in which the file note was made, the privilege attaching to it belonged exclusively to the plaintiff. Orders were made requiring the defendant to deliver up the document and restraining him from using it.
Nourse LJ said: ‘The second question has confronted us, in a simple and straightforward manner, with the task of reconciling the decisions of this court in Calcraft v. Guest [1898] 1 Q.B. 759 and Lord Ashburton v. Pape [1913] 2 Ch. 469. I agree that those decisions are authority for the proposition which May L.J. has stated. However unsatisfactory its results may be thought to be, that proposition must hold sway unless and until it is revised by higher authority.
. . Although, for the reasons given by May LJ, I am in no doubt that our decision must be governed by Lord Ashburton v. Pape [1913] 2 Ch. 469, the confusion which the existing authorities have caused in this case and are liable to cause in others has prompted me to deal with the matter at somewhat greater length than would otherwise have been necessary.’
It was crucial that the holder of the privilege should seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial. Second, this equitable jurisdiction can prevail over the rules of evidence relating to privilege. Thirdly, the right of the party seeking equitable relief ‘does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come’ Fourth, once the equitable jurisdiction in Ashburton has arisen, there is no discretion to rely upon views of the materiality of the communication or the justice of admitting or excluding it or like considerations: ‘The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay.’
Fifth, even if the equitable jurisdiction can no longer apply, public policy (rather than the exercise of discretion) may nevertheless preclude a party who has acted improperly in the proceedings from using the communication. Last, there should be no distinction in the exercise of the equitable jurisdiction in relation to civil and criminal proceedings.
The court discussed the requirement for confidence in the protection given by legal professional privilege: ‘A lawyer must be able to give his client an unqualified assurance, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent in future to disclosure for a limited purpose those limits will be respected.’
May LJ said: ‘I think that the ratio of the decision in Lord Ashburton v. Pape was founded upon the confidential nature of the content of the letters written by Lord Ashburton to Nocton. The Court of Appeal was concerned to protect that confidence, in the same way for instance, as the courts protect the trade secrets of an employer against the unauthorised use of them by an employee, both while he remains such as well as after he has left the employment . . I confess that I do not find the decision in Lord Ashburton v. Pape logically satisfactory, depending as it does upon the order in which applications are made in litigation. Nevertheless I think that it and Calcraft v. Guest [1898] 1 Q.B. 759 are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies and to restrain him from disclosing or making any use of any information contained in them.’

Judges:

Nourse, May LJJ

Citations:

[1987] 1 QB 670, [1986] 3 WLR 734

Jurisdiction:

England and Wales

Citing:

AppliedLord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
AppliedCalcraft v Guest CA 1898
A trial had taken place in which the principal issue was the upper boundary of the plaintiff’s fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The . .
ConsideredButler v Board of Trade ChD 1970
Goff J discussed the criterion for admissibility of evidence:’If one rejects the bare relevance test, as I have done, then what has to be shown prima facie is not merely that there is a bona fide and reasonably tenable charge of crime or fraud but a . .

Cited by:

CitedDerby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
CitedL v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
CitedEnglish and American Insurance Co Ltd and Others v Herbert Smith ChD 1987
Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse. . .
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. . .
CitedGuinness Peat Properties Ltd v Fitzroy Robinson Partnership CA 1987
Property developers (‘GPR’) were suing their architects (‘FRP’) in negligence. The claim against FRP was covered by a professional indemnity insurance policy. Once FRP was notified of GPR’s claim, FRP sent a ‘notification of claim’ to its insurer . .
CitedWebster v James Chapman and Co 1989
An expert’s report prepared for the plaintiff was by mistake enclosed along with a letter to the defendant’s solicitors. When informed of the mistake the plaintiff’s solicitors sought its return with an undertaking to make no use of it. The . .
CitedBell Cablemedia Plc etc v Simmonds CA 29-Apr-1997
Any person who is legitimately in premises may refer any material found there to the police. . .
CitedISTIL Group Inc, Metalsukraine Corporation Limited v Zahoor, Reventox Consulting Limited ChD 14-Feb-2003
Lawrence Collins J reviewed the authorities, and held that, where a privileged document had been seen by an opposing party through fraud or mistake, the court has power to exercise its equitable confidentiality jurisdiction, and ‘should ordinarily . .
CitedTrevorrow v State of South Australia (No 4) 16-Feb-2006
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant . .
CitedIn Re A Firm of Solicitors ChD 9-May-1995
A solicitor moving from a firm acting on one side of a dispute to the firm on the other side must be able to show that no conflict of interest would arise. The court should intervene unless it is satisfied that there is no risk of disclosure. It . .
CitedBBGP Managing General Partner Ltd and Others v Babcock and Brown Global Partners ChD 20-Aug-2010
Norris J held:
‘Although the case law refers to crime or fraud or dishonesty (such as fraudulent breach of trust, fraudulent conspiracy, trickery or sham contrivances) it is plain that the term ‘fraud’ is used in a relatively wide sense: Eustice’s . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Equity

Updated: 16 May 2022; Ref: scu.182250

Bolton v Liverpool Corporation: HL 1833

The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a right exists. No man will dare to consult a professional adviser with a view to his defence or to the enforcement of his rights.’

Judges:

Lord Brougham LC

Citations:

(1833) 1 My and K 88, [1833] EngR 409, (1833) 39 ER 614

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal fromBolton v The Corporation of Liverpool 1833
. .
See AlsoBolton v Corporation of Liverpool 1833
A party has a right to the production of such deeds only as either sustain his own title exclusively, or sustain it jointly with that of his adversary. A party is not compellable to produce, for the purposes of an action or suit, cases laid before . .

Cited by:

CitedB and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. 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 . .
CitedPrudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 16 May 2022; Ref: scu.182241

Gamlen Chemical Co (UK) Ltd v Rochem Ltd: CA 4 Dec 1979

Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect subject to an undertaking to maintain its condition and to respect the solicitors’ lien. The first firm appealed.
Held: The practice embodied in the order was appropriate. Where a solicitor discharged himself, a mandatory order should be available. Legal professional privilege will not be upheld if the relevant document came into being as a step in a criminal or illegal proceeding.
Templeman LJ explained why the normal response of the court, when faced with a solicitor who has discharged himself in the course of litigation, even where the solicitor is entitled to discharge himself, is to order the solicitor to hand over the client’s papers to the client’s new solicitors, subject to an undertaking from the new solicitors to preserve the lien of the original solicitor. This course is usually adopted ‘in order to save the client’s litigation from catastrophe’.
Goff LJ stated: ‘the court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards and must bear in mind that legal professional privilege is a very necessary thing and is not lightly to be overthrown, but on the other hand, the interests of victims of fraud must not be overlooked. Each case depends on its own facts.’

Judges:

Goff and Templeman LJJ

Citations:

[1980] 1 WLR 614, [1980] 1 All ER 1049, [1983] RPC 1

Jurisdiction:

England and Wales

Citing:

ApprovedHeslop v Metcalfe 1837
The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, . .
CitedHughes v Hughes 1958
Hodson LJ said: ‘There is no doubt that a solicitor who is discharged by his client during an action otherwise than for misconduct can retain any papers in the cause in his possession until the costs have been paid . . This rule applies, as the . .
CitedRobins v Goldingham 1872
Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs. . .
Appeal from (Dicta approved)Gamlen Chemical Co (UK) Ltd v Rochem Ltd 1983
Goulding J said: ‘For servants during their employment and in breach of their contractual duty of fidelity to their master to engage in a scheme, secretly using their master’s time and money, to take the master’s customers and employees and make . .

Cited by:

CitedIsmail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
CitedFrench v Carter Lemon Camerons Llp CA 3-Sep-2012
The appellant had instructed the defendant solicitors in litigation. On beginning to act in person she sought an order to require the solicitors to deliver the case papers to her. They asserted a lien on them until their account was paid. She now . .
CitedWalsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
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.

Company, Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.182182

Buttes Oil and Gas Co v Hammer: CA 1981

Reports made by employees to their employers or by agents to their principals are not privileged unless they satisfy, and are privileged if they are reports made for the purpose of being laid before the party’s legal adviser for the purpose of obtaining his advice in connection with the anticipated or pending litigation.
Attention was drawn to the option of striking out a reference to documents in a pleading if it was decided to assert privilege in respect of them. The existence of such an option was predicated upon the supposition that a once and for all waiver had not already taken place by virtue, merely, of the inclusion of a reference to the advice in a pleading. What the Master of the Rolls had in mind, as he made clear, was a situation where the reference to advice had been inadvertent.

Judges:

Lord Denning MR

Citations:

[1981] 1 QB 223

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Trutch, and Mary Trutch CACD 25-Jul-2001
The defendants had been pursued in substantial commercial litigation. They were alleged to have perjured themselves in affidavits of means sworn and filed at court. Later they had entered into deeds with the other parties, and part of the . .
Appeal fromButtes Oil and Gas Co v Hammer (No 3) HL 1982
The House considered a dispute between two Us oil companies about the right to exploit an oil field in the Gulf. Each claimed to have a concession granted by the ruler of a Gulf state. Each state claimed that the oil field was within its territorial . .
CitedWalsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 16 May 2022; Ref: scu.180868

Regina v Jones (Paull Garfield): CACD 8 Oct 2002

The Court of Appeal had ordered the defendant to be re-tried within two months. An initial application for directions was adjourned without the defendant being re-arraigned, and then was adjourned again to a date outside the two month limit. Defence solicitors, knowing the difficulty declined to express a view either way.
Held: The arraignment could take place exceptionally outside the two month limit. The duty under the act for the prosecution to act with ‘all due expedition’ was a more restricted requirement than the one to act with ‘due diligence’, and there was also a duty on the defence to ensure that effect was given to the order of the Court.

Judges:

Kay LJ, Wright, Henriques JJ

Citations:

Times 24-Oct-2002, Gazette 31-Oct-2002

Statutes:

Criminal Appeal Act 1968 8(1B)

Legal Professions, Criminal Practice

Updated: 16 May 2022; Ref: scu.177489

L v Law Society: CA 2010

Sir Anthony Clarke MR rejected a submission that the protection afforded by the 1974 Act renders details of spent convictions confidential, and also a submission that the proceedings should be held in private to protect the appellant against disclosure of his ‘private life’ within the meaning of Article 8 of the Convention. As to confidentiality, agreeing with Maurice Kay J in Pearson, he held that the Act: ‘ . . does not attempt to go beyond the grant of those limited privileges to provide a right of confidentiality in respect of spent convictions. While the 1974 Act in some respects may place an individual with spent convictions in the same position as someone with no convictions, it does not do so by rendering the convictions confidential; it does so simply by putting in place a regime which protects an individual from being prejudiced by the existence of such convictions.’

Judges:

Sir Anthony Clarke MR

Citations:

[2010] EWCA Civ 811

Statutes:

Rehabilitation of Offenders Act 1974

Jurisdiction:

England and Wales

Cited by:

CitedNT 1 and NT 2 v Google Llc QBD 13-Apr-2018
Right to be Forgotten is not absolute
The two claimants separately had criminal convictions from years before. They objected to the defendant indexing third party web pages which included personal data in the form of information about those convictions, which were now spent. The claims . .
Lists of cited by and citing cases may be incomplete.

Information, Human Rights, Legal Professions

Updated: 16 May 2022; Ref: scu.608658

Re Ellis and Ellis: 1908

A client’s former solicitors were ordered to deliver up payment vouchers to the trustee in bankruptcy of the former client.

Citations:

(1908) 25 TLR 38

Cited by:

CitedFairstar Heavy Transport Nv v Adkins and Another CA 19-Jul-2013
The court was asked whether the appellant company was entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs, and . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 15 May 2022; Ref: scu.515260

United Mining and Finance Corporation Ltd v Becher: 1910

Becher (a solicitor) received andpound;2,000 from a party with whom his Russian client was negotiating, on his undertaking that, if the negotiations were unsuccessful, he would pay it back. The negotiations were unsuccessful, but Becher would not repay the money, because there was an argument that his client was due that sum from those with whom he had been negotiating in any event. They issued an Originating Summons.
Held: The injunction requiring him to satisfy the injunction was granted. The Court has jurisdiction summarily to enforce solicitors’ undertakings given out of Court, even where there is no suggestion of impropriety. The failure to honour an undertaking is itself prima facie evidence of misconduct. The court would be exercising a special control over its officers.

Judges:

Hamilton J

Citations:

[1910] 2 KB 296

Jurisdiction:

England and Wales

Cited by:

CitedClark and Another v Lucas Solicitors Llp ChD 31-Jul-2009
The claimants sought an order (by summary judgment) against the defendant firm of solicitors to require them to perform an undertaking they had given to provide evidence of the discharge of a mortgage. The defendants said the proper remedy was by an . .
CitedColl v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 15 May 2022; Ref: scu.452352

Bates v Lord Hailsham of St Marylebone: ChD 1972

A solicitor applied to the court ex parte to restrain a committee acting under delegated powers from making an order changing the basis of charging for conveyancing on the ground that the committee was obliged to allow more time for consultation and representations before it made orders.
Held: There is no right to be heard or consulted before the making of primary or delegated legislation unless such is provided for by statute.
Megarry J said: ‘Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless the considerations in relation to a general duty of fairness do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation and affected very substantially are never consulted in the process of enacting that legislation and yet they have no remedy. I do not know of any implied right to be consulted or to make objections or any principle whereby the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given.’

Judges:

Megarry J

Citations:

[1972] 1 WLR 1373, [1972] 3 All ER 1019

Jurisdiction:

England and Wales

Citing:

CitedRegina v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association CA 1972
A number of taxi cab owners challenged a decision of the Council to increase the numbers of hackney cabs operating in the city. At a public meeting with the council prior to the decision, the chairman had given a public undertaking that the numbers . .

Cited by:

CitedBank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Legal Professions

Updated: 15 May 2022; Ref: scu.460359

Re Cohen and Cohen: CA 1905

Mrs Cotton sued Mr Edwardes for breach of contract; and he claimed against her as to the ownership of a song. Mrs Cotton authorised her solicitors to incur liabilities for unusual expenses, including the employment of leading and junior counsel to settle the statement of claim and to advise on evidence. Before giving instructions for taking these steps she had been advised by the solicitors that the extra costs would have to be paid by herself; and would not be allowed against her opponent even if she were successful in the litigation. Mr Edwardes and Mrs Cotton subsequently settled the actions on terms that Mr Edwardes paid Mrs Cotton’s costs ‘as between solicitor and client relating to the matters in dispute in the said two actions, such costs to be agreed or taxed.’ The Master said that he had taxed the bill item by item and had decided that unusual charges and luxuries were to be borne by the client (Mrs Cotton) rather than by Mr Edwardes. He therefore disallowed the special fees paid to leading counsel. She appealed.
Held: The appeal failed.
Vaughan Williams LJ said that the agreement should be construed as limited to costs that were reasonable proper and necessary in the actions and that by requiring assessment of the bill Mr Edwardes had not enlarged his liability under the agreement.
Romer LJ said: ‘I think he has contracted to pay solicitor and client costs to be taxed in the ordinary way without regard to any special arrangement which may have extended the client’s ordinary liability . . To hold otherwise would be to prevent a third party from obtaining the benefit of s. 38. Either he would have to forego taxation, or if he obtained it would find himself liable to pay sums which could not be anticipated by him, and for which as third party he was not liable.’ Applying this principle, he held that Mr Edwardes was not liable to pay the costs of instructing leading counsel. As he put it: ‘it is clear that the items disallowed by the taxing master were items for which Mr Edwardes was not liable.’

Judges:

Vaughan Williams, Stirling, Romer LLJ

Citations:

[1905] 2 Ch 137

Cited by:

CitedTim Martin Interiors Ltd v Akin Gump Llp ChD 17-Nov-2010
The company borrowed money from a bank, who instructed the defendants to act in the loan. On recovering the loan, the borrowers challenged the amounts charged by the solicitors. The court was asked what were the powers for a third party paying a . .
CitedTim Martin Interiors Ltd v Akin Gump Llp ChD 17-Nov-2010
The company borrowed money from a bank, who instructed the defendants to act in the loan. On recovering the loan, the borrowers challenged the amounts charged by the solicitors. The court was asked what were the powers for a third party paying a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 15 May 2022; Ref: scu.426442

In Re Longbotham and Sons: CA 1904

The borrower had agreed to pay the lender’s solicitors bill, but challenged it saying that it included elements for personal work.
Held: The personal items were excluded. Costs which are outside the scope of the third party’s liability ‘would not have to be taxed or considered’. In other words it is no part of the assessment that such costs are taxed or considered. Romer LJ said: ‘When a third party taxes a bill under s. 38 of the Act of 1843, it is clear, both from the wording of the section itself and the authorities, that the taxation must be on the footing of a taxation between the solicitor and the client. But the third party is not for all purposes in connection with the taxation to be treated as if he were himself the client. For instance, when the client has paid the bill, and might not be able to shew special circumstances sufficient to entitle him to have the bill taxed, it does not follow of necessity that the third party is thereby precluded from obtaining taxation.’
A third party asked to pay a solicitors bill is entitled to have extraneous matters excluded. Romer LJ said: ‘Again, the solicitor may have acted for the client in more than one completed matter, and the client may not be entitled as against the solicitor to obtain delivery of a bill and taxation, except on the footing of having all the matters included and taxed. But if the third party be only interested in and liable to pay the costs of one matter, it is clear in my opinion, as a matter of principle, that under s. 38 he can obtain taxation of the bill so far as concerns that one matter only, and on the footing of being liable to pay only the taxed costs of that matter. And that principle really decides this case, and shews that the appeal should fail. For in the present case the third party is a mortgagor, and he is only interested in the relations between the solicitor and his client so far as they concern the position of the client strictly in his character of mortgagee. The mortgagor, therefore, is entitled under s. 38 to have taxation of the solicitors’ bill limited to the items of costs incurred by the client strictly in his position of mortgagee.’
Romer LJ said: ‘It may well be that the client, as between himself and the solicitor, is liable for costs incurred in relation to the mortgaged property with which the mortgagor is not concerned, and for which the mortgagor is not liable. Those will be costs incurred by the mortgagee in his personal capacity so far as concerns the mortgagor, and not costs incurred by him in the capacity of mortgagee strictly and properly considered, and accordingly would not have to be taxed or considered by the taxing master in a taxation by the mortgagor as third party.’

Judges:

Romer LJ

Citations:

[1904] 2 Ch 152

Statutes:

Solicitors Act 1843 38

Cited by:

CitedTim Martin Interiors Ltd v Akin Gump Llp ChD 17-Nov-2010
The company borrowed money from a bank, who instructed the defendants to act in the loan. On recovering the loan, the borrowers challenged the amounts charged by the solicitors. The court was asked what were the powers for a third party paying a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 15 May 2022; Ref: scu.426439

Council of the Law Society of Scotland v McKinnie (No 2) and Caledonian Railway Company v Glasgow Corporation: 1905

Citations:

1905, 7 F 1020

Cited by:

CitedInveresk Plc v Tullis Russell Papermakers Ltd SCS 15-Feb-2008
The defenders had sold their business assets to the pursuers. The parties now disputed the sale terms, and in particular the calculation of a clause settling additional consideration.
Held: The court repelled the defenders’ pleas-in-law, . .
Lists of cited by and citing cases may be incomplete.

Scotland, Legal Professions

Updated: 15 May 2022; Ref: scu.410701

Sadd v Griffin: CA 1928

Farwell LJ said: ‘it is settled beyond controversy that the solicitor is, for the purposes of taxation, bound by the bill that he has delivered and cannot alter it without the leave of the Court or the consent of the party.’

Judges:

Farwell LJ

Citations:

[1928] 2 KB 510

Statutes:

Solicitors Act 1843

Cited by:

CitedBilkus v Stockler Brunton (A Firm) CA 16-Feb-2010
Solicitors appealed against the rejection of their claim for an uplift in their fees amounting to andpound;50,000, based on the value element in the transaction in the 1994 Order. The court had to decide whether the matter came under the rules as a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 15 May 2022; Ref: scu.401615

Bunn, Executor of Bunn v Guy: 7 Nov 1803

A contract entered into by a practising attorney to relinquish his business and recommend his clients t0 two other attornies for a valuable consideration, and that he would not himself practise in such business within certain limits, and would permit them to make use of his name in their firm for a certain time, but without his interference, andc was holden to be valid in law.

Citations:

[1803] EngR 697, (1803) 4 East 190, (1803) 102 ER 803

Links:

Commonlii

Legal Professions, Contract

Updated: 15 May 2022; Ref: scu.344738

Tate v Hitchins And Others: 22 May 1849

Assumpsit against several defendants for work and labour by the plaintiff as an attorney, with counts for money paid, ande. Plea,-by one of the defendants,-to the whole declaration, that the action was commenced, after the 6 and 7 Vict. e. 73, for the recovery of fees, charges, and disbursements due to the plaintiff as an attorney, as in the first count mentioned, and that no signed bill had been delivered to the defendant, or sent by the post to, or left for him at, his counting-house, office of business, dwelling-house, or last known place of abode :-Held, on special demurrer, that the word ‘disbursements’ applied to the count for money paid; and that the plea sufficiently negatived the delivery of a bill of costs within the terms of the statute

Citations:

[1849] EngR 639, (1849) 7 CB 875, (1849) 137 ER 347

Links:

Commonlii

Jurisdiction:

England and Wales

Legal Professions

Updated: 15 May 2022; Ref: scu.298944

Goodall v Little: 11 Jan 1851

The answer, after denying the title of the Plaintiffs, set forth a schedule of documents in the possession of the Defendants, which it admitted related to the matters mentioned in the bill ; but it denied that, by those documents, the truth of such matters would appear to be otherwise than as stated in the answer ; and it submitted that the Defendants ought not to be ordered to produce the documents, and, in addition, that certain of the letters mentioned in the schedule ought not to be produced in this or any other suit, inasmuch as they were written either pending or in contemplation of the litigation in this suit, and with reference to the matters in this suit brought into controversy, and were written to one of the Defendants from his solicitor, or from an attorney who had been employed by him in a suit instituted by him in the Lord Mayor’s Court, to which the bill related, to the solicitors of that Defendant, or from one of the Defendants to another of them for the purpose of being communicated to the solicitor of the latter with a view to his defence in this litigation. Held, that such of the first class of letters as were written to the Defendants by their solicitors, in that character merely, were privileged, but that all the other documents and letters ought to be produced..

Citations:

[1851] EngR 102, (1850-1851) 1 Sim NS 155, (1851) 61 ER 60

Links:

Commonlii

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice

Updated: 15 May 2022; Ref: scu.296418

Halewood International Ltd v Addleshaw Booth and Co: 2000

The court recognised the public interest in clients being able to retain the solicitors of their choice, and they should only be prevented from doing so on solid grounds.

Judges:

Neuberger J

Citations:

[2000] 1 PNLR 298

Jurisdiction:

England and Wales

Cited by:

CitedWinters v Mishcon De Reya ChD 15-Oct-2008
The claimant sought an injunction to prevent the defendant firm of solicitors acting for his employers against him. He said that they possessed information confidential to him having acted for him in a similar matter previously. The solicitors . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 15 May 2022; Ref: scu.276934

Regina v Lord Chancellor ex parte the Law Society (2): QBD 22 Jun 1993

The introduction of a Standard Fees Criminal Legal Aid regime did not require prior consultation with the Law Society. The rules had been imposed in accordance with the words of the enabling statute.

Citations:

Independent 22-Jun-1993, Times 25-Jun-1993

Statutes:

Legal Aid Act 1988 34

Judicial Review, Costs, Legal Aid, Legal Professions

Updated: 15 May 2022; Ref: scu.163155

Nationwide Building Society v Various Solicitors: ChD 20 Jan 1998

Legal professional privilege could be set aside at disclosure where the fraudulent intention of one lay client was thereby shown as against another lender. The right to assert legal professional privilege does not apply to documents which came into existence in furtherance of a criminal or fraudulent purpose, but to overcome the privilege, there must be some prima facie evidence that the allegations of fraudulent or criminal purpose have some foundation of fact. ‘Provided the solicitor’s advice and assistance was employed in furtherance of the iniquity the exception came into play in relation to confidential communications between the solicitor and client which would otherwise be protected by the client’s privilege. It mattered not whether the solicitor was engaged to advise in relation to the misrepresentation or whether he was aware that his involvement was in furthering the iniquity.’

Judges:

Blackburne J

Citations:

Times 05-Feb-1998, Gazette 11-Feb-1998, [1999] PNLR 52, [1998] TLR 59

Jurisdiction:

England and Wales

Cited by:

CitedArundel Corporation (an Overseas Company) v Mohammed Ramzan Khokher CA 9-Apr-2003
In the course of an application under the Landlord and Tenant Act, the landlord sought to adduce on appeal evidence that the tenant and his solicitors had sought to deceive the court.
Held: The application should not be heard in private since . .
CitedAbbey National Plc v Clive Travers and Co (a Firm) CA 18-May-1999
The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the . .
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. . .
CitedBBGP Managing General Partner Ltd and Others v Babcock and Brown Global Partners ChD 20-Aug-2010
Norris J held:
‘Although the case law refers to crime or fraud or dishonesty (such as fraudulent breach of trust, fraudulent conspiracy, trickery or sham contrivances) it is plain that the term ‘fraud’ is used in a relatively wide sense: Eustice’s . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 15 May 2022; Ref: scu.84229

Aberdeen Solicitor’s Property Centre Ltd and Another v Director General of Fair Trading: RPC 20 Feb 1996

A restrictive practice on advertising imposed by the Law Society of Scotland related to legal practice and so was exempt from registration.

Citations:

Times 20-Feb-1996

Statutes:

Restrictive Trade Practices Act 1976 26

Commercial, Legal Professions

Updated: 15 May 2022; Ref: scu.77609