Worby, Worby and Worby v Rosser: CA 28 May 1999

Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he lacked testamentary capacity and was subject to the malign influence of a third party. They succeeded, and sought their costs direct from the solicitor.
Held: The estate had suffered no proven loss. A solicitor, following his client’s instructions on the drafting of a new will, carried no duty of care to the expectancies of beneficiaries under an earlier will which was to be revoked by the new one. An estate facing an unmeritorious claim could not recover its costs from a solicitor who did not have a duty to the claimants.

Judges:

Lord Justice Peter Gibson Lord Justice Ward Lord Justice Chadwick

Citations:

Times 09-Jun-1999, Gazette 16-Jun-1999, [1999] EWCA Civ 1520, [2000] PNLR 140

Jurisdiction:

England and Wales

Citing:

CitedWilkinson v Corfield PD 26-Jan-1881
A legatee who has propounded a codicil and succeeded is entitled to the same costs as an executor under similar circumstances.
The defendant, the executor of the will of RC, had proved the will only.
The plaintiffs propounded a codicil. . .
CitedSutton v Drax 1815
. .
CitedMidland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
CitedCarr-Glynn v Frearsons (a Firm) CA 29-Jul-1998
The solicitors had failed to advise the testator to issue a notice of severance of a joint tenancy, with the result that the house passed outside the will.
Held: The plaintiff did have a remedy. ‘The duty owed by the solicitors to the testator . .
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
CitedRoss v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .
CitedLindop v Stuart Noble and Sons Ltd OHCS 25-Jun-1998
In Scottish receivership an employee was not entitled to claim for preference of payment of claim for wages for absence of notice when the company went into receivership. Scottish receivership distinct process. . .

Cited by:

CitedMartin v Triggs Turner Bartons (A Firm) and Others ChD 31-Jul-2009
The claimant sought damages alleging professional negligence against her solicitors for herself and her late husband’s estate. She said that the will should have allowed advances of capital for all but pounds 100,000 of the estate, rather than the . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Legal Professions

Updated: 21 January 2023; Ref: scu.146435

Worldwide 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 given by counsel. Decisions may be made as part of a litigation strategy which cannot be unwound.

Citations:

Gazette 14-Jul-1999, Times 07-Jul-1999, [1999] EWCA Civ 1636

Jurisdiction:

England and Wales

Citing:

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

Legal Professions, Litigation Practice

Updated: 21 January 2023; Ref: scu.90611

Sampson v John Boddy Timber Ltd: CA 17 May 1995

A barrister should not liable for wasted costs when he pursues arguable point for his client. Unless a party makes plain its intention that a settlement offer is made on an open basis, it remains covered by the cloak of the without prejudice rule

Judges:

Sir Thomas Bingham MR

Citations:

Independent 17-May-1995, (1995) CAT 552

Jurisdiction:

England and Wales

Cited by:

CitedBrown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 21 January 2023; Ref: scu.88994

Cox v Bankside Members Agency Ltd and Others: CA 16 May 1995

Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s liability to the third party has not yet been established. In handling claims, instructing solicitors and so forth, the insurers act as agents for the company and are entitled to reimbursement for their expenses.
Lord Justice Saville said: ‘Under the Act the rights of the insured against the insurer are transferred to the third party on (in the case of an insured company) the making of a winding up order etc.: see s.1(b) of the Act. It follows from this that a statutory transfer can take place before the obligation of the insurer to pay arises i.e. before the liability of the insured has been established. In such an event, since it is clear from the authorities that the third party is to be put in no better position than the insured, the third party does not obtain the right to immediate payment until the liability of the insured is established. .
That right [the right of the third party to immediate payment by the insurers] only arises when, in each case, the claim is established, just as that right, while owned by the insured, would also arise only when the particular claim in question was established. It is only when that right arises that the insurers come under the correlative obligation to make payment. To my mind it follows that as each claim is established (whether before or after the statutory assignment), the right to payment arises and thus the amount of available insurance is in effect diminished, so that when it is exhausted later established claims have no right to an indemnity. . .’

Judges:

Lord Justice Saville

Citations:

Independent 09-Jun-1995, Times 16-May-1995, [1995] 2 Lloyd’s Rep 437

Statutes:

Third Parties (Rights Against Insurers) Act 1930 1(1)(b)

Jurisdiction:

England and Wales

Citing:

Appeal fromCox v Bankside Members Agency Ltd and Others QBD 27-Jan-1995
Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents . .

Cited by:

CitedAXA Reinsurance (UK) Plc v Field HL 12-Sep-1996
The terms originating ’cause’ and ‘event’ are to be differently construed, one means a continuing situation and the other refers to a discrete event.
Under the ‘LMX Spiral’ Lloyds’ syndicates wrote substantial excess of loss business.The cross . .
CitedLloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Dicta adoptedFirst National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
CitedFreakley and Curzon Insurance Ltd v Centre Reinsurance International Company and Another; similar CA 11-Feb-2005
Claims were made for personal injury caused by asbestos. The re-insurers sought declaratory relief against the head insurers, and the administrators of the insolvent company. The administrators sought declarations in turn. Curzon insured the company . .
CitedFreakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Insurance, Legal Professions

Updated: 21 January 2023; Ref: scu.79585

Koch Shipping Inc v Richards Butler (a Firm): CA 22 Jul 2002

The claimants in an arbitration sought orders with regard to a solicitor who had moved to the opponent’s firm of solicitors, but who came with privileged knowledge of the claimant’s business dealings. She offered undertakings, but the claimant viewed these as inadequate. The respondent firm of solicitors appealed an order to withdraw from the action.
Held: Each such case must turn on its facts. Here there was no reason to doubt the high professionalism, skills and integrity of the solicitor in question. The situation differed from that in Bolkiah. It was fanciful to imagine her inadvertently letting something slip to the detriment of the claimant.
Tuckey LJ warned that: ‘In these days of professional and client mobility it is of course important that client confidentiality should be preserved. Each case must depend on its own facts but I think there is a danger inherent in the intensity of the adversarial process of courts being persuaded that a risk exists when, if one stands back a little, that risk is no more than fanciful or theoretical. I advocate a robust view with this in mind so as to ensure the line is sensibly drawn.’

Judges:

Lord Justice Ward, Lord Justice Tuckey and Lord Justice Clarke

Citations:

Times 21-Aug-2002, Gazette 26-Sep-2002, [2002] EWCA Civ 1280, [2002] 2 All ER Comm 957, [2002] 1 PNLR 603, [2002] Lloyd’s Rep PN 604

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedPrince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
CitedYoung, Young, Irby v Robson Rhodes and Frank Attwood ChD 30-Mar-1999
Where a merger was proposed between two accountancy firms, who had provided litigation support services to opposing sides in a case, it was necessary to separate the two halves most rigorously including physical separation in order to ensure no . .

Cited by:

CitedGUS Consulting Gmbh v Leboeuf Lamb Greene and Macrae CA 26-May-2006
The claimant brought an action to restrain the lawyer defendants from acting in arbitration for having previously acted for other parties.
Held: The claimant’s appeal for an injunction failed. Following Bolkiah, the burden on the defendants . .
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 . .
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. . .
CitedCaterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
CitedAlbion Plc v Walker Morris (A Firm) CA 19-Mar-2006
The court was asked whether defendant firm of solicitors should be prevented from acting for potential conflict of interest. They sought leave to appeal an order restraining them from acting. They had acted in two similar matters for the client . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 20 December 2022; Ref: scu.174716

Calcraft 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 papers included proofs of witnesses. The papers had been prepared on behalf of John Calcraft, a predecessor in title of the plaintiff. The defendant was allowed to inspect them and copies were handed to the defendant by the grandson of the late Mr Calcraft’s solicitor, in each case without any authority. On the appeal, there were two questions: first, whether the documents were privileged, and, second, whether the appellant could give secondary evidence of their contents.
Held: If a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means They remained privileged: ‘once privileged always privileged’ However, notwithstanding the privilege, the appellant could give secondary evidence of their contents.

Citations:

[1898] 1 QB 759

Jurisdiction:

England and Wales

Cited by:

CitedRegina v Governor of Pentonville Prison, Ex Parte Osman QBD 30-Mar-1988
The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international . .
ExplainedLord 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. . .
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 . .
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 . .
AppliedGoddard 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, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 20 December 2022; Ref: scu.181101

Giles v The Law Society: CA 20 Oct 1995

A notice of the Law Society’s suspicion of dishonesty founding an intervention in a solicitor’s practice, did not need to particularise the acts suspected. Sedley LJ said: ‘it is by common consent a matter for the court’s judgment [on an application under paragraph 6(4) of schedule 1] (I prefer not to use the word discretion in this context) whether it should direct withdrawal – a judgment which may be significantly, though not conclusively, affected by the Law Society’s own view of the facts, since the view taken by the professional body charged with the regulation of solicitors’ practices is in itself a relevant evidential factor to which the judge not only can but must have regard.’

Judges:

Sedley LJ

Citations:

Gazette 25-Oct-1995, Times 20-Oct-1995, [1995] 8 Admn LR 105

Statutes:

Solicitors Act 1974 Sch I Part II para 6

Jurisdiction:

England and Wales

Cited by:

CitedHolder v Law Society CA 24-Jan-2003
The Society had intervened in the applicant’s legal practice. He complained that the intervention was disproportionate, and by removing his right to enjoyment of his possession, infringed his human rights. The Society appealed the finding that an . .
CitedSritharan v Law Society CA 27-Apr-2005
The Law Society had intervened in the applicant’s legal practice as a solicitor, and his practising certificate had been automatically suspended. He applied to the court to remove the suspension.
Held: The powers exercised were statutory. The . .
CitedSheikh v The Law Society ChD 1-Jul-2005
The claimant challenged the intervention by the Law Society in her solicitors practice.
Held: Though there were some breaches of the solicitors’ accounts rules there was insufficient basis for the Society to have behaved in the way it had and . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 20 December 2022; Ref: scu.80823

The Lord Chancellor v Blavo and Co Solictors Ltd and Another: QBD 21 Dec 2018

Attempt to recover legal aid fees said to have been paid on fraudulent claims.

Judges:

Pepperall J

Citations:

[2018] EWHC 3556 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Aid, Torts – Other, Legal Professions

Updated: 20 December 2022; Ref: scu.632217

Tolstoy-Miloslavsky v Aldington: CA 27 Dec 1995

Solicitors who unreasonably commence proceedings may be subject to a wasted costs order, but there should be no award of costs against a solicitor solely because he acted without a fee. An award of costs should not be made against a solicitor who had acted for a client in a defamation action which was lost, and where the costs would be irrecoverable from the plaintiff, solely because the solicitor had acted without a fee.
Rose LJ said: ‘Section 51(1) and (3) of the Supreme Court Act 1981 do not confer jurisdiction to make an order for costs against legal representatives when acting as legal representatives.’ and ‘In my judgment Mr Mansfield is correct in his submission that there are only three categories of conduct which can give rise to an order for costs against a solicitor:
1. It is within the wasted costs jurisdiction of section 51(6) and (7);
2. It is otherwise a breach of duty to the court, such as even before the Judicature Acts could found an order, eg if he acts even unwittingly without authority or in breach of an undertaking;
3. If he acts outside the role of solicitor, eg in a private capacity or as a true third party funder for someone else.’

Judges:

Rose LJ

Citations:

Gazette 10-Jan-1996, Independent 03-Jan-1996, Times 27-Dec-1995, [1996] 1 WLR 736

Statutes:

Supreme Court Act 1981 51(6) 51(7)

Jurisdiction:

England and Wales

Citing:

See AlsoWatts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
See AlsoTolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .

Cited by:

CitedLiubov Ford v Richard Labrador PC 22-May-2003
(Gibraltar) The appellant had failed in an action for defamation, she had been ordered to pay costs as a condition of her continuing the action.
Held: The order was made by the Chief Justice sitting as a judge of the Court of Appeal in an . .
See AlsoTolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
See AlsoWatts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
CitedMyatt and others v National Coal Board (No 2) CA 16-Mar-2007
The parties had been involved in compensation claims. Complaint was made that the solicitors had recovered fees for action which substantially was intended to benefit the solicitor. The conditional fee agreements had been found to be unenforceable. . .
Lists of cited by and citing cases may be incomplete.

Costs, Defamation, Legal Professions

Updated: 09 December 2022; Ref: scu.89912

Thatcher v Douglas and Another: CA 19 Dec 1995

The Court rejected the contention that Celsteel was wrongly decided and that the Rule only applied to legal easements. The court followed Celsteel and applied it to equitable easements, holding them to be overriding interests by virtue of Rule 258. A barrister was wrong to make allegations against a judge without having supporting evidence.

Citations:

Independent 16-Jan-1996, Times 08-Jan-1996

Statutes:

Land Registration Rules 1925 8258

Jurisdiction:

England and Wales

Citing:

AppliedCelsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .

Cited by:

CitedBhullar and Another v McArdle CA 10-Apr-2001
The defendant had registered a caution against the claimant’s land at the Land Registry. The claimant sought its removal and now appealed an order for rectification of the register against him. The parties had reached oral agreements as to the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Registered Land

Updated: 09 December 2022; Ref: scu.89791

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: CA 1 Dec 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Morritt LJ discussed section 199: ‘Counsel for the wife submitted that it did not apply as the knowledge came to the knowledge of the solicitors for the lender as such when they were instructed to act on behalf of the lender on 19 June 1990. In the case of the wife it was submitted that the solicitors were not instructed by her as ‘agents to know.’
I do not accept either of these submissions. In my view the section has to be applied in accordance with its terms to the facts of this case. There is no doubt that the information as to the true purpose of the remortgage loan imparted by the husband came to the knowledge of the solicitors on 12 June 1990 as the solicitors for the husband and wife alone for they were not instructed to act for the lenders until 19 June at the earliest. That knowledge once acquired remained with the solicitors and cannot be treated as coming to them again when they were instructed on behalf of the lenders. As counsel for the wife accepted, their knowledge cannot be treated as divided or disposed of and reacquired in that way. The conclusion seems to me to be inescapable, namely that knowledge of the relevant matters facts or things did not come to the solicitors as the solicitors for the lenders. Accordingly it did not come to them ‘as such.’ It was not disputed that the lender is a purchaser within the definition contained in section 205(1)(xxi) of the Law of Property Act 1925. Consequently section 199(1)(ii)…b) precludes the solicitors’ knowledge of the relevant matters or facts being imputed to the lender.’

Judges:

Morritt LJ

Citations:

Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207

Statutes:

Law of Property Act 1925 199

Jurisdiction:

England and Wales

Citing:

Appeal fromHalifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another ChD 27-Jun-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

Cited by:

CitedScotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
CitedHardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions, Banking

Updated: 09 December 2022; Ref: scu.81151

In Re Freudiana Holdings Ltd: CA 4 Dec 1995

A judge can discharge his own wasted costs order when issues came to required the re-litigation of the case.

Citations:

Times 04-Dec-1995

Jurisdiction:

England and Wales

Cited by:

CitedFitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 09 December 2022; Ref: scu.81892

Greene Wood Mclean Llp v Templeton Insurance Ltd: ComC 26 Oct 2010

The court considered various cross claims between the firm of solicitors, now in administration,and their insurers after the insurance company had met claims by former clients.

Judges:

Cooke J

Citations:

[2010] EWHC 2679 (Comm)

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act of 1978

Jurisdiction:

England and Wales

Insurance, Legal Professions, Professional Negligence

Updated: 09 December 2022; Ref: scu.425562

Rowlands v Hodson: CA 8 Oct 2009

Judges:

Lord Justice Rimer

Citations:

[2009] EWCA Civ 1042, [2010] PNLR 8

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedCarey v HSBC Bank plc, Yunis v Barclays Bank plc and similar QBD 23-Dec-2009
(Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give . .
Lists of cited by and citing cases may be incomplete.

Consumer, Legal Professions, Professional Negligence

Updated: 09 December 2022; Ref: scu.375937

Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2): 11 Dec 1978

The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood.’ and ‘Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood. . . I would describe that as the cherry picking aspect.’ and ‘The key word here is ‘deploying’. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document’s effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party’s need to give full and frank disclosure, eg on a without notice (ex parte) application.’

Judges:

Mustill J

Citations:

[1981] Comm LR 138

Jurisdiction:

England and Wales

Citing:

CitedBurnell v British Transport Commission CA 1956
The plaintiff sought damages for personal injury. When his witness was cross-examined on his earlier statement, he agreed he had made the statement. Counsel for the Plaintiff asked to see the whole statement. Counsel for the Defendant objected on . .

Cited by:

CitedFulham 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 . .
CitedLoizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
CitedSomatra Limited v Sinclair Roche and Temperley (a Firm) etc CA 26-Jul-2000
In an action between clients and their solicitors, the solicitors produced at an interlocutory hearing evidence derived from without prejudice discussions. The claimants applied for disclosure of all such documents, but this was rejected on the . .
CitedDunlop Slazenger International Ltd v Joe Bloggs Sports Ltd CA 11-Jun-2003
Waller LJ said: ‘To answer the question whether waiver of parts of a privileged communication waives the complete information, it is that dictum of Mustill J., as he then was, which applies. A party is not entitled to cherry pick and a party to whom . .
CitedMayne Pharma Pty Ltd Another v Debiopharm Sa and Another PatC 10-Feb-2006
Defendant’s application in patent revocation claims . .
ApprovedGreat 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 . .
CitedBrennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
CitedRegina v Secretary of State for Transport ex-parte Factortame and Others CA 1988
The Secretary of State was willing to make legal advice given to him available on the grounds that privilege had been waived, but not advice after a particular cut off date. The claimants were dubious as to whether the privilege had been properly . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 09 December 2022; Ref: scu.240157

Bakhitar v Keosghgerian and Others: QBD 3 Dec 2003

Employer liable for employee with criminal record

An employee of a firm of solicitors took pawned jewellery to show to a third party possible purchaser. The jewels were misappropriated.
Held: The person involved, who was known to have a criminal record for fraud was for all relevant purposes the firm’s employee, and they had vicarious liability for his behaviour.

Judges:

Overend J

Citations:

[2003] EWHC 3084 (QB)

Statutes:

Partnership Act 1890 5

Jurisdiction:

England and Wales

Citing:

CitedDubai 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 . .
CitedCochlan v Ruberella Limited CA 21-Jul-2003
The issue arose as to the liability of a firm for the acts of a partner who had made statements to the claimant regarding the rate of return on a proposed investment amounting to some 6,000 per cent per annum.
Held: The following propositions . .
CitedArmagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other, Vicarious Liability

Updated: 09 December 2022; Ref: scu.193837

Abbey 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 privilege without having asked the clients who owned it.
Held: The issue of fraud or impropriety had been raised sufficiently in the pleadings to justify the request for dicslosure.

Judges:

Lord Justice Simon Brown , Lord Justice Auld, Lord Justice Thorpe

Citations:

[1999] EWCA Civ 1426

Jurisdiction:

England and Wales

Citing:

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, . .
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 . .
CitedNationwide 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 . .
CitedDarlington Building Society and Abbey National Plc v O’Rourke James Scourfield and McCarthy 1990
The plaintiffs sought to amend their claim to add an assertion that the defendant solicitors’ duty of confidentiality was lost by virtue of their clients’ fraudulent intent, and the possible knowledge of the defendant solicitors of that intent. It . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Litigation Practice, Legal Professions

Updated: 09 December 2022; Ref: scu.146341

Atwell v Perr and Co and Another: ChD 27 Jul 1998

Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit.

Citations:

Times 27-Jul-1998

Jurisdiction:

England and Wales

Citing:

CitedRondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .
CitedSaif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 09 December 2022; Ref: scu.78024

Esterhuizen and Another v Allied Dunbar Assurance Plc: QBD 10 Jun 1998

A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of signature and attestation is not completely straightforward and disaster may ensue if it is not correctly done. Any testator is entitled to expect reasonable assistance without having to ask exprssly for it. It is in my judgment not enough just to leave written instructions with the testator. In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also in my view negligent.’

Citations:

Gazette 15-Jul-1998, Times 10-Jun-1998

Jurisdiction:

England and Wales

Citing:

CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Wills and Probate

Updated: 09 December 2022; Ref: scu.80378

In re Long, ex parte Fuller: 1881

Citations:

(1881) 16 Ch D 617

Jurisdiction:

England and Wales

Cited by:

CitedWithers Llp v Rybak and Others ChD 9-May-2011
The claimant solicitors sought a declaration as to whether they had a right to assert a solicitor’s common law lien over sums in its client account. The defendant clients had asserted a security interest in the money and had assigned that interest, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 07 December 2022; Ref: scu.439583

Reynolds v Stone Rowe Brewer (A Firm): QBD 18 Mar 2008

The solicitors appealed against the assessment of their costs. The judge had found that they had estimated their costs and applied a 15% margin of error.
Held: the judge should have given reasons for his judgment to allow the parties to assess the prospects of an appeal. There had been unusual developments, but the estimates given were in any event just too low. The costs judge had been entitled to come to the conclusion he had. The judge in Wong v Vizards had not applied a percentage, but had set the costs awarded, and noted that this was about 15%.

Judges:

Tugendhat J

Citations:

[2008] EWHC 497 (QB), [2008] 4 Costs LR 545

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedWong v Vizards 1997
The solicitors had sent to the client a written fee proposal for a forthcoming case which they said was drafted on ‘the worst case basis’, saying ‘I provided you with a fee proposal which hopefully sets out the fullest extent of your liability to . .
CitedAnthony v Ellis and Fairbairn (A Firm) SCCO 12-May-2000
The court considered a solicitor’s bill which vastly exceeded the estimate given. . .
CitedMastercigars Direct Ltd v Withers Llp ChD 23-Nov-2007
The court considered an appeal against a costs award where the solicitors had given an estimate, but had then exceeded the estimate.
Held: Morgan J said: ‘The closing submissions were recorded by the Costs Judge at paragraph 59 and 60 of his . .
CitedGarbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
CitedLeigh v Michelin Tyre Plc CA 8-Dec-2003
The parties had submitted costs estimates which proved later to be quite inadequate.
Held: It was a central principle of the Civil Procedure Rules that costs should be controlled. Solicitors should file costs estimates not only at the . .
CitedFlannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .

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.

Costs, Legal Professions

Updated: 07 December 2022; Ref: scu.266907

Alliance and Leicester Building Society v Edgestop: 18 Jan 1991

The plaintiff building society had paid moneys to solicitors and the solicitors had wrongly paid them away in breach of their instructions.
Held: The building society obtained orders for interim payment against the solicitors on the grounds that they were liable for breach of trust. If the building society had known the true facts it would not have made the advance. At the date of judgment a certain loss had been demonstrated in that the breach of trust had caused the building society to enter into a transaction in which they would not have participated had there been no breach of trust.

Judges:

Hoffmann J

Citations:

Unreported, 18 January 1991

Jurisdiction:

England and Wales

Trusts, Legal Professions

Updated: 07 December 2022; Ref: scu.251378

Ivimey v Marks: 1 May 1847

A solicitor’s charge for an item in an action, without specifying in what court the action is brought, rendered the bill bad, the reason being that the client ought to be enabled by the bill to obtain advice as to taxation without the need of further question.

Citations:

[1847] 16 M and W 843, [1847] EngR 454, (1847) 153 ER 1433

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedCook v Gillard 1852
A solicitor delivered his bill. The first part for pounds 2 19s 8d related to attending the defendant and consulting as to slanderous reports; there were then charges for ‘Letter before action’, ‘Instructions to sue’, ‘Writ of summons’, and . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 07 December 2022; Ref: scu.240401

In re Ainsworth, ex parte the Law Society: 1905

An unqualified person who gives notice of appearance is thereby acting in contravention of section 2 of the 1843 Act. The relevant rule of court required a notice of appearance to be given either by the defendant himself or his solicitor.

Judges:

Lord Alverstone CJ

Citations:

[1905] 2 KB 103

Statutes:

Solicitors Act 1843 2

Jurisdiction:

England and Wales

Cited by:

CitedAndre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 07 December 2022; Ref: scu.237582

Mcleod v Common Professional Examination Board: SCCO 13 Mar 2000

Citations:

[2000] EWHC 9007 (Costs)

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
. .

Cited by:

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

Costs, Legal Professions

Updated: 07 December 2022; Ref: scu.235624

Wong v Vizards: 1997

The solicitors had sent to the client a written fee proposal for a forthcoming case which they said was drafted on ‘the worst case basis’, saying ‘I provided you with a fee proposal which hopefully sets out the fullest extent of your liability to this firm for costs likely to be incurred in the future’. The client said that the solicitor should be bound by this estimate, and he appealed against a detailed assessment of costs. Costs were assessed at the amount shown in the original estimate plus 15%.
Held: The court referred to rules 3, 4 and 6 in the Solicitors’ Costs Information and Client Care Code 1999 and to a number of authorities. A client knows that he will be charged by his solicitor and thus a solicitor who fails to give an estimate should not thereby be disentitled from receiving any fees. The court held the solicitors to the estimated sum plus 15%, but also allowed the solicitor to recover the costs of communications with the client on the basis that these were not covered by the estimate and so (by implication) the Judge reasoned that the client must have expected to pay separately for these communications: ‘It is open to Mr Wong to argue that in determining what is a reasonable amount for him to pay for the work done, regard should be had to the level of costs which he had been led to believe represented a worst case assessment of his potential liability.’

Judges:

Toulson J

Citations:

[1997] 2 Costs LR 46

Jurisdiction:

England and Wales

Cited by:

CitedGarbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
CitedReynolds v Stone Rowe Brewer (A Firm) QBD 18-Mar-2008
The solicitors appealed against the assessment of their costs. The judge had found that they had estimated their costs and applied a 15% margin of error.
Held: the judge should have given reasons for his judgment to allow the parties to assess . .
ApprovedAnthony v Ellis and Fairbairn (A Firm) SCCO 12-May-2000
The court considered a solicitor’s bill which vastly exceeded the estimate given. . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 07 December 2022; Ref: scu.231523

The Law Society v Alec Leslie Wheeler and John Michael Stephens: Admn 21 Jul 2005

The solicitors had obtained pemission from the Society to employ a struck off solicitor. The Society came to allege that the actual employment differed and was not covered by the consent, The Society appealed a finding that the solicitors were not guilty of unbefitting conduct in their supervision of the struck off solicitor.
Held: Nothing done by the Society could be interpreted to constitute an extension of the permission. Strict supervision had not been imposed. The struck off solicitor had caused further losses. The findings of the SDT were inconsistent but the solicitor must inevitably be struck off for unbefitting conduct.

Judges:

Lord Justice Kennedy Mr Justice Lightman Mr Justice Crane

Citations:

[2005] EWHC 1602 (Admin)

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Legal Professions

Updated: 07 December 2022; Ref: scu.229061

Adlam v Law Society: 1968

The word ‘lawfully’ is often read into a statute

Citations:

[1968] 1 WLR 6

Jurisdiction:

England and Wales

Cited by:

CitedIn re Abdul Manan CA 1971
The applicant was a Pakistani seaman who had deserted from his ship and his presence in the UK was unlawful under the 1962 Act. He nevertheless claimed to be entitled to enter and remain as a person who had been ordinarily resident here for two . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 07 December 2022; Ref: scu.228187

Kingston’s (Duchess) Case: 1776

The judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties coming incidentaly in question in another court for a different purpose. The principle of litigation privilege is restricted to legal advice.

Citations:

(1776) 1 East PC 468, (1776) 20 ST 336

Jurisdiction:

England and Wales

Cited by:

CitedPenn-Texas Corporation v Murat Anstalt (No 2) CA 1964
The court considered a claim for an issue estoppel arising from a foreign judgment: ‘In my opinion a previous judgment between the same parties is only conclusive on matters which are conclusive and necessary to the decision. It is not conclusive on . .
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 . .
Lists of cited by and citing cases may be incomplete.

Ecclesiastical, Estoppel, Legal Professions

Updated: 07 December 2022; Ref: scu.188235

Re Fryer: 1857

The acts of a solicitor as an express trustee are not within the scope of the ordinary business of a solicitor.

Citations:

(1857) 3 K and J 317

Jurisdiction:

England and Wales

Cited by:

CitedDubai 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

Updated: 07 December 2022; Ref: scu.193891

Adoko v Office for the Supervision of Solicitors: Admn 15 Jul 2003

The applicant had been made subject of an order preventing his employment as a clerk by any firm of solicitors. A costs order accompanied that order. The order was later the subject of a default costs certificate. He sought to appeal that certificate.
Held: The correct and only way to challenge such an order was application under CPR47.12. In any event there was required to be shown evidence demonstrating ‘a good reason why detailed assessment proceedings should continue’ (CPR47.12(2)). No such reason was adduced. An appeal was not a possible route of challenge. Appeal dismissed.

Judges:

Lord Justice Dyson, Mr Justice Gibbs

Citations:

[2003] EWHC 1899 (Admin)

Links:

Bailii

Statutes:

Civil Procedure Rules 47.12

Jurisdiction:

England and Wales

Legal Professions, Costs, Civil Procedure Rules

Updated: 07 December 2022; Ref: scu.185810

Griffiths v Evans: CA 1953

The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
Held: Where there is a dispute between a solicitor and the client about the existence or the terms of an oral retainer the Court may give some preference to the client’s evidence.
Denning LJ, dissenting, said: ‘On this question of retainer, I would observe that where there is a difference between a solicitor and his client upon it, the courts have said, for the last 100 years or more, that the word of the client is to be preferred to the word of the solicitor, or, at any rate, more weight is to be given to it (see Crossley v. Crowther, per Turner V-C, and Re Paine, per Warrington J.). The reason is plain. It is because the client is ignorant and the solicitor is, or should be, learned. If the solicitor does not take the precaution of getting a written retainer, he has only himself to thank for being at variance with his client over it and must take the consequences.’ and
‘The general principle is that ‘a solicitor is the agent of his client in all matters that may reasonably be expected to arise for decision in the cause”.

Judges:

Denning LJ

Citations:

[1953] 2 All ER 1364, [1953] 1 WLR 1424

Jurisdiction:

England and Wales

Citing:

CitedCrossley v Crowther 20-Nov-1851
A, who was an equitable mortgagee by deposit of deeds ot property belonging to the estate of B, was paid off by C, on an agreement with the executors of B. (as their solicitor stated) that proceedings should be taken in A’s name to enforce the . .

Cited by:

CitedJarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
CitedMidland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
CitedGlyn v McGarel-Groves CA 14-Jul-2006
The claimant had employed a French veterinary surgeon to treat her horse ‘Anna’. She engaged the defendant English veterinary surgeon to attend the treament and observe. The horse died at the principal negligence of the French vet. The English vet . .
CitedSibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
Lists of cited by and citing cases may be incomplete.

Negligence, Damages, Legal Professions

Updated: 07 December 2022; Ref: scu.186347

Allen v Aldridge: 1844

The case concerned the recovery of costs by a solicitor for acting as steward of a manor. The claim to tax such costs failed: ‘The statute does not authorise the taxation of every pecuniary demand or bill which may be made or delivered by a person who is a solicitor, for every species of employment in which he may happen to be engaged. The business contained in a taxable bill may be business of which no part was transacted in any Court of law or Equity; but I am of opinion that it must be business connected with the profession of an attorney or solicitor – business in which the attorney or solicitor was employed, because he was an attorney or solicitor, or in which he would not have been employed, if he had not been an attorney or solicitor, or if the relation of attorney or solicitor and client had not subsisted between him and his employer. It may perhaps, on some occasions, be questionable, whether the business contained in a solicitor’s bill be or be not such as to make the bill taxable under the Act; but in the present case I do not see any reason to doubt. The relation of solicitor and client did not subsist between Mr Ward and the Petitioners, or any of them, or between Mr Ward and any other person in relation to this matter. He was not employed by the Petitioners because he was a solicitor, but because he was steward of the manor, and he might have been steward of the manor, without being a solicitor. His bill is not as to any part of it a solicitor’s bill; it is a bill of charges claimed to be payable to the steward of the manor, and nothing else; and I am of opinion that the statute gives me no jurisdiction over it.’

Judges:

Lord Langdale MR

Citations:

(1844) 5 Beav 401

Statutes:

Solicitors Act 1843 37

Jurisdiction:

England and Wales

Cited by:

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

Legal Professions

Updated: 07 December 2022; Ref: scu.180543

Stumore v Campbell: 1892

Citations:

[1892] 1 QB 314

Jurisdiction:

England and Wales

Cited by:

CitedWithers Llp v Rybak and Others ChD 9-May-2011
The claimant solicitors sought a declaration as to whether they had a right to assert a solicitor’s common law lien over sums in its client account. The defendant clients had asserted a security interest in the money and had assigned that interest, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 06 December 2022; Ref: scu.439585

Loescher v Dean: ChD 1950

The plaintiff sought specific performance, and obtained an order that the defendant vendor should convey the property to him on the payment for it. The plaintiff paid the sum to the defendant’s solicitors, who paid it into their client account. The plaintiff then served a garnishee order nisi on those solicitors for his costs against the defendant. The solicitors, who had not yet rendered a bill of costs to their client, took out a summons for a charging order under s 69 of the 1932 Act, on the sum paid by the plaintiff.
Held: The money was not entrusted to the solicitor for any specific purpose, but was paid in the ordinary course of his business as solicitor of the client. He received it as the client’s agent. On receipt of the money the solicitor had a lien over it for his unpaid costs and therefore a creditor could not attach it.
The obligation of the solicitor under a particular purpose trust to repay his client was distinguished from the obligation of a solicitor who holds a client’s money as trustee in a client account. In the latter case, the solicitor’s obligation to repay such money to his client is not incompatible with the solicitor exercising a right of lien or set off. The solicitor is entitled to say to the client: ‘you have not paid my bill and I shall not pay you your money until you have’

Judges:

Harman J

Citations:

[1950] Ch 491

Statutes:

Solicitors Act 1932 69

Jurisdiction:

England and Wales

Cited by:

CitedIrwin Mitchell v Revenue and Customs Prosecutions Office and Allad CACD 30-Jul-2008
The solicitors had been paid funds on account of their fees in defending the client. By the time a freezing order was made under the 2002 Act in respect of his assets, the firm’s fees exceeded the amount held. The court was asked what was to happen . .
CitedWithers Llp v Rybak and Others ChD 9-May-2011
The claimant solicitors sought a declaration as to whether they had a right to assert a solicitor’s common law lien over sums in its client account. The defendant clients had asserted a security interest in the money and had assigned that interest, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 06 December 2022; Ref: scu.416226

K, Regina v: CACD 14 Aug 2008

The defendant had been called to the bar but was not within any chambers and did not have a practising certificate and was not subject to the Bar’s disciplinary code. He was prosecuted for providing immigration and advice service and advice whilst unauthorised.
Held: The intention of the Act was to ensure that only those subject to professional regulation provided immigration services. The defendant did not fall within that category. Even so, the defendant’s bona fides had not been questioned, and the court emphasised that it saw no purpose in the continuation of the present proceedings.

Judges:

Lord Justice Toulson, Mr Justice Andrew Smith and Judge Rogers, QC

Citations:

[2008] EWCA Crim 1900, Times 08-Oct-2008, [2009] 1 All ER 510, [2009] 1 WLR 694, [2009] 1 Cr App Rep 9, [2009] PNLR 6

Links:

Bailii

Statutes:

Immigration and Asylum Act 1999

Jurisdiction:

England and Wales

Crime, Legal Professions, Immigration

Updated: 06 December 2022; Ref: scu.272558

Brydges v Branfill: 1842

A tenant for life of settled land set out on an elaborate fraud aiming for the capital. It required first a private Act of Parliament to enable the estate to be sold under the direction of the court and the proceeds paid into court and invested in other land; a fictitious sale of the tenant for life’s own lands to an associate of his; the application of the money in court in the purchase of the land from the associate at an excessive price; and the deliberate deception of the court to obtain an order under which part of the money in court was paid out to the tenant for life. He employed a firm of solicitors to act for him in obtaining the Act and the orders of the court and in every other proceeding under the Act. Brooks, the partner who acted in the transactions knew the circumstances of the transactions, but neither of his partners was aware that there was any fraud or irregularity in them.
Held: Though the partners were blameless, they were jointly and severally liable with Brooks to make good the loss to the trust estate. The court allowed a claim in Chancery for the vicarious liability of partners for his equitable wrongdoing.

Judges:

Sir Lancelot Shadwell VC

Citations:

(1842) 12 Sim 369

Jurisdiction:

England and Wales

Cited by:

CitedDubai 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.

Equity, Vicarious Liability, Legal Professions

Updated: 06 December 2022; Ref: scu.193866

St Aubyn v Smart: 1868

Citations:

(1868) LR 3 Ch App 646

Jurisdiction:

England and Wales

Cited by:

CitedDubai 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.

Vicarious Liability, Legal Professions

Updated: 06 December 2022; Ref: scu.193867

Treasury Solicitor v Regester: 1978

A challenge was made as to the legal costs on the grant of a lease of a valuable commercial property.
Held: In relation to the time spent on the business which was the third factor in the 1972 Order: ‘The magnetic attraction of factor (iii) as a foundation for assessment of fair and reasonable remuneration is that, in the absence of an approved scale applied to value, it is the only figure which is readily calculable. It is an attraction which must be sternly resisted in cases of this sort where one or more of the other factors is such as to dwarf it into insignificance.’

Judges:

Donaldson J

Citations:

[1978] 1 WLR 446, [1978] 2 All ER 920

Statutes:

Solicitors Remuneration Order 1972

Jurisdiction:

England and Wales

Cited by:

CitedJemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 06 December 2022; Ref: scu.187174

D’Silva v Lister House Development Ltd: 1970

Even an unlawful sub-tenancy can have protection under Part II of the 1954 Act. The court described as fallacious the submission that section 74(1) does not extend to or answer the question whether the document has ever been delivered, saying: ‘The section says that the document is to be deemed to have been duly executed and execution imports not only sealing the document, but also delivering it as an executed document.’ and ‘It is . . established by authority that negotiations subject to contract for the grant of a lease remain in a state of negotiation until exchange of lease and counter-part . . Accordingly that letter is a bar to any claim by the Plaintiff that there was a contract by correspondence, for the correspondence must, I think, be taken as correspondence in the course of negotiations which were conducted upon the footing that everything would remain in a state of negotiation until exchange of lease and counterpart. ‘ and ‘The letters relied on here are letters between solicitors and in the absence of special authority in my judgment, they cannot be relied upon as constituting a contract by correspondence’.

Judges:

Buckley J

Citations:

[1971] Ch 17, [1970] 1 All ER 858

Statutes:

Landlord and Tenant Act 1954 Part II, Law of Property Act 1925 74(1)

Jurisdiction:

England and Wales

Citing:

CitedEccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .

Cited by:

CitedHussein Walji, Zulikar Walji, Mohammed Iqbal Walji, Hussain Walji v Mount Cook Land Limited CA 21-Dec-2000
The claimants sought a new lease under the Act. They were assignees and sureties of an underlease of the premises, but a new underlease had been taken by a company through which the partnership had intended to trade. The partnership had paid rent in . .
CitedBolton Metropolitan Borough Council v Torkington CA 31-Oct-2003
The proposed landlord had sealed the lease, but the tenant was to seal and deliver his part by a certain date. The respondent purported to complete the lease later.
Held: Under the 1985 Act completion would require writing, intention and . .
CitedEvans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
CitedJavad v Aqil CA 15-May-1990
P in possession – tenancy at will Until Completion
A prospective tenant was allowed into possession and then made periodic payments of rent while negotiations proceeded on the terms of a lease to be granted to him. The negotiations broke down.
Held: The tenant’s appeal failed. It was inferred . .
CitedKatana and Another v Catalyst Communities Housing Ltd CA 28-Jan-2010
The defendants sought leave to appeal against an order for possession. The landlords were to sell the property to a housing association and let the property to tenants for three months and thereafter terminable on one month’s notice. The tenant had . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Legal Professions

Updated: 06 December 2022; Ref: scu.184136

Keene v Ward: 1849

Citations:

(1849) 13 QB 513

Jurisdiction:

England and Wales

Cited by:

CitedRalph Hume Garry (a Firm) v Gwillim CA 22-Oct-2002
The appellant sought to have struck out the claimant’s action to recover their costs having represented him. He said that the detail in the bill was so deficient as not to comply with the requirements of the Act.
Held: Though the detail given . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 06 December 2022; Ref: scu.182392

Regina v Common Professional Examination Board ex parte Mealing-Mcleod: CA 21 Apr 1999

Citations:

[1999] EWCA Civ 1224

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
. .

Cited by:

See AlsoMcleod v Common Professional Examination Board SCCO 13-Mar-2000
. .
See AlsoRegina 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 06 December 2022; Ref: scu.146139

Regina v Common Professional Examination Board (ex parte Sally Mealing Mcleod): Admn 19 Apr 1999

Citations:

[1999] EWHC Admin 317

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. . .

Cited by:

See AlsoRegina v Common Professional Examination Board ex parte Mealing-Mcleod CA 21-Apr-1999
. .
See AlsoMcleod v Common Professional Examination Board SCCO 13-Mar-2000
. .
See AlsoRegina 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 06 December 2022; Ref: scu.139581

Regina 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 of vexation in this application.

Judges:

Sedley J

Citations:

[1997] EWHC Admin 969

Links:

Bailii

Statutes:

Supreme Court Act 1981

Jurisdiction:

England and Wales

Cited by:

Appeal FromRegina 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
. .
See AlsoMcleod v Common Professional Examination Board SCCO 13-Mar-2000
. .
See AlsoRegina 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 06 December 2022; Ref: scu.137914

Ogunsanya and Another v General Medical Council: QBD 11 Jun 2020

Claimants’ CPR Part 8 claim for a declaration (and associated injunctive relief) that the Defendant has no power to investigate the First Claimant pursuant to the Medical Act 1983 (‘the 1983 Act’), in circumstances in which the First Claimant, who is both a registered medical practitioner and a solicitor, was acting in his capacity as a solicitor.

Judges:

Eady J

Citations:

[2020] EWHC 1500 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Health Professions, Legal Professions

Updated: 05 December 2022; Ref: scu.651708

Purvis, Regina (on The Application of) v Legal Service Commission: Admn 22 Feb 2013

The court was asked as to the need for the claimant when lodging a cimpkaint against a solicitor, to complete a second form: ‘the fact that we are all assembled here today, shows what an appalling waste of time and public funds can occur when obduracy on the part of a citizen collides with an entrenched bureaucratic position on the part of the State. ‘

Judges:

Holman J

Citations:

[2013] EWHC 613 (Admin)

Links:

Bailii

Legal Professions

Updated: 05 December 2022; Ref: scu.491895

Haycocks, Regina (on the Application Of) v Worcester Crown Court: Admn 15 May 2007

Renewed application for leave to seek judicial review of the crown court in dismissing his appeal against conviction for driving with excess alcohol. The judge had refused an adjournment to allow fresh counsel to be instructed, and had behaved in a discourteous and biased manner. He had said that the police had forced their way into his house and used CS gas and otherwise behaved so improperly that the evidence should not have been admitted.
Held: On such an application, the court was limited to seeing whether no court could resonably have concluded as the first instance judge had. The claimant had not established what he needed to establish and the leave was refused.

Citations:

[2007] EWHC 2127 (Admin)

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 78

Jurisdiction:

England and Wales

Road Traffic, Legal Professions

Updated: 05 December 2022; Ref: scu.259637

Suleman v Shahisavari: 1988

A solicitor signing a contract on behalf of his client should do so only with his client’s express authority. A failure in this duty would leave him liable for breach of warranty of authority. The authority should preferably be written either by a power of attorney or by an express authority.

Citations:

[1989] 3 All ER 460, [1988] 1 WLR 1181

Jurisdiction:

England and Wales

Contract, Legal Professions

Updated: 05 December 2022; Ref: scu.252478

Cook v Gillard: 1852

A solicitor delivered his bill. The first part for pounds 2 19s 8d related to attending the defendant and consulting as to slanderous reports; there were then charges for ‘Letter before action’, ‘Instructions to sue’, ‘Writ of summons’, and ‘Attending settling’. There was otherwise nothing to show whether the suit of Gillard v Ransom had been pending in court. The second part of the bill related to conducting the defence of a case at the Middlesex Quarter Sessions and the third part for conducting a prosecution there. The fourth part of the bill was headed ‘Yourself and Mrs Heydeman’. It contained charges for taking the opinion of counsel on the construction of an agreement, various charges for collecting evidence and making enquiries at Hatton Garden, Tottenham Court Road, and other places well known to be in Middlesex, but which were not stated on the face of the bill to be there; for ‘Instructions to sue in an action on the case’; for ‘Writ’ and ‘Service’; for attending in court when on motion by counsel ‘A rule was made to refer all matters in dispute’; and for attending the reference. The amount of this head of the bill was pounds 122. 8s. 10d. Except insofar as might be inferred from the items quoted there was nothing to show whether the cause of Gillard v Heydeman had been pending in any, or which, of the superior courts. The defendant said the first and last parts of the bill were insufficient, in not showing what courts the business there charged for was transacted; and therefore that the bill, being one entire bill, was not sufficient as to any part. For the plaintiff it was contended that the bill was sufficient for the whole; or, if not, that it was divisible and good pro tanto.
Held: ‘No requisites for the bill are particularised: there is no requirement that the court should be specified: and the section further declares that the plaintiff is not bound in the first instance, in proving a compliance with the Act, to prove the contents of the bill delivered; but it is presumed sufficient unless the defendant proves that it is not such a bill as constitutes ‘a bona fide compliance with this Act.’ The defendant here does not prove that any further information was practically wanted for taxation, or suggest that the name of the court in which the two writs of summons were issued would have been of any use to him: nor does he contend that the Act has not in this case been bona fide complied with, unless the arbitrary rule be deduced from the cases above mentioned, that the name of the court as to every item is indispensable, can be maintained. Now this rule, as applied to the existing statute, appears to have originated in a mistake: it was first introduced by judges applying the provisions of stat. 2 G. 2, c 23, s.23; and then there was good reason for it; for the jurisdiction to tax under that statute is given to the court in which the greater part of the business was done; and it was therefore indispensable for the parties and for the taxing officer to be able to assign each item to its appropriate court, before the taxation could be entered upon: moreover at that time the scale of charges in the different courts was different; so that the name of the court was also wanted in order to estimate the amount of charges. But, under the existing statute, if there is any item in any court of law, jurisdiction is given to all the superior courts indifferently; so that in respect of jurisdiction the name of the court is entirely immaterial: and so likewise it is for estimating the amount due, as the scale of charges in all the superior courts is now uniform. The judges, who instituted the rule in relation to the existing statute, adopted it from cases under the former statute, without adverting to the important changes in the law which the legislature had made; and thereby, as we think, contravened the intention of the legislature. If this reasoning is correct, it follows that the rule, which so originated, has been maintained without any useful purpose.’ and ‘This has been followed by a very salutary judgment in Cozens v Graham (16 Jurist, 952), where a bill was held valid although the court in which the business was done was not mentioned or described, it being clear that the defendant, knowing the court, did not want the information and only made the objection to evade payment of a debt.
This judgment appears to us to give effect to the true meaning of the statute; the defendant who undertakes to prove that the bill is not a bona fide compliance with the Act cannot found an objection upon want of information in the bill, if it appears that he is already in possession of that information. It seems to us probable that the legislature changed the law relating to attorneys’ bills from having perceived that a clerical error or accidental oversight is often worked the forfeiture of the remuneration due for many years of professional services; and therefore meant, while it secured the client a right to reasonable information respecting the bill before an action should be brought upon it, at the same time to give the attorney security that the delivery of a bill intended to give and giving all requisite information should be a compliance with the Act, unless the client could show that information which was really wanted had been withheld. Upon this principle, and according to these cases, we decide against the objection raised by the present defendant. We consider that the doubt, whether the writs of summons and other proceedings, apparently such as belong to the courts at Westminster were issued here or in the borough court of some municipal corporation, emanated from the ingenuity of the advocate without having had any existence in the mind of the defendant: and a client has no ground of objection to a bill who is in possession of all the information that can be reasonably wanted for consulting on taxation.’

Judges:

Lord Campbell CJ

Citations:

(1852) 1 E and B 26, [1852] EngR 942, (1852) 1 El and Bl 26, (1852) 118 ER 346

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

CitedIvimey v Marks 1-May-1847
A solicitor’s charge for an item in an action, without specifying in what court the action is brought, rendered the bill bad, the reason being that the client ought to be enabled by the bill to obtain advice as to taxation without the need of . .

Cited by:

CitedRalph Hume Garry (a Firm) v Gwillim CA 22-Oct-2002
The appellant sought to have struck out the claimant’s action to recover their costs having represented him. He said that the detail in the bill was so deficient as not to comply with the requirements of the Act.
Held: Though the detail given . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 December 2022; Ref: scu.181190

Haigh v Ousey: 1857

Citations:

(1857) 7 El and Bl 578

Jurisdiction:

England and Wales

Cited by:

CitedRalph Hume Garry (a Firm) v Gwillim CA 22-Oct-2002
The appellant sought to have struck out the claimant’s action to recover their costs having represented him. He said that the detail in the bill was so deficient as not to comply with the requirements of the Act.
Held: Though the detail given . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 December 2022; Ref: scu.182391

Pearless De Rougemont and Company v Pilbrow: CA 17 Mar 1999

The defendant had instructed the claimant solicitors to represent him. He had asked to see a solicitor, but had in fact seen an unqualified but very experienced person whose status was not made clear to him. He later refused to pay the bill.
Held: The firm had broken the practice rules. The defendant had contracted for the supply of legal services by a solicitor. Though there was nothing to suggest that he had been disadvantaged by the breach: ‘a firm of solicitors which is asked for a solicitor and, without telling the client that the advisor is not a solicitor, provides an advisor who is not a solicitor should not be entitled to recover anything. ‘ The client should not be obliged to pay the bill.

Citations:

[1999] EWCA Civ 1011, [1999] 2 FLR 139, [1999] 2 Costs LR 109, [1999] 3 All ER 355

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 05 December 2022; Ref: scu.145926

Davies v Davies: CA 4 Mar 1999

The marriage was unhappy. The wife consulted briefly but did not instruct a solicitor, Mr Tooth. Some 7 years later as divorce proceedings were considered, the husband did instruct Mr Tooth. She sought to prevent him acting, but then wanted to withdraw her summons. The husband would only agree if she paid the costs. She refused.
Held: The summons was quite properly issued. There was a real matter to be considered. The point of view of the petitioner wife was put forward moderately it seems to me. It was met with a very strong rebuff which indicated that, come what may, the respondent husband was going to seed the dismissal of the matter with costs. There remained a real and not just fanciful risk of conflict. The husband’s appeal against the costs order failed.

Citations:

[1999] EWCA Civ 890

Jurisdiction:

England and Wales

Citing:

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 . .
CitedPrince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
CitedRTZ Pension Property Trust Ltd v ARC Property Developments Ltd and Asfa Limited CA 26-Nov-1998
Where a plaintiff discontinued his action, but still sought costs from the defendant, he had to show some misconduct by the defendant, such as encouraging the action by concealment of a defence. A mere late amendment causing no loss was not . .
Lists of cited by and citing cases may be incomplete.

Family, Legal Professions

Updated: 05 December 2022; Ref: scu.145805

Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm): CA 11 Mar 1999

A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ said: ‘A client expressly waives his legal privilege when he elects to disclose communications which the privilege would entitle him not to disclose. Where the disclosure is partial, issues may arise on the scope of the waiver . . While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result.’
. . and ‘When a client sues a solicitor who has formerly acted for him, complaining that the solicitor has acted negligently, he invites the court to adjudicate on questions directly arising from the confidential relationship which formerly subsisted between them. Since court proceedings are public, the client brings that formerly confidential relationship into the public domain. He thereby waives any right to claim the protection of legal professional privilege in relation to any communication between them so far as necessary for the just determination of his claim; or, putting the same proposition in different terms, he releases the solicitor to that extent from the obligation of confidence by which he was formerly bound. This is an implication of law, the rationale of which is plain. A party cannot deliberately subject a relationship to public scrutiny and at the same time seek to preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. He cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence. But, since the implied waiver applies to communications between client and solicitor, it will cover no communication to which the solicitor was not privy and so will disclose to the solicitor nothing of which he is not already aware.’
As to Hayes v Dowding, he said: ‘We need not linger on Hayes v. Dowding [1996] PNLR 578, a case in which the plaintiffs were held to have impliedly waived their right to legal professional privilege by bringing proceedings even though the proceedings were not against any legal adviser. In reaching that conclusion the judge relied heavily on Australian and United States authority. Neither party before us sought to contend that this case was correctly decided, and we are satisfied that it was not. The authorities on which the judge principally relied do not represent the law of this country, and the decision must be overruled.’

Judges:

Lord Bingham LCJ

Citations:

Times 22-Mar-1999, Gazette 19-May-1999, [1999] EWCA Civ 955, [1999] 1 WLR 1183, [2000] CP Rep 81

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedHayes v Dowding 1996
Disputes over the running of a private company had been compromised by the plaintiffs’ solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of . .
CitedX Corporation v Y 16-May-1997
Legal professional privilege might be taken to be waived if it would be unfair to allow a client to maintain it. . .

Cited by:

CitedBritish American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
CitedFulham 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 . .
CitedFarm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 December 2022; Ref: scu.145870

Powell v Haywards (a Firm): CA 18 Feb 1999

Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their loss. A disappointed beneficiary, claiming for professional negligence against solicitors, did not first have to seek to minimize his loss by seeking rectification of the will, where this would be unlikely to produce a practical improvement in his position.

Judges:

Hirst LJ, Mummery LJ, Buxton LJ

Citations:

Gazette 31-Mar-1999, Gazette 10-Mar-1999, [1999] EWCA Civ 816, Times 11-Mar-1999, [1999] 1 FLR 1182

Jurisdiction:

England and Wales

Citing:

CitedPilkington v Wood 1953
The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller . .
CitedWalker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
CitedIn re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence, Legal Professions

Updated: 05 December 2022; Ref: scu.145731

Mercantile Credit Co Ltd and Another v Fenwick and Others; Same v Speechly Bircham: CA 12 Feb 1999

Solicitors retained to obtain signatures to a bank’s charge by husband and wife to secure his debts was required to act in accordance with current good practice. No duty to ensure certificate obtained that husband and wife had separate advisers.

Citations:

Gazette 10-Mar-1999, Times 23-Feb-1999, [1999] EWCA Civ 778

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence, Banking

Updated: 05 December 2022; Ref: scu.83640

Raats v Gascoigne Wicks: 22 May 2006

(New Zealand High Court) The claimant sought an order to restrain her former solicitors from acting against her in a matter for a new client.
Held: There may be a jurisdiction for a court to exercise its inherent control over solicitors to prevent them continuing to act for one client where they had formerly acted for two together.

Citations:

[2006] NZHC 598

Links:

NZlii

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: 04 December 2022; Ref: scu.276933

L Morgan and Co v Jenkins O’Dowd and Barth: 19 Nov 2008

Blackburne J had previously made an order compelling the Defendants to perform undertakings to redeem mortgages over three residential flats which they had given in the course of acting as solicitors for the sellers of those flats. A dispute had subsequently arisen with the sole mortgagee of all three flats as to the amount required to redeem. Ultimately, the Bank’s position was that it was prepared to redeem its charges over the three flats in return for the total sale proceeds of all three of them. The Defendants applied for the trial of an issue as to the sums that they should be required to pay in order to secure the release of the charges, and to join the Bank as a party to the proceedings so as to ensure that it was bound by the outcome of the trial of that issue.
Held: The application was dismissed as misconceived. The Bank was an entirely innocent third party, with no notice or knowledge of the undertakings given by the Defendants who had no cause of action against the bank.

Judges:

Henderson J

Citations:

Unreported, 19 November 2008, [2008] EWHC 3411 (Ch)

Jurisdiction:

England and Wales

Cited by:

CitedAngel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
CitedThames Valley Housing Association Ltd and Others v Elegant Homes (Guernsey) Ltd and Others ChD 27-Oct-2009
The claimant sought to enforce against the defendant’s solicitors an undertaking given by them. The claimant contracted to buy property subject to a charge in favour of the third defendant bank securing loans over other property. The bank gave no . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 04 December 2022; Ref: scu.280050

The Law Society, Regina (on the Application of) v Legal Services Commission and others: Admn 27 Jul 2007

The Law Society challenged the manner of introduction by the defendant of the proposed Unified Contract for the provision of legal aided services.

Judges:

Beatson J

Citations:

[2007] EWHC 1848 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Legal Aid

Updated: 04 December 2022; Ref: scu.259641

Geraghty and Co v Awwad and Another: CA 25 Nov 1999

The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common law developments in this field. Now that Parliament had modified the law which had prohibited all arrangements for receiving a contingency fee in relation to litigation services, there was no room for the court to go beyond that which Parliament had now permitted.

Judges:

Schiemann LJ, May LJ, LCJ

Citations:

[1999] EWCA Civ 3002, [1999] EWCA Civ 3036, [2001] QB 570, [2000] 3 WLR 1041, [2000] 1 All ER 608, [2000] 1 Costs LR 105

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Not followedThai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
See AlsoAwwad v Geraghty and Company CA 8-Sep-1997
The court considered an application for leave to appeal as to whether a litigation agreement was champertous and void. . .

Cited by:

CitedSibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
CitedKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 01 December 2022; Ref: scu.235833

Kenneth L Kellar Carib West Limited v Stanley A Williams: PC 24 Jun 2004

(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as the degree of success in the case, and the respondent argued that this showed the existence of a conditional fee element.
Held: The letter relied upon did not establish what was suggested, and nor could the fact that the remuneration rate had not been formally agreed in advance. It was not unlawful as a conditional fee arrangement. The case was remitted for taxation to proceed.
The Privy Council expressed the view that ‘it may now be time to reconsider the accepted prohibition in the light of modern practising conditions.’

Judges:

Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote, Lord Carswell, Dame Sian Elias

Citations:

[2004] UKPC 30, [2005] 4 Costs LR 559, (2004) 148 SJLB 821

Links:

Bailii, PC, PC

Jurisdiction:

England and Wales

Citing:

CitedWay v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
CitedThai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
CitedHazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .
See alsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedGeraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .

Cited by:

See AlsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedSibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
CitedPatel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 01 December 2022; Ref: scu.198381

Regina v Board of Inland Revenue, ex parte Goldberg: 1989

Photocopies of documents were sent to leading counsel. The Inland Revenue sought their production under s20.
Held: The copies had been produced for purposes attracting legal professional privilege, and were not discoverable to the Revenue even though the originals might have been.

Citations:

[1989] QB 267

Statutes:

Taxes Management Act 1970 20

Jurisdiction:

England and Wales

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

Taxes Management, Legal Professions

Updated: 01 December 2022; Ref: scu.182888

In re Taxation of Costs In re Solicitors: 1943

Citations:

[1943] KB 69

Jurisdiction:

England and Wales

Cited by:

CitedPenningtons (a Firm) v Brown CA 30-Apr-1998
The claim concerned the plaintiffs claim for costs having represented the defendant successfully. They delivered a bill which detailed disbursements, and gave a 14 line narrative, but no other detail. The defendant requested more detail, being . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 01 December 2022; Ref: scu.183467

Chohan v Times Newspapers Limited; Singh and Choudry (a Firm) and Choudry: CA 4 Dec 1998

Citations:

[1998] EWCA Civ 1916

Jurisdiction:

England and Wales

Cited by:

See AlsoChohan v Times Newspapers Ltd CA 25-Feb-1999
. .
See AlsoTimes Newspapers Ltd v Chohan CA 22-Jun-2001
The limitation period on collection of an award of costs, must run from the date of the costs certificate. It was only at that point when it became enforceable. It would be an abuse to bring an action for enforce the costs award before that date. . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions

Updated: 30 November 2022; Ref: scu.145395

Milne v Kennedy and Others: CA 28 Jan 1999

Only in exceptional circumstances, should a lay person be allowed to represent a party in a county court. In this case no such exceptional circumstance had been established, and the decision was not to be upheld.

Judges:

Aldous and Waller LJJ

Citations:

Times 11-Feb-1999, [2000] CP Rep 80, [1999] TLR 106, [1999] EWCA Civ 668

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

AppliedD v S (Rights of Audience); In re and Application by Dr Pelling CA 18-Dec-1996
The court said that the representation of a litigant in person by a charging non-professional must be only exceptional. . .

Cited by:

CitedIn Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Legal Professions

Updated: 30 November 2022; Ref: scu.83734

Midland Bank Plc v Cox McQueen (A Firm): CA 26 Jan 1999

Solicitors were instructed by the bank to obtain the signature of a client and of his wife to a motgage. The deed was signed by the husband and a woman pretending to be the wife.
Held: The court said that it was asked whether the bank intended to ask for, and whether the solicitors intended to give, a promise to answer for the fraud of the customer even if that fraud could not be detected by exercising all proper care The solicitors who had been asked to obtain the signature to a mortgage on behalf of a bank, but who were misled as to the identity of the signor were not liable in negligence. The nature of the transaction was that the bank charged to carry risk, not the solicitors.
Lord Woolf MR said: ‘In my judgment the decision in Zwebner should not be given a wide application. To do so would ignore the wider consequences of our decision. If commercial institutions such as banks wish to impose an absolute liability on members of a profession they should do so in clear terms so that the solicitors can appreciate the extent of their obligation which they are accepting. Frequently this sort of task is undertaken by small firms of solicitors who are already finding it difficult to remain viable. This is partly because they are heavily burdened by the costs of insurance. If they are to be liable for very substantial sums of damages as a result of the fraud of the customers of the bank which they cannot prevent, then either they will have to withdraw from providing those services or they will have to charge for their services at a rate which is very different from that which was charged here. Neither result is in the interests of the banks or their customers or the public. The result is not in the interests of the banks’ customers as they will not benefit from the explanation of the transaction from a member of the legal profession who is qualified to give that explanation. It is not in the interests of banks as they will have to pay higher fees which they may or may not seek to recover from their customers. It is not in the interest of the public because it is important that legal services are readily available and this will not be the case if small firms are unable to survive. Unless the language used in a retainer clearly has this consequence, the courts should not be ready to impose obligations on solicitors which even the most careful solicitor may not be able to meet.’
Mummery LJ said: ‘The letter was a retainer by the bank of a firm of solicitors to perform professional services of an advisory and ministerial kind for the bank. Professional services provided by the solicitors would not normally involve the guaranteeing of a result by them, such as verifying the identity of Mrs. Dukes, let alone providing the bank with what would amount to an insurance policy against the risk of fraud occurring in a transaction entered into by the bank with its customer, Mr. Dukes; a transaction about which the solicitors were told little by the bank and in which they had no input or influence.
The bank agreed to lend a substantial sum to their customer. That customer was Mr. Dukes. Mrs. Dukes was not a customer of the bank. She was not a client of the solicitors retained by the bank to obtain her signature. It is improbable that the solicitors would agree to provide to the bank more than the exercise of the reasonable care and skill of a competent solicitor in relation to the task to be undertaken. It was part of the bank’s case against the solicitors that the retainer was subject to the usual implied duty of care. That implied term also governed the obligation to obtain the signature of Mrs. Dukes. The judge rejected the case of negligence against the solicitors. There is no appeal against that. The bank’s case on the appeal rests on the contention that the wording of the retainer was apt to create an absolute obligation which would be breached by the solicitors, no matter what precautions they might have taken and what lengths they might have gone to ensure that the woman who signed the mortgage was Mrs. Dukes. For the reasons stated above and for the reasons stated by the Master of the Rolls, I am unable to accept the contention that this retainer, when construed in the context in which it was given and accepted, was intended to have that far-reaching effect.’

Judges:

Lord Woolf MR, Mummery LJ, Mantell LJ

Citations:

Times 02-Feb-1999, Gazette 10-Feb-1999, Gazette 17-Feb-1999, [1999] EWCA Civ 656, [1999] Lloyds Rep PN 223, [1999] PNLR 593, [1999] EG 12, [1999] Fam Law 310, [1999] 1 FLR 1002

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedZwebner v Mortgage Corporation Plc; Trustee of Property of Zwebner and Brooks and Co CA 18-Jun-1998
The claimant applied for a loan secured against a property owned with his wife. The defendant instructed solicitors who reported on title with an undertaking that documents would be executed before completion. They sent the mortgage to Mr. and Mrs. . .

Cited by:

CitedPlatform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
CitedCornelius, Regina v CACD 14-Mar-2012
The defendant appealed against his conviction for fraud under the 2006 Act, saying that the judge had wrongly failed to give a Ghosh direction. As a solicitor he had organised a scheme for buying properties, obtaining finance by the nomination of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 30 November 2022; Ref: scu.83707

O’Connor v Bar Standards Board: SC 6 Dec 2017

The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time having begun on the initial ruling against her.
Held: The appeal succeeded. The Appellant’s challenge was to the disciplinary proceedings against her, not to an alleged state of affairs in which BME lawyers were more likely to be the subject of such proceedings. Therefore, the bringing and pursuit of the disciplinary proceedings must be the focus of the investigation in terms of section 7(5)(a) of the 1998 Act. That section must not be read narrowly and must be allowed to provide an affective and workable remedy, particularly where what was complained of was a course of conduct. Here, there had been a single and continuing action. It had not been Parliament’s intention to have limitation calculated individually from each element of the process. The period ran from when the process ceased, not from when it began, and in this case it was from the time when the Visitors eventually allowed her appeal.

Judges:

Lady Hale, President, Lord Kerr, Lord Wilson, Lady Black, Lord Lloyd-Jones

Citations:

[2017] UKSC 78, [2018] 2 All ER 779, [2017] WLR(D) 813, [2017] 1 WLR 4833, [2018] HRLR 2, UKSC 2016/0174

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Videos Summary, SC 2017 Oct 04 am Video, SC 2017 Oct 04 pm Video

Statutes:

European Convention on Human Rights 14

Jurisdiction:

England and Wales

Citing:

At QBDO’Connor v Bar Standards Board QBD 18-Dec-2014
Appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs. The claimant said that the procedures adopted by the Board in disciplinary . .
Appeal fromO’Connor v Bar Standards Board CA 25-Jul-2016
The appellant said that the Board had infringed her human rights in its approach to disciplinary proceedings brought against her. She had been cleared and now sought a remedy. The Board successfully argued that her claims were out of time.
CitedDH v Czech Republic ECHR 13-Nov-2007
(Grand Chamber) The applicants complained that their children had been moved to special schools which did not reflect their needs from ordinary schools without them being consulted.
Held: The Court noted that, at the relevant time, the . .
CitedRehman v The Bar Standards Board Admn 29-Jul-2016
The barrister appealed against two findingd of the Disciplinary Tribunal of the Council of the Inns of Court. . .
CitedLincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
CitedIn re S (A Barrister) 1970
(Inns of Court) The regulation of barristers has been delegated by the judges to the Inns of Court. Five judges sitting as Visitors of the Inns of Court stated that ‘the judges as visitors have always had supervisory powers and their decision, upon . .
CitedDelcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
CitedSampanis and Others v Greece ECHR 8-Aug-2011
Resolution as to execution of judgment . .
CitedOrsus And Others v Croatia ECHR 16-Mar-2010
(Grand Chamber) Fifteen Croatians of Roma origin complained that they were victims of racial discrimination in that they were segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage.
Held: . .
CitedEckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
CitedRegina v Visitors to the Inns of Court ex parte Calder CA 1993
Two barristers had been struck off for disciplinary offences. Their appeals were heard by three High Court judges sitting as Visitors, who dismissed the appeals. The barristers now sought judicial review of that decision.
Held: Justices . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights, Discrimination, Limitation

Updated: 27 November 2022; Ref: scu.599756

O’Connor v Bar Standards Board: CA 25 Jul 2016

The appellant said that the Board had infringed her human rights in its approach to disciplinary proceedings brought against her. She had been cleared and now sought a remedy. The Board successfully argued that her claims were out of time.
Held: the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the Appellant proved and so had expired before she had issued her claim. She now appealed against that decision.
Held: The appeal failed. The one year time limit under section 7(5)(a) of the 1998 Act had started to run when the Disciplinary Tribunal had found the charges against the claimant proved and so had expired before she had issued her claim. The Court of Appeal refused a renewed application for permission to appeal on the ground that the limitation period should have been extended pursuant to section 7(5)(b) of the 1998 Act.

Judges:

Lord Dyson MR, Elias, Sharp LJJ

Citations:

[2016] EWCA Civ 775, [2016] WLR(D) 421, [2016] 1 WLR 4085

Links:

Bailii, WLRD

Statutes:

European Convention on Human Rights 14, Human Rights Act 1998 7(5)(a)

Jurisdiction:

England and Wales

Citing:

At first instanceO’Connor v Bar Standards Board QBD 18-Dec-2014
Appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs. The claimant said that the procedures adopted by the Board in disciplinary . .

Cited by:

Appeal fromO’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Legal Professions

Updated: 27 November 2022; Ref: scu.567507