BWWC Limited and Scottish Legal Complaints Commission: SIC 14 Feb 2014

Handling of complaint – On 31 May 2013, BWWC Limited (BWWC) asked the Scottish Legal Complaints Commission (the SLCC) for correspondence and other information relating to a complaint made to the SLCC.
The SLCC refused to disclose the information, under exemptions including that in section 26(a) of FOISA. This exempts information from disclosure if disclosure is prohibited by other legislation.
Following an investigation, the Commissioner found that the SLCC had been entitled to withhold the information.

[2014] ScotIC 027 – 2014
Bailii

Scotland, Information, Legal Professions

Updated: 01 December 2021; Ref: scu.522708

The Commissioners and Trustees for The Forfeited Estates, On Three Appeals v George Lockhart of Carnwath, Esq;: HL 6 Feb 1725

Presumption – Bond – Bonds of pension granted to an advocate, afterwards President of the Session, during his continuance to be an advocate, are sued on, after his death by his son, as wholly remaining due, after the lapse of a good many years from their dates; and are sustained till the date of the grantee’s becoming President of the Session, his son giving his oath of credulity as to any payments made on the debts acclaimed.

[1725] UKHL Robertson – 514, (1725) Robertson 514
Bailii
Scotland

Legal Professions

Updated: 30 November 2021; Ref: scu.554116

Deborah Lawrie-Blum v Land Baden-Wuerttemberg: ECJ 3 Jul 1986

The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration.’ and ‘All judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents quite rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the president of the industrial tribunals or the Court Service, or more loosely arranged in collegiate fashion between the judges of a particular court. They are all expected to work during defined times and periods, whether they be rigidly laid down or managed by the judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment.’

Lord Chief Justice, Sir Robert Carswell
C-66/85, R-66/85, [1986] EUECJ R-66/85, [1986] ECR 2121, [1987] ICR 483
Bailii
Equal Treatment Directive (Council Directive 76/207/EEC
European
Cited by:
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedBarry v London Borough of Southwark CA 19-Dec-2008
The claimant a citizen of the Netherlands, appealed against the refusal to grant him housing assistance. He had been unemployed save for taking casual work during the Wimbledon championships, but the Authority had denied that he was a worker. He had . .
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
AppliedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedJivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
CitedClyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
CitedX v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
CitedClyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

European, Discrimination, Legal Professions

Updated: 30 November 2021; Ref: scu.134064

Blankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust: QBD 5 Feb 2014

The court was asked whether, where a party loses mental capacity in the course of proceedings, such loss of capacity has the automatic and immediate effect of terminating their solicitor’s retainer. The Costs judge had held that, as a matter of law, a supervening incapacity even if intermittent, automatically frustrates and thereby terminates a contract of retainer.
Held: The Conditional Fee Agreement remained effective. The termination of a solicitor’s authority by reason of mental incapacity did not, in itself, frustrate the underlying contract of retainer.

Phillips J
[2014] EWHC 168 (QB), [2014] 2 Costs LR 320, (2014) 138 BMLR 30, [2014] 1 WLR 2683, [2014] 2 All ER 1104, [2014] WLR(D) 14
Bailii, WLRD
Legal Aid, Sentencing and Punishment of Offenders Act 2012 44(6)
England and Wales
Citing:
AppliedLauritzen A/A v Wijsmuller BV;( ‘The Super Servant Two’) CA 12-Oct-1989
Bingham LJ discussed the nature of frustration of contract: ‘The essence of frustration is that it is caused by some unforeseen supervening event over which the parties to the contract have no control and for which they are therefore not . .
CitedBank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .

Cited by:
Appeal fromBlankley v Central Manchester and Manchester Children’s University Hospitals NHS Trust CA 27-Jan-2015
This case concerns a claimant with fluctuating capacity to conduct legal proceedings. At a time when she had capacity, she retained a firm of solicitors under a conditional fee agreement. The issue was whether the CFA terminated automatically by . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Health, Contract

Updated: 29 November 2021; Ref: scu.521121

Layard Horsfall Ltd v The Legal Ombudsman: QBD 20 Dec 2013

The claimant firm of solicitors challenged a direction from the respondent limiting the fees it could recover from its client. It had acted under a conditional fee agreement. On the claimant almost succeeding in the claim, the builder defendant declared himself bankrupt, and the action was discontinued. The claimant said that under the client agreement the sums then became due. The respondent had held that there had been no win.
Held: The Ombudsman had correctly heard the complaint. The phrase ‘relate to’ had a wide meaning. The claim failed.

Phillips J
[2013] EWHC 4137 (QB)
Bailii

Legal Professions

Updated: 28 November 2021; Ref: scu.519775

David MacDonald v Geoffrey Myerson, John Callaghan, Derek A H Law: CA 26 Jan 2001

The claimant had been involved in mortgage frauds, using the defendant firm of solicitors. He claimed an account following sales of the properties. At the time of the sales, the first defendant knew of the false identities used. The defendants claimed that the money had been paid out, and that the claim was for the proceeds of illegal acts, and he was not entitled to any equitable relief.
Held: The houses had in fact been acquired by the claimant because of the use of powers of attorney, even though under a deceitful name. As to illegality, the documents were not executory, and as complete agreements were valid provided the claimant did not have to rely upon an illegal act. Defendants’ appeal dismissed.

Lord Justice Aldous Lord Justice Mance And Mr Justice Charles
[2001] EWCA Civ 1220, [2002] 1 P and CR DG3
Bailii
England and Wales
Citing:
CitedIn re Mahmoud and Ispahami 1921
A failure to plead an allegation in a later appeal where the facts at issue had been covered in the trial need not be fatal to that ground being added. . .
CitedBirkett v Acorn Business Machines Limited CA 16-Jul-1999
The parties had entered into a contract, which both knew was to be used to defraud a third party finance company. When one sued the other for breach, the court refused to order the contract to be enforced when he became aware of the fraud.
CitedHalifax Building Society v Thomas and Another CA 29-Jun-1995
Defrauded Mortgagee cannot take surplus on sale
A Building Society cannot keep any excess proceeds of sale of a house mortgaged to it by fraud. Policy was against unjust enrichment and will not allow a lender to take a profit from a fraudulent borrower.
Peter Gibson LJ said: ‘I remain wholly . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Registered Land, Contract

Updated: 28 November 2021; Ref: scu.147407

Lumsdon and Others v Legal Services Board: Admn 30 Oct 2013

The claimants, practising barristers and members of the Criminal Bar Association sought a declaration that the Quality Assurance Scheme for Advocates approved by the defendant was unlawful.

Bean J
[2013] EWHC 3289 (Admin)
Bailii
England and Wales
Cited by:
See AlsoLumsdon and Others, Regina (on The Application of) v Legal Services Board and Others CA 7-Oct-2014
The claimants sought to challenge the respondent’s decision to introduce the Quality Assurance Scheme for Advocates.
Held: Arden LJ and Lord Neuberger of Abbotsbury MR analysed the cases as yielding a ‘manifestly inappropriate’ test. They then . .
See AlsoLumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
See AlsoLumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 23 November 2021; Ref: scu.517273

S, F and L, Regina (on The Application of) v Chief Constable of The British Transport Police and Another: Admn 20 Jun 2013

The claimants, solicitors, challenged search warrants issued against their homes and professional premises.
Held: The court considered the proper procedure to be used when the police wish to search the premises or homes of solicitors for documents or other materials when the solicitors are acting for those who are the subject of police investigations. There had been a failure to express the true purpose of the warrant: the Claimants had acted in their professional capacity as lawyers for a client in relation to a criminal investigation, and there was direct evidence that one Claimant had acted dishonestly and in such a way as to assist the client in concealing evidence when accompanying him to a police station. The purpose of the warrant went far beyond what was expressly stated on it, and was to seek all documents held by the firms of solicitors that related to the client in all his activities. It therefore went to the heart of the solicitor/client relationship and the privileged documents that would have been generated in the course of that relationship. The failure of the information presented or the warrant itself to disclose or describe the true purpose of the warrant was fatal to the legality of the process.

Aikens LJ, Silber J
[2013] EWHC 2189 (Admin), [2014] 1 All ER 268, [2013] WLR(D) 312
Bailii, WLRD
England and Wales
Cited by:
CitedAB and Another, Regina (on The Application of) v Huddersfield Magistrates’ Court and Another Admn 10-Apr-2014
The claimants challenged the lawfuness of search warrants issued by the respondent court. They were solicitors, and were related to a person suspected of murder who was thought to have fled the country. The officers were looking for evidence that . .
CitedA and Another, (On the Application of) v The Central Criminal Court and Another Admn 26-Jan-2017
(As redacted) Search warrants were challenged on the grounds that insufficient care had been taken of the possibility of the presence of privileged and or ‘excluded’ material. . .

Lists of cited by and citing cases may be incomplete.

Police, Legal Professions

Updated: 23 November 2021; Ref: scu.513735

Elosta v Commissioner of Police for The Metropolis and Others: Admn 6 Nov 2013

The court was asked whether somebody detained under section 7 of the 2000 Act was entitled to be accompanied by a solicitor during questioning. The claimant was stopped at the airport on his return from Saudi Arabia. Police refused to await the arrival of his solicitor before starting to question him. They proceeded and he was released.
Held: The claim succeeded. Such a person was entitled to consult a solicitor before being questioned and in private ‘in person, in writing or on the telephone’. The right was clear, and existed independently of the question of whether the detention took place at a police station.

Bean J
[2013] EWHC 3397 (Admin), [2014] 1 WLR 239, [2013] WLR(D) 422, [2014] Crim LR 378
Bailii, WLRD
Terrorism Act 2000 7
England and Wales

Police, Legal Professions

Updated: 25 November 2021; Ref: scu.517471

James Catanach, Et Alii C H Gordon, and R Paterson, Vice-Chancellor of The University of Aberdeen: HL 11 Apr 1745

Professor of law.-
It being required by the foundation of a college, that the professors of law should be doctors of laws, or at least licentiates, cum rigore examinations, an objection that the college could no longer confer that degree legally, was not sustained against one who pretended to be so qualified.

[1745] UKHL 1 – Paton – 401
Bailii
Scotland

Legal Professions

Updated: 22 November 2021; Ref: scu.557095

McCarthy v Visitors To The Inns of Court and Another: Admn 25 Oct 2013

The claimant barrister sought judicial review of his disbarrment. The Board of Visitors had found that he had dishonestly fabricated documents relating to correspondence with a client. He now said that the proceedings had been unfair, in that an earlier inconsistent statement of a witness had not been provided to him.
Held: The Visitors had misunderstood the duty to disclose the earlier statement, and had been urged in this by the Board. Moses LJ said: ‘it seems to me beyond question that in disciplinary proceedings with the potential for such grave consequences, draft statements capable of being used to discredit a witness should be disclosed.’ However, the central findings were not undermined by the failure. The appeal failed.

Moses LJ
[2013] EWHC 3253 (Admin)
Bailii
Citing:
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 . .

Cited by:
Appeal fromMcCarthy, Regina (on The Application of) v The Visitors To The Inns of Court and Another CA 20-Jan-2015
The court was asked whether the decision of the Visitors to the Inns of Court dismissing Mr McCarthy’s appeal from the Bar Disciplinary Tribunal should be quashed with a view to the underlying matter being remitted to the Tribunal. The Tribunal . .

Lists of cited by and citing cases may be incomplete.

Natural Justice, Legal Professions

Updated: 22 November 2021; Ref: scu.517005

Leathley and Others, Regina (on The Application of) v Visitors To The Inns of Court and Another: Admn 16 Oct 2013

Barristers sought permission to challenge, by way of judicial review, findings in relation to professional misconduct, and: ‘The most significant issues relate to the constitutions of the Disciplinary Tribunals convened to hear the charges against them, and of the Visitors of the Inns of Court who heard their appeals. The claimants submit that some of the members of the Disciplinary Tribunals, and of the Visitors, were not qualified to sit because the limited duration of their eligibility to sit had expired. Accordingly they were not tried by a tribunal established by law; within the meaning of Art. 6 of the European Convention on Human Rights the Tribunal had no power to try them and the Visitors no power to uphold the findings.’
Held: The claims failed. i) When the President appointed persons to sit on Disciplinary Tribunals pursuant to regulation 2 of the 2009 Regulations, he or she was not obliged to appoint people who were current members of the COIC pool.
ii) When the Lord Chief Justice appointed persons to sit as Visitors hearing appeals from Disciplinary Tribunals pursuant to rule 12 (1) of the 2010 Rules he or she was not obliged to appoint people who were current members of the COIC pool.
iii) Alternatively, the time-expired Tribunal members or Visitors had authority under the de facto judge doctrine.
iv) The mismatch between the various regulatory documents did not reflect well on those who organised the barristers’ disciplinary scheme.
v) Miss Hayes had an arguable case based on delay. Therefore she should have permission to pursue that ground. Nevertheless, after hearing full argument, the court rejected that claim.
vi) All other grounds of challenge advanced were unarguable. Therefore the court refused permission on those grounds.

Moses LJ, Kenneth Parker J
[2013] EWHC 3097 (Admin)
Bailii
Cited by:
Appeal fromMehey and Others, Regina (on The Application of) v Visitors To The Inns of Court and Others CA 16-Dec-2014
The court was asked whether disciplinary proceedings against a number of barristers were invalid on the ground that some of the individuals who heard those proceedings or appeals therefrom were disqualified from sitting.
Held: The appeals . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 21 November 2021; Ref: scu.516544

Helander v Finland (Dec): ECHR 10 Sep 2013

Article 8-1 – Respect for correspondence – Refusal by prison authorities to transmit to prisoner e-mail from his lawyer: inadmissible
Facts – While the applicant was in prison, his lawyer sent him an e-mail using the prison’s e-mail account. The prison governor refused to transfer the e-mail to the applicant and advised the lawyer to contact the applicant by post or telephone. The domestic law did not require the prison authorities to forward to prisoners e-mail communications which arrived at the prison’s electronic address. The applicant unsuccessfully applied to the domestic courts for an order directing the prison governor to transmit the e-mail to him.
Law – Article 8: Even though the electronic message in question had been submitted to the prison’s common electronic mailbox, it was nevertheless destined for the applicant and accompanied with a request that it be transmitted to him. The message thus fell within the scope of ‘correspondence’ for the purposes of Article 8 of the Convention. The domestic law was based on the principle that prisoners’ contacts with their lawyers were to be made by post, telephone or visits. Similar principles were found in the European Prison Rules. The Court accepted that the aforementioned means were sufficient and that the choice of introducing a possibility of receiving e-mails should be left to legislators. The Finnish legal system in respect of prisoners’ correspondence was drafted clearly and fulfilled the requirements of the Convention and the positive obligations imposed on the respondent State. There were legitimate reasons not to allow e-mails as the current legislation could not guarantee lawyer-client confidentiality in respect of such communications. The refusal by the domestic authorities to transmit the e-mail to the applicant could not be regarded as disproportionate. The sender had been immediately informed of the non-delivery and instructed to use proper means of communication. He had had several means of communication available which were as effective and rapid as e-mails. His failure to use them was not attributable to the respondent State. Hence, having regard to the margin of appreciation left to the State, the domestic authorities’ refusal to transmit the e-mail message in question to the applicant could not be regarded as unjustified. In particular, a fair balance had been struck between the different interests involved.
Conclusion: inadmissible (manifestly ill-founded).

10410/10 – Legal Summary, [2013] ECHR 963
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Prisons, Legal Professions

Updated: 21 November 2021; Ref: scu.516472

Regina v Ashgar Khan: 10 Jul 2001

Judge Wakerley QC expressed his concern at the numbers of applications for transfer of representation in the Crown Court. The court has a duty to bear in mind the cost to the taxpayer and that, as a result, good reason must be established before a representation order was transferred. He emphasised that the court will insist on strict compliance with the provisions of Regulation 16 which meant that the grounds of the application and full particulars need to be specified by the existing representative.
He observed: ‘This court will insist on strict compliance with the provisions of Regulation 16 . . The grounds of the application and full particulars need to be specified by the existing representatives. Next, the substantial compelling reason under subparagraph 2(4), if relied on, needs to be specified so that I can identify it. It will not generally be sufficient to allege a lack of care or competence of existing representatives . . only in extremely rare cases, and where full particulars are given in the application, will a general ground of loss of confidence or incompetence be entertained. It must further be pointed out that it will not be sufficient simply to say that there is a breakdown in the relationship between solicitor and client. Many breakdowns are imagined rather than real or as a result of proper advice’

Judge Wakerley QC
Unreported, 10 July 2001
Criminal Defence Service (General)(No.2) Regulations 2001 16
England and Wales
Cited by:
ApprovedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .
ApprovedClive Rees Associates, Solicitors, Regina (on The Application of) v Swansea Magistrates Court and Another Admn 30-Nov-2011
The claimant solicitors challenged a decision of the respondents to transfer legal aid orders for the representation of clients to a second frm of solicitors.
Held: The court considered the various cases, finding three decisions unlawful and . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Legal Aid

Updated: 20 November 2021; Ref: scu.449711

Regina v Shaw: CACD 1980

It was counsel who must decide whether he could continue properly to represent a client, not the judge.

[1980] 70 CAR 313
England and Wales
Cited by:
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice

Updated: 20 November 2021; Ref: scu.260271

Regina v G and B: CACD 2004

Rose LJ said: ‘Both in principle and pragmatically, whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’.

Rose LJ
[2004] 2 Cr App R 37, [2004] EWCA 1368
England and Wales
Cited by:
CitedH, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 20 November 2021; Ref: scu.252539

Regina v Jones (Robert) No 2: 1972

The court was entitled to proceed to hear the case in the absence of the defendant where he had absconded. I was counsel’s prerogative not the judge’s, to decide whether he could continue to represent the defendant.

[1972] 1 WLR 887, [1972] 56 CAR 413
England and Wales
Cited by:
CitedDelroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 20 November 2021; Ref: scu.242117

Gordon Beurskens v Scottish Legal Complaints Commission: SIC 28 Jun 2013

SIC Complaint outcome – On 18 March 2013, Mr Beurskens asked the Scottish Legal Complaints Commission (the SLCC) for information about the outcome of a specific complaint. The SLCC withheld the information under section 26(a) of FOISA, on the basis that disclosure was prohibited by section 43(1) of the Legal Profession and Legal Aid (Scotland) Act 2007 (the LPLA). Following an investigation, the Commissioner found that the SLCC was entitled to withhold the information under section 26(a).

[2013] ScotIC 122 – 2013
Bailii

Scotland, Information, Legal professions

Updated: 19 November 2021; Ref: scu.514871

Peat v Scottish Legal Complaints Commission: SIC 6 Jun 2013

SIC Complaint information – On 6 March 2013, Mr Peat asked the Scottish Legal Complaints Commission (the SLCC) whether anyone had raised a complaint against a specific law firm. The SLCC refused to confirm or deny whether it held relevant recorded information. Following an investigation, the Commissioner found that the SLCC was entitled to neither confirm nor deny whether it held information which would address Mr Peat’s request.

[2013] ScotIC 107 – 2013
Bailii

Scotland, Information, Legal Professions

Updated: 19 November 2021; Ref: scu.514867

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

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

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

Lists of cited by and citing cases may be incomplete.

Legal Professions, Company, Insolvency

Updated: 19 November 2021; Ref: scu.278997

Mauroux v Sociedade Comercial Abel Pereira da Fonseca SARL: 1972

The jurisdiction to order a legal professional to pay costs is primarily compensatory. The jurisdiction should not be attracted merely because of the lawyer’s bona fide mistake or error of judgment.

[1972] 2 All ER 1085, [1972] 1 WLR 962
England and Wales
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279001

Wilkinson v Wilkinson: CA 1962

Absence of legal representative from a hearing of which he had been notified. Physical absence was considered as absence for the purpose of such a rule.
Ormerod LJ held that the provision in the Matrimonial Causes Act should be construed as meaning that physical absence was ‘absence’.
Wilmer LJ said that ‘absence’ was the opposite of physical presence and that a person could apply to have a decree reversed provided he furnished a satisfactory reason for his absence.
Danckwerts LJ said that ‘absence’ could only mean ‘physical absence’. He said it then became a matter for the discretion of the court whether the decree should be reversed.

Ormerod LJ, Wilmer LJ, Danckwerts LJ
[1962] 3 WLR 1, [1963] P 1, [1962] 1 All ER 922
England and Wales
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279006

Myers v Rothfield: CA 1938

The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such misconduct in allowing the inadequate affidavits of documents to be made. He ordered the solicitor to pay one-third of the plaintiff’s costs of the action and two-thirds of the costs of the application.
Held: (MacKinnon LJ dissenting) Assuming that the acts in question, if done by a solicitor personally, would constitute professional misconduct on his part, the solicitor was not liable as he had appointed a fully qualified clerk to prepare the defences and affidavits of documents, and the acts had been done not by the solicitor himself but by the clerk.

Greer and Slesser LJJ, MacKinnon LJ
[1939] 1 KB 109, [1938] 3 All ER 498
Cited by:
Appeal fromMyers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279002

R and T Thew Ltd v Reeves (No 2): CA 2 Jan 1982

The remedy of an award of costs against a solicitor personally is only available to make good loss where the solicitor is guilty of inexcusable misconduct such as to merit reproof.
It is not always easy to separate the effect of a disciplinary order from its purpose or objective.
Lord Denning MR, after reference to the authorities, said of the supervisory compensatory jurisdiction: ‘The cases show that it is not available in cases of mistake, error of judgment or mere negligence. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof.’
O’Connor LJ, with whom Dunn LJ agreed, said: ‘The cases show that such an order ought not to be made unless it is shown that the Thews have suffered loss as a result of serious misconduct by the solicitors in the case.’

Lord Denning MR
[1982] 3 All ER 1086, [1982] QB 1283, [1982] 3 WLR 869
England and Wales
Citing:
See AlsoR and T Thew Ltd v Reeves CA 1982
A costs order had been drawn up incorrectly, and corrected without reference to the parties: ‘All the cases show that when a slip is corrected in this way, the correction dates back to the date when the document originally took effect . . unless . .

Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedColl v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279005

Sinclair-Jones v Kay: CA 1988

The court was asked whether the costs of certain hearings should be paid by the solicitor or his client, and has regard to the solicitor’s responsibilities for the hearings going off.

[1989] 1 WLR 114, [1988] 2 All ER 611
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279004

Gupta v Comer: CA 1991

The plaintiff applied for an Order that costs be paid personally by the defendant’s solicitors on the basis that the solicitors had incurred such costs unreasonably and had failed to conduct the proceedings with reasonable competence and expedition. The solicitors objected to an Order being, saying that the Court had no jurisdiction to make such an Order unless serious dereliction of duty by the solicitor could be established.
Held: The solicitors’ appeal against an order that certain costs be paid personally by them failed, and the Order had been properly made even though the solicitors had not been guilty of serious dereliction of duty or gross negligence or neglect. The purpose of making a wasted costs order against a solicitor in pursuance of this rule is compensatory and not punitive.

[1991] 2 WLR 494, [1991] 1 QB 629, [1991] 1 All ER 289
England and Wales
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279000

Re A Barrister (Wasted Costs Order); Re A (No 1 of 1991): CA 1992

The section provided that the Court could order a legal practitioner to pay ‘wasted costs’, which were defined as costs incurred by a party ‘as a result of any improper, unreasonable or negligent act or omission on the part of any representative’. The barrister appealed against the order made.
Held: The court adopted the practice of not naming barristers subject to applications for wasted costs orders.
The Court recommended a three-stage test or approach when contemplating an order under s.19A. Macpherson J said: ‘A three stage test or approach is recommended when a wasted costs order is contemplated.
(i) Has there been an improper, unreasonable or negligent act or omission?
(ii) As a result have any costs been incurred by a party?
(iii) If the answers to (i) and (ii) are ‘Yes,’ should the court exercise its discretion to disallow or order the representative to meet the whole or any part of the relevant costs, and if so what specific sum is involved?’
. . And ‘There is a clear need for any judge or court intending to exercise the wasted costs jurisdiction to formulate carefully and concisely the complaint and ground upon which such an order may be sought. These measures are draconian, and, as in contempt proceedings, the grounds must be clear and particular.’

Macpherson J
[1993] QB 293, [1992] 3 All ER 429, [1992] 3 WLR 662, (1992) 95 Cr App R 288
rosecution of Offences Act 1985 19A
Cited by:
CitedRegina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedReeves and Co, Solicitors, Regina v CACD 24-Mar-2011
The solicitors appealed against a wasted costs order. On the morning of the trial, they had produced further evidence leading to the collapse of the trial.
Held: The appeal succeeded. The solicitors had not been given notice of the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice

Updated: 19 November 2021; Ref: scu.200455

Holden and Co (A firm) v Crown Prosecution Service: 1990

It is part of the deterrent of the wasted costs procedure that solicitors are named and the adverse publicity is therefore an important deterrent to impropriety.

[1990] 2 QB 261, [1990] 1 All ER 368, [1990] 2 WLR 1137
Cited by:
CitedRegina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.200459

Currie and Co v The Law Society: 1976

Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of equitable rules. May J said: ‘[T]he set-off takes precedence over the solicitor’s particular lien, which will then be limited to the balance, if any, due to his client after the set off’ and it is ‘a ‘question for the court’s discretion.’

May J
[1977] QB 990, [1976] 3 All ER 832, [1976] 3 WLR 785
Cited by:
CitedLockley v National Blood Transfusion Service CA 1992
There was an interlocutory dispute over the granting of an extension of time for service of the defence. The legally aided plaintiff challenged the costs orders made by the district registrar and the judge. Each ordered that the costs be the . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.216498

Orchard v South Eastern Electricity Board: CA 1987

The threat of applications for a wasted costs order should not be used to intimidate, but if one side considers that the other to have behaved in an improper, unreasonable or negligent way and likely to cause a waste of costs, it is not objectionable to alert the other side to that view. Drawing the distinction between unacceptable intimidation and acceptable notice must depend on the professional judgment of those involved.

[1987] QB 565, [1987] 1 All ER 95, [1987] 2 WLR 102
England and Wales
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedConnolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.181823

Gadd v Solicitors Regulation Authority: CA 6 Jun 2013

Renewed application for permission to appeal against grant of summary judgment n favour of the defendant. He had sought to have set aside the respondent’s intervention in his solicitor’s practise. He said that he shuld have had legal assistance in resisting the intervention.
Held: Permission was refused. The solicitor was qualified to have argued his case, and though the Society might have done better to have provided the forensic evidence much earlier, that did not explain the claimant’s delay: ‘ The whole purpose of this ex parte procedure is to protect interests of creditors, and the reason for a need for a speedy challenge is to protect the interests of creditors and clients of the firm. But it is also to protect the solicitor’s own position because the longer the delay, and the longer the period for which assets are frozen, the more damaging it is to the standing and goodwill of the firm.’

Elias, Beatson LJJ
[2013] EWCA Civ 837
Bailii
England and Wales
Citing:
CitedPine v Law Society CA 25-Oct-2001
The applicant said the procedure under which he was struck from the roll of solicitors was unfair. There was no provision for legal advice or representation, and given the nature and severity of the allegations and consequences, the trial was . .
CitedHolder v The Law Society Admn 26-Jul-2005
The applicant challenged the independence of the respondent’s disciplinary tribunal.
Held: The claim failed: ‘the nature of the Tribunal is entirely adequately independent and impartial for the purposes for which it is constituted. The . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 15 November 2021; Ref: scu.512387

Goode, Regina (on The Application of) v The Crown Court At Nottingham: Admn 20 Jun 2013

The claimant challenged the validity of search warrants. He was being investigated on suspicion of conspiracy to pervert the course of justice. That allegation was later dropped.

Pitchford LJ, Burnett J
[2013] EWHC 1726 (Admin)
Bailii
England and Wales
Cited by:
CitedMills and Another, Regina (on The Application of) v Sussex Police and Another Admn 25-Jul-2014
The claimants faced criminal charges involving allegations of fraud and corruption. They now challenged by judicial review a search and seizure warrant saying that it was unlawful. A restraint order had been made against them and they had complied . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice, Police

Updated: 14 November 2021; Ref: scu.510947

Glebe Sugar Refining Co, Ltd, and Another v Trustees of Port and Harbour of Greenock and Others: HL 2 May 1921

Administration of Justice – Duty of Counsel and Agents – Duty to Bring to the Notice of the Court Authorities which Bear Either Way upon Matters under Debate.

Lord Chancellor, Viscount Finlay, Lord Dunedin, Lord Atkinson, and Lord Shaw
[1921] UKHL 435, 58 SLR 435
Bailii
Scotland

Legal Professions, Litigation Practice

Updated: 12 November 2021; Ref: scu.632634

McCarthy, Regina (on The Application of) v The Visitors To The Inns of Court and Another: CA 20 Jan 2015

The court was asked whether the decision of the Visitors to the Inns of Court dismissing Mr McCarthy’s appeal from the Bar Disciplinary Tribunal should be quashed with a view to the underlying matter being remitted to the Tribunal. The Tribunal disbarred Mr McCarthy following a finding that after a dispute had arisen he had fabricated letters setting out his terms of work to a client for whom he acted under direct access provisions, rather than before the work was done. He appealed saying that the Board had disobeyed its own rules by failing to disclose a previous statement of a witness which may have assisted him. It was alleged that the Board’s officer had guided the witness in making a new statement.
Held: The appeal succeeded. The misbehaviour of the Board led to the withholding of evidence which may have had direct effect on the cerdibility of the claimant’s husband. Although the statement went to a lesser issue, his credibility was vital in the greater issues.
‘TA’s second witness statement of 158 paragraphs dated 29 October is an amalgam of evidence properly so called, comment and argument intended to demolish Counsel’s defence to the charges, rather than to provide unvarnished evidence. It was this document that stood as TA’s evidence in chief. The first statement remained undisclosed.’
‘In the light of the central place TA’s credibility occupied in the Tribunal hearing, that one member of the Tribunal would anyway have dismissed charges one and two, and that cross-examination on the first statement was capable of undermining TA’s credibility given the differences between the two statements, there was in my judgment a real possibility that the Tribunal would have come to a different conclusion had disclosure been made. ‘
Burnett LJ said: ‘What happened was extraordinary. A conscious decision was taken by an official at the BSB which had the effect of subverting the rules which provide for disclosure and furthermore suggested that he was blind to any sense of fairness in the conduct of a disciplinary prosecution. To my mind, that was compounded by inviting a witness to assume the role of surrogate prosecutor by producing a statement of the sort I have described. Moses LJ drew an analogy between disciplinary proceedings of this nature and criminal proceedings. To my mind that is entirely apt, if not exact, and supports the suggestion that scrupulous standards are required of the BSB acting as prosecutor. This Tribunal was concerned with very serious allegations which had the potential to destroy a professional reputation and bring to an end a professional career, even though its decision could not result in a criminal conviction. ‘

Burnett LJ, Newey, Smith DBE, JJ
[2015] EWCA Civ 12
Bailii
European Convention on Human Rights 6
England and Wales
Citing:
CitedP v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .
CitedLe Compte, Van Leuven And De Meyere v Belgium ECHR 23-Jun-1981
The applicants were suspended from practising medicine for three months by the Provincial Council of the Ordre des medecins. They appealed unsuccessfully to the Appeal Council and again unsuccessfully to the Court de Cassation. Dr Le Compte . .
CitedMcInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
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 . .
Appeal fromMcCarthy v Visitors To The Inns of Court and Another Admn 25-Oct-2013
The claimant barrister sought judicial review of his disbarrment. The Board of Visitors had found that he had dishonestly fabricated documents relating to correspondence with a client. He now said that the proceedings had been unfair, in that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights, Natural Justice

Updated: 12 November 2021; Ref: scu.541551

Henry, Regina (on The Application of) v The Bar Standards Board: Admn 28 Sep 2016

JR leave refusal – BSB Disciplinary Refusal

The claimant, was a solicitor who had himself been disciplined for misconduct, of disciplinary decisions following findings that his conduct had fallen short of that expected of an ordinary honest individual with his knowledge and experience and that he was guilty of a dishonest assistance in breach of trust. He had requested the defendant tio institute disciplinary proceedings against two barristers, but, having looked at it the Board declined to take it any further. He now made a renewed application for leave to bring judicial review of the decision.
Held: The PCC had adequately investigated the complaints and concluded that they should be dismissed. That was a reasonable conclusion properly open to the PCC. Whilst the complaint was not entirely without merit, applying Samia, it still lacked sufficient merit to warrant being taken further.

Whipple J
[2016] EWHC 2343 (Admin)
Bailii
England and Wales
Citing:
AppliedWasif v The Secretary of State for The Home Department CA 9-Feb-2016
Wide scope for refusal of JR leave
These two appeals have been listed together because they both raise an issue about the proper approach to be taken in considering whether to certify an application for permission to apply for judicial review as ‘totally without merit’.
Held: . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Judicial Review

Updated: 11 November 2021; Ref: scu.569626

Withers 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, but the claimants said that substantial sums remained due to it in fees.
Held: The application succeeded. Withers established that they had a retaining lien over the monies held in their client account in respect of their reasonable legal fees and expenses in relation to these proceedings.
The court orders in the case had created no security interest in the fund. They explicity allowed for the payment of certain expenses including legal ones, and the clients had no such interest. The court summarised the solicitors position: ‘At common law, a solicitor has two rights which are termed liens. The first is a right to retain property already in his possession until he is paid costs due to him in his professional capacity; this lien is called a retaining lien. The second right, called a lien, is the right to ask the court to direct that personal property recovered under a judgment obtained by his exertions stand as security for his costs of such recovery; this is called a preserving lien. In addition, a solicitor has by statute (now Solicitors Act 1974, section 73) a right to apply to the court for a charging order on property recovered or preserved through his instrumentality in respect of his assessed costs of the suit, matter or proceedings prosecuted or defended by him. The lien asserted by Withers is a common law retaining lien.’
A solicitor having a retaining lien over property in his possession is entitled to retain the property as against the client and all persons claiming through him and having no better right than the client, until the full amount of the solicitor’s assessed costs payable by the client is paid. The solicitor has no better right to retain the property in question than his client would have had if he still had possession of it.

Morgan J
[2011] EWHC 1151 (Ch), [2011] BPIR 1202, [2011] PNLR 22, [2011] 3 All ER 842
Bailii
England and Wales
Citing:
CitedSterling, Ex Parte 7-Aug-1809
The court considered the status of a solicitor’s lien over papers in his possession.
Held: The lien was limited to the occasion on which they were delivered without a special agreement otherwise. One can infer from the client placing into the . .
CitedStevenson And Another, Assignees of Collis, A Bankrupt, v Blakelock 28-May-1813
. .
CitedLoescher 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 . .
CitedPelly v Wathen 15-Mar-1849
The lien of a solicitor on the deeds of his client is a legal right which cannot be greater in extent than the interest of the client in the deeds, and does not enable the solicitor to retain the deeds against third parties, where the client could . .
CitedEdwards, Drummond Smith v Flightline Limited CA 5-Feb-2003
The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .
CitedBarratt v Gough-Thomas 1951
. .
CitedIn re Long, ex parte Fuller 1881
. .
CitedStumore v Campbell 1892
. .
CitedHalvanon Insurance Co Ltd v Central Reinsurance Corporation CA 1988
The fact that a contract was made by an unauthorised insurer contrary to the 1974 Act, which was silent as to the effect of a breach of this statute, did not render the contracts made by the unauthorised insurer void. Rendering transactions void . .
CitedBarratt v Gough-Thomas 1951
. .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Leading Case

Updated: 11 November 2021; Ref: scu.434923

Azam and Co v Legal Services Commission: ChD 5 May 2010

The claimant solicitors had failed to submit their tender for a new contract in time. The respondent refused to accept the late submission. The claimant said that the respondent had not directly notified it of the deadline and so failed to meet its obligations under the 2006 Act and European law, and that the refusal to extend time was a disproportionate response. The information had been provided by email and on the LSC web-site.
Held: The claim failed. Past dealings had given rise to no sufficient expectation that the defendant would write to existing franchisees. It was not appropriate to try to derive any principle for tender procedures in criminal law.
The purpose of the equal treatment obligation is to ensure the development of effective competition for public contracts, leading to the selection of the best bid, and therefore generally forbids differential treatment of entities in a comparable competitive position. This obligation will generally require all potential bidders to be given access to substantially the same information, but it does not absolutely prevent the contracting authority from drawing the tender process to the attention of particular firms, provided that they are not thereby given access to information which is either unavailable to or less readily intelligible by other firms. The objective of the equal treatment obligation is to afford equality of opportunity to all reasonably well-informed and diligent potential tenderers, exercising ordinary care. Equal treatment does not necessarily require identical treatment. The objective of affording equality of opportunity may permit, and in some cases require, differences in the mode of advertisement of a tender, provided that the end result is that substantially the same information is made available to all potential tenderers. The equal treatment obligation does not of itself require that every possible tenderer is in fact notified.
The defendant had acted reasonably in not extending the deadline. The claimant was itself at fault in not making the application: ‘the firm had in my view demonstrated a lack of reasonable care and diligence in the protection of its own commercial interests in failing either to monitor the LSC website, to subscribe to its Update service or to study the Law Society Gazette with proper care.’

Briggs J
[2010] EWHC 960 (Ch)
Bailii
Public Contracts Regulations 2006 47, Directive 2004/18/EC
England and Wales
Citing:
CitedCommission v France C-225/98 ECJ 26-Sep-2000
Europa (Judgment) Failure of a Member State to fulfil its obligations – Public works contracts – Directives 71/305/EEC, as amended by Directive 89/440/EEC, and 93/37/EEC – Construction and maintenance of school . .
CitedCommission v France C-16/98 ECJ 5-Oct-2000
ECJ (Judgment) Failure of a Member State to fulfil its obligations – Directive 93/38/EEC – Public works contracts in the water, energy, transport and telecommunications sectors – Electrification and street . .
CitedTideland Signal v Commission ECFI 27-Sep-2002
Europa Public procurement – Rejection of tender – Failure to exercise power to seek clarification of tender – Action for annulment – Expedited procedure. . .
CitedCommission v CAS Succhi di Frutta (Judgment) ECJ 29-Apr-2004
Europa Appeal – Common agricultural policy – Food aid – Tendering procedure – Commission decision amending the conditions after the auction – Payment of successful tenderers in fruit other than those specified in . .
CitedJ B Leadbitter and Co Ltd v Devon County Council ChD 1-May-2009
The claimant said that its tender had been wrongfully excluded from the defendant’s procurement process. . .
CitedCommission v Greece (Law Relating To Undertakings) ECJ 12-Nov-2009
ECJ Failure of a Member State to fulfil obligations – Public procurement -Directive 93/38/EEC Contract notice – Consultancy project – Criteria for automatic exclusion – Qualitative selection and award criteria. . .
CitedRegina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, European, Commercial, Legal Aid

Updated: 11 November 2021; Ref: scu.415084

O’Brien v Ministry of Justice: SC 28 Jul 2010

The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office holders paid on a daily fee-paid basis.
Held: The matter required to be referred to the ECJ. ‘Recorders (and all judges at every level) are subject to terms of service of the sort referred to by Sir Robert Carswell LCJ. Indeed judicial office partakes of most of the characteristics of employment. However, because domestic law cannot readily be disentangled from EU law on this issue the Court prefers to express no concluded view, as to whether judges (as a general class) would qualify as ‘workers’ under the Regulations.’ There is no single definition of ‘worker’ which holds good for all the purposes of Community law, and the effect of Clause 2(1) of the Framework Agreement, read together with Recital (16) of the PTWD, is to make domestic law relevant to the interpretation of the expression ‘worker’, but domestic law is not to oust or ‘trump’ the principles underlying the EU legislation in such a way as to frustrate them.

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Clarke, Sir John Dyson SCJ
[2010] UKSC 34, [2010] 4 All ER 62, [2010] IRLR 883, [2010] Pens LR 399
Bailii, Bailii Summary, SC, SC Summary
Council Directive 97/81/EC of 15 December 1997, Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000 No.1551)
England and Wales
Citing:
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
Appeal fromO’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At EATDepartment of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
CitedDeborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
ApprovedPerceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
CitedMartinez Sala v Freistaat Bayern ECJ 12-May-1998
ECJ A benefit such as the child-raising allowance, which is automatically granted to persons fulfilling certain objective criteria, without any individual and discretionary assessment of personal needs, and which . .
CitedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedLandeshauptstadt Kiel v Norbert Jaeger ECJ 9-Sep-2003
Concepts of working time and rest period – On Call
ECJ Reference for a preliminary ruling: Landesarbeitsgericht Schleswig-Holstein – Germany. Social policy – Protection of the safety and health of workers – Directive 93/104/EC – Concepts of working time and rest . .
CitedPfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (1) ECJ 5-Oct-2004
pfeiffer_deutchesrotesreuzECJ102004
ECJ Reference for a preliminary ruling: Arbeitsgericht Lorrach – Germany. Social policy – Protection of the health and safety of workers – Directive 93/104/EC – Scope – Emergency workers in attendance in . .
CitedYolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) ECJ 10-Jan-2007
ECJ ETUC-UNICE-CEEP framework agreement Fixed-term work Working conditions Length’of’service allowance Not received due to agreements between staff union and administration Adequate objective grounds.
CitedIstituto nazionale della previdenza sociale (INPS) v Bruno, Pettini (Social Policy) ECJ 10-Jun-2010
Europa Directive 97/81/EC – Framework Agreement on part-time work – Equal treatment of part-time and full-time workers – Calculation of the period of service required to obtain a retirement pension – Periods not . .
CitedWippel v Peek and Cloppenburg GmbH and Co. KG ECJ 12-Oct-2004
ECJ Opinion – Directive 97/81/EC – Directive 76/207/EEC – Social policy – Equal treatment as between part-time and full-time workers – Equal treatment as between male and female workers – Working hours and . .
CitedChristie v Department for Constitutional Affairs Department for Work and Pensions EAT 23-Jul-2007
EAT Part time chairmen of tribunals are not workers within the legislation allowing them to claim payment of a pension. Regulation 17 was compatible with the Directive. . .

Cited by:
CitedJivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
At SCO’Brien v Ministry of Justice ECJ 17-Nov-2011
ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this . .
At SCO’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
At SCO’Brien v Ministry of Justice SC 6-Feb-2013
The appellant, a part time recorder challenged his exclusion from pension arrangements.
Held: The appeal was allowed. No objective justification has been shown for departing from the basic principle of remunerating part-timers pro rata . .

Lists of cited by and citing cases may be incomplete.

European, Employment, Legal Professions

Updated: 11 November 2021; Ref: scu.421096

Home Office v Hariette Harman: HL 11 Feb 1982

The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule was imposed because ‘Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.’
The House recognised the distinctin between ‘civil contempt’, ie conduct which is not in itself a crime but which is punishable by the court in order to ensure that its orders are observed, and ‘criminal contempt’.
Lord Diplock (dissenting) said: ‘Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’
Lord Keith of Kinkel said: ‘The implied obligation not to make improper use of discovered documents is, however, independent of any obligation existing under the general law relating to confidentiality. It affords a particular protection accorded in the interests of the proper administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality.’
Lord Scarman (dissenting) said: ‘We turn now to another proposition advanced on behalf of the respondent. Counsel formulated the implied undertaking as follows: not without leave of the court or the other party to use the other party’s documents as disclosed on discovery for any purpose other than the immediate purposes of the action for which they have been disclosed. We feel some difficulty about the words we have italicised. If the undertaking is to the court (as it is common ground it is) the other party cannot arrogate the power to release (and yet it is conceded that such other party may waive what would be a ‘civil’ contempt). On the other hand, how can the court fairly relieve from the undertaking if the party making discovery did so in reliance that the document would only be used for the purpose of litigation?’
He went on to discuss the importance of open justice: ‘Reasonable expedition is, of course, a duty of the judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.
Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.’

Lord Diplock, Lord Simon of Glaisdale, Lord Keith of Kinkel, Lord Scarman and Lord Roskill
[1983] 1 AC 280, [1982] 2 WLR 338, [1982] 1 All ER 532, (1982) 126 SJ 136
England and Wales
Citing:
AppliedAlterskye v Scott 1948
The obligation of confidentiality for documents disclosed during litigation discovery includes a duty being: ‘the implied undertaking, under which a party obtaining discovery is, not to use documents for any collateral or ulterior purpose.’ . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedCoco v A N Clark (Engineers) Ltd ChD 1968
Requirememts to prove breach of confidence
A claim was made for breach of confidence in respect of technical information whose value was commercial.
Held: Megarry J set out three elements which will normally be required if, apart from contract, a case of breach of confidence is to . .
CitedConway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
CitedD v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
CitedHalcon International Inc v Shell Transport and Trading Co CA 1979
A document could continue to have confidentiality after being read out in court. The documents referred to in the judgment had not been read in court. ‘The general provision of English law with regard to the use of documents which have been made . .
ApprovedRiddick v Thames Board Mills Ltd CA 1977
An action was brought by a disgruntled former employee. He had been summarily dismissed and had been escorted from the premises of his employers. In the first action he claimed damages for wrongful arrest and false imprisonment based on the latter . .
CitedSaltman Engineering Co v Campbell Engineering Co Ltd CA 1948
The plaintiffs instructed the defendant to make tools for the manufacture of leather punches in accordance with drawings which the plaintiffs provided to the defendant for this purpose. The defendant used the drawings to make tools, and the tools to . .
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedWilliams v Home Office (No 2) 2-Jan-1981
The plaintiff prisoner had been transferred from ordinary prison to a special control unit which had been established at the prison as a means of containing and controlling prisoners who were considered to be troublemakers and inducing them to . .
See AlsoWilliams v Home Office (No 2) 1981
Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
CitedScience Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .

Cited by:
CitedTaylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
CitedHRH the Prince of Wales v Associated Newspapers Ltd ChD 13-Jan-2006
The claimant had for many years kept private journals, whose contents were circulated within a small circle of friends. He now sought to claim confidentiality and copyright in them when the defendant sought to publish them.
Held: There was an . .
CitedMohammadzadeh v Joseph and others ChD 15-Feb-2006
The parties disputed whether the defendants owned the benefit of a restrictive covenant.
Held: The covenant did touch and concern the land, and the land with the benefit of covenant. The conditions under Federated Homes were met. The covenants . .
CitedMcBride v The Body Shop International Plc QBD 10-Jul-2007
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
CitedBritish Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
CitedGuardian News and Media Ltd, Regina (on The Application of) v City of Westminster Magistrates’ Court CA 3-Apr-2012
The newspaper applied for leave to access documents referred to but not released during the course of extradition proceedings in open court.
Held: The application was to be allowed. Though extradition proceedings were not governed by the Civil . .
CitedRegina v O’Brien SC 2-Apr-2014
The court considered how to apply the rule that an extradition may only be for trial on matters committed before the extradition if they have been the basis of the request to a defendant’s commission of contempt of court after conviction. After . .
CitedTchenguiz v Director of The Serious Fraud Office and Others CA 31-Oct-2014
The appellant challenged an order of the Commercial Court refusing permission for documents disclosed in English litigation to be used in litigation proceedings in Guernsey. The principal issue is whether the judge correctly weighed up the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Constitutional, Contempt of Court

Leading Case

Updated: 11 November 2021; Ref: scu.211380

Connolly-Martin v Davis: CA 27 May 1999

A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the court an undertaking on behalf of his client had no duty of care to his own client’s opponent, unless there was something to indicate a particular adoption of such a duty. This applies even where the undertaking was given in excess of his authority and proved unenforceable. The authorities did not support the proposition ‘that counsel for one party may in the absence of circumstances evidencing a voluntary assumption of responsibility to that other party owe a legally enforceable duty of care to that party’ and ‘ as a general principle counsel owes a duty to his lay client to do for him all that he properly can, with due care and attention. Counsel owes no such duties to those who are not his clients. He is no guardian of their interests, and indeed what he does for his client may be hostile and injurious to his opponents. In the ordinary course of adversarial litigation counsel or solicitor owes no duty to the lay client’s adversary.’

Brooke, Beldam, Mummery LJJ
Times 08-Jun-1999, Gazette 09-Jun-1999, [1999] EWCA Civ 1509, [1999] Lloyds Rep PN 790, [1999] PNLR 826, [1999] All ER (D) 552
Bailii
England and Wales
Citing:
Appeal fromConnolly-Martin v Davis ChD 17-Aug-1998
The claimant appealed against the striking out of her claim for negligence against counsel for her opponent who had signed a consent order purporting to give an undertaking from his client when in fact the client did not consent.
Held: The . .
CitedOrchard v South Eastern Electricity Board CA 1987
The threat of applications for a wasted costs order should not be used to intimidate, but if one side considers that the other to have behaved in an improper, unreasonable or negligent way and likely to cause a waste of costs, it is not . .
CitedBusiness Computers International Ltd v Registrar of Companies ChD 1988
A winding up petition was served at an address which was not that of the plaintiff’s registered office, and nobody appeared at the hearing. A winding up order was made against the plaintiff company, which now sued the solicitors who had misserved . .
CitedCalveley v Chief Constable of the Merseyside Police HL 1989
Police officers brought an action in negligence against a Chief Constable on the ground that disciplinary proceedings against them had been negligently conducted. They claimed that the investigating officers had negligently failed to conduct the . .
CitedBatten v Wedgwood Coal and Iron Company ChD 18-Jan-1886
A solicitor was held to owe a duty to a party other than his client where, having carriage of the court’s order, he failed to comply with the duty (imposed by a rule of court) to lodge a request for the investment of money in court at the Chancery . .
CitedAllied Finance and Investments Ltd v Haddow and Co 1983
(New Zealand Court of Appeal) The claimant had agreed to make a loan to X and to take security for it on a yacht. The defendants, who were X’s solicitors, certified to the claimant that the instrument of security executed by X in relation to the . .
CitedAl-Kandari v J R Brown and Co CA 1988
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the . .
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 . .
CitedConnell v Odlum 1993
(New Zealand Court of Appeal) Prior to his marriage to W, the claimant wished to enter with her into an agreement of which the statutory effect would be to contract them out of the law’s general provisions for the making of financial adjustments . .
CitedElguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
CitedWelsh v Chief Constable of Merseyside Police 1993
On conviction for one offence, the plaintiff asked for two other offences to be taken into consideration. He was bailed pending sentence. He was then arrested for the other offences and wrongfully held in custody. The Crown Prosecution Service had . .
CitedHussain v Hussain CA 1986
Sir John Donaldson MR said: ‘Let it be stated in the clearest possible terms that an undertaking to the court is as solemn, binding and effective as an order of the court in like terms and that the contrary has never been suggested . . Undertakings . .

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 . .
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 11 November 2021; Ref: scu.79453

Westlaw Services Ltd and Another v Boddy: CA 30 Jul 2010

The claimant said that it was due sums from the estate of the deceased solicitor. The executors said that the agreement was unlawful in that it had amounted to an agreement to share fees with an unauthorised body.
Held: The agreement was unenforceaable and void. The SPR have the effect of subordinate legislation made pursuant to section 31 of the Solicitors Act 1974, and the making of an agreement in breach of the SPR is unlawful. The breach here went directly against the purpose of the regulation.

Etherton LJ
[2010] EWCA Civ 929
Bailii
Solicitors’ Practice Rules 1990 7(1), Solicitors Act 1974 31
England and Wales
Citing:
CitedSwain v The Law Society HL 1983
The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. . .
CitedMohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed. Bingham LJ summarised the arguments of the . .
IncorrectThai 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 . .
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 . .
CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 11 November 2021; Ref: scu.421212

Lloyd v Grace, Smith and Co: HL 1912

Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the employment or within the scope of the apparent authority, albeit by an employee or a partner conducting the business of a type which he had a right to conduct. The principal was liable for the fraud of the agent because conveyancing is part of the ordinary business of solicitors. The client had been invited by the firm to deal with their managing clerk. It was irrelevant that the agent acted with a dishonest purpose for his own ends. His act was of the class or kind of acts which fall within the ordinary business of solicitors.

Lord Macnaghten, Earl Loreburn LC
[1912] AC 716, [1912] UKHL 1
Bailii
England and Wales
Citing:
CitedMcGowan and Co v Dyer 1873
Story on Agency states the general rule that the principal is liable to third persons in a civil suit ‘for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty of . .

Cited by:
CitedGenerale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
CitedGenerale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
CitedJ J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
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 . .
CitedFrans Maas (Uk) Ltd v Samsung Electronics (Uk) Ltd ComC 30-Jun-2004
A large volume of mobile phones were stolen from a warehouse. The owner claimed damages from the bailee. The defendant said that standard terms applied limiting their responsibility to value calculated by weight.
Held: There was a bailment . .
CitedMorris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .
CitedLister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
CitedGravil v Carroll and Another CA 18-Jun-2008
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed from a finding that they were not vicariously liable. The defendant player’s . .
CitedMaga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
CitedMohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .

Lists of cited by and citing cases may be incomplete.

Vicarious Liability, Legal Professions

Leading Case

Updated: 11 November 2021; Ref: scu.183574

E.Surv Ltd v Goldsmith Williams Solicitors: ChD 10 Apr 2014

The claimants had been found liable for mis-valuation of a property. They now sought a contribution from the solicitors acting uunder the mortgage saying that had they acted properly, they would have alerted the lender, and in turn the claimant of circumstances requiring extra care before a loan was made.
Held: It was not possible for the solicitors to say that the terms of the Lenders Handbook, read with the Practice Rules and the certificate of title, exclude, on their true construction, the Bowerman duty, and: ‘what the Lenders Handbook, read with the Practice Rules and the certificate of title, is intended to do is to identify and to delimit the precise scope of the specific activities which the solicitor is being retained to do, in circumstances where the solicitor is faced with the difficult position of acting for two parties with potentially conflicting interests. It is not intended to exclude the general obligation to exercise reasonable care and skill in the performance of such activities or, as part of such general obligation, the obligation to report to the lender as one of the clients where, through the performance of such obligations, the solicitor comes into possession of information which has a material bearing on the valuation of the lender’s security or some other ingredient of the lending decision.’
If informed of the discrepancy, the lenders would have queried the value with the valuers.

Stephen Davies HHJ
[2014] EWHC 1104 (Ch)
Bailii
Civil Liability (Contribution) Act 1978
Citing:
CitedMortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .
CitedNationwide Building Society v Balmore Radmore ChD 1999
Although the Bowerman duty is a species of obligation which the court will ordinarily imply where a solicitor acts for a lender, it will not imply such an obligation when to do so is inconsistent with the express terms of the retainer or with the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 11 November 2021; Ref: scu.523659

Barclays Bank Plc v Eustice: CA 6 Jul 1995

No Professional Privilege in Iniquity

There was an allegation that the legal advice for which privilege was sought and resisted had been obtained in order to frustrate the mortgagee’s rights to the property at issue, because the mortgagors regarded the mortgagee bank as interfering with family assets.
Held: No professional legal privilege existed for a lawyer client communication ‘in iniquity’, though before disclosure was ordered there should be a strong prima facie case of criminal or fraudulent conduct.
The burden of proof of iniquity lay on the party asserting it.
Schiemann LJ said:

Butler-Sloss, Aldous, Schiemann LJJ
Times 03-Aug-1995, [1995] 1 WLR 1238, [1995] EWCA Civ 29, [1995] 2 BCLC 630, [1995] BCC 978, [1995] 4 All ER 511
Bailii
England and Wales
Cited by:
CitedUnited States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedX v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Leading Case

Updated: 11 November 2021; Ref: scu.78200

Dixon Coles and Gill (A Former Firm) v Baines, Bishop of Leeds and Another: CA 20 Jul 2021

Innocent Co-Trustee not Liable for Default

Proceedings were brought by former clients against their former solicitors. One of the partners stole money held in the firm’s client account on behalf of the claimants. The other two partners were entirely innocent of, and in no way implicated in, the frauds. Some of the losses sued for arose from transactions more than six years before the commencement of the proceedings. The issue on the appeal is whether the innocent partners, who are otherwise undoubtedly liable for the clients’ losses, can rely on a limitation defence in respect of those transactions, under section 21 of the Limitation Act 1980.
Held: The solicitors appeal succeeded: ‘A co-trustee is not to be treated as party or privy to another trustee’s fraudulent breaches of trust unless facts are alleged and proved which show the co-trustee to have been implicated in the frauds in some way, meeting the tests indicated in Thorne v Heard. It follows that DCG are not within the scope of section 21(1)(a) and they are entitled to rely on the six-year limitation period as a defence.’

Sir Timothy Lloyd
[2021] EWCA Civ 1097
Bailii, Judiciary
Limitation Act 1980 21
England and Wales
Citing:
CitedMoore v Knight ChD 18-Dec-1890
The court considered the liability of partners in a solicitors’ firm for embezzlement of client money by an employee of the firm. Once the true position became known, after many years, the client sued the surviving partners, who relied on . .
CitedThorne v Heard CA 24-Jan-1894
A first mortgagee, Heard, had sold property under the power of sale and had retained a solicitor, Searle, to act in relation to the sale. Searle received the proceeds of sale, satisfied the first mortgage debt, but retained the balance, falsely . .
CitedThorne v Heard HL 1895
Recovery was sought from the partners of a defaulting solicitor.
Lord Herschell LC disposed of the argument about concealment first, and then turned to section 8, saying: ‘My Lords, the only remaining question is, Did the statute apply? It is . .
CitedBlair v Bromley ChD 18-Nov-1846
Two solicitors having entered into partnership, each of them continued to attend to the business of his former clients, but on the partnership account; and one of the partners having proposed to invest a sum of money belonging to a client in a . .
CitedBlair v Bromley CA 3-Jul-1847
Held; . .
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 . .
Appeal fromLord Bishop of Leeds v Dixon Coles and Gill (A Firm) and Others ChD 28-Oct-2020
The claimants had been clients of the defendant solicitors former firmer. A partner of the defendants had stolen large sums of money in the names of the claimants from the firm’s client account. The defendants themselves were not said to have been . .
CitedHughes v Twisden ChD 1886
One partner in a firm of solicitors committed a fraud on a client by using deeds held on behalf of the client as security for a loan for his own benefit, the funds, so far as appeared, not passing through the firm’s accounts. The fraudulent partner . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Limitation, Trusts, Company

Updated: 11 November 2021; Ref: scu.666020

Jan Sneller v Das Nederlandse Rechtsbijstand Verzekeringsmaatschappij Nv: ECJ 7 Nov 2013

ECJ Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Insured persons’ freedom to choose a lawyer – Clause in the standard terms and conditions of a contract guaranteeing legal assistance in any inquiry or proceedings by one of the insurer’s employees – Costs relating to legal assistance provided by an external legal adviser reimbursed only where the insurer decides that it is necessary to entrust handling of the case to an external legal adviser

C.G. Fernlund, P
C-442/12, [2013] EUECJ C-442/12
Bailii
Directive 87/344/EEC 4(1)
European

Legal Professions, Costs

Updated: 11 November 2021; Ref: scu.517561

Bilkus v Stockler Brunton (A Firm): CA 16 Feb 2010

Solicitors appealed against the rejection of their claim for an uplift in their fees amounting to andpound;50,000, based on the value element in the transaction in the 1994 Order. The court had to decide whether the matter came under the rules as a contentious or non-contentious matter. There had been a dispute as to the ownership of a share in a company. Litigation was successful, and it was then decided to assert that there had been prejudicial management of the company, but this was settled and much work undertaken as to the valuation of the share. No new terms of acting were supplied.
Held: Whether work done by solicitors is contentious or non-contentious depends not on the nature of that work, but on whether it was done ‘in or for the purposes of proceedings begun before a court or before an arbitrator’. Thus work done in relation to a valuation carried out by an independent expert, even though highly disputed, is not intrinsically contentious. Work done after the completion of proceedings is done not for the purpose of those proceedings, but in consequence of those proceedings, but in this case the valuation was as part of implementing the court’s order, and it was contentious business for which no uplift was available.
There was no error in law in the Master’s refusal to allow the solicitors to amend their bill.

Ward LJ, Longmore LJ, Stanley Burnton LJ
[2010] 1 WLR 2526, [2010] 8 EG 104, [2010] 3 All ER 64, [2010] 2 Costs LR 237, [2010] CP Rep 25, [2010] EWCA Civ 101
Bailii, Times
Solicitors Act 1974 57 59, Solicitors (Non-Contentious Business) Remuneration Order 1994
England and Wales
Citing:
CitedPolak v Marchioness of Winchester CA 1956
The paying party objected that Counsel’s bill had not been paid at the time the solicitors’ bill was presented.
Held: The court had an inherent jurisdiction to permit a solicitor to withdraw his incorrect bill of costs and to substitute a . .
CitedO’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
CitedC v C 1997
The parties contested the costs of conveyancing work undertaken as a result of ancillary relief proceedings. It was assumed that the work was non-contentious. . .
CitedRe Catlin CA 1854
Sir John Romilly MR said: ‘It is, I am informed, well established in practice that where a solicitor has delivered a bill of costs to his client, and proceedings between the parties have been taken to tax it under the statute, no alteration can be . .
CitedSadd v Griffin CA 1928
Farwell LJ said: ‘it is settled beyond controversy that the solicitor is, for the purposes of taxation, bound by the bill that he has delivered and cannot alter it without the leave of the Court or the consent of the party.’ . .
Master’s DecisionBilkus v Stockler Brunton (A Firm) SCCO 11-Nov-2008
Master Gordon-Saker refused to permit the Solicitors to substitute their proposed amended bill, on the ground that he could not be satisfied that the error in describing the claim for andpound;50,000 as an uplift in relation to all the work that . .
Appeal fromBilkus v Stockler Brunton (A Firm) ChD 30-Jul-2009
The court upheld the refusal of the master to allow the claimant solicitors to submit an amended bill: ‘In his oral submissions, Mr Stockler . . frankly acknowledged that he had been in error in supposing that it was possible to charge an uplift for . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 11 November 2021; Ref: scu.400993

Bar Standards Board, Regina (on The Application of) v Disciplinary Tribunal of The Council of The Inns of Court: CA 24 May 2016

Appeal from an order of a Divisional Court of the Queen’s Bench Division granting judicial review of the determination of the defendant tribunal directing the respondent to pay to the appellant a sum of andpound;27,521.50 in respect of her costs of successfully defending disciplinary proceedings brought against her. The court ordered that the appellant’s costs should be assessed in that sum on the basis of a rate of andpound;60 per hour, as opposed to the andpound;120 per hour allowed by the tribunal. The court also ordered the appellant to pay 60% of the respondent’s costs of the judicial review proceedings.

McCombe, King LJJ
[2016] EWCA Civ 478
Bailii
England and Wales

Legal Professions

Updated: 11 November 2021; Ref: scu.564687

Steele Ford and Newton v Crown Prosecution Service (No.2): HL 1993

The House considered the court’s jurisdiction to award costs out of central funds.
Held: In this case there was no such power, but: ‘still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure.’ The section gave a court no implied power to make an order out of central funds in civil litigation to compensate a litigant for wasted costs: ‘I will not multiply examples, but I hope I have said enough to explain why I cannot attribute to the legislature any general willingness to provide the kind of publicly funded safety net which the judiciary would like to see in respect of costs necessarily and properly incurred by a litigant and not otherwise recoverable . . Some general legislative provision authorising public funding of otherwise irrecoverable costs, either in all proceedings or in all appellate proceedings, would no doubt be an admirable step in the right direction which the judiciary would heartily applaud. But this does not, in my opinion, justify the courts in attempting to achieve some similar result by the piecemeal implication of terms giving a power to order payment of costs out of central funds in particular statutes, which can only lead to anomalies. . . The courts must always resist the temptation to engage, under the guise of statutory interpretation, in what is really judicial legislation, but this is particularly important in a sensitive constitutional area, such as that with which we are here concerned, where we should be scrupulous to avoid trespassing on parliamentary ground. I would hold that jurisdiction to order payment of costs out of central funds cannot be held to have been conferred by implication on the courts by any of the statutory provisions which I have examined. Indeed, I find it difficult to visualise any statutory context in which such a jurisdiction could be conferred by anything less than clear express terms.’

Lord Bridge
[1994] 1 AC 22, [1993] 2 All ER 769, [1993] 2 WLR 934
Supreme Court Act 1981 51
England and Wales
Cited by:
CitedRe Law Society of Northern Ireland QBNI 9-Sep-2004
The Law Society of Northern Ireland sought an order to quash a letter from the new NI Legal Service Commission declining to implement the remuneration rates set by the Society. There had been no review of charging rates by the commission for some . .
CitedCorner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Costs

Leading Case

Updated: 10 November 2021; Ref: scu.214220

Singh v Sinel: CA 15 Mar 2016

Appeal by a Jersey advocate against a summary judgment holding him liable for the fees of English counsel whom he had instructed. The central issue in the appeal was whether the judge erred in summarily assessing those fees.

Jackson, Floyd, Macur LJJ
[2016] EWCA Civ 387
Bailii
England and Wales

Legal Professions, Costs

Updated: 10 November 2021; Ref: scu.563249

Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others: CA 13 Oct 2010

The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities under a notice issued under section 20 of the 1970 Act.
Held: Legal professional privilege was not to be extended beyond the legal professions.

Mummery, Lloyd, Stanley Burnton LJJ
[2010] EWCA Civ 1094, [2010] STI 2709, [2011] Lloyds Rep FC 1, [2011] 1 All ER 316, [2011] 1 FCR 195, [2011] 1 Costs LR 92, [2011] 2 WLR 50, [2011] ACD 19, [2011] CP Rep 5, [2010] STC 2802, [2010] NPC 99, [2010] BTC 773
Bailii
Taxes Management Act 1970 20
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, . .
CitedWilden Pump Engineering Co v Fusfeld CA 1985
The 1977 Act conferred privilege on any communication involving patent attorneys made for the purpose of proceedings before the Comptroller of Patents or the Patents Appeal Tribunal. The defendants claimed privilege for all communications with their . .
Appeal fromPrudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedBanning v Wright (Inspector of Taxes) HL 1972
Lord Hailsham of St Marylebone LC pointed out that the word ‘waiver’ is derived from the same root as the word ‘waif’ – a thing, or person, abandoned. Lord Hailsham continued: ‘In my view, the primary meaning of the word ‘waiver’ in legal parlance . .
CitedBalabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .

Cited by:
CitedFord, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Appeal fromPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Taxes Management

Leading Case

Updated: 10 November 2021; Ref: scu.425192

Lloyds TSB Bank Plc v Markandan and Uddin (A Firm): CA 9 Feb 2012

The defendant solicitors appealed against judgment. They and the lenders had been subject to a mortgage fraud. Fraudsters had set up a false branch office of a firm of solicitors, and secured payment of a mortgage advance.

Mummery, Rimer LJJ, Sir Mark Potter
[2012] EWCA Civ 65
Bailii
England and Wales
Citing:
Appeal fromLloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .

Cited by:
CitedPurrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Professional Negligence

Updated: 10 November 2021; Ref: scu.450996

Sheikh v Independent Tribunal Service: EAT 16 Mar 2004

Part-time chairmen of social security tribunals were office holders rather than employees and were not Crown employees.

Peter Clark J
Unreported, 16 March 2004
Cited by:
CitedO’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .

Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 10 November 2021; Ref: scu.279056

Re D (a child): CA 14 Jun 2011

In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now appealed against the order for disclosure.
Held: The appeal failed. The mother had waived professional legal privilege. The mother had in the course of her statement made not only glancing reference to her discussions with her solicitor, but had recounted a detaile dhistory. This was a highly unusual case, but the judge’s application of the law could not be criticised: ‘If it demonstrates that even experienced family lawyers were unaware of the full ramifications of waiver of professional privilege, then the case may be of benefit to the profession. To say no more than that ‘I am acting on the advice of my solicitors and counsel’ will not ordinarily justify further disclosure of the advice or of the circumstances in which any new witness statement came to be drafted. Counsel and solicitors will be aware (or ought to be aware) of the fact that advice may have been given to prompt the change of heart or change of attitude and they should be on guard to protect their client from revealing that advice either in the written evidence or when giving oral evidence to the court. Judges must also be astute to anticipate an unintentional observation which results in privilege being waived and must be ready to warn a witness of any such danger. But on the facts of this case, the law is clear: privilege was waived and fairness demanded further full disclosure. I would therefore dismiss the appeal.’

Ward, Rimer, Elias LJJ
[2011] 2 FCR 585, [2011] 4 All ER 434, [2011] Fam Law 926, [2011] EWCA Civ 684
Bailii
England and Wales
Citing:
CitedIn Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
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, . .
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 . .

Lists of cited by and citing cases may be incomplete.

Children, Legal Professions

Updated: 10 November 2021; Ref: scu.440764

Soar v Ashwell: CA 1893

Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but retained part in his own hands. Some 12 years later, the surviving trustee brought an action claiming an account of the money retained by the solicitor.
Held: The solicitor must be considered as having been in the position of an express trustee of such money with the consequence that lapse of time did not bar the action.
A de facto trustee is subject to the same duties as an actual trustee.
Lord Esher MR said: ‘If there is created in expressed terms, whether written or verbal, a trust, and a person is in terms nominated to be the trustee of that trust, a Court of Equity, upon proof of such facts, will not allow him to vouch a Statute of Limitations against a breach of that trust. Such a trust is in equity called an express trust. If the only relation which it is proved the defendant or person charged bears to the matter is a contractual relation, he is not in the view of equity a trustee at all, but only a contractor; and equity leaves the contractual relation to be determined by the common or statute law. If the breach of the legal relation relied on, whether such breach be by way of tort or contract, makes, in the view of a Court of Equity, the defendant a trustee for the plaintiff, the Court of Equity treats the defendant as a trustee become so by construction, and the trust is called a constructive trust; and against the breach which by construction creates the trust the Court of Equity allows Statutes of Limitation to be vouched.’
Lord Esher continued: ‘There was an express trust created, but Ashwell was not at any time nominated as a trustee of that trust. He was the solicitor of the nominated trustees. As such solicitor he was entrusted by the nominated trustees to take and have in his hands the trust money, with a direction on their behalf to deal with it according to the terms of the trust. Assume that he misappropriated that money to his own use, and that that was all; the misappropriation would at once of itself make him the holder of the money in trust for the rightful owner, but, if that were all, only a trustee by construction of a constructive trust. But the questions in this case are whether Ashwell was not, in view of a Court of Equity, a trustee of the money before the alleged breach by misappropriation, and, if he was, under which class of trust he was with regard to limitations. The moment the money was in his hands, he was in a fiduciary relation to the nominated trustees; he was a fiduciary agent of theirs; he held the money in trust to deal with it for them as directed by them; he was a trustee for them. He was therefore a trustee of the money before he committed, if he did commit, the alleged breach of trust, and was in possession of and had control over the money before he committed, if at all, the alleged breach of trust.
The cases seem to me to decide that, where a person has assumed, either with or without consent, to act as a trustee of money or other property, ie, to act in a fiduciary relation with regard to it, and has in consequence been in possession of or has exercised command or control over such money or property, a Court of Equity will impose upon him all the liabilities of an express trustee, and will class him with and will call him an express trustee of an express trust. The principal liability of such a trustee is that he must discharge himself by accounting to his cestui que trusts for all such money or property without regard to lapse of time.
There is another recognised state of circumstances in which a person not nominated a trustee may be bound to liability as if he were a nominated trustee, namely, where he has knowingly assisted a nominated trustee in a fraudulent and dishonest disposition of the trust property. Such a person will be treated by a Court of Equity as if he were an express trustee of an express trust. I am of opinion that the present case is within the description of that which is treated as and is called in equity an express trust, and that the inquiry as to the alleged breach cannot be stopped by the Statute of Limitations.
I am clearly convinced by the evidence that Ashwell became on receipt of the money a trustee of it, and that, as he has not been shewn to have accounted for it, the defendant, his executrix, is liable as such for a breach of trust by him. ‘
Bowen LJ said: ‘It has been established beyond doubt by authority binding on this Court that a person occupying a fiduciary relation, who has property deposited with him on the strength of such relation, is to be dealt with as an express, and not merely a constructive, trustee of such property. His possession of such property is never in virtue of any right of his own, but is coloured from the first by the trust and confidence in virtue of which he received it.’
Recognising that the authorities were irreconcilable, he identified three cases where a constructive trustee would be treated for limitation purposes like an express trustee, namely the case of de facto trustees, which was the case before the court; the case of a stranger to the trust knowingly assisting the fraud of a trustee; and the case of a stranger knowingly receiving trust property in breach of trust.
Kay LJ said: ‘The result seems to be that there are certain cases of what are, strictly speaking, constructive trusts, in which the Statute of Limitations cannot be set up as a defence. Amongst these are the case where a stranger to the trust has assumed to act and has acted as a trustee, and the case where a stranger has concurred with the trustee in committing a breach of trust, and has taken possession of the trust property, knowing that it was trust property, and has not duly discharged himself of it by handing it over to the proper trustees or to the persons absolutely entitled to it.
I think that the present case comes within one or both those categories. I think that Ashwell did assume to act and acted as trustee of the funds which he received, and that he has not duly discharged himself from the plaintiff’s share of those funds, and must therefore be treated as an express trustee.’

Lord Esher MR, Bowen LJ, Kay LJ
[1893] 2 QB 390
England and Wales
Cited by:
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedPeconic Industrial Development Ltd v Lau Kwok FAI 27-Feb-2009
Hong Kong Court of Final Appeal. The limitation period for a claim in dishonest assistance is 6 years. For limitation purposes a distinction is to be made between two kinds of constructive trustees: those who are fiduciaries and those who are . .
CitedWilliams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
CitedWilliams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Dicta appliedIn re Gallard 1897
. .
Dicta appliedHeynes v Dixon 1900
. .
Dicta appliedIn re Eyre-Williams 1923
. .
CitedHenchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .

Lists of cited by and citing cases may be incomplete.

Limitation, Trusts, Legal Professions

Leading Case

Updated: 10 November 2021; Ref: scu.230273

Kearns and Others v The General Council of the Bar: CA 17 Mar 2003

The claimants had sought to recover from the General Council of the Bar damages for libel in a communication from the head of the Bar Council’s Professional Standards and Legal Services Department to all heads of chambers, their senior clerks and practice managers to the effect that the claimants were not solicitors and were thus not entitled to instruct counsel with the result that it would be improper for members of the Bar to accept work from them. The letter was clearly noth libellous and untrue, but also not malicious. The court was asked when is verification a relevant circumstance in determining whether or not a defamatory communication is protected by qualified privilege?
Held: On the defence of qualified privilege: ‘The argument, as it seems to me, has been much bedevilled by the use of the terms ‘common interest’ and ‘duty-interest’ for all the world as if these are clear-cut categories and any particular case is instantly recognisable as falling within one or other of them. It also seems to me surprising and unsatisfactory that privilege should be thought to attach more readily to communications made in the service of one’s own interests than in the discharge of a duty – as at first blush this distinction would suggest. To my mind an altogether more helpful categorisation is to be found by distinguishing between on the one hand cases where the communicator and the communicatee are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and on the other hand cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship . . Once the distinction is made in this way, moreover, it becomes to my mind understandable that the law should attach privilege more readily to communications within an existing relationship than to those between strangers. The latter present particular problems.’

Mr Justice Keene Lord Justice Mantell Lord Justice Simon Brown
[2003] EWCA Civ 331, [2003] 1 WLR 1357
Bailii
England and Wales
Cited by:
CitedDowntex v Flatley CA 2-Oct-2003
The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant . .
CitedHowe and Co v Burden QBD 11-Feb-2004
Defence of consent – no strike out. The precise ambit of the defence of consent in a defamation case is best established at trial on the basis of the tribunal’s findings of fact. . .
CitedMeade v Pugh and Another QBD 5-Mar-2004
The claimant was a social work student. He attended a work experience placement, and challenged the report given by the defendants on that placement, saying it was discriminatory and defamatory. He appealed a strike out of his claim.
Held: The . .
CitedSeray-Wurie v The Charity Commission of England and Wales QBD 23-Apr-2008
The defendant sought an order to strike out the claimant’s allegations of defamation and other torts. The defendants claimed qualified privilege in that the statements complained of were contained in a report prepared by it in fulfilment of its . .
CitedClift v Slough Borough Council and Another QBD 6-Jul-2009
clift_sloughQBD09
The claimant sought damages for defamation. The council had decided that she had threatened a member of staff and notified various people, and entered her name on a violent persons register. She alleged malice, the council pleaded justification and . .
CitedLewis v Commissioner of Police of The Metropolis and Others (Rev 1) QBD 31-Mar-2011
lewis_cpmQBD11
The defendant sought a ruling on the meaning of the words but using section 69(4) of the 1981 Act. The claimant solicitor was acting in complaints as to the unlawful interception of celebrity voicemails by agents of the press. There had been debate . .
CitedW v Westminster City Council and Others QBD 9-Dec-2004
The claimant sought to bring an action for defamation based upon communications made in a child protection conference. The reference was in a Report for Conference to be held pursuant to the duties imposed on local authorities by the Children Act . .
CitedClift v Slough Borough Council CA 21-Dec-2010
The court was asked how, if at all, the Human Rights Act 1998 has affected a local authority’s defence of qualified privilege in defamation cases. The claimant had been placed on the Council’s Violent Persons Register after becoming very upset and . .
CitedWood v Chief Constable West Midlands Police CA 8-Dec-2004
The claimant was a director of a limited company. A Detective Chief Inspector with responsibility for crime prevention was investigating a series of car thefts and arrested the claimant’s business partner and, before the accused had even stood his . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Defamation

Leading Case

Updated: 10 November 2021; Ref: scu.179914

In 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 an appeal by a barrister or student to them, has always been the final determination of such matter’.
Paull J said: ‘all through the history of the Inns (of Court) . . a call to the bar does not mean a call to the bar of any court. It only means a call to the bar of the particular Inn.’ And further that since 1292 the power to ‘provide and ordain . . attorneys and lawyers . . was left to the discretion of the justices’ so that: ‘from that time onwards for many years not all those who had been called to the bar of their Inns were allowed to practise in the courts at Westminster. From time to time regulations were made by the judges prescribing the period of time which must elapse after call to the bar of an Inn before the right to audience in the courts was exercised. By the middle of the 17th century it was accepted by the judges that, provided the call had been published in the Inn and the oaths of allegiance and supremacy taken, no further qualification was required to entitle the person called to the bar of his Inn to appear in any of the King’s courts for any client who saw fit to retain his services . . It is clear that the judges never passed over the whole control to the Inns. They kept quite a tight rein on the internal affairs of the Inn, particularly in so far as such affairs related to those who might practise before them. This is of great importance because from time to time the word ‘delegation’ appears in reference to the powers of the Inns given to them by the judges. One of the problems is the precise meaning of that word ‘delegation’ in the context in which it has been used.’
Paull J then observed: ‘The latest example of the use of the word ‘delegation’ is in Attorney-General of Gambia v N’Jie . . where Lord Denning uses the words: ‘By the common law of England the judges have the right to determine who shall be admitted to practise as barristers and solicitors: and, as incidental thereto, the judges have the right to suspend or prohibit from practice. In England this power has for a very long time been delegated, so far as barristers are concerned, to the Inns of Court: and, for a much shorter time, so far as solicitors are concerned, to the Law Society.’
It will be noticed that Lord Denning uses the same word ‘delegated’ in regard to the rights of the judges over who should appear before them as advocates in the case of barristers and their rights in the case of solicitors. Clearly the word ‘delegate’ so used cannot have precisely the same meaning in each case, since the rights of solicitors are to some extent governed by Acts of Parliament and solicitors do not appear before High Court judges as advocates.
It seems clear that Lord Mansfield in his use of the word ‘delegate’ was not using that word in the narrow sense in which it is sometimes used today and which is the basis of the doctrine ‘delegatus non potest delegare’; neither was Lord Denning. Both were using it in the sense that, in regard to the Inns, the judges over a long period, from time to time, had concurred in the Inns performing the duty of selecting those persons who were fit and proper persons to be called to the bar and to be entitled to a right of audience in the courts and the duty of suspending or prohibiting such persons from practice. The exercise of these duties has been at all times, and remains, subject to the visitorial jurisdiction of the judges. Further, the judges in relation to their judicial duties as to who should have the right of audience have never divested themselves of those duties, nor could they ever do so.’

Paull, Lloyd-Jones, Stamp, James and Blain JJ
[1970] 1 QB 160
England and Wales
Cited by:
CitedMehey and Others, Regina (on The Application of) v Visitors To The Inns of Court and Others CA 16-Dec-2014
The court was asked whether disciplinary proceedings against a number of barristers were invalid on the ground that some of the individuals who heard those proceedings or appeals therefrom were disqualified from sitting.
Held: The appeals . .
CitedO’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.

Legal Professions

Leading Case

Updated: 10 November 2021; Ref: scu.540219

Clyde and Co Llp and Another v Winkelhof: QBD 22 Mar 2011

The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory provisions said that her freedom to go to court could not be ousted, and that the arbitration clause was void.
Held: The claimant’s request was denied. ‘Clause 41 of the Agreement that arbitration is a final resolution of a Member’s dispute subject only to an appeal on a question of law does in my judgment preclude continuation of proceedings before an Employment Tribunal. The arbitration provided for by Clause 41 is not one falling within ERA Section 203(5) . . Section 144(1) renders unenforceable an agreement to preclude or limit the continuation of sex discrimination proceedings before an Employment Tribunal unless reached in accordance with Section 144(4). It would be surprising if this were not so. There would be no discernable rationale for rendering unenforceable such agreements reached before proceedings have commenced but enforceable once an ET1 had been lodged. Further it would be surprising if employees were given lesser protection in this regard when pursuing discrimination claims under the EA than when pursuing claims under the ERA.’

Slade DBE J
[2011] EWHC 668 (QB), [2011] ArbLR 7, [2011] IRLR 467, [2011] CP Rep 31, [2012] ICR 928
Bailii
Equality Act 2010 120, Employment Rights Act 1996 , Directive 2006/54/EC, Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004
England and Wales
Citing:
CitedChorion Plc and Others v Lane ChD 7-Apr-1999
A former executive director brought a claim for unfair dismissal in the Employment Tribunal. Chorion brought proceedings in the Chancery Division alleging wrongful acts committed by him while he was a senior executive.
Held: There was an . .
CitedAhmad Al-Naimi (T/a Buildmaster Construction Services) v Islamic Press Agency Incorporated CA 28-Jan-2000
The court has an inherent power to stay proceedings. The court could refer a matter to arbitration where there was an arbitration clause, but could also do so under its inherent discretion, where this was not quite clear, but it was clear that good . .
CitedNaqvi v Stephens Jewellers Ltd EAT 1978
The parties had reached an agreement not to continue unfair dismissal proceedings, but the defendant now complained of the claimant’s attempt to do so.
Held: The section renders void an agreement to withdraw a claim already made to the . .
CitedReichhold Norway ASA and Reichhold Chemicals Inc v Goldman Sachs International CA 28-Jun-1999
An application was made to stay proceedings to await the decision of a foreign court. At first instance, Moore-Bick J had held that a Court has an interest in deciding the order in which related proceedings should be tried ‘not only because the . .
CitedAllianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’) ECJ 10-Feb-2009
ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order . .
CitedSears Plc v Sears Roebuck and Co and others 1993
The court granted an Order against the plaintiff requiring it not to proceed with its case before the Trade Mark Registry until the determination of their High Court action. Lindsay J said: ‘the court should look to the two matters broadly and ask . .

Cited by:
See AlsoVan Winkelhof v Clyde and Co Llp and Another EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
See AlsoClyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
See AlsoClyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment, Arbitration, Company

Updated: 10 November 2021; Ref: scu.430748

In 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 preliminary argument on the point in chambers, if decided in his favour, the full point would require argument in open court where Dr Pelling would be unable to continue. ‘A McKenzie friend does not, as such, have a right of audience and . . the court can exercise its discretion to grant a McKenzie friend a right of audience in accordance with section 27(2)(c) of the 1990 Act ‘only . . for good reason’ and in the light of and bearing in mind the ‘general objective’ set out in section 17(1) of the Act and the ‘general principle’ set out in section 17(3). ‘ The court should be ‘very slow’ to grant a McKenzie friend a right of audience, but this is not to say that, as a general principle, such an order can be made only in ‘exceptional’ circumstances.
Circumstances differed. A ‘professional’ McKenzie friend should be allowed to appear only in exceptional circumstances, but a friend of the party will be given greater leeway. This case fell in between. ‘One also has to bear in mind . . the reality that legal aid is not available as readily as it was in the past, leading . . to the growth of litigants in person in all levels of family court.’
Though the case did not discuss anything of the private lives of the parties, it remained anonymised. The purpose of the proceedings was to put an end to the difficulties which had faced the child.

Munby J
[2008] EWHC 2042 (Fam), [2008] Fam Law 1093, [2008] 3 FCR 642, [2008] 2 FLR 1899, [2008] 1 WLR 2743
Bailii
Children Act 1989 8, Courts and Legal Services Act 1990 27
England and Wales
Citing:
CitedD 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. . .
CitedPresident’s Guidance: McKenzie Friends FD 14-Apr-2008
‘A court may grant an unqualified person a right of audience in exceptional circumstances and after careful consideration. If the litigant in person wishes the MF to be granted a right of audience or the right to conduct the litigation, an . .
CitedGuidance (McKenzie Friends) 2005
Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] . .
CitedMilne 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. . .
CitedClarkson v Gilbert and others CA 14-Jun-2000
The court considered the restrictions on lay representatives appearing in court as the related to relatives of the party.
Held: The same objections to granting rights of audience did not apply to a husband who merely wished to assist his wife . .
CitedMensah v Islington Council and Another CA 1-Dec-2000
Permission was sought for a McKenzie friend to address the court. Peter Gibson LJ said: ‘In accordance with the overriding objective of the CPR and to avoid the waste of today’s hearing, attended as this court had earlier directed, by counsel for . .
CitedNoueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .
CitedIn re D (A Child) CA 15-Mar-2005
Application to allow representation by a solicitor who was presently struck off the roll denied. . .

Cited by:
CitedKennedy v Kennedy CA 24-Jun-2009
The parties, both English, met and married and made a life in Spain. They had two children. The mother brought the children back to the UK on the breakdown of the marriage. . .

Lists of cited by and citing cases may be incomplete.

Children, Legal Professions, Human Rights

Updated: 10 November 2021; Ref: scu.272794

ZS v FS (Application To Prevent Solicitor Acting): FD 24 Oct 2017

Discosure of Confidences must be at risk

H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H to establish that some confidential material had been given by him in the course of any meeting. He chose to continue the protection of privilege in respect of some elements, as was his right, but had failed to estabish his case. On the balance of probabilities, no meeting had taken place at which confidential material had been diclosed. H’s application failed.
Williams J summarised the applicable principles: ‘(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.
(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.
(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.
(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.
(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.
(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.
(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context ‘real’ means it is not merely fanciful or theoretical, but it does not need to be substantial.
(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.
(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.
(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.
(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct; whether there are other firms who might now be able to act for the respondent; whether the application was made promptly; the additional expense and delay that might be occasioned to the respondent if they were obliged to instruct new solicitors; whether any such expense could appropriately be off-set by the applicant.’

Williams J
[2017] EWHC 2660 (Fam)
Bailii
England and Wales
Citing:
CitedMinter v Priest CA 1929
An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to . .
CitedMinter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
CitedFrancis Day and Hunter Ltd v Bron CA 1963
The test of substantial similarity in copyright infringement cases is an objective one. That assessment is for the court with such assistance from the evidence and parties as it can muster. To be an infringement there must be ‘some causal . .
CitedGreat Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
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 . .
CitedDavies v Davies CA 2000
The wife had objected to the instruction by her former husband of a solicitor who had been instructed by her some seven years previously. She withdrew her objection, but the court now considered an appeal as regards costs.
Held: The court . .
CitedRe T v A, (children, risk of disclosure) 2000
. .
CitedB and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
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 . .
CitedWest London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 22-Jul-2008
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An . .
CitedRe Z (restraining solicitors from acting) FD 21-Dec-2009
Application by a husband, the respondent in the wife’s divorce proceedings, by which he seeks an order that the wife’s solicitors be debarred from acting any further for her in the divorce or financial matters and that they do remove themselves from . .
CitedG v G FD 24-Apr-2015
(financial remedies, privilege, confidentiality) W wished to re-open finacial remedy prodeedings embodied in a court consent order. She wished to allege non-disclosure by H of two substantial family trusts. He said that she had known of what she . .

Lists of cited by and citing cases may be incomplete.

Family, Legal Professions

Updated: 10 November 2021; Ref: scu.599578

Aidiniantz v The Sherlock Holmes International Society Ltd: ChD 15 Jun 2016

Solicitor does not warrant his client’s case

The company had appealed from an order for its winding up. The solicitors had acted on the instructions of a director, whose authority was now challenged.
Held: The claim for costs against the solicitors failed. They had been properly retained and had had continuing ostensible authority. The litigation which followed had been as to the very issue now put. A solicitor does not warrant that his client has a good case.

Mark Anderson QC
[2016] EWHC 1392 (Ch), [2016] WLR(D) 526
Bailii, WLRD
England and Wales
Citing:
Main JudgmentThe Sherlock Holmes International Society Ltd v Aidiniantz ChD 23-May-2016
The company appealed against a winding up order . .

Cited by:
AppliedZoya Ltd v Sheikh Nasir Ahmed (T/A Property Mart) and Others ChD 7-Oct-2016
No warranty of authority on claimas to authority
Complaint was made that proceedings had been made by the claimant company when the solicitors acted on the instructions of somebody describing himself wrongly as a director of the company.
Held: The defendant’s request for costs against the . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 10 November 2021; Ref: scu.565851

AIG Europe Ltd v OC320301 Llp and Others: CA 14 Apr 2016

‘This appeal turns on the true construction of an aggregation clause contained in an insurance policy applicable to all solicitors’ indemnity policies pursuant to the requirement in the Solicitors’ Act 1974 for compulsory liability insurance for solicitors and the Minimum Terms and Conditions (‘MTC’) required to be incorporated into such polices.’
Held: Teare J went too far in saying that the transactions had to be dependent on each other. It accepted a submission for the Law Society as an intervener, that there must be an ‘intrinsic’ relationship between the transactions rather than a relationship with some outside connecting factor, even if that factor was common to the transactions. If the relevant transaction was the payment of money out of an escrow account, which should not have been paid out of that account, what would be ‘intrinsic’ would depend on the circumstances of that payment. The court summarised its interpretation, at para 33, by saying that ‘the true construction of the words ‘in a series of matters or transactions’ is that the matters or transactions have to have an intrinsic relationship with each other, not an extrinsic relationship with a third factor.’ It allowed the appeal and remitted the action to the Commercial Court to determine in accordance with the guidance in its judgment.

Longmore, Kitchin, Vos LJJ
[2016] EWCA Civ 367, [2016] Lloyd’s Rep IR 289, [2017] 1 All ER 143, [2016] 2 All ER (Comm) 1058
Bailii
Solicitors’ Act 1974
England and Wales
Citing:
Appeal FromAIG Europe Ltd v OC320301 Llp and Others ComC 14-Aug-2015
The Claimants, AIG Europe Limited, seeks a declaration that certain claims brought by many individuals against a firm of solicitors are to be aggregated and thus considered a single claim for the purposes of a claim brought by the firm of solicitors . .

Cited by:
CitedAIG Europe Ltd v Woodman and Others SC 22-Mar-2017
The parties disputed the effect of a clause aggregating claims for the purposes of limiting an insurer’s liability under professional negligence insurance.
Held: the claims of each group of investors arise from acts or omissions in a series of . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Insurance

Updated: 10 November 2021; Ref: scu.562146

Prohibitions Del Roy; The Case De Modo Decimandi,: CCP 1572

Reservation of Legal Issues to those Trained

The King, James I had sat as a judge to make a decision in a court case.
Held: Edward Coke CJ overturned the decision, holding that such decisions must be made only by those with legal training and in accordance with and subject to the rule of law. Cases were ‘not to be decided by natural reason but by artificial reason and judgement of law, which law is an art which requires long long and experience.’

Edward Coke CJ
[1572] EngR 303, (1572-1616) 12 Co Rep 63, (1572) 77 ER 1342, [1572] EngR 389, (1572-1616) 13 Co Rep 37, (1572) 77 ER 1448
Commonlii, Commonlii
England and Wales

Legal Professions, Constitutional, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.432269

British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others: CA 6 Jun 2008

The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also involved in proceedings before the Competition Appeal Tribunal and with Ofcom, and were concerned that disclosure should not extend to lawyers involved in the other proceedings. Held ‘there is no justification for preventing the three lawyers who Virgin have instructed to represent them both in the High Court Proceedings and the CAT Proceedings from seeing the sensitive documents that have been disclosed in the former proceedings. ‘ In any event, given the public interest nature of the other proceedings, full disclosure across all proceedings might in any event be appropriate.

[2008] EWCA Civ 612, Times 11-Jun-2008
Bailii
England and Wales
Citing:
CitedRiddick v Thames Board Mills Ltd CA 1977
An action was brought by a disgruntled former employee. He had been summarily dismissed and had been escorted from the premises of his employers. In the first action he claimed damages for wrongful arrest and false imprisonment based on the latter . .
CitedHome Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
CitedCarter Holt Forests Ltd v Sunnex Logging Ltd 2001
(Court of Appeal of New Zealand) Lawyers had acted for a claimant in mediation proceedings with a defendant and had signed a comprehensive confidentiality agreement. The mediation resulted in a settlement. They were then instructed by another . .
CitedCrest Homes Plc v Marks HL 1987
The plaintiffs brought two successive actions against the same defendants (Mr Marks and Wiseoak Homes Ltd) for breach of copyright. They obtained Anton Piller orders in both actions. The documents which the plaintiffs obtained from the defendants in . .
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 . .
CitedMerck and Co v Interpharm 1992
(Federal Court of Canada) Giles ASP said: ‘Solicitor and client privilege is one of the basic principles which permit the operation of our justice system and public confidence in it. In order to support the public interest in the inviolability of . .

Lists of cited by and citing cases may be incomplete.

Media, Litigation Practice, Legal Professions

Updated: 09 November 2021; Ref: scu.268765

Brennan 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 therefore privilege was waived. The Tribunal rejected the application and the EAT held that they were right to do so.
Consideration of the operation of waiver principles.
Elias J P discussed the question fundamental to whether there had been a waiver: The fundamental question is whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material. The court must not allow cherry picking, but the question is: when has a cherry been relevantly placed before the court?
Typically, as we have seen, the cases attempt to determine the question whether waiver has occurred by focusing on two related matters. The first is the nature of what has been revealed; is it the substance, the gist, content or merely the effect of the advice? The second is the circumstances in which it is revealed; has it simply been referred to, used, deployed or relied upon in order to advance the parties’ case? As Waller LJ observed in the Dunlop Slazenger case [2003] EWCA Civ 901. The principles are not altogether easy to discern, partly perhaps because of the vagueness of the language adopted – for example, sometimes reliance and deployment are used as separate terms and sometimes they appear to mean much the same thing – and partly because the cases are necessarily fact sensitive . .
66. Having said that, we do accept that the authorities hold fast to the principle that legal advice privilege is an extremely important protection and that waiver is not easily established. In that context something more than the effect of the advice must be disclosed before any question of waiver can arise.
However, in our view, the answer to the question whether waiver has occurred or not depends upon considering together both what has been disclosed and the circumstances in which disclosure has occurred. As to the latter the authorities in England strongly support the view that a degree of reliance is required before waiver arises, but there may be issues as to the extent of the reliance . .’

Elias J P
[2008] UKEAT 0349 – 08 – 1612, [2009] ICR 479
Bailii
England and Wales
Citing:
CitedWilson v Northampton and Banbury Junction Railway Co 1872
Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
CitedUnison GMB v Brennan and others EAT 19-Mar-2008
EAT Jurisdictional Points
Sex discrimination
Can an employment tribunal make a declaration that the term of a collective agreement is void, pursuant to section 77 of the Sex Discrimination Act, at the . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedGreat Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
CitedNea 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 . .
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 . .
CitedBennett v Chief Executive Officer of the Australian Customs Service 25-Aug-2004
Austlii (Federal Court of Australia) EVIDENCE – Privilege – Legal professional privilege – Waiver – Letter conveying substance and effect of legal advice to third party – Inconsistency between disclosure and . .
CitedExpandable Ltd and Another v Rubin CA 11-Feb-2008
The defendant’s witness statement referred to a letter written to him by the defendant’s solicitor. The claimant appealed refusal of an order for its disclosure.
Held: The appeal failed. The letter was protected by legal professional . .
CitedMann v Carnell 21-Dec-1999
Austlii (High Court of Australia) Practice and procedure – Preliminary discovery – Legal professional privilege – Loss of privilege – Waiver by disclosure to third party.
Australian Capital Territory – . .
CitedGE Capital Corporate Finance Group v Bankers Trust Co and Others CA 3-Aug-1994
Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to . .
CitedInfields Ltd v P Rosen and Son CA 1938
Sir Wilfred Greene MR said that reliance on a document was not of itself sufficient to displace legal professional privilege: ‘In my judgment, the same principle applies here. All that the deponent was doing was saying: ‘Well, I am asking the court . .
CitedGovernment Trading Corporation v Tate and Lyle Industries Ltd CA 24-Oct-1984
Reference was made to information derived from Iranian lawyers. The solicitor in an affirmation had set out his understanding of Iranian law on the incorporation of a Government Trading Corporation in Iran and stated that his information had been . .
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 . .
CitedUniversity of Southampton v Dr C K Kelly EAT 14-Nov-2005
EAT The respondent had stated in its response to the complaint of unfair dismissal that it had realised that it would be unlawful to continue to employ the claimant after having taken legal advice. The claimant . .

Cited by:
CitedRe D (a child) CA 14-Jun-2011
In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now . .
AppliedThe National Crime Agency v Perry and Others QBD 12-Nov-2014
nca_perryQBD201411
The agency had taken proceedings against the defendant to reciver what it said were theproceeds of crime. That claim was dicontinued. The defendant sought to recover his costs on an indemnity basis, and relying upon a witness statement from an . .
Appeal fromCouncil of The City of Sunderland v Brennan and Others CA 3-Apr-2012
Equal pay claim – Whether difference in pay due to material factor other than sex . .
See AlsoSunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
See AlsoSunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .

Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.278812

D 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.

Lord Woolf MR, Waite, Waller LJJ
Times 01-Jan-1997, [1997] 1 FLR 724, [1996] EWCA Civ 1341, [1997] Fam Law 403, [1997] 2 FCR 217
Bailii
Courts and Legal Services Act 1990 17 18 28
England and Wales
Cited by:
AppliedMilne 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. . .
CitedHarris and others v The Society of Lloyd’s ComC 1-Jul-2008
. .
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 . .
CitedNoueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .
CitedGuidance (McKenzie Friends) 2005
Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Family

Leading Case

Updated: 09 November 2021; Ref: scu.79766

Reed v Marriott (Solicitors Regulation Authority): Admn 13 May 2009

The appellant solicitor had entered into an arrangement with a company to receive referrals of personal injury cases. She said that the agreements were deliberately devised to hide the fact that unlawful referral fees were to be paid, by requiring the subcontracting of associated services to a subsidiary of the insurance company at inflated fees levels. Litigation as to these agreements became known to the SRA who brought disciplinary proceedings, against which fine the solicitor now appealed. She said it had not amounted to a fee sharing arrangement.
Held: The appeal failed. The appellant’s case had been presented on a basis that the question related to the lifting or otherwise of the corporate veil. It was not. The question was whether the arrangements properly construed infringed the rules against paying rewards to introducers and against fee-sharing. Here the true person being reqrded was the parent insurance company

Sir Anthony May, Blake J
[2009] EWHC 1183 (Admin)
Bailii
Solicitors’ Introduction and Referral Code
England and Wales
Citing:
CitedSmith, Stone and Knight Limited v Birmingham 1939
Implied Agency between Parent and Subsidiary
An application was made to set aside a preliminary determination by an arbitrator. The parties disputed the compensation payable by the respondent for the acquisition of land owned by Smith Stone and held by Birmingham Waste as its tenant on a . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Leading Case

Updated: 09 November 2021; Ref: scu.346858

Tim 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 solicitor’s bill to challenge the amount, and how any reduction might be applied.
Held: In considering the effect of an extraneous agreement entitling a client to pass on costs, the court is not determining how much the client is liable to pay under his retainer with the solicitor; but which items of the bill can be passed on to the third party. The costs master had incorrectly confused two questions, the assessment of the bill and the identification of which items in it were payable by the third party.
CPR 48.3 allows the court to assess the costs payable under a contract. But CPR 48.3 (2) excludes a contract between a solicitor and his client, and the parties to an assessment under CPR 48.3 will be the parties to the contract in question; and that section 71 (as to the contract of retainer between solicitor and client) is not a substitute for an assessment under CPR 48.2. The Bank (or its assignees) should have been parties to the assessment of how much the Bank was entitled to pass on to TMIL, but were not. There was no objection to an assessment under section 71 and an assessment under CPR 48.3 from taking place simultaneously, provided that the costs judge recognises that the two assessments are conceptually distinct.

Lewison J
[2010] EWHC 2951 (Ch)
Bailii
Solicitors Act 1974 70, Civil Procedure Rules 48.3
England and Wales
Citing:
CitedIn re Gray 1901
The tenant of a mine was liable to pay the landlord’s costs of the grant of the lease. The tenant’s liability was based on custom, which required the tenant to pay the costs of drawing, settling and completing the lease. The tenant asked for an . .
CitedIn Re Longbotham and Sons CA 1904
The borrower had agreed to pay the lender’s solicitors bill, but challenged it saying that it included elements for personal work.
Held: The personal items were excluded. Costs which are outside the scope of the third party’s liability ‘would . .
CitedRe Cohen and Cohen CA 1905
Mrs Cotton sued Mr Edwardes for breach of contract; and he claimed against her as to the ownership of a song. Mrs Cotton authorised her solicitors to incur liabilities for unusual expenses, including the employment of leading and junior counsel to . .
CitedGomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) CA 1993
A clause entitling a mortgagee to recover legal costs from the mortgagor did not extend to costs that were unreasonably incurred or which were unreasonable in amount. Whether costs were unreasonably incurred or were unreasonable in amount was to be . .
CitedRe Hirst and Capes 1908
If there is an admitted agreement for payment of a solicitor’s costs by a third party, and the only question is its true construction, then the costs judge is entitled to decide the question of construction as part of the process of assessment . .
CitedRe Cohen and Cohen CA 1905
Mrs Cotton sued Mr Edwardes for breach of contract; and he claimed against her as to the ownership of a song. Mrs Cotton authorised her solicitors to incur liabilities for unusual expenses, including the employment of leading and junior counsel to . .
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 . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 09 November 2021; Ref: scu.426064

Helow v Secretary of State for the Home Department and Another: HL 22 Oct 2008

The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought asylum, saying that she had fled Palestine after taking legal action against the president of Israel.
Held: The claimant’s appeal was dismissed. A judge who had expressed, or was President of an Association which had expressed, views of the nature summarised and set out above could not sit on an application such as this. A fair-minded observer would regard such a judge as too closely and overtly committed to supporting the cause of Israel generally and of Mr Sharon in relation to the Sabra/Shatila massacre. It would not be appropriate for her to decide a case in which the appellant was relying on her past conduct and condemnation regarding Israel’s and Mr Sharon’s involvement in the Sabra/Shatila massacre as a main basis for her fear of reprisals if she was returned to Lebanon.
However, there was no basis for attributing the more extreme views of senior members of the organistion to the judge. It was not suggested that she had expressed any such view, and nor did the association’s objects encompass such views.
Lord Hope described the characteristics of the notional fair-minded and informed observer: ‘The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The ‘real possibility’ test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.
3. Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.’

Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Cullen of Whitekirk, Lord Mance
[2008] UKHL 62, [2008] 1 WLR 2416, 2008 SCLR 830, (2008) 152(41) SJLB 29, [2009] 2 All ER 1031, 2009 SC (HL) 1, 2008 GWD 35-520, 2008 SLT 967
Bailii, HL, Times
Nationality, Immigration and Asylum Act 2002
Scotland
Citing:
Appeal fromHelow v Advocate General for Scotland and Another SCS 16-Jan-2007
. .
CitedLocabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
CitedJohnson v Johnson 7-Sep-2000
(High Court of Australia) When looking to test whether a member of the public would perceive bias in a court, it is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. One is entitled to conclude . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedRegina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
CitedDavidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedMeerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
CitedMamatkulov and Askarov v Turkey ECHR 4-Feb-2005
(Grand Chamber) The applicants had resisted extradition to Uzbekistan from Turkey to stand trial on very serious charges, saying that if returned they would be tortured. There was material to show that that was not a fanciful fear. On application . .
CitedMeerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .

Cited by:
CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Immigration, Natural Justice

Updated: 09 November 2021; Ref: scu.277128

C (acting by her litigation friend JF) v W: CA 19 Dec 2008

The court considered the proper basis for a success fee payable on a conditional fee agreement where, when signed, the defendant had already admitted liability. The claim was by a woman after being injured in a car driven by her brother. By the time her second form of solicitors took over the case the defendant had admitted liability. The courts reduced the success fee first to 70% and then to 50%. The defendants sought a further reduction.
Held: The success fee must reflect a reasonable and rational assessment of the risks facing the solicitor at the time when the agreement was entered into. The issue of liability was not the only risk faced by the solicitors. The solicitors had not however calculated the fee correctly. The chance of success remained very high, justifying a base uplift of no more than 5%. The larger volume of work required by a more complex case did not increase the risk to the solicitor. The right way to reflect the increased risk in more complex cases was in the chances of success. Nor was it correct to increase the fee to reflect unidentified party and insurance issues. In this case those did not apply. It was incorrect to adjust the premium to reflect a risk that the claimant might be insolvent and unable to pay costs if he withdrew his instructions. The solicitors may have been better using a variant of the two stage success fee discussed in Callery.

Arden LJ, Thomas LJ, Moore-Bick LJ, Master Hurst
[2008] EWCA Civ 1459
Bailii
Courts and Legal Services Act 1990 58, Access to Justice Act 1999 27(1), Conditional Fee Agreements Regulations 2000
England and Wales
Citing:
CitedCallery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .

Cited by:
CitedCoventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 09 November 2021; Ref: scu.278974

White 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 outside the terms of the retainer or where there is no retainer at all.
Lord Browne-Wilkinson: ‘. . . By accepting instructions to draft a will, a solicitor does come into a special relationship with those intended to benefit under it in consequence of which the law imposes a duty to the intended beneficiary to act with due expedition and care in relation to the task on which he has entered . . . the assumption of responsibility referred to is the defendants’ assumption of responsibility for the task not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking to answer the question posed which creates the relationship. If the responsibility for the task is assumed by the defendant he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not the defendant) attaches a duty to carry out carefully the task so assumed. If this be the right view, it does much to allay the doubts about the utility of the concept of assumption of responsibility voiced by Lord Griffiths . . .’

Lord Goff, Lord Browne-Wilkinson, Lord Keith, Lord Mustill, Lord Nolan
Independent 17-Feb-1995, Times 17-Feb-1995, [1995] 2 AC 207, [1995] UKHL 5, [1995] 1 All ER 691, [1995] 2 WLR 187
Bailii
England and Wales
Citing:
Appeal fromWhite and Another v Jones and Another CA 5-Mar-1993
A solicitor’s liability in negligence extends to a potential beneficiary of the will, from delay in making a will. . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
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 . .
CitedGartside v Sheffield Young and Ellis 1983
(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .

Cited by:
CitedGorham and others v British Telecommunications Limited Plc, the Trustees of the BT Pension Scheme Standard Life Assurance Company S/S CA 27-Jul-2000
Where an insurance company gave financial advice to a person to whom they owed a duty of care, and they were aware that that person was intending to provide for his dependants, then the insurance company owed the dependants a duty of care also. The . .
CitedJohnson v Gore Wood and Co (A Firm) ChD 3-May-2002
The respondent firm acted on behalf of the claimant’s companies in land transactions. An option had been taken to purchase land, and he instructed the defendants to exercise it. The landowner claimed the notice to exercise the option was invalidly . .
Appealed toWhite and Another v Jones and Another CA 5-Mar-1993
A solicitor’s liability in negligence extends to a potential beneficiary of the will, from delay in making a will. . .
CitedCorbett v Bond Pearce (a Firm) CA 8-Aug-1997
The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate . .
CitedCommissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
CitedCommissioner of Police of the Metropolis v Lennon CA 20-Feb-2004
The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
Held: The break between employments had affected his . .
CitedHumblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
CitedWorby, 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 . .
CitedEsterhuizen 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 . .
CitedDaniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
CitedAtkins v Dunn and Baker (A Firm) CA 19-Feb-2004
The claimant’s father had made a will leaving everything to her, but he had then remarried. He instructed his solicitors to prepare a will to revive the gift to her. They sent him a draft but did not chase it when it was not approved. It was agreed . .
CitedCustoms and Excise v Barclays Bank Plc CA 22-Nov-2004
The claimant had obtained judgment against customers of the defendant, and then freezing orders for the accounts. The defendants inadvertently or negligently allowed sums to be transferred from the accounts. The claimants sought repayment by the . .
CitedCorbett (As Administrator of the Estate of Miss N A Tresawna (Deceased)) v Bond Pearce (a Firm) CA 11-Apr-2001
The testatrix had executed her will, but the will was dependent upon deeds of gift first taking place. The will was only later dated, once the deeds had been put into effect. . .
CitedJD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
CitedWest Bromwich Albion Football Club Ltd v El-Safty QBD 14-Dec-2005
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created . .
CitedWoodward v Wolferstans (A Firm) ChD 20-Mar-1997
The plaintiff purchased a house. Her mortgage was to be guaranteed by her father. The defendant solicitors acted for her and her father, but the father had almost exclusive contact with the firm, and was in practice their princpal client. She said . .
DistinguishedWalker 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 . .
CitedFarraj and Another v King’s Healthcare NHS Trust and Another QBD 26-May-2006
The claimants sought damages after the birth of their child with a severe hereditary disease which they said the defendant hospital had failed to diagnose after testing for that disease. The hospital sought a contribution from the company CSL who . .
CitedHM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
CitedCredit Lyonnais Sa (A Body Corporate) v Russell Jones and Walker (A Firm) ChD 2-Jul-2002
The claimant sought damages for professional negligence against the defendant solicitors. A corporate lawyer had been assigned to deal with a property matter, and he had failed to appreciate the need to comply strictly with time conditions in a . .
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 . .
CitedConnolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
CitedWoodland v Essex County Council SC 23-Oct-2013
The claimant had been seriously injured in an accident during a swimming lesson. She sought to claim against the local authority, and now appealed against a finding that it was not responsible, having contracted out the provision of swimming . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 09 November 2021; Ref: scu.90455

CIA Barca de Panama SA v George Wimpey and Co Ltd: CA 1980

Claim to Legal Professional Privilege Lost

Barca and Wimpey had been 50/50 joint venturers through the medium of a company called DLW which had provided services to oil companies in the Middle East, including the Aramco Group. Wimpey agreed to buy out Barca’s interest in DLW on terms which included detailed provision for the further conduct of claims against Aramco, including the provision as between Barca and Wimpey of mutual assistance, information, documents and evidence. Acting on DLW’s behalf, Wimpey settled a claim in litigation between DLW and Aramco, and Barca challenged the reasonableness of Wimpey’s settlement. In litigation between Barka and Wimpey, Wimpey claimed legal professional privilege as an answer to the production of documents about the negotiation of the settlement with Aramco.
Held: The claim for privilege was rejected. The terms of the buy-out and cooperation agreement between Barka and Wimpey created such a common interest between those parties in relation to the conduct of the DLW v Aramco proceedings that there could be no confidence or privilege between Wimpey and Barka in relation to the settlement negotiations.
Bridge LJ discussed the position of a solicitor and claims to legal privilege where he had multiple clients: ‘As regards the claim for legal professional privilege, it seems to me that the general principle underlying several authorities to which our attention has been called by Mr Lincoln, can be accurately stated in quite broad terms, and I would put it in this way. If A and B have a common interest in litigation against C and if at that point there is no dispute between A and B then if subsequently A and B fall out and litigate between themselves and the litigation against C is relevant to the disputes between A and B then in the litigation between A and B neither A nor B can claim legal professional privilege for documents which came into existence in relation to the earlier litigation against C.’
Stephenson LJ said: ‘So here, it seems to me, however you define the relationship which their joint interest creates, it is enough to entitle the plaintiffs . . whether as beneficiaries, cestui que trust, or as partners in a joint venture or as principals, to the same inspection of documents relating to the Aramco claims as the defendants themselves had.’

Bridge LJ
[1980] 1 Lloyds Rep 598
England and Wales
Cited by:
CitedPortsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
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 . .
CitedHellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
CitedFord, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
CitedSingla v Stockler and Another ChD 10-May-2012
The claimant appealed against the striking out of his action for an injunction against the defendant solicitors to restrain them for action for a person, saying that whilst there had been no formal retainer, they had informally advised him. The . .
CitedJames-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract, Legal Professions

Leading Case

Updated: 09 November 2021; Ref: scu.186486

Barclay’s Bank Plc v Varenka Goff: CA 3 May 2001

The respondent executed an all monies charge over her property to secure the liability of companies in which she had no direct interest. The bank insisted that she employ solicitors to give her independent advice. The bank sought to enforce its security, and she claimed it was signed under undue influence, of which the bank was fixed with constructive notice. The bank appealed successfully against the order setting aside the charge. Although the bank were fixed with constructive notice of the undue influence, the employment of the independent solicitor was sufficient to discharge that constructive notice. That was only disapplied where no competent solicitor could have advised the wife to enter into the transaction, and that did not apply in this case.

Lord Justice Pill, Lord Justice Mantell, and Lord Justice Buxton
Gazette 17-May-2001, [2001] EWCA Civ 635, [2001] Lloyds Rep Bank 189, [2001] NPC 88, [2001] 2 All ER (Comm) 847
Bailii
England and Wales
Citing:
Disapproved in part (at 705)Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .
CitedMidland Bank Plc v Kidwai and Another CA 5-Jun-1995
A bank was not under a full duty to advise a wife of a business client of the risks of signing a charge. The bank was not giving independent advice. . .
CitedPortman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking, Legal Professions

Updated: 09 November 2021; Ref: scu.147528