Order in council for the establishment of certain rules to be observed by proctors solicitors, agents, and other persons admitted to practise before her majesty’s most honourable privy council
[1870] EngR 4, (1870) 6 Moo PC NS 21, (1870) 16 ER 827
England and Wales
Updated: 07 May 2022; Ref: scu.280514
Rougier J said: ‘It must, surely, be up to the solicitor to take the appropriate steps to clarify precisely the extent of his retainer, and this, sadly, Mr Lightfoot failed to do when, in my judgment, the circumstances demanded that he should. This view is, if not analogous, at least consonant, so it seems to me, with that line of cases such as Crossley v Crowther (1851) 9 Hare 384, and Re Payne (1912) 28 T.L.R. 201, to the effect that, where there is a dispute between solicitor and client as to the terms of any retainer, prima facie it is the client’s version which should prevail. It seems to me that the underlying basis for this principle must be that it is the client who actually knows what he wants the solicitor to do, and so it is the solicitor’s business to ascertain the client’s wishes accurately, bearing in mind the possibility that the client, through ignorance of the correct terminology, may not have correctly expressed it’.
Rougier J
[1999] PNLR 882
England and Wales
Cited – Sibley and Co v Reachbyte Ltd and Another ChD 4-Nov-2008
Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.278316
The Court having held that the plaintiff had not been competent to bring the action, regarded itself as having jurisdiction to make an award of costs against the plaintiff’s solicitors.
[1965] Ch 596
England and Wales
Appeal from – Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.276213
The claimant sought a declaration that the District probate Registrars were judicial officers.
Held: They were not.
Ouseley J
[2006] EWHC 465 (Admin)
England and Wales
Cited – Ghafoor and others v Cliff and others ChD 11-Apr-2006
The applicant had obtained revocation of a grant of administration ad colligenda bona in the estate, and having succeeded, now sought costs. The question was whether there had been proper reasons for the application for the grant. The deceased’s . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.239251
[2005] EWHC 502 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.224053
The new Civil Procedure Rules were ultra vires and invalid insofar as they purported to remove any right of a solicitor’s client to assert his right of confidence as against his solicitor. The solicitor was therefore unable in this case to defend himself against a wasted costs order, but the court could allow for the refusal of the client to waive his privilege.
Toulson J said: ‘Article 6 gives every person a right to a fair trial, but I do not accept that it follows as a general proposition that this gives a right to interfere with another person’s right to legal confidentiality. If that were generally so, the right to legal confidentiality recognised by the court would be useless, since its very purpose is to enable a person to communicate with his lawyer secure in the knowledge that such communications cannot be used without his consent to further another person’s cause. In the absence of a general right under Article 6 to make use of another person’s confidential communications with his lawyer, I do not see how solicitors have a particular right to do so under that Article for the purpose of defending a wasted costs application.’
Toulson J
Times 12-Aug-1999, Gazette 11-Aug-1999, [1999] EWHC 832 (Comm), [1999] Lloyds Rep PN 919, [1999] 2 Costs LR 10, [2000] 1 WLR 272, [1999] 3 All ER 673, [2000] UKHRR 273, [1999] PNLR 852, [2000] HRLR 54, [1999] CPLR 425
Civil Procedure Act 1997, Civil Procedure Rules 1998 No 1312
England and Wales
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.80789
A solicitor was correctly required by the court to produce his client attendance notes from the conduct of the defence for a client previously acquitted of murder for use in a trial of a later Defendant.
Times 31-Oct-1994
England and Wales
Appeal froom – Regina 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, . .
Cited – Kuwait 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: . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.86534
Sullivan J
[2004] EWHC 338 (Admin)
England and Wales
Updated: 07 May 2022; Ref: scu.467204
The claimant solicitor sought a judicial review of a requirement made by the revenue that he must produce the papers of his client taxpayer under the section.
Held: The effect of the section was to require a notice to be given by a commissioner and not by an inspector, and altered the applicable provisions according to who served the notice. The section left unsaid the extent to which the commissioners could delegate their functions, and any decision remained subject to the possibility of a judicial review. A public authority has a duty to provide full and fair disclosure and explanations.
Munby J
Times 12-Feb-2007
England and Wales
Applied – Regina 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.248919
(High Court of Australia) Purchasers of land were put on notice that unless they paid the price by 10th August the contract of sale would be rescinded. On 9th August the purchasers’ solicitor telephoned the vendor’s solicitors and spoke to the secretary of the partner in the firm who was handling the matter asking for a week’s extension of time. The secretary said, ‘I think that’ll be alright, but I’ll have to get instructions’. The question was whether that conversation could give rise to an estoppel.
Held: (Mason J. and Dean J) ‘Plainly that statement could not be treated as an agreement or representation that the vendors would extend the time for settlement until 17th August 1979. Nor can that statement properly be seen as containing any representation that, pending communication of instructions, the purchasers could, with impunity, disregard the time allowed for settlement by the notice of rescission. To the contrary, Miss Williams’ statement that she thought it would be alright but would have to get instructions intimated that she was not in a position to agree to what was, on a fair interpretation of Mr Gardiner’s account of the conversation, being put to her as a fait accompli.’ (Gibbs CJ and Murphy J) ‘But when Miss Williams said she thought it would be alright, and that she would have to get instructions, she must have meant, and the purchasers’ solicitors were entitled to believe, that the position was being left in abeyance until the instructions were received.’
Mason and Deane JJ defined a penalty: ‘A penalty, as its name suggests, is in the nature of a punishment for non-observance of a contractual stipulation; it consists of the imposition of an additional or different liability upon breach of the contractual stipulation’
Mason J and Dean J, Gibbs CJ and Murphy J
[1982-1983] 152 CLR 406
Australia
Cited – In re Dagenham (Thames) Dock Co; Ex parte Hulse CA 1873
The Court of Appeal in chancery heard an appeal from the Master of the Rolls from his refusal of the Master of the Rolls to make a declaration in the winding up of the purchaser company. The purchaser had sought a direction that if the balance of . .
Cited – Northstar Land Limited v Maitland Brooks Jacqueline Brooks CA 14-Jun-2006
The parties’ solicitors were to complete the sale and purchase of land. The purchaser asked for an extension of time beyond the appointed hour to complete. The vendor’s solicitor responded that he would take his client’s instructions. The purchaser . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.242527
The court considered whether a court could order an assessment of a solicitor’s bill of costs more than 12 months after it had been paid. It was argued that the Court has no power to order taxation under section 70(4) outside the statutory period of 12 months after the bill has been paid, and the wording of the sub-section is such as to exclude any inherent jurisdiction to order taxation which the Court might otherwise have had.
Held: Lord Lowry: ‘The question for decision is whether section 70(4) of the Solicitors Act 1974 precludes an application for taxation of a solicitor’s bill of costs by the party chargeable after the expiration of 12 months from the payment of the bill or whether, not withstanding the wording of that sub-section, the Court has an inherent jurisdiction to order taxation’ The ordinary jurisdiction does co-exist with the statutory scheme. When considering the argument that ‘a client who had been grossly over-charged would have no remedy once he had been careless or unfortunate enough to fall foul of the 12-month time limit’, Lord Lowry went on: ‘But it has to be said that in some cases the solicitor will have deducted his costs from money received on the client’s behalf, in which case the client could sue under the ordinary jurisdiction described in In re Park ‘ and ‘I turn now to the appellant’s arguments based on Section 50(2) which preserves the jurisdiction over solicitors that the court possessed before Supreme Court of Judicature Act 1873. In the first place, that jurisdiction must be considered as affected by, for example, Section 41 of the Act of 1843 and secondly it is ‘subject to the provisions of this Act’ including Section 70(4). The thrust of Mr Tugendhat’s argument was that it would be absurd to have disciplinary jurisdiction over a solicitor who had overcharged a client without also having power to refer the offending bill for taxation. I think, with respect, that this argument confuses two different powers: one is the power under Section 70 to refer a bill for taxation on the application of the party chargeable; the other is the power to refer a bill to the taxing master for ‘assessment’ or ‘moderation’ in aid of disciplinary proceedings when a prima facie case of overcharging has been made out by the party aggrieved.’ Judgment of Court of Appeal upheld.
Lord Lowry
[1990] 2 AC 523
England and Wales
Appeal from – Harrison v Tew CA 1989
The client sought only taxation of his solicitor’s bill of costs, but more than twelve months after the bill had been paid, if not under the statutory provisions, then under the ‘inherent jurisdiction’ of the Court.
Held: Any inherent . .
Cited – Barclays Plc v Villers ComC 25-Jan-2000
Re-insurers refused to pay the costs re-imbursed by the insurers to the claimant of conducting the defence of a court action, saying that they were excessive. They sought a detailed assessment of the bill. The defendants argued that this matter . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.216338
‘The purpose of a condition on a practising certificate is not punitive, but is intended to ensure that a solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life at least until he has demonstrated over a period that he is not in need of any such supervision to protect the public’
Sir Thomas Bingham MR
Unreported, 23 July 1993
England and Wales
Cited – Camacho, Regina (on the Application of) v The Law Society Admn 12-Jul-2004
The Solicitors Disciplinary Tribunal had suspended the applicant, with recommendations as to conditions to be imposed by the Law Society if the suspension was later lifted. The solicitor appealed.
Held: The Tribunal itself had power to impose . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.216344
During the course of the trial, the prosecutor had inadvertently disclosed to the defence legal team material which had been subject to a public interest immunity certificate. The judge made an order under the 1987 Act that the defence team must not disclose the materials to their clients, nor use it for their defence.
Held: The jury having been discharged on the discovery, what then happened was a preparatory hearing, and there did exist a right of appeal. The judge had correctly seen the order as ancillary to the original PII certificate order. He had considered that the material would not impede the conduct of the defence. However, such an order would lead to several substantial practical difficulties and dangers for the defence lawyers. An asymmetric Chinese Wall between some defendants and their counsel and others would create an unfairness. This was reflected already in the documents submitted on the appeal. The judge could not conclude that the legal team could not properly continue to act. That was a decision for them, not him. If such orders were possible the special counsel procedures approved in R v H would not be required. Appeal allowed.
Rose LJ identified the inevitable damage to the relationship between the lawyer of revealing information to the lawyer on condition that it not be passed to the client: ‘. . . in addition to preventing frankness and fettering the free flow of information between lawyer and client, the order would be likely to nurture in the client a belief that his lawyers are putting other interests . . . above his own; and the client’s perception of the relationship is a matter of importance . . .’
Rose LJ, Cresswell , Andrew Smith JJ
[2004] 1 WLR 2932, Times 08-Jun-2004
Criminal Justice Act 1987 9(11)
England and Wales
Cited – Regina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.199548
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: ‘In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings.’
Templeman J
(1977) NLJ 487, (1997) SJ 121 224
England and Wales
Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
Approved – Buckenham v Dickinson ChD 1992
The testator was very old, partially blind and deaf. A next door neighbour who had great advantage of long experience in old peoples’ homes, indicated that the testator was of such poor sight and hearing that he was virtually cut off from everything . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – Robin Sharp and Malcolm Bryson v Grace Collin Adam and Emma Adam and others CA 28-Apr-2006
The testator suffered secondary progressive multiple sclerosis. It was said that he did not have testamentary capacity. He had lost the power of speech but communicated by a speech board. The solicitor had followed appropriate standards in attesting . .
Cited – Key and Another v Key and Others ChD 5-Mar-2010
The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
Cited – Scammell and Another v Farmer ChD 22-May-2008
A challenge was made to will for the alleged lack of capacity of the testatrix who was said to have Alzheimers. The executrix was said to have destroyed hidden evidence.
Held: The 2005 Act had restated the law on capacity in Banks, but had . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.196960
Solicitors conducted a whole series of interlocutory applications in the course of an action in ignorance of the fact that their client had been certified as being of unsound mind.
Held: When the action was ultimately aborted, they were held personally liable for the opposing parties’ costs of the action on the basis of their breach of an implied warranty of authority.
[1910] 1 KB 215
England and Wales
Cited – Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
Cited – Blankley 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.
Updated: 06 May 2022; Ref: scu.188877
The proceedings of the Solicitors Disciplinary Tribunal attract absolute privilege even though they sat in private.
Hodson LJ, Pearce LJ, Upjohn LJ
[1961] 1 QB 11
England and Wales
Cited – Gray v Avadis QBD 30-Jul-2003
The claimant had made complaints against the defendant solicitor to the Office for the Supervision of Solicitors. In answer the defendant made assertions about the claimant’s mental health, and she now sought to bring action iin defamation on those . .
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Cited – Karim v Newsquest Media Group Ltd QBD 27-Oct-2009
The defendant sought a strike out of the claim in defamation, saying that postings made on its web-sites were fair and accurate reports of court proceedings published contemporaneously. The claimant solicitor had been the subject of disciplinary . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.185757
‘The privilege with regard to confidential communications between solicitor and client for professional purposes ought to be preserved, and not frittered away. The reason of the privilege is that there may be that free and confident communication between solicitor and client which lies at the foundation of the use and service of the solicitor to the client; but, if at any time or under any circumstances such communications are subject to discovery, it is obvious that this freedom of communication will be impaired. The liability of such communications to discovery in a subsequent action would have this effect as well as their liability to discovery in the original action.’
Sir Baliol Brett MR
(1885) 15 QBD 114
England and Wales
Cited – B 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.182245
[2019] EWCA Civ 335
England and Wales
Updated: 06 May 2022; Ref: scu.634140
(Ireland) Cave J was asked whether a witness in bankruptcy proceedings (a solicitor’s clerk) should be ordered to disclose the address of the debtor client, which had been communicated in confidence to the solicitor for the purpose of obtaining legal advice in relation to the bankruptcy proceedings. Cave J held that the witness was entitled to refuse to answer the question. He considered that the case was covered by Ex parte Campbell, which was binding on him and which ‘decides that this address was a matter of professional confidence’.
Cave J reject a submission that the bankrupt and his solicitor were engaged in doing something wrong, and concluded: ‘Here proceedings had been taken against the debtor in bankruptcy, and he might wish to be advised as to them, and, in as much as there is a perfectly legitimate subject-matter for professional advice, we are not to assume, when such exists, that the solicitor was engaged in doing something wrong. I think it is of the highest importance that a man should be able to consult his solicitor without fear, and therefore I refuse this application.’
Cave J
(1888) 60 LTNS 109, [1899] IR 201
Updated: 06 May 2022; Ref: scu.471500
Ormrod J rejected a submission that where foreign lawyers are involved no privilege is recognised by an English Court if privilege is not recognised by the municipal law of the forum of the foreign lawyer. He said: ‘The basis of the privilege is just as apt to cover foreign legal advisers as English lawyers, provided only that the relationship of lawyer and client subsists between them. Any other conclusion would lead to an impossible position for if this court were required to investigate the position of such communications in foreign law it must first determine the foreign law, but what law governs the relationship of English client and foreign lawyer, at any rate, when no proceedings are in contemplation? There is no forum and therefore no lex fori. The nationality of the foreign lawyer is as irrelevant as his address for this purpose.
It only remains to consider the position where proceedings are already on foot in a foreign court. If disclosure is required by the law of such a court the other side will see the documents in dispute and so gain an advantage. Is that a reason for making an exception to our lex fori? In my judgment it is not. These matters are matters to be decided according to the practice of this court. I, therefore, hold that all the documents which are communications passing between the plaintiff and his foreign legal advisers are privileged, whether or not proceedings in this or any other court were contemplated when they came into existence.’
Ormrod J
[1968] P 306, [1968] 2 WLR 1479
Cited – Lawrence v Campbell 1859
Legal privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London.
Held: ‘the same principle that would justify an Englishman consulting his English solicitor would . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.470880
Communications between a client and his foreign lawyers were treated as being entitled as a matter of course to the same legal advice privilege as communications with English lawyers in like circumstances.
Sir John Wickens V-C
(1872) LR 14 Eq 580
Approved – Lawrence v Campbell 1859
Legal privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London.
Held: ‘the same principle that would justify an Englishman consulting his English solicitor would . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.470879
(1744) Mor 16754
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.470883
An action had been brought against a colonial judge, alleging malice.
Held: Lord Esher MR said: ‘the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.’ and ‘The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice . . The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions.’
Lord Esher MR
[1895] 1 QB 668
Cited – In re McC (A Minor); McC v Mullan HL 1984
The House considered the immunity from suit of judges. The Magistrate here had passed a custodial sentence on a minor without complying with a statutory provision which required him to inform the offender of the right to Legal Aid.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.463696
(New South Wales) The defendant, Mr Webb claimed joint interest privilege in advice given pursuant to a retainer with C H Webb (the company). His argument had three bases. First, that the advice was given not only to the company as client, but also to him as client even though the company paid the lawyers’ fees. Secondly, that he was entitled to claim privilege because he ‘believed on reasonable grounds that, in giving the advices, the lawyers were acting for both’ him and the company. Thirdly, he claimed common interest privilege.
Held: Joint interest privilege was established on the evidence before him. He concluded (a) that Mr Webb believed that the communications were to him as client; (b) that on reasonable grounds he believed that the lawyers were his lawyers when giving advice; and (c) that the true substance of the arrangement was that advice was being given to the company and to the directors in their personal capacities.
Simos J
(1995) ACSR 418
Cited – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.460500
Lord Denning MR discussed the immunity of judges from suit: ‘Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear . . These words apply not only to the judges of the superior courts, but to judges of all ranks, high or low.’ However the doctrine of judicial immunity does not apply: ‘if it be shown that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it.’
Lord Denning MR
[1975] QB 118, [1974] 3 All ER 776
England and Wales
Updated: 06 May 2022; Ref: scu.452169
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant entitled to injunction restraining the use of the same documents which were already in the plaintiff’s possession on the ground of an equitable obligation of confidence and public interest immunity – Where confidential information in one document had already been disclosed to a third party – Whether the defendant suffered detriment – Whether misapplication of iniquity rule – Whether the documents were the subject of public interest immunity – Discussion of the principles regarding equitable doctrine of restraining use or publication of confidential information.
Held: It is the circumstances by which the person in possession of the confidential information has acquired that possession rather than the circumstances in which the information was imparted to the initial recipient that is the relevant consideration in considering whether there was a breach of confidence – No conditions of confidentiality attached to disclosure of 10 of the documents – Recipient unaware a mistake had been made if the confidential information had been disclosed unintentionally – No obligation of confidence arose – Unnecessary to consider issues of detriment or application of the iniquity rule – No error by trial judge in failing to find documents subject to public interest immunity – Even if confidentiality had not been lost, trial judge correct to find waiver of privilege – Both appeals allowed for the limited purpose of having the claim of confidentiality with respect to one document remitted to the trial judge for further consideration – Otherwise each appeal dismissed.
The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White
(2006) 94 SASR 64, [2006] SASC 42
Cited – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.445850
(Practice Note) The solicitor appealed an order which made the success fee payable different at different stages of the court action.
Held: The court had no power to make such an order. To the extent that the CPR might suggest otherwise they were wrong.
‘a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.’
Brooke VP CA, Rix, Dyson LJJ
[2005] 1 WLR 2657, Times 16-May-2005, [2005] EWCA Civ 475, [2005] 4 Costs LR 600
Civil Procedure Rules 44.8(2), Courts and Legal Services Act 1990 58, Conditional Fee Agreements Regulations 2000 (2000 No 602)
England and Wales
Cited – Coventry 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 . .
Cited – N v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
Cited – In re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.224477
When an action is brought in the King’s Bench against an officer of the Common Pleas, what shall be a good plea of privilege to such action.
This was an action of debt against the warden of the Fieet for an escape, The defendant pleads that he is an officer of the Common Pleas, ratione cujus attendentia sua indies requiritur in that Court. To which the plaintiff demurs. Exception was taken to the plea, for that he does not say he does every day attend. But the Court took a difference between such officers, as in the case at Bar, whose attendance the Court have a right to virtute officii, and such officers, who attend only casually, as attornies and clerks to the prothonotaries for the first may plead such a plea as the present one, but the other must say, they do every day attend ; accordingly the Court gave judgment for the defendant.
[1726] EngR 863, (1726) 1 Barn KB 1, (1726) 94 ER 1 (A)
Updated: 05 May 2022; Ref: scu.379443
Legal advice given by employed lawyers to their employers, rather than lawyers in independent practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a corporation with an in-house legal adviser were internal to the corporation, nevertheless the adviser was performing the same function as the lawyer in independent practice.
Lord Denning MR
[1972] 2 QB 102
England and Wales
Cited – Prudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Appeal from – Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners HL 1974
An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.376222
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and the deed of dissolution stipulated that he should not act as solicitor for that party.
[1815] EngR 448, (1815) G Coop 80, (1815) 35 ER 484
See Also – Earl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See Also – The Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See Also – Earl Cholmondeley v Lord Clinton 3-Feb-1815
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them. . .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton 18-Dec-1816
. .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .
See Also – The Marquis of Cholmondeley v Lord Clinton 1819
Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that . .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc 8-Aug-1820
. .
See Also – Marquis of Cholmondeley v Lord Clinton HL 15-Jun-1821
Equity follows the law . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.336258
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them.
[1815] EngR 511, (1815) 19 Ves Jun 261, (1815) 34 ER 515
See Also – Earl Cholmondeley v Lord Clinton 1789
A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
See Also – The Earl of Cholmondeley v Lord Clinton 17-Jul-1813
. .
See Also – Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others 16-Jan-1815
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton 18-Dec-1816
. .
See Also – Marquis Cholmondeley And The Hon Ann Seymour Damer v Lord Clinton, Sir Lawrence Palk, And Others 24-Dec-1816
. .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton, Francis Drake, Ambrose St John, John Inglett Fortescue, Sir Lawrence Palk (Deceased), William Seymour, And Others 28-Jun-1817
. .
See Also – The Marquis of Cholmondeley v Lord Clinton 1819
Where A, in a conveyance to uses, settled an estate for life on himself, remainder in tail to his issue, with an ultimate limitation to the heirs of SR in fee; and at the time of the settlement A was himself the right heir of SR.
Held: that . .
See Also – Marquis Cholmondeley And The Honourable Ann Seymour Damer v Lord Clinton etc 8-Aug-1820
. .
See Also – Marquis of Cholmondeley v Lord Clinton HL 15-Jun-1821
Equity follows the law . .
Cited – Prince Albert v Strange ChD 8-Feb-1849
The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.336321
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the real and voluntary act of the testator. Under the circumstances sufficient evidence being given of the capacity of the deceased and of his knowledge of the contents of the instrument, the Court pronounced for the will and condemned the son in costs from the time of giving in his allegatian.
[1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215
See Also – Barry v Butlin 22-Jun-1836
The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been . .
Appeal from – Barry v Butlin PC 8-Dec-1838
The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.314101
Thie Court will not, in a summary way compel an attorney of the Court to pay over money to a party entitled to it, though the attorney has received it from a client to be paid to such party, if the application is not made on behalf of the client.
[1835] EngR 741, (1835) 3 Ad and E 404, (1835) 111 ER 467 (A)
Updated: 05 May 2022; Ref: scu.316249
On a bill which sought to charge a solicitor with a fraud practised on the Plaintiffs in the course of proceedings on his client’s behalf, the Court refused to order the production of entries and memorandums contained in the Defendant’s books, or of written communications, made or received by him, relating to those proceedings, and admitted by the answer to he in the Defendant’s custody.
And, generally, it seems that a solicitor cannot be compelled, at the instance of a third party, to clisclose matters which have come to his knowledge in the conduct of professional business for a client, even though such business had no reference to legal proceedings, either existing or in contemplation.
Lord Brougham LC said: ‘The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.’
Lord Brougham LC
[1833] EngR 333, (1833) 1 My and K 98, (1833) 39 ER 618
Cited – Regina 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, . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.318327
(1977) 67 Cr App R 181
England and Wales
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.319875
The court’s inherent supervisory jurisdiction over legal professions are not proceedings founded on any cause of action, and so are not subject to the Limitation Act.
Warner J
(1989) 139 NLJ 753
England and Wales
Cited – Nolan v Wright ChD 26-Feb-2009
The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.304585
Where the clerk of plaintiff’s attorney went to defendant’s attorney for the object of effecting a compromise, and what he said was said with the wish of effecting it.
Held: All that passed was privileged, as being a negotiation to bring about a compromise.
[1846] EngR 99 (B), (1846) 2 Car and K 24
Updated: 05 May 2022; Ref: scu.301995
A and B and the son of B entered into partnership as solicitors, and by articles agreed that the partners were diligently and faithfully to employ themselves in carrying on and managing all the professional business in which they or either of them might be employed or concerned; that B should use his best endeavours to obtain the appointment of the partnership firm to three offices or clerkships, which were then held by B, and such offices should be partnership appointments; that all other compatible offices should be obtained, if possible, in the name of the firm, and the emoluments treated as part of the profits of the partnership; that, if B or his son should retire, or A or B or his son should die, the share of the deceased partner should accrue to the surviving partners : that if B or his son retired they were to use their best endeavours to secure the practice to the continuing partners, and such retiring partner shouId not practise within 30 miles ; that, if either partner should not diligently and faithfully employ himself in carrying on the said partnership practice, and should, on receiving monies, bills, notes, andc., knowingly or wilfully omit immediately to make entries thereof, or if A. or the son of B should absent himself more than two months in one year, the others or other of the partners, if they or he should think fit, should be at liberty to dissolve the partnership, by giving to the offending partner a notice to that effect, and the partnership should from that time, or the time specified in the notice, be dissolved in the same manner and with the same consequences as if it had determined by the voluntary retirement of the offending partner. B. and his son subsequently prooured their own appointment, or the appointment of one of them, to the offices or clerkships, and did not endeavour to procure the appointment of A. It was afterwards discovered that B. was greatly involved in debt, and he absconded in January 1849, and did not return to the business, In May 1849 A, served a notice, in the manner pointed out by the articles, on B. and his son to dissolve the partnership from that date ; and he then filed his bill against B. and his son to have the dissolution declared by the Court, an injunction to restrain them from practising within 30 miles, and a decree that they should resign the several offices or clerkships. Held, that the Plaintiff was entitled to dissolve the partnership as to B., but not as against the other partner (the son of B.), and that he was not entitled to dissolve it by notice under the 16th clause without the concurrence of his co-partner (the son).
That B., not having procured or endeavoured to procure for the partnership firm the appointments to the several offices or clerkships, so as to give the Plaintiff at the dissolution either a share of the profits of the offices or the chance of competing for them, but such appointments having been procured for B. and his son to the exclusion of the Plaintiff, B. and his son were not to be allowed to retain the offices for their exclusive benefit.
That,inasmuch as, from the nature of the offices, they could not be sold, nor could any manager or receiver be appointed to carry them on, the Defendants ought to be charged with the value of the offices in the partnership accounts.
That, the Plaintiff having given a notice of dissolution (acting under the 16th clause), and his co-partner having adopted it, the partnership should be treated as dissolved from the time of the notice, although not with the consequences attaching to a dissolution under the 15th clause.
That, the consequences of a dissolution uncler the 15th clause not having attached, the Plaintiff, therefore, was not entitled to the injunction to restrain the Defendants from practising within 30 miles.
An agreement that, if any of several partners should not diligently and faithfully employ himself in carrying on the partnership practice, the others might give notice of dissolution, construed to refer to the diligent and faithful discharge by each partner of the portion of business carried on by him.
[1852] EngR 271, (1851-1852) 9 Hare 556, (1852) 68 ER 633
Cited – Faulks v Faulks ChD 1992
One brother, as tenant farmed land under a partnership with his brother. On the death of either partner, an account was to be taken and a valuation. On the death of the tenant, there was a dispute as to whether the value of the farm’s milk quotahad . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.295394
A claim was made for the price of goods sold and delivered. The defendant’s solicitor gave an oral undertaking to his counterpart to procure the execution by directors of his client company of charges over their homes in return for an adjournment sine die. The charges were not executed, and the defendant company went into liquidation, and the plaintiff sought to enforce the undertaking.
Held: It was wrong for the judge at first instance not to take into account the fact that it was impossible for the solicitor to perform the undertaking or to consider the possibility of making a compensatory order against him. The case was remitted for further consideration. The jurisdiction to enforce solicitors’ undertakings is essentially compensatory and not punitive, though it does have a disciplinary function as well.
Lord Justice Balcombe set out the principles upon which the courts will order a solicitor to pay compensation for breach of an undertaking. The court’s jurisdiction to order compensation to be paid by solicitors found guilty of misconduct ought not to be exercised unless ‘the conduct of the solicitor is inexcusable and such as to merit reproof.’ Four principles were found: i) the Court acts where there has been professional misconduct ‘ although the jurisdiction is compensatory and not punitive, it retains a disciplinary slant ‘ acting ‘ to enforce honourable conduct on the part of the Court’s own officers.’ (see In re Gray [1892] 2 QB 440)
ii) while the general rule is that the remedy is only available where the conduct of the solicitors is ‘ inexcusable and such as to merit reproof . . a mere mistake or error of judgment is not generally sufficient ‘; this is qualified by the rule that:
iii) failure to implement a solicitor’s undertaking (to which I would equate failure to observe the legal obligations imposed by receiving documents subject to another’s lien) is prima facie misconduct, even though there has been no dishonourable conduct or ‘personal obliquity’. But this in its turn is subject to the proviso that the solicitor ‘may be able to give an explanation for his failure to honour his undertaking which may enable the Court to say that there has been no misconduct in the particular case ‘.
iv) The remedy is discretionary.
Kerr LJ said: ‘Since the purpose of the procedure is disciplinary, being designed to ensure a high standard of conduct on the part of solicitors, an order for enforcement of the undertaking or for compensation for its non-performance will not necessarily follow as a matter of course. Before making such an order the court will have to be satisfied that by failing to perform the undertaking the solicitor has been guilty of professional misconduct or a serious dereliction of professional duty. If it is not satisfied about this then it seems to me that it must still be open to the court to decline to make any order and to hold that the matter must proceed by action, if at all, on the ground that the circumstances do not warrant an order of a disciplinary nature against an officer of the court.’
Balcombe LJ, Kerr LJ, Neill LJ
[1988] QB 907, [1987] 3 All ER 262, [1987] 3 WLR 465, [1987] ANZ Conv R 466
England and Wales
Cited – In 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 . .
Cited – In re a Solicitor 1966
The solicitor had given an undertaking to hold five leases to the order of a bank. They were not in his possession and one was subject to a prior mortgage. Complaint was made to oblige him to comply with his undertaking.
Held: In the absence . .
Applied – John Fox v Bannister, King v Rigbeys CA 1988
An undertaking had been given by the defendant solicitor to retain a sum of pounds 18,000 in his hands or to the credit of his client, a Mr Watts, until various matters had been sorted out. In breach of that undertaking, the solicitor subsequently . .
Cited – Angel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
Cited – Thames Valley Housing Association Ltd and Others v Elegant Homes (Guernsey) Ltd and Others ChD 27-Oct-2009
The claimant sought to enforce against the defendant’s solicitors an undertaking given by them. The claimant contracted to buy property subject to a charge in favour of the third defendant bank securing loans over other property. The bank gave no . .
Cited – The Mayor Commonalty and Citizens of London v Samede (St Paul’s Churchyard Camp Representative) and Others CA 22-Feb-2012
The defendants sought to appeal against an order for them to vacate land outside St Paul’s Cathedral in London which they occupied as a protest.
Held: The application for leave to appeal failed. The only possible ground for appeal was on the . .
Cited – L Morgan and Co v Jenkins O’Dowd and Barth ChD 19-Nov-2008
The defendant solicitor applied that enforcement of an order made that he should comply with his undertakings given in the course of a conveyancing transaction for the discharge of mortgages on the sale of properties, should be delayed until the . .
Cited – Coll 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.
Updated: 05 May 2022; Ref: scu.280047
The court considered whether it remained appropriate to enforce a solicitor’s undertaking. The solicitor had undertaken to retain moneys as a potential source of payment of a disputed liability, which had then been breached by the wrongful release of those moneys to a client who was later adjudged bankrupt.
Held: The undertaking was no longer capable of performance, and the only appropriate course was to direct an inquiry as to what loss (if any) had been suffered by the addressee of the undertaking as the result of its breach. The court was required to look at the matter through the spectacles of the time when the undertakings had been given and breached; and to ask itself: what would have happened, at that time, if the undertakings had been performed?
Nicholls LJ
[1988] QB 925, [1987] 1 All ER 737
England and Wales
Cited – Angel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.280049
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the application, and indicate at least the category of material held and the broad ground of the PII claim. There is an inter partes hearing in open court with reference to at least the category of the material in question. In the second class of cases, the prosecution contend that the public interest would be injured if disclosure were made even of the category of the material. Here, the prosecution must still notify the defence that an application to the court is to be made, but the category of the material need not be specified: the defence will still have an opportunity to address the court on the procedure to be adopted but the application will be made to the court in the absence of the defendant or anyone representing him. If the court considers that the application falls within the first class, it will order that procedure to be followed. Otherwise it will rule. The third class, are ‘highly exceptional’ cases where the public interest would be injured even by disclosure that an ex parte application is to be made. Here application would be without notice to the defence. But if the court considers that the case should be treated as falling within the second or the first class, it will so order. A court should not seek an undertaking from a legal representative not to disclose to his client material which had been inadvertently and wrongly disclosed to him.
Lord Taylor of Gosforth CJ: ‘Before Ward, the defence would have been totally unaware that, within the prosecution authority, the question of whether to disclose sensitive material or not was being resolved. The effect of Ward is to give the court the role of monitoring the views of the prosecution as to what material should or should not be disclosed and it is for the court to decide. Thus, the procedure described as unsatisfactory in Ward, of the prosecution being judge in their own cause, has been superseded by requiring the application to the court.’
Lord Taylor of Gosforth CJ
Gazette 10-Mar-1993, [1993] 1 WLR 613, [1993] 97 Cr App R 110
England and Wales
Cited – Regina v Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
Cited – Regina v Ward (Judith) CACD 15-Jul-1992
The defendant had been wrongly convicted of IRA bombings. She said that the prosecution had failed to disclose evidence.
Held: The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may . .
Cited – Regina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.
Cited – Regina v G and Another (PII: Counsel’s duty) CACD 27-May-2004
During the course of the trial, the prosecutor had inadvertently disclosed to the defence legal team material which had been subject to a public interest immunity certificate. The judge made an order under the 1987 Act that the defence team must not . .
Cited – Taylor 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 . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Regina v Mills, Regina v Poole HL 24-Jul-1997
The prosecution have a duty to disclose to the defence the statement of an adverse witness and not just to provide the name and address, even though that person was not seen as credible witness by the prosecution. ‘the rule in Bryant and Dickson is . .
Cited – Regina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
See Also – Regina v Davis, Rowe, Johnson CACD 17-Jul-2000
The court made a distinction between convictions found on appeal to be unfair, and those found to be unsafe. The prosecution had not disclosed to the defendants that the source of their information was a police informer. The European Court of Human . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.86516
The claimant was potentially interested in a fund as a beneficiary if her sister had exercised a power of appointment in her favour. She claimed that one firm of solicitors, who drafted a Will in 1986 for her sister, were negligent because that Will had the effect of exercising the power in favour of various charities, and that a second firm who drafted a Will in 1994, were similarly negligent in that the Will was in similar terms but with different charities nominated in not spotting and dealing with the point.
Held: For a solicitor who drafts a will to be liable to a disappointed beneficiary who might have taken an interest under the will, where he was unaware of the particular individual, he must be shown at least to have been aware both of the benefit intended to be created, and of the class of beneficiaries to which it would apply. Once a solicitor accepted instructions, it was his responsibility to show that his responsibility did not extend to the aspect of the will under which the claim arises. That burden was discharged in this case.
Blackburne J
Times 21-Apr-2000, Gazette 11-May-2000, [2000] PNLR 734
England and Wales
Cited – Humblestone 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.80808
Dr Z had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought in costs.
Peter Smith J had held that: ‘It seems to me that in the administration of justice, especially . . it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his evidence causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court . . The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice’
The Honourable Mr Justice Peter Smith
[2004] EWHC 2330 (Ch), [2005] 2 Costs LR 224, [2005] 2 All ER (Comm) 538, [2005] CP Rep 12, [2005] 4 All ER 519, [2005] 1 WLR 2043, (2005) 83 BMLR 115
England and Wales
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
See Also – Phillips and Another v Robin James Symes and Robin Symes Ltd ChD 9-Jul-2001
English proceedings were issued to claim against a partnership. Simultaneously proceedings were issued in Greece, but the Greek proceedings were served on the London parties first. The plaintiffs in Greece asked the English court to issue a stay of . .
See Also – Phillips, Harland (Administrators of the Estate of Michailidis), Papadimitriou; Symes (A Bankrupt), Robin Symes Limited (In Administrative Receivership), Domercq etc ChD 30-Jul-2004
Under the Ciivil Procedure Rules, experts have acquired greater responsibilities to the court. Those responsibilities transcend their perceived obligations to the parties whom they give evidence. . .
See Also – Phillips v Symes CA 2003
Courts should be reluctant to exclude altogether evidence merely because it is written. If the purpose of the order sought was to trace assets it would be wrong to permit cross-examination which was designed to show that there had been a contempt of . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Myers 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 . .
See Also – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq etc ChD 20-Oct-2004
. .
See Also – Symes v Phillips and others CA 6-May-2005
. .
See Also – Symes v Phillips and others CA 19-May-2005
The applicant was in contempt of court. He successfully appealed a sentence of two years imprisonment, with the sentence being reduced to one year. Legally aided, he sought his costs from the claimant. The claimant replied that their part was only . .
See Also – Phillips, Harland (Suing As Administrators of the Estate of Christo Michailidis) v Symes (A Bankrupt), Nussberger, Galerie Nefer Ag, Geoff Rowley ChD 19-Aug-2005
The court allowed the appellant’s application to dispense with service of a claim form under the rule. The High Court became seised of the matter as at 19 January 2005. Further directions were given. . .
See Also – Phillips and others v Symes and others ChD 12-Jul-2006
. .
See Also – Phillips and Another v Symes and Others (No 6) CA 19-May-2006
Proceedings were issued in England for service on the defendant in Switzerland, but because of an error by the Swiss Court were not properly served. Proceedings were then issued in Sitzerland, and seisin was claimed for the Swiss Court. The claimant . .
See Also – Phillips and others v Symes and others ChD 16-Oct-2006
. .
Cited – Phillips and Another v Symes and others HL 23-Jan-2008
Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .
Cited – Mengiste and Another v Endowment Fund for The Rehabilitation of Tigray and Others ChD 26-Mar-2013
The defendants were seeking an order for wasted costs against the solicitors for the claimants. The claimants had requested the judge to recuse himself from hearing that complaint. He now gave his reasons for refusing that request. . .
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.216631
The defendant’s solicitors appealed an order making them liable for costs in defending an action brought by the landlord.
Butler-Sloss LJ, Morritt LJ, Sedley LJ
[1999] EWCA Civ 3023, [1999] BLR 232, [2000] CPLR 233
Supreme Court Act 1981 51(1) 51(3) 51(6)
England and Wales
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.268836
The judge at trial had refused to set aside a subpoena to produce documents which had been served on behalf of the accused in a criminal trial.
Held: Caulfield J said: ‘I think the correct principle is this, and I think it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me, and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown.’
Caulfield J
[1973] 1 WLR 115, [1972] 2 All ER 1192
England and Wales
Overruled – Regina v Ataou CACD 1988
Legal professional privilege is an interest which falls to be balanced against competing public interests: ‘When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.580911
Counsel of the parties is not to be examined in the same cause.
[1568] Toth 48, [1568] 21 ER 120
Updated: 04 May 2022; Ref: scu.543693
The disciplinary jurisdiction of the High Court over solicitors includes the power to strike a solicitor off the Roll, to order him to deliver up money or documents received by him as a solicitor.
Bowen LJ said: ‘All that has been shewn has been a case in which the party ought to establish his right by an action at law, and not by appealing to the summary jurisdiction of the court.’
Bowen LJ
(1883) 12 QBD 149
Cited – Coll 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.
Updated: 04 May 2022; Ref: scu.526187
North J said that there should be a special retainer to defend a suit as well as to institute it. There is power for the court to make an order setting aside an appearance the entry of which has not been authorised.
the court, having a supervisory jurisdiction over solicitors may oder such to pay costs if proceedings are found to have been commenced without authorisation.
North J
(1891) 65 LT 743)
Cited – Coll 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 . .
See aslo – In 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.526188
(United States District Court, Eastern District of Washington) Neill CJ said: ‘All of these established exceptions to the rules of privilege have a common denominator; in each instance, the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party. The factors common to each exception may be summarized as follows: (I) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Thus, where these conditions exist, a court should find that the party asserting a privilege has impliedly waived it through his own affirmative conduct.’
Neil CJ
(1975) 68 FRD 574
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.521201
(Queensland) Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the existence of that state of mind, legal privilege may be lost.
Derrington J said: ‘The same basic principle is relevant to this issue, that is, whether the original privilege has been lost because the state of mind of Mr Johnston, which may or may not have been influenced by the privileged material, is in issue. In the resolution of that issue it is necessary to investigate all relevant matters in his mind at the time in order to determine whether he was so induced by the alleged representations at all. Cognate to this is the question whether other factors constituted the inducement. The recommendations of Mr Miller and the terms of all advice concerning the recommendations which Mr Johnson says provided the material upon which he made his decision is obviously highly relevant to the enquiry. It would be grossly unjust to the plaintiff to deny him access to it in order to investigate and test the claim.
Notwithstanding the high status of professional privilege and the careful protection which the law affords it, when the contents of a privileged communication become the subject of a legitimate and reasonable issue in the litigation, then the privilege is lost.’
Derrington J
[1996] 1 Qd R 224
Cited – Hayes v Dowding 1996
Disputes over the running of a private company had been compromised by the plaintiffs’ solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of . .
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.521203
Legal professional privilege might be taken to be waived if it would be unfair to allow a client to maintain it.
Unreported, 16 May 1997
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.521204
Disputes over the running of a private company had been compromised by the plaintiffs’ solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of privileged documents, particularly those passing between the plaintiffs and their solicitors.
Held: Jonathan Parker J discussed the judgments in NRG and in Lillicrap and said: ‘As I read the judgment of Dillon LJ, in accepting the judge’s formulation of the scope of the waiver Dillon LJ was accepting (a) that the fact which gives rise to the implication of waiver is the fact that the plaintiff has invited the court to adjudicate on the particular issue and (b) that implicit in that invitation is an acceptance on the part of the plaintiff that in making its adjudication the court must have access to all the evidential material which is required to enable it to do so fully and fairly . . In my judgment the decision in Lillicrap v. Nalder is authority for the proposition that it is not a necessary condition of an implied waiver of privilege by a plaintiff that the documents in question should be privileged as between the plaintiff and the defendant. As I read the decision in Lillicrap v. Nalder, the principles expressed by the Court of Appeal in that case are applicable to privileged communications between a plaintiff and a third party.’
As to Wardrope, he said: ‘Moreover, as I indicated earlier, Derrington J’s decision and his reasoning is, in my judgment, entirely consistent with and covered by the decision of the Court of Appeal in Lillicrap v. Nalder. The same consideration applies, in my judgment, to the decision in the American case of Hearn v. Rhay considered by Colman J in NRG v. Bacon and Woodrow. It appears from the reports of those cases – although I must make it clear that in relation to Hearn v. Rhay I have only seen the report of the NRG case – that the principles of implied waiver based upon the contents of the pleadings in the action are substantially the same in each of the three jurisdictions.’
Jonathan Parker J
[1996] PNLR 578
Cited – Lillicrap v Nalder CA 1993
A property developer sued his solicitor for negligent advice on the purchase of a property. The solicitor wished to rely on previous retainers, in which the developer had ignored advice, so as to challenge the developer’s assertions that, with . .
Cited – Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in . .
Cited – Wardrope v Dunne 1996
(Queensland) Where in his pleadings a party relies upon his state of mind and it would be unfair to permit that party to maintain privilege in respect of communications passing between them and their legal advisers which might bear upon the . .
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.521202
Austlii (Court of Appeal of New South Wales) COMPANY LAW – s556 (1) Companies (NSW) Code; s592 (1) Corporations Law; liability of directors for debt of company – legal professional privilege – distinction between joint and common interest privilege – waiver.
Meagher, Sheller JJA, Waddell AJA
[1996] 39 NSWLR 601, 14 ACLC 1
Cited – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.460499
Austlii (Supreme Court of New South Wales) CORPORATIONS – winding up – liquidator’s examination – circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation – EVIDENCE – liquidator’s examinations – whether evidence given at is governed by Evidence Act 1995 (NSW) – EVIDENCE – legal professional privilege – circumstances in which joint retainer of solicitor exists – EVIDENCE – procedure to adopt when deciding whether legal professional privilege does not exist – EVIDENCE – waiver of client legal privilege – disclosure of substance of advice – disclosure made knowingly and voluntarily – disclosure by agent or employee authorised to make it – disclosure made under compulsion of law
Campbell J
[2002] NSWSC 215, 168 FLR 116, (2002) 194 ALR 101, 20 ACLC 909
Cited – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.460502
Where a conflict of interest in a firm of solicitors acting is suggested, the proper approach ‘is to consider whether a reasonable man informed of the facts might reasonably anticipate such a danger.’ Where a Chinese Wall is proposed, ‘Save in a very special case such as Rakusen’s I doubt very much whether an impregnable wall can ever be created and I consider that it is only in very special cases that any attempt should be made to do so.’
Parker LJ
Times 20-Jun-1991, [1992] 1 QB 959
England and Wales
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.445695
The liquidator of two companies brought actions asserting fraud, including by a firm of solicitors as to a faudulent breach of trust. Two firms which had been previously involved on differing sides, merged. The defendants sought an order to prevent the new firm acting for the liquidators.
Held: Each such case must be examined on its own facts. No general rule existed. Where serious dishonesty was alleged however, that was enough to warrant extra care.
Browne-Wilkinson J said: ‘When one has sensitive information in a firm or in any other group of people, there is the element of seepage of that information through casual chatter and discussion, the letting slip of some information which is not thought to be relevant but may make the link in the chain of causation or reasoning. It therefore is important, I think, to see what is the position on the facts of this case.’ On the facts, in this case: ‘I am not satisfied that the amalgamated firm has demonstrated that the Chinese walls that they are proposing to erect will be soundproof.
Experience in this court demonstrates that the maintenance of security on either sides of Chinese walls in the context of the city does not always prove to be very easy. I think it is a very difficult task. No concrete steps have so far been taken to ensure that staff, as opposed to the partners, were aware and are aware of the delicacy of the position.’
Browne-Wilkinson J
[1991] Ch 259, [1990] 3 WLR 1278
England and Wales
Applied – Rakusen v Elliss, Munday and Clark 1912
A firm of solicitors had two partners, who did business separately without having any knowledge of the affairs of each other’s clients. The plaintiff consulted one partner in an action for wrongful dismissal a company. He changed his solicitors and . .
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.445696
A third arbitrator appointed by the arbitrators already appointed, accepted office on the basis that the hearing would take place by a specified date and would last for a specified period. Three years later, the plaintiffs’ solicitors requested the arbitrators to fix a period for the hearing over twice as long and in two further years’ time. The third arbitrator replied that the tribunal might consider this but that the parties should consider the fees likely to be incurred and he set out a statement of the fees chargeable including a non-refundable commitment fee payable in advance of the hearing. The defendants’ arbitrator took no part in the ensuing discussion of fees. The parties did not accept the proposal but invited its withdrawal. The third arbitrator and the plaintiffs’ arbitrator offered their resignations. The plaintiffs’ solicitors made a proposal acceptable to the arbitrators but sought an assurance that the defendants’ solicitors had no objection to the plaintiffs making the payments proposed. The defendants’ solicitors maintained that the two arbitrators had no power to demand advance fees; the fees were excessive, and that it was inappropriate for one party to pay the fees demanded to the two arbitrators. They did not allege partiality. They later wrote that both arbitrators should continue on the terms as appointed but withdrawing the new fees demand. The plaintiffs sought declarations that the arbitrators were fit and proper persons to act and that their acceptance of the plaintiffs’ fee arrangements would not raise any imputations of bias. The defendants applied for an order that the two arbitrators be removed.
Held: For an arbitrator to insist upon a fee without the consent of all parties constitutes misconduct: ‘Any fee upon which (the arbitrators) wish to insist should be made known at the outset before acceptance of appointment.’
However, the express disavowal by the defendants of any imputation of actual bias and their request that the arbitrators continue to act, precluded the exercise by the court of its discretion to remove them but, that the conclusion of an agreement between the arbitrators and the plaintiffs on the basis of the plaintiffs’ revised proposal would be improper. The majority took the view that by reason of the change in circumstances the request for a commitment fee was justified, that a mere request by an arbitrator for a commitment fee did not amount to misconduct and that, in any event, even if the entry by the arbitrators into separate negotiations with the plaintiffs for their fees amounted to misconduct, the express disavowal of bias and request of the arbitrators to continue to act precluded their removal.
Legatt LJ
[1992] QB 863, [1991] 3 All ER 211, [1991] 3 WLR 1025
England and Wales
Cited – Jivraj 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.442595
An action by a client against a solicitor alleging negligence in the conduct of the client’s affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he did quite ineffective.
Sir Wilfred Greene MR said: ‘The right given to the insurers is to have control of proceedings in which they and the assured have a common interest – the assured because he is the defendant and the insurers because they are contractually bound to indemnify him. Each is interested in seeing that any judgment to be recovered against the assured shall be for as small a sum as possible. It is the assured upon whom the burden of the judgment will fall if the insurers are insolvent. The effect of the provisions in question is, I think, to give to the insurers the right to decide upon the proper tactics to pursue in the conduct of the action, provided that they do so in what they bona fide consider to be the common interest of themselves and their assured. But the insurers are in my opinion clearly not entitled to allow their judgment as to the best tactics to pursue to be influenced by the desire to obtain for themselves some advantage altogether outside the litigation in question with which the assured has no concern.’
Sir Wilfred Greene Mr
[1939] 1 KB 194
England and Wales
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Freakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.226985
[1837] EngR 620, (1837) 8 Sim 377, (1837) 59 ER 150
England and Wales
Cited – Travelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.313737
A solicitor served with process to testify, ordered not to be examined. Thomas Hawtry, gentleman was served with a subpoena to testify his knowledge touching the cause in variance ; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same, and that he shall be in no danger of any contempt, touching the not executing of the said proceas
[1576] EngR 10, (1576-77) Cary 61, (1576) 21 ER 33 (E)
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Regina 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, . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.431168
A Councellor or Solicitor not to be examined upon any matter which came to his knowledge as Solicitor or Councellor. Thomas Colwel was served with process to testify on the plaintiffs behalf, and had formerly been of Councel or Solicitor for the defendant in the matter in variance; Therefore ordered that Colwel shall not be examined upon any Interrogatories which shall compel him to discover any matter which came to his knowledge as a Solicitor or as of a Councel in this case ; But for any other matter it shall be lawful for the plaintiff to examine him. Creed plaintiff, Trap’s and others defendants. Anno 21. Eliz. [1578-79].
[1578] EngR 22, (1578-79) Choyce Cases 121, (1578) 21 ER 74 (B)
Updated: 02 May 2022; Ref: scu.431059
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 may be recorded in an order of the court, as occurred in this case, but it is the undertaking and not the order which requires the giver of the undertaking to act in accordance with its terms. If he fails to do so, he acts in breach of the undertaking, but cannot be said to refuse or neglect to act in accordance with the order which happens to record the undertaking or to disobey that order and it is to those offences alone that these two rules [on committal to prison] apply.’
He observed that ‘it is in all cases highly desirable that any undertaking to the court shall be recorded and served on the giver personally’. He went on to say, the ‘most obvious and convenient way . . is to record the undertaking in an order of the court’.
Neill LJ and Ralph Gibson LJJ agreed. Neill LJ said that: ‘the general practice to be adopted’ was that the ‘undertaking should be included in a recital or preamble in the order of the court’, which should be issued and served on the person who gave the undertaking with a penal notice. He went on to emphasise the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached. In a case where an undertaking has been given, even where the court makes no order, that ought itself be recorded in a formal order which should recite in full any undertaking that has been given.
Neill LJ agreed, saying that ‘the general practice to be adopted’ was that the ‘undertaking should be included in a recital or preamble in the order of the court’, which should be issued and served personally on the giver of the undertaking with a penal notice. He also emphasised the importance of clarity and certainty in relation to what was required by any undertaking, and the consequences of it being breached.
Sir John Donaldson MR, Neill, Ralph Gibson LJJ
[1986] Fam 134, [1986] 2 WLR 801, [1986] 1 All ER 961
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.424850
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
[1908] 1 KB 982
England and Wales
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.426440
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 made in it except by consent. The reason and justice of this is obvious, and it appears to me to rest not less on principle than on practice. If one species of alteration be made, any other might. Who is to determine what alteration might or might not be made and if any alteration may be made? It is clear that a bill could be altered to meet the turn which the taxation was taking, In my opinion, the Master has no jurisdiction in taxation to permit any alterations or amendments to be made in the bill, except such as the client may consent to.’
Sir John Romilly MR
(1854) 18 Beav 508
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 02 May 2022; Ref: scu.401613
A solicitor or attorney cannot recover for business done by him in that character, unless he have obtained a certificate which was in force for the period the work was done – Where a solicitor applied for and paid for a certificate for the period between October, 1847, and November, 1848, and the officer, by mistake, dated it October, 1848, and November, 1819 – Held, that the solicitor was not enititled to recover for business done in 1849
[1849] EngR 1058 (B), (1849) 4 Exch 492
Updated: 02 May 2022; Ref: scu.299363
A warrant of attorney was attested by an attorney introduced by the plaintiff, and who had on one former occasion acted professionally for the plaintiff, and who afterwards acted as the plaintiff’s attorney in entering up judgment and issuing execution upon the warrant of atttorney : The court set it aside. In such a case, the court will not impose upon the defendant the terms of bringing no action.
[1852] EngR 485, (1852) 12 CB 154, (1852) 138 ER 860
Updated: 02 May 2022; Ref: scu.295608
In a suit by a trustee against his co-trustee, a solicitor, and the parties beneficially interested under a will, some of them being infants, the costs of all parties had been ordered to be taxed and paid. It appeared that the Defendant trustee, the solicitor, had conducted his defence by his partner. The Taxing Master allowed the solicitor trustee costs out of pocket only. Held, that the rule which had allowed to solicitor trustees costs out of pocket only being well established, the Court would not, with reference to the question of costs, inquire whether the conduct of the suit by the partner of the solicitor trustee was beneficial for all parties, though no party objected to such inquiry, but that all costs beyond those out of pocket must be disallowed.
Sir James Parker VC
[1852] EngR 796 (A), (1852) 5 De G and Sm 622
Updated: 02 May 2022; Ref: scu.295919
The intention of the 11th and 12th Vict. c. 45 (the Winding Up Act of 1848), was to provide for debts recoverable only in equity, as well as for those recoverable at law ; and the Master has an uncontrolled discretion (subject to appeal) to allow or disallow, or to allow as a claim only, according to the proofs adduced before him, any demand against a Company.
Certain persons proposed to form a company; they employed A. as their solicitor; he was so named, on provisional registration, under the joint Stock Company’s Act; the Directors were not to be personally liable to the officers of the Company ; the solicitor was continuously employed, until after the company had been completely formed and registered, and until it was wound up. The 44th article of the deed of settlement declared, that ‘a sufficient part of the funds of the Company should, upon complete registration, be appropriated in payment of the expenses of and incidental to the formation of the Company, including those of or having reference to the preparation and execution of that deed.’ When the Company was before the Master on the Winding-up Act, the solicitor presented a demand for services from the earliest period up to that time. The Master allowed the demand as a claim only, and not as a debt, leaving the solicitor to proceed at law : Held, reversing an order of Vice Chancellor Kindersley which had permitted the order of the Master to stand, that the Master ought to have allowed this demand as a debt, but subject to proof that the items came under the description contained in the 44th article, and subject also to taxation. As the solicitor had omitted to bring the 44th article to the notice of the Vice Chancellor, his order, though reversed, was reversed without costs.
[1854] EngR 361, (1854) 4 HLC 1091, (1854) 10 ER 790
Updated: 02 May 2022; Ref: scu.293218
An annuity was granted free of all taxes ‘ except the property tax,’ and the deed contained a proviso, that in cwe the income tax should be reduced, the reduction should enure to the benefit of the grantor. This proviso was omitted in the memorial.
Held: that the memorial was sufficient.
If a solicitor purchase from his client, and institute a suit against third parties to enforce his right, the objection to the transaction, on the ground of its being a purchase by a solicitor from his client, cannot be maintained by such third parties.
[1857] EngR 716 (C), (1857) 23 Beav 609
Updated: 02 May 2022; Ref: scu.290462
[1984] 2 WLR 291, [1984] Fam 48, [1984] 1 All ER 321
England and Wales
Updated: 02 May 2022; Ref: scu.278998
A party had purported to sue having taken an assignment of a dishonoured letter of credit, in the context of the abolition of maintenance and champerty as crimes and torts in the 1967 Act.
Held: The assignment was struck down as champertous, creating: ‘the possibility, and indeed the likelihood, of a profit being made, [by a third party with no genuine commercial interest in the transaction] out of the cause of action . . [which] manifestly ‘savours of champerty’, since it involves trafficking in litigation – a type of transaction which, under English law, is contrary to public policy.’ Such activity is unacceptable to the court which sees its role as the administration of justice and not the provision of a market for speculators in litigation.
A bare cause of action may be assigned if the assignee has a genuine commercial interest in it. Although the purported assignment of a cause of action to a third party with no genuine and substantial interest in the success of the litigation was void for champerty, if the potential assignee had such an interest, the assignment of the bare right action would not offend the law against maintenance and champerty. The concept of an unassignable bare right of action was confined by holding that a chose of action was assignable if the assignee had a general commercial interest in it, even if it were not incidental or subsidiary to a right of property.
Lord Roskill (with the concurrence of the other Law Lords) said: ‘It is clear, when one looks at the cases upon maintenance in this century and indeed toward the end of the last, that the courts have adopted an infinitely more liberal attitude towards the supporting of litigation by a third party than had previously been the case.’
and ‘in English law an assignee who can show that he has a genuine commercial interest in enforcement of the claim of another and to that extent takes a assignment of that claim to himself is entitled to enforce the assignment unless by the terms of the assignment he falls foul of our law of champerty, which, as has often been said, is a branch of our law of maintenance . . The court should look at the totality of the transaction. If the assignment is of a property right or interest and the cause of action is ancillary to that property right or interest, or, if the assignee has a genuine commercial interest in taking the assignment and in enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or as savouring of maintenance.’
Lord Roskill, Lord Wilberforce
[1982] AC 679, [1981] 3 WLR 766, [1981] 3 All ER 520
England and Wales
Appeal from – Trendtex Trading Corporation v Credit Suisse CA 1980
A stay was sought against a bank which had financed a contract and was supporting litigation arising out of it.
Held: Although the liability in crime and tort had been abolished, Section 14(2) of the 1967 Act preserved the law as to the cases . .
Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Cited – Carlisle and Cumbria United Independent Supporters’ Society Ltd v CUFC Holdings Ltd and Others CA 5-May-2010
The claimant supporters’ club had brought an action to prevent a substantial shareholder in the first defendant company from selling off land owned by the club for no consideration. The parties had reached a settlement after a protracted claim . .
Cited – Simpson v Norfolk and Norwich University Hospital NHS Trust CA 12-Oct-2011
The court was asked whether it was possible to assign as a chose in action a cause of action in tort for damages for personal injury, and if so under what circumstances it was possible.
Held: The appeal was dismissed. The claimant did not have . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.272901
Mr Ofusehene was a solicitor whose conduct had been referred to the Solicitors Disciplinary Tribunal, but the Tribunal then declined jurisdiction on the basis that the conduct complained of arose prior to his admission as a solicitor.
Held: Where the Law Society had not become aware of an appellant’s convictions before becoming a solicitor, it would have been able to file a complaint in respect of their pre-admission convictions and conduct with the SDT and seek an order striking them off the roll.
Rose LJ said: ‘It seems to me to be plain that the whole purpose of (section 47) is to enable jurisdiction to be exercised over those presently practising as solicitors. It is, as Sir Thomas Bingham MR pointed out in Bolton . . both in the public interest and in the interest of maintaining the reputation of the solicitors’ profession, that this should be so and that appropriate standards should be maintained by those who practise as solicitors.
To this end, it seems to me that if, in the past, one who is now a solicitor has behaved in a way which is incompatible with such standards, it is, and should be open to the tribunal to say so and to control the circumstances in which, if at all, he or she should continue to practice in the future. It is entirely consonant with this purpose, that the tribunal should exercise jurisdiction over one who is a solicitor by reference to past behaviour, whatever his or her status at the time of that behaviour. The tribunal’s jurisdiction over a person accused rests solely and entirely on the present status of an accused as a solicitor. Whether in a particular case past conduct is compatible with the accused continuing in practice will depend, plainly, on the nature of the conduct as proved before and assessed by the tribunal.’
Rose LJ, Nelson and Hooper JJ
21 February 1997 unreported
England and Wales
Cited – Jideofo v The Law Society; Evans v The Solicitors Regulation Authority 31-Jul-2007
(Master of the Rolls) Each applicant challenged decisions not to allow them to become student members of the Law Society.
Held: The test for character and suitability was a necessarily high one; was one which was not concerned with punishment, . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.271155
The applicant sought to have set aside an order that he be struck off the roll of solicitors.
Held: The appeal failed. ‘It is true that no loss was in the result caused to any client and that the solicitor is not accused of dishonesty. Nonetheless his conduct undermined the control which the Law Society seeks to exercise over the recording of financial transactions in solicitors’ offices, and in particular over the handling and disbursement of clients’ monies. The solicitor had a serious record of previous failures, which had culminated in the clearest possible warning.’
Lord Bingham of Cornhill
Unreported, 2 February 2000
England and Wales
Cited – Singleton v The Law Society QBD 11-Nov-2005
The claimant appealed his striking off the roll of solicitors. He said he had not been dishonest. He was said to have made entries to show receipts into client account to support payments out when such receipts had not occurred. He denied this was . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.241435
The provisions of the Table of Fees under the Rules of Court were only applicable to Scottish solicitors. The court set out how fees incurred to solicitors practising outside Scotland are recovered in a Scottish taxation of expenses. In summary: 1. If an English solicitor is properly employed in a Scottish litigation he is entitled to be remunerated for his work according to an English scale of remuneration. 2. Such remuneration is treated as part of the outlays in the account of expenses. 3. In considering the English account, the Auditor must in the first place determine which items on the account would be admissible in a Scottish party and party account. In order to do that, he may require the English account to be stated in such a form as to disclose clearly what items of work were in fact done by the English solicitors: ibid. at 1988 SC 288. At this stage the Auditor must obviously apply Scottish principles, in exactly the same way as he would when dealing with a party and party account rendered by Scottish solicitors. 4. Thereafter, the Auditor must discover what charges for the admitted items in the account are appropriate in accordance with English law and practice. The Auditor has a wide discretion as to how he goes about this task, although with an English account consulting the taxing master is an obvious step to take: ibid. at 1988 SC 288-289. At this stage, therefore, the Auditor must ascertain and apply the relevant English scale of charges.
1988 ST 264
Scotland
Cited – The Scottish Lion Insurance Company Ltd, Re Sanction of A Scheme of Arrangement SCS 8-Mar-2006
Sanction had been sought for a scheme of arrangement on the winding up of an insurance company. There were objections. The original scheme had been proposed under English law, and it would be inappropriate for a Scottish court to try to sanction . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 May 2022; Ref: scu.238925
Sheriff N.M.P. Morrison Qc
Scotland
Updated: 30 April 2022; Ref: scu.229515
The Law Society intervened in the solicitor’s practice where there were considerable grounds to suspect that the solicitor was knowingly allowing his firm to be used in connection with a large fraud, even if he was not a participant in the fraud himself.
Unreported, 20 December 1999
Cited – Sheikh v The Law Society ChD 1-Jul-2005
The claimant challenged the intervention by the Law Society in her solicitors practice.
Held: Though there were some breaches of the solicitors’ accounts rules there was insufficient basis for the Society to have behaved in the way it had and . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.228267
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature and that it was unnecessary for the LIP to have a McKenzie Friend.
Held: The court upheld a decision of Waite J to refuse to allow a party to wardship proceedings to have a McKenzie friend on the basis that the decision as to who was permitted to be present in a chambers matter was one for the judge alone. Who, other than a party to the proceedings, his solicitor on the record or counsel, shall be permitted to attend proceedings in chambers is always a matter for the discretion of the judge. (reported 1999)
Parker LJ said: ‘In the present case the proceedings are in Chambers and in my judgment it must be a matter for the judge to have control over whom he permits to remain in a Chambers’ proceeding. There are, no doubt, many cases in which a judge will find it proper to exercise his discretion in favour of allowing a McKenzie Friend to be in Chambers and he should and will naturally view any application in that behalf with sympathy, as I have no doubt the learned judge did in this case, but, save in exceptional cases, it would be quite wrong for this court to interfere with the decision of a learned judge as to the persons whom he will allow to be present in a Chambers’ matter.’
Balcombe LJ said: ‘I agree. The position of litigants in person, who are ineligible for legal aid but at the same time unable to afford the normal services of a solicitor, is one where the use of a McKenzie Friend in appropriate circumstances can be very helpful. For that reason I agree with what my Lord has said that one hopes, and indeed expects, that judges of the Family Division, when dealing with cases in Chambers, will consider with understanding any application for a litigant in person to have the assistance of a McKenzie Friend where appropriate. But having said that, I agree entirely with what my Lord has said that this must be a matter for the discretion of the judge to conduct his or her own proceedings in Chambers.’
Parker LJ, Balcombe LJ
[1999] 2 FLR 59, CAT 679/1991
England and Wales
Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA 22-Jun-2005
In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
Held: The . .
Approved – Regina v Leicester City Justices, ex parte Barrow CA 1-Aug-1991
The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had . .
Cited – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Cited – Regina v Bow County Court Ex parte Pelling QBD 8-Mar-1999
Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.227949
‘The Law Society has to take into account the public interest in deciding whether to exercise its powers of intervention at all. The public interest requires a balance to be struck between the draconian effect of intervention and the matters referred to earlier in this judgment. Second, I have considerable doubts about the jurisdiction of this court to adopt the sort of solution envisaged by Peter Smith J in paragraphs 70 and 71 of his judgment. Intervention in its full form is the statutory remedy entrusted by Parliament to the Law Society in order to regulate the profession. It is not, in [my] view, open to the courts to devise a different and less draconian remedy. . . ‘
His Honour Judge Behrens QC
Unreported, 4 September 2002
Cited – Sritharan v Law Society CA 27-Apr-2005
The Law Society had intervened in the applicant’s legal practice as a solicitor, and his practising certificate had been automatically suspended. He applied to the court to remove the suspension.
Held: The powers exercised were statutory. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.224870
Champerty: Lord Denning MR said: ‘The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses. These fears may be exaggerated, but, be that so or not, the law for centuries had declared champerty to be unlawful, and we cannot do otherwise than enforce the law, and I may observe that it has received statutory support, in the case of Solicitors, in Section 65 of the Solicitors Act 1957.’
Lord Denning MR
[1962] CLY 2900, [1963] Ch 199
England and Wales
Considered – Picton Jones and Co v Arcadia Developments 1989
The plaintiff chartered surveyors agreed to act in the purchase of amusement arcades, on the basis that their fees would be payable ‘in the event of ultimate success.’ The work involved applications for gaming licences and planning permissions. The . .
Cited – Trendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Mentioned – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223960
The court considered whether an agreement was champertous in the context of an application to licensing justices who were not considered to be sitting as a court and before whom there is no contest.
[1898] 79 LT 44
Considered – Picton Jones and Co v Arcadia Developments 1989
The plaintiff chartered surveyors agreed to act in the purchase of amusement arcades, on the basis that their fees would be payable ‘in the event of ultimate success.’ The work involved applications for gaming licences and planning permissions. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223959
A solicitor taking a security for his costs which was inconsistent with or incompatible with the retention of his lien over the proceeds of litigation should be taken to have abandoned that lien unless it was expressly reserved.
[1908] 1 KB 473
England and Wales
Applied – Clifford Harris and Co v Solland International Ltd and others ChD 12-Feb-2005
The solicitor claimants had represented the defendants in litigation. The defendant’s owners had given the firm a second charge on their property to secure their costs. The sums recovered were exceeded by the costs. The solicitors sought to exert a . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.223801
Negligence of solicitor in answering replies to preliminary enquiries on a sale of land.
[1979] 123 SJ 860
Cited – First National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.220836
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing his civil action for assault. The 1974 Act made it an offence for anyone seeking legal aid knowingly to make a false statement or representation when furnishing any information required from him.
Held: The common law principle of legal professional privilege cannot be excluded, by the exception established in Cox and Railton in cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, merely because such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings. It had been submitted by the DPP that the communication with the area office of the Law Society to obtain legal aid was made in furtherance of a crime.
Held: ‘Obviously, not infrequently persons allege that accidents have happened in ways other than the ways in which they in fact happened or that they were on the correct side of the road when driving while actually they were on the wrong side of the road and matters of that sort. Again, litigants in civil litigation may not be believed when their cases come to trial but that is not to say that the statements they had made to their solicitors pending the trial, much less the applications which they made if they applied for legal aid, are not subject to legal privilege. The principle to be derived from R v Cox and Railton applies in my view to circumstances which do not cover the ordinary run of cases such as this is’ For the purposes of section 10(2) it was the holder who had to have the criminal purpose, and that the Law Society was the holder and that the Law Society had no intention of furthering a criminal purpose:- ‘No intention could be further from its thoughts.’
Glidewell LJ
[1988] QB 532
England and Wales
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Overruled in part – Regina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
Cited – Hallinan, Blackburn-Gittings and Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another Admn 15-Nov-2004
In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed . .
Cited – Kuwait 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: . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.220240
Lord Maclean And Lord Kirkwood And Lord Osborne
Updated: 30 April 2022; Ref: scu.220066
Where counsel’s conduct is called in question, the general principle requires the court to focus on the impact of the faulty conduct on the trial and result.
[1993] 1 WLR 1181
England and Wales
Cited – Boodram v The State PC 10-Apr-2001
(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to . .
Cited – Kizza Sealey and Marvin Headley v The State PC 14-Oct-2002
PC (Trinidad and Tobago) The defendant appealed his conviction. He said that his counsel had failed to ensure that the judge should mention the fact that he was of previous good character in defending him.
Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Cited – Anderson v HM Advocate HCJ 1996
The court considered the effect on a conviction of a failure by defence counsel. After considering the authorities: ‘It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.219687
The practice which has developed to determine the bounds of privilege involves finding the proper point of balance between two opposing imperatives, making the maximum relevant material available to the court of trial and avoiding unfairness to individuals by revealing confidential communications between their lawyers and themselves. The practice is a reconciliation between these principles.
Havers J
[1959] 1 WLR 509
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.219355
A property was at first wrongly described by the agents as having mains drainage. Correcting information was sent to the buyer’s solicitors by the Agents, but the solicitors did not pass on the correction to their client. The mistake was later repeated by the valuer.
Held: Sir Nicholas Browne-Wilkinson VC said: ‘if it is once shown that a misrepresentation has been made, it is no answer for the representor to say that the representee has been negligent and could have found out the true facts if he had acted otherwise. The representee is under no duty of care to the representor to check on the accuracy of the representation. The representor is bound by his representations, however careless the representee may have been.’ However when documents were received by the purchaser’s solicitor, he was obliged to communicate them to his client, and that therefore there was from that time no concealment. The knowledge of the solicitor was imputed to his client. It was for a purchaser to satisfy himself as to the condition of what he purchased. The cause of the loss was not any misrepresentation, but the solicitor’s failure. In any event the property was worth the price paid.
Browne-Wilkinson VC: ‘In this, as in all other normal conveyancing transactions, after there has been a subject to contract agreement the parties hand the matter over to their solicitors who become the normal channel for communication between vendor and purchaser in all matters relating to that transaction. In so doing, in my judgment the parties impliedly give actual authority to those solicitors to receive on their behalf all relevant information from the other party relating to that transaction. The solicitors are under an obligation to communicate that relevant information to their own clients. At the very least, the solicitors are held out as having ostensible authority to receive such information. Whether there be express or ostensible authority, the purchaser is in my judgment estopped from denying that he received the information relating to the transaction which has been communicated to his solicitors acting in the same transaction. In my judgment, such knowledge should be imputed to the principal.’
Sir Nicholas Browne-Wilkinson VC
[1989] ANZ Conv R 352, [1988] 1 Ch 396, [1988] 09 EG 61, [1988] 2 WLR 572
England and Wales
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.219193
The court considered a solicitor’s duties to avoid a conflict of interest in a conveyancing transaction as between a lay client and a lender. Chadwick LJ said: ‘In my view, the words ‘if in the course of doing the work he is instructed to do’ reflect an important and significant qualification to the solicitor’s duty to disclose information relevant to the lending risk. A solicitor is obliged to disclose information which comes into his possession in the course of doing the work which the lender has instructed him to do; but he is not obliged to disclose information which has come into his possession independently of any work which the lender has instructed him to do – including, for example, information which has come into his possession as a result of earlier transactions in which he has been retained by the borrower.’
Chadwick LJ
Unreported, 22 November 1996
England and Wales
Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 April 2022; Ref: scu.200434
As such, a solicitor does not have ostensible authority to conclude a contract for his client: ‘In the present case there was no evidence of any authority being conferred on the solicitors to make such a bargain, and I think that that fact is perhaps an additional reason why we should place the natural construction on the letter of June 11th, and not impute to the solicitors an intention to make a bargain which they had in fact no authority to make.’
Tomlin J
[1925] Ch 56
Cited – Evans v James (Administratrix of the Estate of Thomas Hopkin Deceased) CA 5-Jul-1999
Before the parties called evidence, and having read the papers, the court considered that there was no real defence shown, and invited submissions. Negotiations for the grant of a tenancy had been terminated by the sudden illness of the proposed . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.188875
8083/77, [1980] ECC 493
European Convention on Human Rights 5
Human Rights
Cited – Zakharov and Others v White and Others ChD 28-Oct-2003
The defendant challenged a bench warrant issued out of the Chancery Division for his arrest. He said the lack of any written procedure made it non-compliant with his human rights, and a warrant could not be issued without a finding of contempt.
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.188678
The Court considered whether a rubber stamp facsimile of a solicitor’s firm on a bill of costs met the requirement for the bill to be ‘signed’.
Held: In connection with authentication: ‘It follows, I think, that the essential requirement of signing is the affixing, either in writing with a pen or pencil or by otherwise impressing on the document one’s name or ‘signature’ so as to personally authenticate the document’.
Sir R Evershed (MR)
[1954] 1 All ER 763
England and Wales
Cited – Edgell v Glover, Garnett (Returning Officer) QBD 4-Nov-2003
The constituency had adopted an all postal ballot, resulting in a counted majority of one. One ballot paper’s confirmation of identity had not been signed.
Held: The function of the court, exercising its jurisdiction under section 48(1), is . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187492
The court was attracted by the Law Society’s submission that the general principles that costs should reflect the amount at stake and the expense of providing the service, should govern also court attendances during litigation. The court identified what it saw to be weakness in the Law Society’s booklet, The Expense of Time. The taxing officer’s task is to determine ‘the broad average direct costs of work done’ by a partner and assistant solicitor ‘ in the relevant area at the relevant time’.
Robert Goff J
[1980] 1 WLR 396, [1980] 1 All ER 597
Cited – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Cited – The Law Society of England and Wales, Regina (on The Application of) v The Lord Chancellor Admn 15-Jun-2010
Costs restriction not made under Act
The respondent had introduced rules which restricted the levels of costs which might be awarded from central funds to a successful defendant in a criminal trial who had take private representation. The amendment was made under powers in the 1985 . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187177
The general principle governing the calculation of costs rates should allow for two elements, the value of the subject matter or amount at stake, and the expense of providing the service.
(1976) Costs Law Reports, Core Volume 62
Cited – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187176
The court identified two elements to make up a solicitor’s hourly rate in contentious matters. The expense of time and a percentage mark up applied to take account of amongst other matters the amount of any money or property involved.
Held: These two elements as the general principle governing taxation in contentious work.
[1980] 1 WLR 396
Cited – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.187175
It will only be in the ordinary course of business of the firm for a solicitor to do an act where there was an underlying transaction of a kind which was part of the usual business of a solicitor. ‘On the facts represented to the [third party] would a reasonably careful and competent person [such as the third party] have concluded that there was an underlying transaction of a kind which was part of the usual business of a solicitor?’
An undertaking given by a solicitor or clerk in the course of the business of a firm is enforceable against the firm for which he works.
Glidewell LJ
[1988] 1 WLR 1051
England and Wales
Cited – J 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, . .
Cited – Adcock v Co-Operative Insurance Society Ltd CA 26-Apr-2000
The claimant claimed under his fire insurance with the defendants. He sought damages for their delay in processing the claim.
Held: The power to award interest on damages is discretionary. The judge had refused to allow interest, at a rate . .
Cited – Coll 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.
Updated: 29 April 2022; Ref: scu.186087
An attorney’s clerk, articled by indenture, was held to be an apprentice and to gain a settlement as such for poor law purposes. In legal acceptation an apprentice is a person who is bound to and who serves another, for the purpose of learning something which the other is to teach him. Crompton J said: ‘The meaning, in law, of the word ‘apprentice’ is well known. He is a person bound to serve a master who is bound to teach him. Such was the meaning of the term, when the statute [of 1814] passed, no less than it is at present.’
Cockburn CJ, Crompton J, Blackburn J
(1860) 2 El and El 742
Cited – Edmonds v Lawson, Pardoe, and Del Fabbro CA 10-Mar-2000
A contract of apprenticeship is synallagmatic. The master undertakes to educate and train the apprentice (or pupil) in the practical and other skills needed to practise a skilled trade (or learned profession) and the apprentice (or pupil) binds . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.184784
The costs principles set out in the Masters’ Practice Notes and which endorsed the dual approach of assessing and adding an element to reflect the value at stake in litigation as well as the hourly expense rate of providing that service in all contentious work was applied.
[1992] 1 All ER 169
Cited – A Local Authority v A Mother and Child CA 20-Dec-2000
A solicitor claimed the sum of andpound;59.00 for the cost of preparing his legal aid bill for assessment. The court had disallowed the costs of an in-house costs draftsman preparing the bill. The Costs Procedure Rules would generally allow . .
Cited – Jemma Trust Company Ltd v Liptrott, Forrester, Kippax Beaumont Lewis CA 24-Oct-2003
Solicitors sought to challenge an order disallowing a costs item for the administration of an estate which included a percentage of the estate.
Held: Despite advances in time recording, ‘we see no reason to say that it is no longer appropriate . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.182294
Legal professional privilege is an interest which falls to be balanced against competing public interests: ‘When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it.’
Wolff LJ, Waterhouse and French JJ
[1988] QB 798
England and Wales
Overruled – Regina v Barron 1971
The judge at trial had refused to set aside a subpoena to produce documents which had been served on behalf of the accused in a criminal trial.
Held: Caulfield J said: ‘I think the correct principle is this, and I think it must be restricted . .
Overruled – Regina 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, . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 April 2022; Ref: scu.182247
A solicitor has a duty to explain to a client buying land what are the consequences of accepting a reduced deposit, and is acting outside his implied authority unless he has his client’s consent.
(1975) 119 SJ 826
Updated: 29 April 2022; Ref: scu.182545
A request to the court for the removal of a solicitor from the Roll was to be made via Counsel, and not by a litigant in person.
Times 06-May-1993, Independent 06-May-1993
England and Wales
Updated: 29 April 2022; Ref: scu.82191