Mohammed v Alaga and Co (A Firm): CA 30 Jun 1999

A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum meruit. Bingham LJ summarised the arguments of the plaintiff: ‘(1) In the absence of any statutory or other legal restriction everyone is free to make any contract they like and such contracts are enforceable. (2) While the Solicitors Act confers power on the Law Society to make rules to regulate the conduct of solicitors, the Law Society has no power to regulate the conduct of the public at large who are not solicitors. (3) Thus, while the Law Society may lawfully forbid solicitors to make fee-sharing agreements, it has no power to forbid anyone else, nor to ordain that such agreements shall be unenforceable save by solicitors. (4) In the absence of an effective legal prohibition a non-solicitor party who makes a fee-sharing agreement with a solicitor is entitled to enforce it. (5) it would be repugnant if the party prohibited from making such an agreement (the solicitor) were free to take the benefits accruing to him under the agreement, but were then entitled to plead the illegality of the agreement when called upon to pay the consideration due to the other contracting party, particularly when (as assumed here) that party is ignorant of the prohibition binding on the solicitor.’ He then rejected the arguments, saying: ‘(1) Section 31 confers power on the Law Society to make, with the concurrence of the Master of the Rolls, subordinate legislation governing the professional practice and conduct of solicitors. (2) When making such subordinate legislation the Law Society is acting in the public interest and not (should there be any conflict) in the narrower interests of the solicitors’ profession: see Swain v the Law Society [1983] 1AC 598. The concurrence of the Master of the Rolls is required as a guarantee that the interests of the public are fully safeguarded. (3) By rule 3 of the Practice Rules, and by the Referral Code, solicitors are permitted to accept referrals and introductions only provided that introducers are not rewarded by commission or otherwise. (4) By rule 7 solicitors are prohibited from sharing fees or agreeing to do so. (5) Thus there is a prohibition on the making by solicitors of agreements of the kind assumed to have been made in this case. (6) Although it is true that the prohibition is only imposed in terms on solicitors, and they alone are liable to imposition of a professional penalty for breach, a contract requires the concurrence of at least two parties and the effect of the prohibition, if observed, is to outlaw the making of such agreements. (7) There are substantial reasons why, in the public interest, such agreements should be outlawed, some of those reasons being described by Lightman J. (8) It follows that it would defeat the public interest, which rule 7 in particular exists to promote, if a non-solicitor party to a fee sharing agreement could enlist the aid of the court to enforce against a solicitor an agreement which the solicitor is prohibited from making. (9) If the court were to allow its process to be used to enforce agreements of this kind, the risk would inevitably arise that such agreements would abound, outwith the knowledge of the Law Society, to the detriment of the public.
This is in my judgment plainly a case in which the relevant legislation (rule 7) prohibits not only the act but the contract to perform it also.’

Addressing the ‘restitutionary’ claim for payment at the contractual rate, Lord Bingham said: ‘If, contrary to his first submission, the contract between the parties was illegal and unenforceable, Mr McCombe contended that the plaintiff was entitled to pursue a claim in quasi-contract or restitution. In the pleading, and before the judge (and initially before this court), that claim was pursued as a ground for claiming 50 per cent of legal aid fees earned by the defendant, namely the same reward as would have been recovered under the alleged agreement if it had not been illegal or unenforceable. In response to questions by the court, however, Mr. McCombe accepted that if recovery under the contract was precluded on the grounds of public policy, the plaintiff could scarcely hope to recover exactly the same relief by relabelling his ground of claim. He would, as was acknowledged have no ground for claiming 50 per cent, save by reference to the contract which the court has held to be illegal and unenforceable.’
Robert Walker LJ spoke of the claim in quantum meruit: ‘In the present case, by contrast, it was common ground that the judge should approach the summons under R.S.C., Ord 14A on the footing that the claimant was innocent in the sense of being unaware of the prohibition on fee-sharing contained in rule 7 of the Solicitors’ Practice Rules. Rule 7 was not of course made for the purpose of protecting persons in the position of the claimant. It was made for the benefit and the protection of the general public, as the judge clearly explained in a passage already read by Lord Bingham of Cornhill C.J. Nevertheless, the claimant may be able to establish at trial that he was not culpable, or was significantly less culpable than the defendant solicitors, and that they should not be unjustly enriched as the result of unremunerated services such as interpreting and translating actually performed by the claimant for the solicitors’ clients. Remuneration which the claimant received on that basis would be a proper disbursement and would not, it seems to me, involve either a payment for introduction or the sharing of part of the solicitors’ own profit costs.’

Judges:

Lord Bingham LCJ, Otton LJ, Robert Walker LJ

Citations:

[2000] CP Rep 87, [1999] 3 All ER 699, [1999] 2 Costs LR 169, [2000] 1 WLR 1815, [1999] EWCA Civ 3037

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Citing:

Cited – Swain v The Law Society HL 1983
The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. . .
Appeal From – Mohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .
Leave to Appeal – Mohammed v Alaga and Co (A Firm) CA 2-Nov-1998
(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the . .

Cited by:

Cited – Westlaw Services Ltd and Another v Boddy CA 30-Jul-2010
The claimant said that it was due sums from the estate of the deceased solicitor. The executors said that the agreement was unlawful in that it had amounted to an agreement to share fees with an unauthorised body.
Held: The agreement was . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 29 April 2022; Ref: scu.421332

Mohammed v Alaga and Co (A Firm): ChD 2 Apr 1998

A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way.

Citations:

Times 02-Apr-1998, Gazette 29-Apr-1998

Statutes:

Solicitors Practice Rules 1990 (Law Society 1991)

Jurisdiction:

England and Wales

Citing:

Cited by:

Appeal from – Mohammed v Alaga and Co (A Firm) CA 2-Nov-1998
(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the . .
Appeal From – Mohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed as to illegality, but succeeded on a quantum . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 29 April 2022; Ref: scu.83786

Smith v Linskills: CA 1996

The claimant, a convicted burglar took proceedings against his former solicitors. He alleged that the negligence of the solicitor caused his wrongful conviction.
Held: The case was dismissed. The claimant was seeking to re-litigate issues which had already been litigated in proceedings in the criminal court in which he had been a participant. The case of Hunter does not lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to be within it.
CS Sir Thomas Bingham MR identified: ‘the affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction. Such would, we think, be the case here if there were a subsisting Crown Court decision that Mr Smith was, beyond reasonable doubt, guilty of aggravated burglary and a subsisting civil court decision that if his defence been properly prepared he would and should have been acquitted. No reasonable observer could view this outcome with equanimity. ‘ and ‘It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted . . It is certainly true that in his speech in Hunter’s case . . Lord Diplock attached considerable significance to the ulterior purpose which lay behind the proceedings brought by the intending plaintiff in that case. We have no doubt at all but that the existence of such an ulterior motive provides a strong and additional ground for holding proceedings to be an abuse. The question is whether such an ulterior motive is a necessary ingredient of abuse.’

Judges:

Sir Thomas Bingham, MR

Citations:

Gazette 28-Feb-1996, Times 07-Feb-1996, [1996] 1 WLR 763, [1996] 2 All ER 353

Jurisdiction:

England and Wales

Citing:

Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .

Cited by:

Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Applied – Regina v Steidl and Baxendale-Walker 27-Jun-2002
(Southwark Crown Court) The case was a prosecution for serious fraud. In civil proceedings, despite evidence to suggest a powerful case for dishonesty, a High Court judge had concluded that the claimant had failed to establish that the defendant, . .
Applied0 – Regina v Stocker CCC 23-Nov-2004
(Central Criminal Court) The court was due to try a case alleging that the defendant had killed her child. In care proceedings Hedley J had concluded that a mother had killed her child, but he was positively satisfied that she lacked the intention . .
Cited – Regina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Litigation Practice

Updated: 28 April 2022; Ref: scu.181090

Bristol and West Building Society v Baden Barnes and Groves: CA 2000

cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a new cause of action which was statute barred and did not derive from the same, or substantially the same, facts.

Citations:

[2000] Lloyd’s Rep PN 788

Jurisdiction:

England and Wales

Citing:

Appeal from – Bristol and West Building Society v Baden Barnes and Groves QBD 13-Dec-1996
cw Proposed amendments to a plaintiff’s pleadings were insufficient to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or to . .

Cited by:

Cited – Hilton v Barker Booth & Eastwood (a Firm) CA 22-May-2002
The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the . .
Appealed to – Bristol and West Building Society v Baden Barnes and Groves QBD 13-Dec-1996
cw Proposed amendments to a plaintiff’s pleadings were insufficient to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or to . .
Lists of cited by and citing cases may be incomplete.

Limitation, Land, Legal Professions, Professional Negligence

Updated: 28 April 2022; Ref: scu.181059

A v B: 1984

Solicitors acting for a ship owner incurred costs which remained unpaid by the client, and the solicitors arrested that client’s ship as security. The litigation was continuing. The solicitors took themselves off the court record and obtained judgment for the outstanding costs. The client sought the return of the litigation papers.
Held: The arrest of the vessel did not operate to waive the solicitors’ lien over the papers. A usual order might be for the papers to be handed over against an undertaking, but this was not always to be ordered. The court was required to make the order which would least interfere with the course of justice. The solicitors had acted correctly, and the clients were simply trying to avoid payment. The order was refused, even with the offer of an undertaking from the new solicitors to hold the papers to the order of the first firm.

Judges:

Leggatt J

Citations:

[1984] 1 All ER 265

Legal Professions, Children

Updated: 28 April 2022; Ref: scu.81984

In Re A (Minors) (Conjoined Twins: Medical Treatment) (No 2): CA 15 Nov 2000

The failure by the Official Solicitor to pursue an appeal where leave had been granted, in a case of an application to the court for leave to separate conjoined twins, which separation would lead to the death of one of them, would not of itself justify his removal and replacement by a representative of a pressure group. Where he concluded that the appeal had no prospect of success, and the parents who had been pursuing the matter had decided themselves not to appeal, his decision was proper. It would be quite inappropriate for a director of a pressure group, however high its principles, to act as guardian ad litem in such a matter.

Citations:

Times 15-Nov-2000

Jurisdiction:

England and Wales

Citing:

Cited by:

See Also – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
Lists of cited by and citing cases may be incomplete.

Health, Legal Professions

Updated: 28 April 2022; Ref: scu.81628

Southwark and Vauxhall Water Company v Quick: CA 1878

The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s current engineer) was not so used. Inspections was sought of the documents.
Held: If a party seeks to inspect a document which comes into existence merely as the materials for the brief, or the equivalent, the document cannot be seen. It is privileged. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because afterwards it was not laid before the solicitor. Cockburn CJ: ‘The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk’ Brett LJ: ‘. . it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained ‘at the instance’ or ‘at the request’ of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into ‘merely for the purpose of being laid before the solicitor for his advice or for his consideration”.

Judges:

Cockburn CJ and Brett LJ

Citations:

(1878) 3 QBD 315

Jurisdiction:

England and Wales

Cited by:

Legal Professions, Litigation Practice

Updated: 27 April 2022; Ref: scu.180867

Anderson v Bank of British Columbia: CA 1876

Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in Oregon (Mr Russell) for full particulars of transactions on the account. Mr Russell replied with the particulars and in the ensuing litigation the bank claimed that the reply was privileged.
Held: Mr Russell’s letter was not privileged. The bank’s London manager was taking steps to inform himself of the position rather than to obtain material which would find its way, in due course, into counsel’s brief. It was necessary that a client be free to be quite open with his legal adviser. ‘The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have recourse to the assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule.’ The court went on to define the extent of the rule: ‘Now, as to the extent of the rule. It goes not merely to a communication made to the professional agent himself by the client directly, it goes to all communications made by the client to the solicitor through intermediate agents, and he is not bound to write letters through the post, or to go himself personally to see the solicitor; he may employ a third person to write the letter, or he may send the letters through a messenger, or he may give a verbal message to a messenger, and ask him to deliver it to the solicitor, with a view to his prosecuting his claim, or of substantiating his defence. Again, the solicitor’s acts must be protected for the use of the client. The solicitor requires further information, and says, I will obtain it from a third person. That is confidential. It is obtained by him as solicitor for the purpose of the litigation, and it must be protected upon the same ground, otherwise it would be dangerous, if not impossible, to employ a solicitor. You cannot ask him what the information he obtained was. It may be information simply for the purpose of knowing whether he ought to defend or prosecute the action, but it may be also obtained in the shape of collecting evidence for the purpose of such prosecution or defence. All that, therefore, is privileged.’
(James LJ) The principle is ‘that as you have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as the materials for the brief.’ Mellish LJ: ‘To be privileged it must come within one of two classes of privilege, namely, that a man is not bound to disclose confidential communications made between him and his solicitor, directly, or through an agent who is to communicate them to the solicitor; or, secondly, that he is not bound to communicate evidence which he has obtained for the purpose of litigation.’

Judges:

Sir George Jessel MR, James LJ

Citations:

(1876) 2 ChD 644

Jurisdiction:

England and Wales

Cited by:

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 . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
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 . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 April 2022; Ref: scu.180866

Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’): ChD 1997

The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the dominant purpose of the retainer is the obtaining and giving of legal advice, then, although it is in theory possible that individual documents may fall outside that purpose, in practice it is unlikely.
Rix J said: ‘Parties who grant a joint retainer to solicitors of course retain no confidence as against one another: if they subsequently fall out and sue one another, they cannot claim privilege. But against all the rest of the world, they can maintain a claim for privilege for documents otherwise within the ambit of legal professional privilege; and because their privilege is a joint one, it can only be waived jointly, and not by one party alone. These principles are, I believe, well established: see for instance Rochefoucauld v. Boustead (1896) 65 L.J.Ch. 794, Cia Barca de Panama S.A. v. George Wimpey Y Co. Ltd., [1980] 1 Lloyd’s Rep. 598, In Re Koninsberg (A Bankrupt), [1989] 1 W.L.R. 1257.’
Rix J said: ‘In legal advice privilege, I would suggest, the practical emphasis is upon the purpose of the retainer. If the dominant purpose of the retainer is the obtaining and giving of legal advice, then although it is in theory possible that individual documents may fall outside that purpose, in practice it is unlikely. If, however, the dominant purpose of the retainer is some business purpose, then the documents will not be privileged, unless exceptionally even in that context advice is requested or given, in which case the relevant documents probably are privileged.’ and ‘In the present case the retainer is said to be for the purpose of investigating and advising on the casualty. In my judgment that meets the dominant purpose test, for the purpose of investigation is inseparable from the purpose of advice.’

Judges:

Rix J

Citations:

[1997] 1 Lloyds Rep 160

Jurisdiction:

England and Wales

Citing:

Cited – CIA Barca de Panama SA v George Wimpey and Co Ltd CA 1980
Claim to Legal Professional Privilege Lost
Barca and Wimpey had been 50/50 joint venturers through the medium of a company called DLW which had provided services to oil companies in the Middle East, including the Aramco Group. Wimpey agreed to buy out Barca’s interest in DLW on terms which . .
Cited – In re Konigsberg (A Bankrupt) 1989
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s . .

Cited by:

Legal Professions

Updated: 27 April 2022; Ref: scu.180872

Greenhough v Gaskell: CA 1833

The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of communications which he had received from his client. The Lord Chancellor held that the defendant could claim privilege, that it made no difference whether it was the client or the solicitor who was the defendant and that it did not matter that, at the time, there were no existing or contemplated proceedings. In relation to lawyers: ‘Here the question relates to the solicitor, who is called upon to produce the entries he had made in accounts, and letters received by him, and those written (chiefly to his town agent) by him, or by his direction, in his character or situation of confidential solicitor to the party; and I am of opinion that he cannot be compelled to disclose papers delivered, or communications made to him, or letters, or entries made by him in that capacity. To compel a party himself to answer upon oath, even as to his belief or his thoughts, is one thing; nay, to compel him to disclose what he has written or spoken to others, not being his professional advisers, is competent to the party seeking the discovery; for such communications are not necessary to the conduct of judicial business, and the defence or prosecution of men’s rights by the aid of skilful persons. To force from the party himself the production of communications made by him to professional men seems inconsistent with the possibility of an ignorant man safely resorting to professional advice, and can only be justified if the authority of decided cases warrants it. But no authority sanctions the much wider violation of professional confidence, and in circumstances wholly different, which would be involved in compelling counsel or attorneys or solicitors to disclose matters committed to them in their professional capacity, and which, but for their employment as professional men, they would not have become possessed of. As regards them, it does not appear that the protection is qualified by any reference to proceedings pending or in contemplation. If touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client, or on his account, and for his benefit in the transaction of his business, or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any Court of law or equity, either as party or as witness. If this protection were confined to cases where proceedings had commenced, the rule would exclude the most confidential, and it may be the most important of all communications – those made with a view of being prepared either for instituting or defending a suit, up to the instant that the process of the Court issued.’
If it were confined to proceedings begun or in contemplation, then every communication would be unprotected which a party makes with a view to his general defence against attacks which he apprehends, although at the time no one may have resolved to assail him. But were it allowed to extend over such communications, the protection would be insufficient, if it only included communications more or less connected with judicial proceedings; for a person oftentimes requires the aid of professional advice upon the subject of his rights and his liabilities, with no references to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry. ‘It would be most mischievous,’ said the learned Judges in the Common Pleas, ‘if it could be doubted whether or not an attorney, consulted upon a man’s title to an estate, was at liberty to divulge a flaw’ (2 Brod. and Bingh. 6). . . 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.’
However: ‘for a person at times requires the aid of professional advice upon the subject of his rights and liabilities, with no references to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry . . .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 attaches 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 medical advisers. But it is out of regard to the interests 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’
and ‘the interests of justice, which cannot be upholden, and 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.’

Judges:

Lord Brougham LC

Citations:

(1833) 1 My and K 98, [1833] EngR 105, (1833) Coop T Br 96, (1833) 47 ER 35

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
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 . .
Cited – Herring v Clobery 1842
The court considered whether legal advice privilege should be confined to litigation: ‘But further, I think that restriction of the rule is not consistent with, and not founded on, any sound principle; for it may, and in a great variety of cases . .
Cited – Carpmael v Powis 1846
The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
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 – 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: . .
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. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 27 April 2022; Ref: scu.180861

Wheeler v Le Marchant: CA 1881

Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. Part of the estate consisted of land in respect of which the defendant made an agreement with Mr Wheeler that he (Mr Wheeler) was to erect certain buildings and then be granted a lease of that land. The parties fell out. Mr Wheeler brought an action for specific performance and the defendant trustee claimed privilege for the reports of the estate-agent/surveyor made to the solicitors in the course of the administration of the estate.
Held: While the communications between the defendant and the estate’s solicitors were privileged, the reports of the estate-agent/surveyor were not.
Cotton LJ: ‘Hitherto such communications have only been protected when they have been in contemplation of some litigation, or for the purpose of giving advice or obtaining evidence with reference to it. And that is reasonable, because then the solicitor is preparing for the defence or for bringing the action, and all communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected. But here we are asked to extend the principle to a very different class of cases, and it is not necessary, in order to enable persons freely to communicate with their solicitors and obtain their legal advice, that any privilege should be extended to communications such as these.’
Brett LJ: ‘The rule as to the non-production of communications between solicitor and client is a rule which has been established upon grounds of general or public policy. It is confined entirely to communications which take place for the purpose of obtaining legal advice from professional persons. It is so confined in terms, it seems to me it is so confined in principle, and it does not extend to the suggested case.’ and ‘Hitherto such communications have only been protected when they have been in contemplation of some litigation, or for the purpose of giving advice or obtaining evidence with reference to it. And that is reasonable, because then the solicitor is preparing for the defence or for bringing the action, and all the communications he makes for that purpose, and the communications made to him for the purpose of giving him the information, are, in fact, the brief in the action, and ought to be protected.’
Jessel MR: ‘What they contended for was that documents communicated to the solicitors of the Defendants by third parties, though not communicated by such third parties as agents of the clients seeking advice, should be protected, because those documents contained information required or asked for by the solicitors, for the purpose of enabling them the better to advise the clients. The cases, no doubt, establish that such documents are protected where they have come into existence after litigation commenced or in contemplation, and when they have been made with a view to such litigation, either for the purpose of obtaining advice as to such litigation, or of obtaining evidence to be used in such litigation, or of obtaining information which might lead to the obtaining of such evidence, but it has never hitherto been decided that documents are protected merely because they are produced by a third person in answer to an inquiry made by the solicitor.’ and ‘It must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected. The protection is of a very limited character, and in this country is restricted to the obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property. It has never gone beyond the obtaining legal advice and assistance, and all things reasonably necessary in the shape of communication to the legal advisers are protected from production or discovery in order that that legal advice may be obtained safely and sufficiently.’

Judges:

The Institute of Chartered Accountants In England and Wales, Regina (on The Application of) v The Lord Chancellor and Secretary of State for Justice: Admn 5 Mar 2019

Claim for judicial review of a decision made by the Lord Chancellor refusing to make orders designating the claimant as an approved regulator and licensing authority under the Legal Services Act 2007 in relation to five specified legal activities.

Citations:

[2019] EWHC 461 (Admin)

Links:

Bailii

Statutes:

Legal Services Act 2007

Jurisdiction:

England and Wales

Legal Professions

Updated: 27 April 2022; Ref: scu.634218

Serious Fraud Office (SFO) v Eurasian Natural Resources Corp Ltd: CA 5 Sep 2018

Scope of legal professional privilege

Judges:

Sir Brian Leveson P QBD, Sir Geoffrey Vos Ch

Citations:

[2018] EWCA Civ 2006

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 27 April 2022; Ref: scu.622324

Citations:

[2018] UKFTT CMS – 2017 – 0003

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 24 April 2022; Ref: scu.618430

England and Wales

Citing:

At EAT – Department of Constitutional Affairs v O’Brien EAT 22-Apr-2008
EAT JURISDICTIONAL POINTS
Claim in time and effective date of termination
Extension of time: just and equitable
Appeal against Chair’s exercise of discretion to extend time for a PTWR claim . .
At CA – O’Brien v Department for Constitutional Affairs CA 19-Dec-2008
The claimant was a part time recorder. He claimed to be entitled to a judicial pension.
Held: The Employment Appeal Tribunal was wrong to find an error of law in the decision of the Employment Tribunal to extend time; but the court declined to . .
At SC – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Opinion – O’Brien v Ministry of Justice ECJ 17-Nov-2011
ECJ (Opnion) Directive 97/81/EC – Framework Agreement on part-time work – Notion of part-time workers who have an employment contract or employment relationship – Part-time judges
Kokott AG said: ‘In this . .
At ECJ – O’Brien v Ministry of Justice ECJ 1-Mar-2012
1) European Union law must be interpreted as meaning that it is for the member states to define the concept of ‘workers who have an employment contract or an employment relationship’ in clause 2.1 of the Framework Agreement . . and in particular, to . .
Cited – Perceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Regina v Secretary of State For Employment Ex Parte Seymour-Smith and Another (No 2) HL 17-Feb-2000
Although fewer men were affected by the two year qualifying period before becoming entitled not to be dismissed unfairly, the difference was objectively justified by the need to encourage employers to take staff on, and was not directly derived from . .
Cited – Finalarte Sociedade de Construcao Civil Ld, Portugaia Construcoes and Engil Sociedade de Construcao Civil SA v Urlaubs-und Lohnausgleichskasse der Bauwirtschaft etc ECJ 25-Oct-2001
ECJ Article 59 of the Treaty (now, after amendment, Article 49 EC) and Article 60 of the Treaty (now Article 50 EC) do not preclude a Member State from imposing national rules guaranteeing entitlement to paid . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Adeneler and Others v Ellinikos Organismos Galaktos ECJ 4-Jul-2006
A Directive was belatedly transposed into national law and after the date by which it ought to have been implemented. The question arose whether the obligation to interpret national law in accordance with the Directive existed from the date the . .
Cited – Secretary of State for Defence v Elias CA 10-Oct-2006
The claimant said that a scheme drawn by the defendant for compensating British civilians interned by the Japanese during the second world war was indirectly discriminatory on racial grounds by requiring a national origin link with the UK. She had . .
Cited – Yolanda Del Cerro Alonso v Osakidetza (Servicio Vasco de Salud) ECJ 10-Jan-2007
ECJ ETUC-UNICE-CEEP framework agreement Fixed-term work Working conditions Length’of’service allowance Not received due to agreements between staff union and administration Adequate objective grounds.
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Felix Palacios de la Villa v Cortefiel Servicios SA ECJ 16-Oct-2007
ECJ (Grand Chamber) Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in . .
Cited – Petersen v Berufungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe ECJ 3-Sep-2009
ECJ Directive 2000/78/EC – Prohibition of discrimination based on age – National legislation providing for an age limit of 68 years for the exercise of a panel dentist – Objective for protecting the health of . .
Cited – Rosenbladt v Oellerking Gebaudereinigungsges mbH ECJ 12-Oct-2010
ECJ (Grand Chamber) Directive 2000/78/EC – Discrimination on the grounds of age – Termination of employment contract on reaching retirement age . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Cited – Roks and others v Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen ECJ 24-Feb-1994
The court considered a complaint of sex discrimination in the allocation of social security benefits, and said: ‘although budgetary considerations may influence a Member State’s choice of social policy and affect the nature or scope of the social . .
Cited – Jorgensen v Foreningen Speciallaeger and another ECJ 6-Apr-2000
Mrs Jorgensen, a specialist rheumatologist, complained about a rule which meant that, if she sold her practice, it would, because of its turnover, be treated as a part-time practice and subject to a cap on the fees it could receive from the Danish . .
Cited – Jorgensen v Foreningen Speciallaeger and another ECJ 6-Apr-2000
Mrs Jorgensen, a specialist rheumatologist, complained about a rule which meant that, if she sold her practice, it would, because of its turnover, be treated as a part-time practice and subject to a cap on the fees it could receive from the Danish . .
Cited – Woodcock v Cumbria Primary Care Trust CA 22-Mar-2012
The claimant appealed against rejection of his claim of age discrimination. the claimant complained that the trust had deliberately failed to comply with a requirement to consult before declaring him to be redundant, so that his employment would . .

Cited by:

Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
At SC(1) – O’Brien v Ministry of Justice SC 12-Jul-2017
The claimant challenged e pension arrangements made for part time judges.
Held: ‘The majority of the court are inclined to think that the effect of Directive 97/81 is that it is unlawful to discriminate against part-time workers when a . .
At SC (1) – The Ministry of Justice v O’Brien EAT 4-Mar-2014
EAT PART TIME WORKERS
The calculation of the amount of pension to which a retired part-time judge is entitled under the Part-time Workers Directive and the consequential domestic regulations should, as a . .
At SC (1) – O’Brien v Ministry of Justice and Others CA 6-Oct-2015
The claimants each sought additional pensions, saying that discrimination laws which had come into effect (for part time workers and for sexual orientation) should be applied retrospectively.
Held: The decision was upheld. The ‘no . .
Cited – Gilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Lists of cited by and citing cases may be incomplete.

Updated: 12 April 2022; Ref: scu.184541

Julian Struthers Danskin for Judicial Review of A Decision of the Law Society of Scotland: SCS 6 Feb 2002

Judges:

Lady Cosgrove

Links:

ScotC

Scotland, Legal Professions

Updated: 12 April 2022; Ref: scu.168802

Judges:

Mr Justice Lawrence Collins

Citations:

[2003] EWHC 499 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Hurst v Leeming (9026) ChD 9-May-2002
The claimant solicitor, had instructed the defendant, a barrister, to represent him in a civil claim. He sought had damages for alleged negligence. He had agreed that the action could not proceed, and the court had to decide the costs. He resisted . .
See Also – Hurst v Leeming CA 23-Jul-2002
. .

Cited by:

See Also – Hurst v Leeming SCCO 9-May-2003
. .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions

Updated: 11 April 2022; Ref: scu.179917

Jean Thieffry v Conseil de l’ordre des avocats a la cour de Paris: ECJ 28 Apr 1977

Europa Freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the treaty. In so far as community law makes no special provision, these objectives may be attained by measures enacted, pursuant to article 5 of the treaty, by the member states. If freedom of establishment can be ensured in a member state either under the provisions of the laws and regulations in force, or by virtue of the practices of the public service or of professional bodies, a person subject to community law cannot be denied the practical benefit of that freedom solely by virtue of the fact that, for a particular profession, the directives provided for by article 57 of the treaty have not yet been adopted. Since the practical enjoyment of freedom of establishment can thus in certain circumstances depend upon national practice or legislation, it is incumbent upon the competent public authorities – including legally recognized professional bodies – to ensure that such practices or legislation are applied in accordance with the objective defined by the provisions of the treaty relating to freedom of establishment. With regard to the distinction between the academic effect and the civil effect of the recognition of equivalence of foreign diplomas, it is for the competent national authorities, taking account of the requirements of community law in relation to freedom of establishment, to make such assessments of the facts as will enable them to judge whether a recognition granted by a university authority can, in addition to its academic effect, constitute valid evidence of a professional qualification. The fact that a national legislation provides for recognition of equivalence only for university purposes does not of itself justify the refusal to recognize such equivalence as evidence of a professional qualification. This is particularly so when a diploma recognized for university purposes is supplemented by a professional qualifying certificate obtained according to the legislation of the country of establishment. When a national of one member state desirous of exercising a professional activity such as the profession of advocate in another member state has obtained a diploma in his country of origin which has been recognized as an equivalent qualification by the competent authority under the legislation of the country of establishment and which has thus enabled him to sit and pass the special qualifying examination for the profession in question, the act of demanding the national diploma prescribed by the legislation of the country of establishment constitutes, even in the absence of the directives provided for in article 57, a restriction incompatible with the freedom of establishment guaranteed by article 52 of the treaty.

Citations:

C-71/76

England and Wales

Times 21-Apr-1995

Jurisdiction:

England and Wales

Legal Professions

Updated: 08 April 2022; Ref: scu.81633