Category: Legal Professions

Barton v Wright Hassall Solicitors Llp: CA 16 Jun 2015

Application for leave to appeal

Longmore LJ
[2015] EWCA Civ 757
Bailii
England and Wales
Cited by:
Leave – Barton v Wright Hassall Llp CA 23-Mar-2016
Application under CPR 6.15(2) for an order that steps already taken to bring a claim form to the attention of the defendant, but falling short of good service under the CPR, shall count as good service. . .
Application for Leave – Barton v Wright Hassal Llp SC 21-Feb-2018
The claimant litigant in person purported to serve his statement of claim by email, but had not first sought the defendant’s agreement as required. The solicitors allowed the limitation period to expire without acknowledging service. The claimant . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 05 January 2022; Ref: scu.553837

Legal Services Commission v Yvonne Patterson: CA 11 Nov 2003

The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The contracts between a firm and the Commission made it clear that this was a contract for services, rather than a contract of service. Accordingly the applicant was free to employ others to do the work she would promise to do for the Commission, and she was not therefore employed with any standing to make a complaint as an employee. She might however proceed on a complaint relating to the authorisation procedure adopted.

Clarke, Judge LJJ, Burton J
[2003] EWCA Civ 1558, Gazette 15-Jan-2004, [2004] ICR 312, [2004] IRLR 153
Bailii
England and Wales
Citing:
Appeal from – Patterson v Legal Services Commission EAT 21-Feb-2003
. .

Cited by:
Appealed to – Patterson v Legal Services Commission EAT 21-Feb-2003
. .
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 – 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.

Discrimination, Legal Professions, Employment

Updated: 05 January 2022; Ref: scu.187722

Wright Hassall Llp v Horton Jr and Another: QBD 22 Dec 2015

The claimant solicitors sought payment from the defendants of fees of pounds 12,700, plus interest which to the date of issue would take the total to pounds 16,367. The defendants’ principal defence was one of set off of a counterclaim for negligence in which they originally sought damages of over pounds 2.8m, now reduced in their re-amended Defence and Counterclaim to pounds 2.57m.

David Cooke HHJ
[2015] EWHC 3716 (QB)
Bailii
England and Wales

Legal Professions, Professional Negligence

Updated: 05 January 2022; Ref: scu.557324

Hewitt, Regina (on The Application of) v Denbighshire Magistrates’ Court: Admn 22 Oct 2015

The claimant, a hunt protester appealed against her conviction for harassment saying that the judge had given the appearance of being biased. He had, on being asked denied being a member of the hunting community. She said that he had whilst in private practice represented on two occasions members of that community.
Held: The appeal failed.The judge need not have disclosed the representations. Each client had come to him from no connection with the hunting community, and the judge need not have disclosed them. Even had he done so: ‘no proper grounds existed for him to recuse himself from trying the Claimant. I simply do not accept that the fair-minded observer knowing the facts set out in paragraph 15 above would consider it a real possibility that the District Judge was biased simply by reason of the fact that seven years previously he had acted for a person connected to the Flint and Denbigh Hunt. The fact that Mr Armstrong was a terrier man when he was represented by the District Judge and that the Complainant Mr Smith is also a terrierman would not, in my judgment, alter the view of the fair-minded observer.’

Wyn Williams J
[2015] EWHC 2956 (Admin)
Bailii
Citing:
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Morrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 January 2022; Ref: scu.553786

Davies v Bar Standards Board: Admn 19 Oct 2015

Appeal from the decision of the Council of the Inns of Court disciplinary tribunal by which the tribunal, by a majority of two to one, found the appellant guilty of one charge of professional misconduct pursuant to paragraph 301(a)(iii) of the Code of Conduct of the Bar of England and Wales and imposed a fine of andpound;500 on him.

Supperstone J
[2015] EWHC 2927 (Admin)
Bailii

Legal Professions

Updated: 05 January 2022; Ref: scu.553783

Wharton v Bancroft and Others: ChD 8 Dec 2011

Mr Wharton anticipated his imminent death. He made a will leaving everything to his long time partner in anticipation of their marriage, married her and died a few days later. The will made no provision for his first wife or their now adult daughters who challenged the will for lack of capacity and undue influence: ‘that Mr Wharton was terminally ill and on medication may say something about the opportunity to exercise undue influence: but it says nothing about whether that opportunity was taken’.
Held: The challenge failed and the court pronounced for the will. As to undue influence, the court had to be minded as to the burden and standard of proof, and ‘Is evidence of a departure from imprecisely expressed intentions evidence which is sufficiently cogent to persuade me that the explanation for the departure is that Mr Wharton’s volition was overborne by coercion, rather than that on his deathbed he saw things differently than he had in life? I answer that question in the negative. The imminence of death undoubtedly caused Mr Wharton to reassess matters. That is why he intended to get married. It was in the light of that intention that he made the 2008 Will. I do not regard it as suspicious that a ‘husband’ should leave to his ‘wife’ of 32 years the entirety of his estate, even if he is a rich man. The difference between the former indications and the actual terms of the 2008 Will are not in this case sufficiently cogent evidence to found the inference of coercion (particularly in the light of the consistent advice Mr Wharton had received as to the way of mitigating the now-imminent tax charge). I see no reason to treat Mr Wharton’s statements to Mr Bancroft (and the implication of his statement to Zena) about leaving his estate to Maureen as anything other than expressions of free will.’
The solicitor was not to be criticised for not following the ‘golden rule’ of securing the attendance of an independent medical expert to confirm the tetstaor’s capacity: ‘But testamentary capacity is not in issue in this case. I consider the criticism of Mr Bancroft for a failure to follow ‘the golden rule’ to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client’s consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator’s own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client’s agreement). I do not think Mr Bancroft is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that Mr Wharton could marry. I certainly do not think that ‘the golden rule’ has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that Mr Wharton was a terminally ill but capable testator.’

Norris J
[2011] EWHC 3250 (Ch)
Bailii
England and Wales
Citing:
Cited – Wingrove v Wingrove 19-Nov-1885
To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power
Sir James Hannen said: ‘To . .
Cited – Cowderoy v Cranfield ChD 24-Jun-2011
cowderoy_cranfieldChD2011
The claimant challenged a will alleging lack of capacity, non-approval and undue influence.
Held: Morgan J discussed the standard of proof applicable: ‘The requisite standard is proof on the balance of probabilities but as the allegation of . .
Cited – Gill v Woodall and Others CA 14-Dec-2010
The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .
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 – Gill v Woodall and Others ChD 5-Oct-2009
The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
Cited – Killick v Pountney and Another; Re Killick Deceased ChD 31-Mar-1999
Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their . .
Cited – Channon and Another v Perkins (A Firm) CA 1-Dec-2005
A will was challenged by the family. The witnesses had said that they did not remember witnessing the deceased sign the will, and would have done. The principle beneficiary appealed refusal of admission to probate of the will.
Held: Neuberger . .
Cited – Edwards v Edwards and others ChD 3-May-2007
Family members challenged the will saying that one son had exercised undue influence over the testatrix.
Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
Cited – Hoff and others v Atherton CA 19-Nov-2004
Appeals were made against pronouncements for the validity of a will and against the validity of an earlier will. The solicitor drawing the will was to receive a benefit, and had requested an independent solicitor to see the testatrix and ensure that . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Undue Influence, Legal Professions

Updated: 05 January 2022; Ref: scu.449871

Solicitors Regulation Authority v Ali Chan and Others: Admn 28 Sep 2015

The respondent solicitors had been disciplined by the Solicitors Disciplinary Tribunal. The SRA now complained that the findings and punishment should have been more extensive. They wree said to have introduced clients to purported Stamp Duty savings schemes without explaining properly the risks involved and commissions being paid. Dishonesty was not alleged, but there was said to be a lack of integrity.
Held: The challenge succeeded. The matter was remitted to the Tribunal for reconsideration.

Davies LJ, Ouseley J
[2015] EWHC 2659 (Admin)
Bailii
England and Wales

Legal Professions

Updated: 04 January 2022; Ref: scu.552787

More v Weaver: CA 11 Jul 1928

The appellant brought the latest of several actions, this time alleging defamation in letters from the respondent to her own solicitors making certain statements about the appellant. Those letters had become public in the course of the earlier proceedings. The court was now asked whether such correspondence was subject to absolute privilege.
Held: This is a case of absolute, not qualified, privilege, and there was no ground for leaving to the jury the question whether the statements complained of were relevant. Swift J. was right in the view he took, and the appeal must be dismissed.

Scrutton, Lawrence, Greer LJJ
[1928] EWCA Civ 1, [1928] 2 KB 520
Bailii
Citing:
Cited – Barnardiston v Soame 1702
On the death of Sir Henry North, one of the knights for Suffolk ; a writ was issued forth for the election of a new member, and Sir Samuel Barnardiston and my Lord Huntingtowre were the two candidates ; but Sir Samuel carried it by 78 voices, and . .
Cited – Bottomley v Brougham 1908
The official receiver is acting in a judicial capacity in making his report and his further report and in conducting the examination under that further report. A judge is privileged from inquiry as to whether he is malicious. Channell J considered . .
Doubted – Morgan v Wallis 1917
(Year?) privilege as between solicitor and client is qualified only, and not absolute. . .
Cited – Browne v Dunn HL 1893
Where counsel has with regard to a witness, ‘an intention to impeach the credibility of the story he is telling’, he must give that witness notice of his intention by putting that to him during cross examination, unless such intention was entirely . .

Lists of cited by and citing cases may be incomplete.

Defamation, Legal Professions

Updated: 04 January 2022; Ref: scu.552687

Law Society and others v Kordowski: QBD 7 Dec 2011

Claim for injunctions requiring the Defendant, the publisher of the ‘Solicitors from Hell’ website (‘the Website’), to cease publication of the Website in its entirety and to restrain him from publishing any similar website.

Tugendhat J
[2011] EWHC 3185 (QB)
Bailii
Protection from Harassment Act 1997, Data Protection Act 1998
England and Wales
Cited by:
Cited – Brett Wilson Llp v Person(s) Unknown, Responsible for The Operation and Publication of The Website www.solicitorsfromhelluk.com QBD 16-Sep-2015
The claimant solicitors sought remedies against the unknown publishers of the respondent website which was said to publish material defamatory of them, and to ampunt to harassment.
Held: The alleged defamatory meanings were not challenged by . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other, Defamation

Updated: 04 January 2022; Ref: scu.552388

Solicitors Regulation Authority, Regina (on The Application of) v Imran: Admn 22 Jul 2015

The Authority appealed aganst atwo year sysupension imposed on the respondent solicitor by the Solicitors Disciplinary Tribunal, saying that it was too light. He had been sentenced to imprisonment after being found guilty, having had somebody else agree to take responsibility and points for his speeding offence.
Held: The Tribunal had not misundertood the extent of the respondent’s dishonesty: ‘ it is not possible when assessing exceptional circumstances simply to pick off the individual features of the case. It is necessary, as the tribunal did, to record and stand back from all of those many factors, putting first and foremost in the assessment of whether or not there are exceptional circumstances the particular conclusions that had been reached about the act of dishonesty itself. The fact that many solicitors may be able to produce testimonials and may immediately confess the dishonest behaviour is certainly relevant to the determination of whether or not it is an exceptional case, but is not a factor that is likely to attract very substantial weight. Of far greater weight would be the extent of the dishonesty and the impact of that dishonesty both on the character of the particular solicitor concerned but, most importantly, on the wider reputation of the profession and how it impinges on the public’s perception of the profession as a whole.’

Dove J
[2015] EWHC 2572 (Admin)
Bailii
England and Wales

Legal Professions

Updated: 04 January 2022; Ref: scu.552363

Commission v Latvia: ECJ 10 Sep 2015

Judgment – Failure of a Member State to fulfil obligations – Article 49 TFEU – Freedom of establishment – Notaries – Nationality requirement – Article 51 TFEU – Connection with the exercise of official authority

C-151/14, [2015] EUECJ C-151/14, ECLI:EU:C:2015:577
Bailii
European

Legal Professions

Updated: 03 January 2022; Ref: scu.552170

Dawson-Damer and Others v Taylor Wessing Llp and Others: ChD 6 Aug 2015

The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in each case whether they would require discovery and or were protected by legal professional privilege, and that the exercise would be disproprtionate. The claimants said that the rules of equity as they applied to trustees should be used to restrict the claims of legal professional privilege.
Held: It was not reasonable or proportionate on the facts of this case for TW to carry out the necessary search to determine if any particular document was covered by privilege.

Behrens J HHJ
[2015] EWHC 2366 (Ch)
Bailii
Data Protection Act 1998
England and Wales
Citing:
Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
Cited – Ezsias v The Welsh Ministers QBD 23-Nov-2007
The Claimant claimed under Section 7(9) of the 1998 Act for failures to disclose data to him following several requests. He sought (i) a declaration that the National Assembly had failed to comply with their obligations under the 1998 Act, (ii) . .
Cited – Elliott v Lloyds TSB Bank 24-Apr-2012
Leeds County Court – The court considered the extent of the obligation imposed by s 8(2) of the 1998 Act.
Held: The data controller is only required under the section to supply the individual with such personal data as is found after a . .
Cited – Iesini and Others v Westrip Holdings Ltd and Others ChD 16-Oct-2009
The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
Cited – Talbot v Marshfield 15-Jun-1865
Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them . .
Cited – Thomas v Secretary of State for India in Council 1870
Subscribers to an annuity fund asserted claims to surplus money belonging to the fund. The trustees took advice in relation to that claim. One of the subscribers filed a Summons to compel the production of the legal opinion.
Held: Where there . .
Cited – In re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – Breakspear and others v Ackland and Another ChD 19-Feb-2008
Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and . .
Cited – Campbell v Mirror Group Newspapers plc CA 14-Oct-2002
The newspaper appealed against a finding that it had infringed the claimant’s privacy by publishing a photograph of her leaving a drug addiction clinic.
Held: The claimant had courted publicity, and denied an involvement in drugs. The defence . .
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.

Information, Legal Professions

Updated: 03 January 2022; Ref: scu.551025

Martineau and Others v Ministry of Justice: EAT 17 Jun 2015

EAT Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke – PART TIME WORKERS
Jurisdiction – Employment Appeal Tribunal – Appeals by persons not party to the proceedings before the Employment Tribunal
Part time workers – discrimination
The appeal concerned claims by fee-paid immigration Judges that they were treated less favourably than salaried Judges as fee-paid Judges were paid one and sixth-sevenths of a day for hearing a day’s list of cases and the subsequent writing up of judgments whereas salaried Judges received two full day’s salary. A lead case was specified and the Appellants’ cases were stayed. The Employment Tribunal ruled that the lead Claimant had not established that there was less favourable treatment. The lead Claimant decided not to appeal. The decision in the lead case was binding on the Appellants. They sought to appeal the decision in the lead case. The Employment Appeal Tribunal held that it had jurisdiction under section 21 of the Employment Tribunals Act 1996 to hear an appeal on a question of law brought by persons who were not parties to the proceedings in the Employment Tribunal and it was appropriate to exercise that jurisdiction in the circumstances of the present appeal.

Lewis J
[2015] UKEAT 0272 – 14 – 1706
Bailii
Employment Tribunals Act 1996 21
England and Wales

Employment, Legal Professions

Updated: 01 January 2022; Ref: scu.549118

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 ensuring human rights as a right of privacy, and is recognised in European law (A M and S Europe Ltd). A statute which sought to overrule such rights had to be much clearer to achieve that effect. Reference to the protection of privilege in one subsection was not sufficient to exclude the protection of privilege in other subsections by implication. A necessary implication is not the same as a reasonable implication: ‘A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.’
Lord Hoffmann set out the reason underlying legal professional privilege, and its importance: ‘LPP is a fundamental human right long established in the common law. It is a necessary corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice.’
. . And the courts will: ‘construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appear by necessary implication’.
Lord Hobhouse of Woodborough explained: ‘A necessary implication is not the same as a reasonable implication . . A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have included. A necessary implication is a matter of express language and logic not interpretation.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Scott of Foscote
Times 20-May-2002, Gazette 20-Jun-2002, [2002] UKHL 21, [2002] 2 WLR 1299, [2003] 1 AC 563, 74 TC 511, [2002] STC 786, [2002] BTC 223, [2002] 3 All ER 1, [2002] HRLR 42, [2002] NPC 70, [2002] STI 806, 4 ITL Rep 809
House of Lords, Bailii
Taxes Management Act 1970 20(1), European Convention on Human Rights 8
England and Wales
Citing:
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 – Campbell v The United Kingdom ECHR 25-Mar-1992
The applicant complained about the compatibility with the European Convention of the Prisons rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . . and it shall be within the discretion of the Governor . .
Cited – Foxley v United Kingdom ECHR 20-Jun-2000
A bankrupt was suspected of disposing of his assets to avoid a confiscation order. The trustee in bankruptcy obtained an order for the bankrupt’s post to be diverted to her whilst he was in prison. She opened all post and copied it before forwarding . .
Cited – AM and S Europe Ltd v Commission of The European Communities ECJ 18-May-1982
The court set out the rationale for legal professional privilege: ‘Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Commissioners of Inland Revenue, Ex parte Taylor (No 2) 1990
. .
Appeal from – Regina v A Special Commissioner ex parte Morgan Grenfell and Co Ltd; Regina v Martyn Rounding (HM Inspector of Taxes) ex parte Morgan Grenfell and Co Ltd CA 2-Mar-2001
The inspector of taxes had power to issue a notice requiring access to legally privileged material. The power given by the section included certain exceptions, and those were not to be extended. The special or general commissioners had no power to . .
Doubted – Parry-Jones v The Law Society CA 1969
The Society had, for regulatory purposes, exercised a power under the 1957 Act to call upon the plaintiff, a solicitor, to produce for inspection accounts and other information relating to the conduct of his clients’ affairs. He sought an injunction . .

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 – Regina v Central Valuation Officer and another ex parte Edison First Power Limited HL 10-Apr-2003
Powergen sold a property to Edison. Powergen had paid rates under a separate statutory rating regime, and paid an additional thirteen million pounds under an apportionment. Edison later complained that in being rated itself, the authorities had . .
Cited – Mount Murray Country Club Ltd and others v Commission of Inquiry Into Mount Murray and Another (1) PC 7-Jul-2003
(Isle of Man) The company appealed an order requiring disclosure of their tax documents to an enquiry. The enquiry into possible corruption had been ordered by the Tynwald.
Held: The provisions of the Act protecting tax documents from . .
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 – 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 – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Regina on the Application of PW v Commissioner of Police for the Metropolis, The London Borough of Richmond-Upon-Thames Admn 20-Jul-2005
W, a child of 14 sought judicial review of an order to remove persons under the age of 16 from dispersal areas in Richmond.
Held: The issue was whether the power given to police to remove youths was permissive or coercive. The power given ‘is . .
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Singh and others v Chief Constable of West Midlands Police QBD 4-Nov-2005
A play was presented which was seen by many Sikhs as offensive. Protesters were eventually ordered to disperse under s30 of the 2003 Act. The defendants appealed their convictions for having breached that order, saying that it interfered with their . .
Cited – Singh and others v Chief Constable of West Midlands Police QBD 4-Nov-2005
A play was presented which was seen by many Sikhs as offensive. Protesters were eventually ordered to disperse under s30 of the 2003 Act. The defendants appealed their convictions for having breached that order, saying that it interfered with their . .
Cited – Singh, Regina (on the Application of) v Chief Constable of West Midlands Police CA 28-Jul-2006
Sikh protesters set out to picket a theatre production which they considered to offend their religion. The respondent used a existing ASBO dispersal order which had been obtained for other purposes, to control the demonstration.
Held: The . .
Applied – Regina (Cooke) v Revenue and Customs Commissioners QBD 30-Jan-2007
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 . .
Cited – Cooke, Regina (on the Application of) v Revenue and Customs Admn 30-Jan-2007
The revenue had required production of the taxpayer’s documents held on his behalf by his solicitors, who now applied for judicial review, claiming the protection of section 20.
Held: The protection given to a taxpayer for documents held by . .
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. . .
Cited – Quinn Direct Insurance Ltd v The Law Society of England and Wales CA 14-Jul-2010
Q had provided professional indemnity insurance to a firm of solicitors in which the Law Society had intervened. Claims were made against the firm, but Q declined to pay, saying that the apparently fraudulent activities of the firm fell outside the . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Cited – Veolia Es Nottinghamshire Ltd v Nottinghamshire County Council and Others CA 29-Oct-2010
An elector sought disclosure under the 1988 Act concerning a contract with certain contractors. The authority refused saying that they were commercially sensitive, and the company said that doisclosure would affect its own human rights.
Held: . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
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 – Bank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
Cited – AJA and Others v Commissioner of Police for The Metropolis and Others CA 5-Nov-2013
The Court was asked whether the Investigatory Powers Tribunal had the power to investigate whether police officers acrting as undercover agents, and having sexual relations with those they were themselves investigating had infringed the human rights . .
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Black, Regina (on The Application of) v Secretary of State for Justice SC 19-Dec-2017
The Court was asked whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces, contained in Chapter 1 of Part 1 of the Health Act 2006.
Held: However reluctantly, the claimant’s appeal was . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Taxes Management, Human Rights, European

Updated: 31 December 2021; Ref: scu.170325

G v G: FD 24 Apr 2015

(financial remedies, privilege, confidentiality) W wished to re-open finacial remedy prodeedings embodied in a court consent order. She wished to allege non-disclosure by H of two substantial family trusts. He said that she had known of what she wanted to allege almost three years before and that her delay defeated the claim. She in turn wished to have excluded as subject to legal privilege the contents of an email.

Roberts J
[2015] EWHC 1512 (Fam)
Bailii
England and Wales
Cited by:
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .

Lists of cited by and citing cases may be incomplete.

Family, Legal Professions

Updated: 30 December 2021; Ref: scu.547086

Morice v France: ECHR 23 Apr 2015

There had been a long-running dispute as to the manner of death of a French judge seconded to Djibouti. The applicant, acting for the widow had been prosecuted for his outspoken criticisms of the judge who had had conduct of the case, until being replaced. The applicant claimed that, before the Court of Cassation, his case had not been examined fairly by an impartial tribunal, having regard to the presence on the bench of a judge who had previously and publicly expressed his support for one of the civil parties.
Held: The applicants fears of lack of impartiality could have been considered objectively justified.

Dean Spielmann, P
29369/10 – Grand Chamber Judgment, [2015] ECHR 407
Bailii
European Convention on Human Rights 6.1

Human Rights, Legal Professions

Updated: 29 December 2021; Ref: scu.546140

Lakatamia Shipping Co Ltd v Su and Others: ComC 8 Oct 2021

Application for wasted costs order. Held dismissed

Bryan J
[2021] EWHC 2702 (Comm)
Bailii
England and Wales
Citing:
Cited – Lakatamia Shipping Company Ltd and Others v Su and Others CA 30-Jul-2021
Use of passport orders in enforcement of collection of judgment debt. . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 29 December 2021; Ref: scu.668653

Commissaries of Edinburgh v Russell: SCS 28 Nov 1609

Advocates are entitled to procure in all courts of the kingdom; but an inferior judge, to whom they offer any indignity, may amerciate them, or suspend or deprive them from procuring before him
Mr John Russell, procurator for Bessie Trumbell, and William Trumbell her father, in the action of annulling the pretended marriage betwixt the said Bessie and Robert Naper, depending before the Commissiaries of Edinburgh, and in the process of adherence, pursued by the said Robert against the said Bessie, giving in his eiked answers in the said cause of adherence in write, declared that the Commissaries should not be patrons of such a pernicious and shameful cause; and concluded in these terms, And albeit ye knew the said marriage to be altogether null and unlawful, yet ye will proceed against all law and justice; wherewith the Commissaries finding themselves highly injured, they ordained Mr John to pay twelve pounds of amand, and suspended him from procuring before them for a year; whereupon Mr John giving in his complaint to the Lords, and the Commissaries warned to answer to the complaint compearing, the matter was at length disputed upon these two heads: First, anent the power of the Commissaries in general, whether they might suspend, or deprive an advocate admitted by the Lords; and next, if this fact of Mr John Russell merited suspension therein. It was resolved, That the ordinar advocates admitted by the Lords, at their compearance in inferior courts, might so misbehave themselves, as the saids inferior judges might justly and lawfully suspend or deprive them from any farther procuring in their courts; and as to Mr John Russell’s particular offence, the Lords found it rash and indiscreet, and the Commissaries punishment very rigorous; and therefore calling in the saids parties, and the hail advocates who assisted Mr John Russell, as in a common cause concerning all their liberties, the Lords admonished the advocates to be modest, and not to give occasion, by their contempt to judges, to unlaw, suspend, or deprive them; declaring also, that if any wrong was unjustly offered to modest advocates, the Lords would censure and repair it; and as for Mr John Russell, the Lords ordained him to be more reverent to the Commisaries in time coming, and to delete the words, which they found contumelious, in his defences; and ordained them to restore him to his liberty of procuration, and thereafter gave him up his supplication; because they would not have any record of that variance to remain.

[1609] Mor 341
Bailii

Scotland, Legal Professions

Updated: 28 December 2021; Ref: scu.544308

Bains v Solicitors Regulation Authority: Admn 18 Feb 2015

The solicitor claimant appealed against a finding of misconduct leading to his being struck from the Roll of Solicitors.
Held: The assessment and judgment by the tribunal was impregnable and the undoubted history of ill health cannot weigh with me or impact upon the tribunal’s ultimate finding and conclusion with regard to dishonesty. Holman J said: ‘I have a considerable element of sympathy for Mr Bains. It seems highly unlikely that he would have found himself in this position but for the untimely death of his partner and the pressures that were placed upon him by certain clients whom he thought were honourable and good for the money when, in truth, they were not. But for the reasons I have given, I am not able to conclude that there is any respect in which the decision of the tribunal was wrong or reached unfairly, and this appeal must be dismissed.’

Holman J
[2015] EWHC 506 (Admin)
Bailii
England and Wales

Legal Professions

Updated: 28 December 2021; Ref: scu.543778

Fuchs v Germany (Dec): ECHR 27 Jan 2015

ECHR Article 10-1
Freedom of expression
Criminal and disciplinary sanctions imposed on applicant lawyer for defamation of expert witness for the prosecution: inadmissible
Facts – The applicant is a lawyer. While representing a client accused of having downloaded child pornography on his computer the applicant alleged in writing before a domestic court that the private expert engaged by the prosecution to decrypt the data files had manipulated them in order to obtain the result sought by the prosecution and had a personal interest in falsifying evidence. The expert had been sworn-in when presenting his results to the court. The expert lodged a criminal complaint against the applicant. The applicant was convicted of defamation and fined. In subsequent disciplinary proceedings he received a reprimand and a fine.
In the Convention proceedings, the applicant complained that the measures taken against him had breached his rights under Article 10 of the Convention.
Law – Article 10: The Court found that the measures had been necessary in a democratic society. As regards the relevance and sufficiency of the reasons given by the domestic courts, the Court agreed with the domestic criminal court that the defence of his client’s interests did not allow the applicant to imply, generally, that the expert would falsify evidence. It also agreed with the court in the disciplinary proceedings that the offensive statements did not contain any objective criticism of the expert’s work in his client’s case, but were aimed at deprecating generally his work and declaring his findings to be unusable. The Court accepted the domestic courts’ conclusions that the statements which formed the subject matter of the criminal and disciplinary proceedings were not justified by the legitimate pursuit of the client’s interests.
As to the question of proportionality, the Court noted that the criminal court, in determining the sanction to be imposed on the applicant, took into account the fact that his statements had not been made publicly, that sworn-in experts must be able to perform their duties free of undue perturbation and may require protection from offensive and abusive verbal attacks and that the fines imposed in the criminal and disciplinary proceedings did not appear to be disproportionate.
Conclusion: inadmissible (manifestly ill-founded).

29222/11 64345/11 – Legal Summary, [2015] ECHR 240
Bailii
European Convention on Human Rights

Human Rights, Legal Professions

Updated: 28 December 2021; Ref: scu.543759

The London Criminal Courts Solicitors Association and Others, Regina (on The Application of) v The Lord Chancellor: Admn 18 Feb 2015

The claimant associations sought judicial review of proposals by the Lord Chancellor to make profound changes in the market for the provision of criminal legal aid services by solicitors.

Laws LJ, Cranston J
[2015] EWHC 295 (Admin)
Bailii

Legal Aid, Legal Professions

Updated: 28 December 2021; Ref: scu.543037

Oyston v The Royal Bank of Scotland Plc: SCCO 16 May 2006

The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law which failed to comply with s 58 of the 1990 Act. In July 2005 the claimant obtained a costs order. He and his solicitors then entered into a Deed of Variation which omitted all reference to the andpound;50,000. Had the agreement been in this form from the outset it would have complied with s 58 and been enforceable.
Held: The Deed was ‘ineffective to rectify the situation as against the paying party . . Following the decision of the Privy Council in Kellar it cannot be right that a Deed of Variation can be used to impose a greater burden on the paying party than existed before judgment. The fact that the client is in agreement is of no assistance. If the position were otherwise it would be open to solicitors and their successful client to, for example, alter the level of success fee late in the day.’

Senior Costs Judge Hurst
[2006] EWHC 90053 (Costs)
Bailii, Gazette
Courts and Legal Services Act 1990 58
England and Wales
Citing:
Applied – Kellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Cited by:
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 28 December 2021; Ref: scu.242321

Jackson v Thompsons Solicitors (A Firm) and Others: QBD 6 Feb 2015

There had been a failed application for a Group Litigation Order. The application was dismissed with costs awarded, and the judge invited an application for a wasted costs order against the solicitors conducting the litigation. The insurance company providing After The Event Insurance for the liability purported to avoid the policy. The claimant was assignee of the claims of the insolvent firm, and now claimed very substantial sums from the defendant solicitors, alleging conspiracy and other torts, by them and the judge involved.

Simon J
[2015] EWHC 218 (QB)
Bailii
England and Wales

Torts – Other, Legal Professions

Updated: 27 December 2021; Ref: scu.542322

Bellis and Others v Challinor and Others: CA 5 Feb 2015

Investors had paid sums to the appellant solicitors for investment within a scheme run by a client of te firm. No terms were explicit save that the client was to be invested. When the funds were lost by the client, the claimants sued the solicitors, who now appealed against a finding of breach of trust.
Held: The deposits were made without any terms as to safety being promised or required. The appeal succeeded.

Moore-Bick, Underhill, Briggs LJJ
[2015] EWCA Civ 59, [2015] WLR(D) 57
Bailii, WLRD
England and Wales

Legal Professions

Updated: 27 December 2021; Ref: scu.542259

Aras (No2) v Turkey: ECHR 18 Nov 2014

ECHR Article 6-3-c
Defence through legal assistance
Lack of effective legal assistance during questioning: violation
Article 6-1
Fair hearing
Lack of effective legal assistance during questioning: violation
Facts – The applicant was arrested on suspicion of qualified fraud. While he was being questioned by the investigating judge, his lawyer was allowed to enter the hearing room but not to take the floor or advise his client. The applicant was then placed in detention and eventually convicted of involvement in offshore banking activities.
Law – Article 6 – 3 (c) in conjunction with Article 6 – 1: The applicant’s access to a lawyer had been restricted pursuant to the relevant law in force at that time. The presence of the applicant’s lawyer in the hearing room during the questioning had been merely passive as he had not had any possibility to intervene in order to ensure respect for his client’s rights. In fact, the applicant had not been given an opportunity to consult his lawyer, who in turn had not been allowed to take the floor and defend him. Furthermore, the restriction imposed on his access to a lawyer had been systematic and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts. The Court recalled the importance of the investigation stage for the preparation of criminal proceedings and stressed that Article 6 – 1 required access to a lawyer from the start of questioning of a suspect by the police, unless it was demonstrated in the particular circumstances of the case that there were compelling reasons to restrict that right. Accordingly, the mere presence of the applicant’s lawyer in the hearing room could not be considered to have been sufficient by Convention standards.
Conclusion: violation (five votes to two).
Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; claim in respect of pecuniary damage dismissed.

15065/07 – Legal Summary, [2014] ECHR 1414
Bailii
European Convention on Human Rights

Human Rights, Criminal Practice, Legal Professions

Updated: 25 December 2021; Ref: scu.541471

McSparran McCormick, Re Legal Profession and Legal Aid (Scotland) Act 2009: SCS 8 Jan 2015

Application relates to a complaint made to the Scottish Legal Complaints Commission (‘SLCC’) by a firm of solicitors. The complaint is about the conduct of another solicitor.

Lady Smith
[2015] ScotCS CSIH – 4
Bailii
Legal Profession and Legal Aid (Scotland) Act 2009
Scotland

Legal Professions

Updated: 24 December 2021; Ref: scu.540501

Kerman and Co Llp, Regina (on The Application of) v Legal Ombudsman: Admn 11 Nov 2014

Claim for judicial review by a firm of solicitors, of a decision of the defendant, in a letter that the claimant was the successor to PS Levy and Co and responsible for dealing with a complaint made by Mrs Schroeder to the Legal Ombudsman.

Patterson DBE J
[2014] EWHC 3726 (Admin), [2015] 1 WLR 2081, [2014] WLR(D) 481
Bailii, WLRD
England and Wales

Legal Professions

Updated: 24 December 2021; Ref: scu.539441

Assaubayev and Others v Michael Wilson and Partners Ltd: CA 20 Nov 2014

The court was asked whether the judge was wrong to stay a claim by which the Appellants challenged the entitlement of the Respondent to recover legal fees in circumstances where, as they contend, the Court itself has and should exercise its supervisory jurisdiction over solicitors and others in relation to the matters of which they complain.

Aikens, Black, Christopher Clarke LJJ
[2014] EWCA Civ 1491
Bailii
England and Wales
Citing:
See Also – Assaubayev and Others v Michael Wilson and Partners Ltd SCCO 26-Oct-2012
. .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 23 December 2021; Ref: scu.538908

Darby v The Law Society (the Office of the Supervision of Solicitors): QBD 13 Oct 2003

The solicitor appealed findings of misconduct. He had acted for a builder who complained about breaches of confidentiality and a failure to provide written information on costs.
Held: The appeal was by way of a rehearing (Preiss), but should differ from the original tribunal only in a clear case. Here there was no justification for overturning the tribunals findings on the facts. As to the penalty, different considerations applied here than in general mitigation in criminal cases. The penalties were not the maximum and were appropriate.

Lord Justice Auld Mr Justice Goldring
[2003] EWHC 2270 (Admin)
Bailii
England and Wales
Citing:
Cited – Preiss v General Dental Council PC 17-Jul-2001
(Professional Conduct Committee of the GDC) The procedures of the General Dental Council were in breach of the right to a fair trial, insofar as the same person might both carry out the preliminary stages of an investigation, and later be involved . .
Cited – Bolton v The Law Society CA 8-Dec-1993
The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 23 December 2021; Ref: scu.186738

Dooley v Law Society (2): ChD 23 Nov 2001

The respondent intervened in the claimant’s legal practice. He claimed a duty on the Law Society to administer his former practice in such a way as to maximize recovery of outstanding fees and disbursements.
Held: The Law Society had no duty to pursue such matters. Its duties could be satisfied by allowing him supervised access to the files. The Society’s duty lay first to the solicitor’s clients. The Society on intervening took the right to retain not only sums within the practice, but also sums received in respect of work undertaken up to the date of the intervention, but unpaid at the time.

Justice Lightman
Times 16-Jan-2002, Gazette 10-Jan-2002
Solicitors Act 1974
England and Wales
Cited by:
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 . .
Approved – Holder v Law Society ChD 25-Jul-2002
The applicant solicitors’ practice had been subject to an intervention by the respondent. He claimed that by intervening in his practice, his human right to enjoy his possessions without interference had been infringed.
Held: The power of . .
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.

Legal Professions

Updated: 23 December 2021; Ref: scu.167404

Aaron v The Law Society (the Office of the Supervision of Solicitors): QBD 13 Oct 2003

The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have misled the court as to the circumstances of a tribunal hearing when obtaining a stay. He complained inter alia of delay in the proceedings.
Held: When looking at the delay, time was calculated from the date of institution of proceedings, not the investigation. Auld LJ: ‘Disciplinary proceedings before the Solicitors Disciplinary Tribunal are analogous to criminal proceedings. The uncertainty that springs from and festers with unnecessary and unreasonable delay can, in itself, cause great injustice to practising solicitors, whose livelihood and professional reputations are at stake.’

Lord Justice Auld Mr Justice Goldring
[2003] EWHC 2271 (Admin)
Bailii
Solicitors’ Act 1974 49, European Convention on Human Rights 6
England and Wales
Citing:
Cited – In re A Solicitor CA 1945
An appeal against the findings of the Tribunal to the CA is by way of a rehearing and the Court may make such as order as it thinks fit. . .
Cited – In Re A Solicitor QBD 13-May-1992
In disciplinary proceedings before the Solicitors Disciplinary Tribunal, allegations must be proved to the criminal standard, and certainly so where the allegations are serious and may result in suspension or disqualification. Hearsay evidence . .
Cited – Konig v Federal Republic of Germany ECHR 28-Jun-1978
The reasonableness of the duration of proceedings must be assessed according to the circumstances of each case, including its complexity, the applicant’s conduct and the manner in which the administrative and judicial authorities dealt with the . .
Cited – Zimmermann And Steiner v Switzerland ECHR 13-Jul-1983
When considering cases of delay in court proceedings, the court must look to a further relevant circumstance, that is ‘what is at stake for the applicant’. . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Mentioned – E v United Kingdom ECHR 1988
. .
Mentioned – Guincho v Portugal ECHR 10-Jul-1984
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – financial award
Where there are multiple complaints or charges, about which delay is alleged, time should run from the . .
Cited – Attorney General’s Reference (No 2 of 2001) CACD 12-Jul-2001
When assessing whether the defendant’s right to a trial within a reasonable time had been infringed, the court should look as from the date at which he was charged, or served with a summons, and not from the date of the first interview. Although a . .
Cited – Albert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
Cited – Attorney General’s Reference (No 1 of 1990) CACD 1990
A police officer attended an incident where two people were arrested. Complaints about his conduct were made of which he was given notice. A formal investigation was instituted and adjourned pending the outcome of criminal proceedings against those . .
Cited – Darmalingum v The State PC 10-Jul-2000
(Mauritius) The constitutional right of a defendant to have his case tried within a reasonable time applied not just to the initial trial but also to any appeal arising from that trial. Where there had been inordinate and inexcusable delay between . .
Cited – Goose v Wilson Sandford and Co and Mainon CA 13-Feb-1998
A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and . .

Cited by:
Cited – Campbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 23 December 2021; Ref: scu.186736

Lumsdon and Others, Regina (on The Application of) v Legal Services Board and Others: CA 7 Oct 2014

The claimants sought to challenge the respondent’s decision to introduce the Quality Assurance Scheme for Advocates.
Held: Arden LJ and Lord Neuberger of Abbotsbury MR analysed the cases as yielding a ‘manifestly inappropriate’ test. They then applied that test in the different context of a national measure restricting a fundamental freedom.
Laws LJ correctly attached importance to case law concerned with national measures restricting the free movement of goods, but focused particularly upon a case concerned with the maintenance of a national retail monopoly (Rosengren v Riksaklagaren), in which the court found that the monopoly was unsuitable for attaining the ostensible aim of protecting health.

Lord Dyson MR, Fulford, Sharp lJJ
[2014] EWCA Civ 1276, [2014] WLR(D) 413
Bailii, WLRD
England and Wales
Citing:
See Also – Lumsdon and Others v Legal Services Board Admn 30-Oct-2013
The claimants, practising barristers and members of the Criminal Bar Association sought a declaration that the Quality Assurance Scheme for Advocates approved by the defendant was unlawful. . .
Appeal from – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .

Cited by:
Appeal from – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, European

Updated: 22 December 2021; Ref: scu.537365

Regina v Law Society, ex parte Matthews: 17 Mar 1994

The court considered the management of the statutory Solicitors Compensation Fund: ‘Given, however, what I have already said about the statutory purpose of the compensation fund, it seems to me that it is appropriate to say that the clearest case in which a grant will be made, pursuant to an application for compensation, will be where the solicitor himself has been dishonest and obtained money himself from the applicant which the applicant has thereby lost. That being the general rule, it seems to me that the Law Society is entitled to say that the further the application departs from that particular set of circumstances, the more cautious the Law Society should be in making a grant. It follows that any circumstance which takes the facts behind an application outside that general rule will be a relevant consideration for the Law Society to take into account. ‘

Latham J
Unreported, 17 March 1994
Solicitors Act 1974 36
England and Wales
Cited by:
Cited – Regina v Law Society ex parte Birkett Admn 30-Jul-1999
Some twenty years after the events, the claimant still sought compensation following the alleged negligence of his former solicitor. He now sought it from the Law Society’s compensation fund. The Law Society said the nature of his claim was outside . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 22 December 2021; Ref: scu.219197

Charles v The Judicial and Legal Service Commission and The Disciplinary Tribunal: PC 19 Jun 2002

PC (Trinidad and Tobago) Disciplinary proceedings had commenced against the appellant, the chief magistrate, but the time limits had not been followed. The appellant argued that the time limits were mandatory.
Held: When considering time limits, it is better to avoid words such as ‘mandatory’ and ‘directory’. Bearing in mind the minimal impact of the failures on the appellant, his appeal was dismissed.
Tipping J: ‘At the outset their Lordships observe that it seems highly unlikely that the Commission can have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of inquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct. A self-imposed fetter of such a kind on the discharge of an important public function would seem inimical to the whole purpose of the investigation and disciplinary regime.’ and ‘. . . If a complaint is made about the non-fulfilment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred [in the London and Clydeside Estates case] underlines the fact that problems arising from breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue.’

Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Scott of Foscote The Rt. Hon. Justice Tipping
(Appeal No 34 of 2001), [2002] UKPC 34, [2003] 1 LRC 422
PC, Bailii, PC
Citing:
Cited – Wang v Commissioner of Inland Revenue PC 19-Oct-1994
(Hong Kong) At first instance the judge found that the deputy commissioner lacked jurisdiction to make two determinations since he had not done so within a reasonable time required by the imperative language of the statute. The Court of Appeal . .
Cited – New Zealand Institute of Agriculture Science Inc v Ellesmere County 1976
(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and . .

Cited by:
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Commonwealth

Updated: 21 December 2021; Ref: scu.174493

Re M (A Child) (Contempt Procedure): CA 3 Sep 2019

Failures in Applying Contempt Procedures

The appellant challenged the finding that he had been in contempt of court. Working as a paralegal in the case he was said to have disclosed to the Immigration Tribunal, documents from family proceedings without the Family Court’s required consent.
Held: His appeal succeeded. The Court pointed to several errors in the decision: (1) The failure to give the appellant proper notice of the contempt allegation and the fact that he was facing an application to commit him to prison, the recorder’s direction having been simply an order for the filing of an explanatory statement and no other notice having been issued or served on the appellant.
(2) The failure to particularise the alleged contempt, no attempt having been made to identify precisely the documents which had allegedly been unlawfully disclosed.
(3) The failure to give the appellant a fair opportunity to consider whether he wished to be legally represented. It is said that the judge ought to have appreciated that he did not understand what was going on and, in those circumstances, should have adjourned the hearing.
(4) The failure to ensure the allegations were put expressly to the appellant and to establish whether it was he who was responsible for any unauthorised disclosure rather than Mr Gull.
(5) By requiring the appellant to go into the witness box, thereby compelling him to give evidence.
(6) Further complaint is made as to the sentence imposed. It is submitted that the judge failed to give the appellant a proper opportunity to put forward any matters in mitigation and then passed a sentence which was unduly harsh.
In effect the judge had acted as a prosecutor.

[2019] EWCA Civ 1559
Bailii
Family Procedure Rules 37.27
England and Wales
Citing:
Cited – In re L (A Child) CA 22-Mar-2016
U appealed from conviction and sentence of six months for contempt of court. The court used its inherent jurisdiction
Vos LJ said: ‘The process of committal for contempt is a highly technical one as this case shows. But it is highly technical . .

Lists of cited by and citing cases may be incomplete.

Contempt of Court, Legal Professions

Updated: 21 December 2021; Ref: scu.641794

Solicitors Regulation Authority v Wingate and Another: Admn 21 Dec 2016

The SRA alleged that the Solicitors Disciplinary Tribunal had erred in not finding proven some of the serious allegations against the defendant solicitors proven.
Held: Some of the appeals succeeded.

Holman J
[2016] EWHC 3455 (Admin)
Bailii
Solicitors Act 1974
England and Wales
Cited by:
See Also – Solicitors Regulation Authority v Wingate and Another Admn 7-Feb-2017
Orders following principal judgment . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 21 December 2021; Ref: scu.581949

JSC BTA Bank v Ablyazov and Others: ComC 8 Aug 2014

The Claimant sought disclosure from the First and Second Respondents of documents relating to their assets which would attract legal professional privilege unless falling within the iniquity exception to such privilege, and which are currently held by the Third to Fifth Respondents as their solicitors or former solicitors.
Held: Whether or not this risk, if it exists, justifies intervention will be a question of fact and degree in each case

Popplewell J
[2014] EWHC 2788 (Comm)
Bailii
England and Wales
Citing:
Cited – Omar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Cited – Saunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Cited by:
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 20 December 2021; Ref: scu.535674

Norton v Bar Standards Board: Admn 31 Jul 2014

The applicant had been called to the bar. He had represented that he had no criminal convictions and had three degrees . It was later suggested that neither representation was true. After failing to respond to enquiries, he was notified that a disciplinary hearing would take place. The hearing went ahead in his absence and he was disbarred. He now appealed saying that the hearing should have been adjourned to allow his attendance.
Held: The appeal succeeded. The committee should have allowed further opportunity for the claimant to make his case.

Fulford LJ, Stewart J
[2014] EWHC 2681 (Admin)
Bailii
England and Wales
Citing:
Cited – Regina v Jones (Anthony William) HL 20-Feb-2002
The defendant absconded, and did not appear for his trial despite several listings. The trial proceeded in his absence entirely. After arrest, he appealed, saying that he had not had a fair trial.
Held: It was not suggested that he did not . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 18 December 2021; Ref: scu.535535

Wagenaar v Weekend Travel Limited (T/A Ski Weekend): CA 31 Jul 2014

Vos LJ said: ‘This appeal raises two important issues: First, a question as to the vires of the provisions relating to Qualified One-Way Costs Shifting (‘QOCS’) introduced into the CPR by Rules 44.13 to 44.17 in April 2013 as a result of the reforms that were proposed by Sir Rupert Jackson’s Review of Civil Litigation Costs Final Report (the ‘Jackson Report’); and secondly an issue as to whether QOCS applies not only to claims for damages for personal injuries brought by a claimant against a defendant, but also to claims for an indemnity or contribution brought by such a defendant against a third party, should the rules relating to QOCS be held to be valid.’

Laws, Floyd, Vos LJJ
[2014] EWCA Civ 1105
Bailii
England and Wales

Costs, Legal Professions

Updated: 18 December 2021; Ref: scu.535461

Rochefoucald v Boustead: 1896

Two parties were engaged in a joint venture. The first invited the second to consult his solicitor but, in proceedings against both parties, waived any privilege in respect of what took place.
Held: The second party remained entitled to insist upon the maintenance of the privilege. Under Common law, if there is a joint retainer of a solicitor, all of those who are entitled to that privilege must join in any waiver of it.

(1896) 65 LJ Ch 794
Cited by:
See Also – Rochefoucald v Boustead CA 12-Dec-1896
A property was purchased by the defendant which the court found to have been on the basis as trustee for the plaintiff. The defendant resisted the plaintiff’s claim on the ground of, inter alia, absence of writing.
Held: This defence was . .
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.

Legal Professions

Updated: 18 December 2021; Ref: scu.460496

Macroberts Llp v Mccrindle Group Ltd: SCS 10 Jun 2014

The pursuers sue for professional fees for acting on behalf of MGL in its action against MMS. MGL contends that no fees are due to the pursuers as they were in material breach of contract. MGL also counterclaims (i) for damages consisting of expense incurred as a consequence of having had to engage a new firm of solicitors shortly before the proof in the action against MMS and (ii) for fees paid to the pursuers for work that would not have been required if the breach of contract had not occurred.

Lord Tyre
[2014] ScotCS CSOH – 99
Bailii

Scotland, Legal Professions

Updated: 16 December 2021; Ref: scu.534135

Minter v Priest: CA 1929

An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to ‘the ordinary scope’ of a solicitor’s business or duties. Greer LJ referred to the ‘ordinary scope of a solicitor’s employment’.

Lawrence LJ, Greer LJ
[1929] 1 KB 655
England and Wales
Cited by:
Appeal from – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
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 – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
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. . .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 December 2021; Ref: scu.219418

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 negligence against its non-legal advisors.
Held: Such claims did not give rise to an implied waiver in relation to privileged communications between the corporation and its legal advisors.
The statement of the law in Balabel v Air India does not disturb or modify the principle affirmed in Minter v Priest, that all communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client.
Colman J said: ‘The true analysis of what the courts are doing in such cases of so-called implied waiver of privilege is, in my judgment, to prevent the unfairness which would arise if the plaintiff were entitled to exclude from the court’s consideration evidence relevant to a defence by relying upon the privilege arising from the solicitor’s duty of confidence. The client is thus precluded from both asserting that the solicitor has acted in breach of duty and thereby caused the client loss and, to make good that claim, opening up the confidential relationship between them and at the same time seeking to enforce against that same solicitor a duty of confidence arising from their professional relationship in circumstances where such enforcement would deprive the solicitor of the means of defending the claim. It is fundamental to this principle that the confidence which privilege would otherwise protect arises by reason of the same professional relationship between the parties to the litigation. The underlying unfairness which the principle aims to avoid arises because the claim is asserted and the professional relationship opened for investigation against the very party whose duty of confidence is the basis of the privilege. It is against the unfairness of both opening the relationship by asserting the claim and seeking to enforce the duty of confidence owed by the defendant that the principle is directed.’

After referring to Hearn v Rhay, Colman J said: ‘If the reasoning in Hearn v. Rhay was of general application it would involve a fundamental inroad into the scope of legal professional privilege. Waiver of privilege would operate if it could be established that the communications between the plaintiff and his solicitor were likely to be evidentially relevant to an issue and it would be unfair if the defendant did not have access to them in order to assist his defence. But, as I have already explained, the foundation of the waiver is not merely that the assertion of privilege leads to the inaccessibility of evidence relevant to a defence. It is the inconsistency of the plaintiff on the one hand opening the professional relationship to the inspection of the court and on the other hand seeking to enforce confidentiality so as to exclude communications to which the professional relationship between the same parties has given rise. Thus, whatever the United States courts now regard to be the scope of waiver of privilege, the reasoning in Hearn v. Rhay certainly does not represent English Law.’

Colman J
[1995] 1 All ER 976
Citing:
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
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 – Hearn v Rhay 1975
(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 . .
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 by:
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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 December 2021; Ref: scu.219419

Bullivant v Attorney-General for Victoria: PC 1900

Fraud or dishonesty must be distinctly alleged and as distinctly proved. It must be sufficiently particularised; and it is not sufficiently particularised if the facts pleaded are consistent with innocence.
‘for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production.’ Tat principle applies unless a purpose of the communication is itself to frustrate the process of law, ‘to help to evade the law by illegal conduct’ (Lord Lindley).

Earl of Halsbury LC, Lord Lindley
[1901] AC 196, [1900] 2 QB 163
Commonwealth
Cited by:
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.

Legal Professions, Litigation Practice

Updated: 16 December 2021; Ref: scu.219416

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 solicitor to his client attracts privilege. The broad protection which did exist did not extend to situations where the dominant purpose was not the obtaining of legal advice and assistance in relation to legal rights and obligations. What was protected was advice which required a knowledge of the law. Here, the advice was on matters of presentation, though that might have included matters of law. That possibility would not protect the entire range of assistance given. Where the advice was as to how the witness might present his case so as perhaps to avoid criticism, that should not itself attract privilege. The inquiry was not concerned with legal rights and liabilities. The communications did not in general attract privilege.

Lord Justice Longmore Lord Phillips Of Worth Matravers, Mr Lord Justice Thomas
[2004] EWCA Civ 218, Times 03-Mar-2004, Gazette 18-Mar-2004, [2004] 3 All ER 168, [2004] QB 916, [2004] 2 WLR 1065
Bailii
Tribunals of Inquiry Evidence Act 1921 1(3)
England and Wales
Citing:
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 . .
Appeal from – Three Rivers District Council v Bank of England (No 5) ComC 4-Nov-2003
The defendant bank sought protection from disclosure of advice it had received from its solicitors.
Held: To the extent that the communications were for the purpose of seeking advice as to its legal rights and obligations, the communications . .
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 – 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 . .
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 – 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. . .
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Wilson v Northampton and Banbury Junction Railway Co 1872
Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .

Cited by:
Appeal from – 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.

Litigation Practice, Legal Professions

Updated: 16 December 2021; Ref: scu.194072

DWF Llp v Secretary of State for Business Innovation and Skills, Acting On Behalf of The Insolvency Service: CA 8 Jul 2014

The claimant firm of solicitors challenged the decision made by the respondent in the award of contracts to provide legal services to the respondent.
Held: Sir Robin Jacob, giving the judgment of the Court of Appeal with which the other members agreed, decided not to deal with an argument that modified principles should apply in the case where the court was considering whether to lift an automatic suspension and proceeded to apply the American Cyanamid principles.

Arden, Black LJJ, Sir Robin Jacob
[2014] EWCA Civ 900
Bailii
Public Contracts Regulations 2006 4(3), EU Directive 2004/18/EC
England and Wales
Cited by:
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 16 December 2021; Ref: scu.533932

Pfizer Ltd v Medimpex Jamaica Ltd and Another: PC 2 Jul 2014

The parties disputed whether the actual applicant for the patent, being an attorney and inventor had applied as law agent for the appellant or as the inventor.

Lord Neuberger, Lord Sumption, Lord Hughes, Lord Hodge, Sir David Kitchin
[2014] UKPC 20
Bailii

Commonwealth, Intellectual Property, Legal Professions

Updated: 16 December 2021; Ref: scu.533887

Rogers, Re In the Estate of: ChD 6 Apr 2006

The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having decided at conference ‘where a testator has made a will appointing partners in a firm as executors and the firm has subsequently converted to a limited liability partnership, applications for grants coming from members of the limited liability partnership will no longer be allowed. ‘
Held: Lightman J said ‘For testators adopting a clause in the terms of clause 2 of the Will the legal distinction between a solicitors’ partnership and a solicitors’ (confusingly named) limited liability partnership and between a profit sharing partner in a solicitors’ partnership and a profit sharing member of a limited liability partnership is likely totally to escape them, unless given a lesson in the law which they may well not follow. Even if they do grasp the distinction, they are likely to regard it as a distinction without any relevant difference for their purposes. ‘ Therefore: ‘upon the true construction of the Will probate should be granted to applicants who are profit sharing members of the LLP.’ However, only profit-sharing partners in a firm may be granted probate.

Lightman J
Times 03-May-2006, [2006] EWHC 753 (Ch), [2006] 2 All ER 792, [2006] 1 WLR 1577
Bailii
England and Wales
Citing:
Cited – In re Horgan ChD 1971
The court considered the form of appointment of a solicitor as executor in a will. The will had appointed a partnership firm of solicitors ‘who may act through any partner or partners of that firm or their successors in business at the date of my . .
Cited – Oswald Hickson Collier and Co (a firm) v Carter Ruck HL 1984
A firm is a partnership of two or more persons, and a one man practice is not a firm.
Lord Denning MR said: ‘It was submitted by Mr Cullen that – as the relationship between a solicitor and his client is a fiduciary relationship – it would be . .
Cited – Re Orwell’s Trust ChD 1982
The term ‘firm’ may include a company: ‘Whilst the term ‘firm’ in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company.’ . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions

Updated: 13 December 2021; Ref: scu.240115

Hollington Bros v Rhodes: ChD 1951

A solicitor does not withoutmore have ostensible authority to conclude a contract for his client.

Harman J
[1951] 2 TLR 691
England and Wales
Cited by:
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.

Legal Professions

Updated: 13 December 2021; Ref: scu.188876

The Law Society, Regina (on the Application of) v Legal Services Commission: CA 29 Nov 2007

The Law Society challenged the new contract proposed for legal aid providers, saying that the Unified Contract reserved too great powers to alter its terms unilaterally, and was in breach of the European Directive on standards for public procurement contracts.
Held: The contract was invalid. Where amendments to the tender criteria or to the contract are made after an award to one party, such amendments are liable to infringe the principles in that, had the other tenderers been aware in advance of the terms of the contract actually put in place, this might have affected the terms of their tenders. Such amendments can violate the principle of transparency and of equality of treatment. It cannot therefore be said that there are any effective limitations, still less that the parameters of change will be known to the profession. The power of amendment was so wide as to amount to a power to rewrite the contract.

Lord Phillips of Worth Matravers CJ, Wall LJ, Lawrence Collins LJ
[2007] EWCA Civ 1264, Times 03-Dec-2007, [2008] 2 All ER 148, [2008] 2 WLR 803, [2008] QB 737
Bailii
Council Directive 2004/18/EC, Public Contract Regulations 2006, Access to Justice Act 1999
England and Wales
Citing:
Cited – Commission v CAS Succhi di Frutta (Judgment) ECJ 29-Apr-2004
Europa Appeal – Common agricultural policy – Food aid – Tendering procedure – Commission decision amending the conditions after the auction – Payment of successful tenderers in fruit other than those specified in . .
Cited – Commission v France ECJ 14-Oct-2004
ECJ (Judgment) In an action for annulment the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, . .
Cited – Commission v Belgium C-87/94 ECJ 25-Apr-1996
ECJ (Judgment) 1. The procedure laid down by Directive 90/531 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors must be observed irrespective of . .
Cited – Telaustria and Telefonadress (Judgment) ECJ 7-Dec-2000
. .
Cited – SIAC Construction v County Council of the County of Mayo ECJ 18-Oct-2001
ECJ Public works contracts – Award to the most economically advantageous tender – Award criteria.
There was a disagreement between the parties as to the interpretation of tender documents.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions, European

Updated: 11 December 2021; Ref: scu.261609

Locabail (UK) Ltd v Bayfield Properties Ltd and Another; Locabail (UK) Ltd and Another v Waldorf Investment Corporation and others (No 2): ChD 18 May 1999

A solicitor sitting as a judge was not obliged to disqualify himself even though his firm might not have been able to act for one of the parties to the case, unless a reasonable third party might properly think that he could not be impartial.

Times 18-May-1999
England and Wales
Cited by:
Appeal from – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Natural Justice

Updated: 11 December 2021; Ref: scu.83131

Ralph Hume Garry (a Firm) v Gwillim: CA 22 Oct 2002

The appellant sought to have struck out the claimant’s action to recover their costs having represented him. He said that the detail in the bill was so deficient as not to comply with the requirements of the Act.
Held: Though the detail given in the bill was inadequate, it was permissible to make allowance for the appellant’s own knowledge and understanding of the case to satisfy the gravamen of the requirement which was that the client should know what he was being asked to pay for. The inadequacies could be remedied by accompanying documents, or information the client already had. In modern times, the least a client could expect was a computer printout to show what had taken place.

Ward, Mance, Nourse, LLJ
Times 04-Nov-2002, Gazette 21-Nov-2002, [2002] EWHC 9034 (Costs)
Bailii
Solicitors Act 1974 64 69
England and Wales
Citing:
Cited – In re a Solicitor (Taxation of Costs) CA 1955
Matrimonial proceedings were in contemplation but the instructions to solicitors were terminated before a petition for judicial separation was filed. The client complained as to the costs bill submitted by the solicitors.
Denning LJ disposed of . .
Cited – Haigh v Ousey 1857
. .
Cited – Keene v Ward 1849
. .
Cited – Cook v Gillard 1852
A solicitor delivered his bill. The first part for pounds 2 19s 8d related to attending the defendant and consulting as to slanderous reports; there were then charges for ‘Letter before action’, ‘Instructions to sue’, ‘Writ of summons’, and . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Costs

Updated: 11 December 2021; Ref: scu.177849

Crossley (Monetary Penalty Notice): ICO 10 May 2011

A monetary penalty of andpound;1,000 was issued to Andrew Jonathan Crossley, formerly trading as solicitors firm ACS Law, for failing to keep sensitive personal information relating to around 6,000 people secure.

[2011] UKICO 2011-4
Bailii
England and Wales

Information, Legal Professions

Updated: 11 December 2021; Ref: scu.530434

In re Horgan: ChD 1971

The court considered the form of appointment of a solicitor as executor in a will. The will had appointed a partnership firm of solicitors ‘who may act through any partner or partners of that firm or their successors in business at the date of my death not exceeding two in number to be the executors and trustees of this my will’, but the firm not having a personality in law probate could not be granted probate to it.
Latey J said: ‘testators often want their solicitors to act as executors and, in case the individual solicitors they have in mind at the time of giving instructions pre-decease them, they want an appointment which will enable succeeding partners to act. Also they want such appointment to cover such contingencies as the sale of the practice or its amalgamation with another . .
The law does not permit the appointment as executor of a partnership firm as such. Where a will is so phrased as to purport to do this, the court construes it as appointing the individual partners as executor . .
Mr Bingham [for the Law Society] argued that prima facie it is wholly inappropriate to say: ‘I appoint X, Y and Z and they can act through A, B and C.’ But, he says, meaning can be given to it if one were to treat the firm as though it were a company and say ‘I want the partners at the date of my death . . ‘ the natural construction of the clause as a whole is that the testator was contemplating and intending the appointment of all [the partners], a grant to two and power reserved to the others.’

Latey J
[1971] P 50
England and Wales
Cited by:
Cited – Rogers, Re In the Estate of ChD 6-Apr-2006
The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions

Updated: 11 December 2021; Ref: scu.240150

Miller v Law Society: ChD 14 May 2002

The claimant sought damages from the respondent for breach of their private duty of care to him. They had intervened in his practice. He alleged that the investigating accountant had been negligent in his actions.
Held: The Law Society owed the claimant no private duty of care. They acted in performing a statutory function, and the statute provided a remedy. That remedy was all that was available to the claimant. The accountant’s investigation was integral to the disciplinary process set down in the 1974 Act, and could lead either to intervention, or to proceedings before the tribunal. A private law action could not intrude into the exclusively public field of solicitors’ disciplinary processes.

Mr Geoffrey Vos, QC
Times 03-Jun-2002, Gazette 27-Jun-2002
Solicitors’ Accounting Rules 1991 27, Solicitors Act 1974
England and Wales

Legal Professions, Administrative

Updated: 11 December 2021; Ref: scu.172181

Re Orwell’s Trust: ChD 1982

The term ‘firm’ may include a company: ‘Whilst the term ‘firm’ in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company.’

Vinelott J
[1982] 1 WLR 1337, [1982] 3 All ER 177
England and Wales
Cited by:
Cited – Rogers, Re In the Estate of ChD 6-Apr-2006
The deceased appointed partners in a firm of solicitors to act as her executors. The firm merged into a limited liability partnership. The partners in the new firm appeal against refusal of the court to grant probate, the probate registrars having . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Legal Professions, Company

Updated: 11 December 2021; Ref: scu.240152

Wright v Carter: CA 1903

The plaintiff sought to set aside a gift that he had made to his solicitor asserting undue influence.
Vaughan Williams LJ said: ‘. . whenever you have these fiduciary relations (and in the present case we have to deal with the particular fiduciary relation of solicitor and client), the moment the relation is established, there arises a presumption of influence, which presumption will continue as long as the relation, such as that of solicitor and client, continues, or at all events until it can be clearly inferred that the influence had come to an end.’ and ‘It is perfectly plain that in the case of a gift the rule applied by the Court of Equity is much more stringent . . than the rule that is applied in the case of a bargain or a contract’
Stirling LJ said: ‘The rules of the Court require this to be proved in a transaction of sale in which the solicitor is a purchaser-first, the client must be fully informed; secondly, he must have competent independent advice; and, thirdly, the price which is given must be a. fair one. The onus of proving all this lies on the solicitor.’
Cozens Hardy LJ said: ‘Assuming that the transaction is to be treated as a sale by the plaintiff to his solicitor, Mr. Carter .. I am clearly of opinion that it rests upon Mr. Carter to justify the sale and to shew that ‘the transaction was perfectly fair, that the client knew what he was doing, and that a fair price was given’.

Vaughan Williams, Stirling, Cozens Hardy LJJ
[1903] 1 Ch 27
England and Wales
Citing:
Approved – Powell v Powell 1900
Strong moral pressure was applied by a stepmother to a girl who was only just twenty one.
Held: She was regarded as not really capable of dealing irrevocably with her parent or guardian in the matter of a substantial settlement. Where a . .
Cited – Tomson v Judge 25-Jun-1855
A, who was proved to have entertained feelings of peculiar personal regard for B, his solicitor, conveyed to him certain rea1 estate by a deed, on the face of it a purchase deed the consideration was andpound;1000, the real value upwards of . .

Cited by:
Cited – Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Legal Professions

Updated: 06 December 2021; Ref: scu.224820

Hallam-Peel and Co v London Borough of Southwark: CA 21 Oct 2008

The solicitor appealed against a wasted costs order made against him. The council had sought possession of a tenanted property, and the solicitors acting for the tenant had applied for a stay of execution on the basis that the original order was over six years old. A further hearing was abortive when a point arose which the solicitors had not anticipated, and a wasted costs order was made.
Held: The orders were set aside. The shortcoming was not such as to be ‘unreasonable conduct’ worthy of a costs order.

Thorpe LJ, Rimer Lj
[2008] EWCA Civ 1120
Bailii
Supreme Court Act 1981 51
England and Wales

Legal Professions, Costs

Updated: 06 December 2021; Ref: scu.277078

Powell v Powell: 1900

Strong moral pressure was applied by a stepmother to a girl who was only just twenty one.
Held: She was regarded as not really capable of dealing irrevocably with her parent or guardian in the matter of a substantial settlement. Where a solicitor is instructed to advise a person who may be subject to the undue influence of another he must bear in mind that it is not sufficient that she understands the nature and effect of the transaction if she is so affected by the influence of the other that she cannot make an independent decision of her own. It is not sufficient to explain the documentation and ensure she understands the nature of the transaction and wishes to carry it out. He must arrange independent advice if necessary.

Farwell J
[1900] 1 Ch 243
England and Wales
Cited by:
Approved – Wright v Carter CA 1903
The plaintiff sought to set aside a gift that he had made to his solicitor asserting undue influence.
Vaughan Williams LJ said: ‘. . whenever you have these fiduciary relations (and in the present case we have to deal with the particular . .
Cited – Royal Bank of Scotland v Etridge, Loftus and Another v Etridge and Another, Etridge v Pritchard Englefield (Merged With Robert Gore and Co ) Midland Bank Plc v Wallace and Another (No 2) CA 31-Jul-1998
Detailed guidance was given on the quality of independent legal advice, which would be required to be given to wives signing charges to secure their husbands’ business etc accounts on the matrimonial home. The interaction of legal advice and . .

Lists of cited by and citing cases may be incomplete.

Undue Influence, Legal Professions

Updated: 06 December 2021; Ref: scu.224819

Holder v Law Society: ChD 25 Jul 2002

The applicant solicitors’ practice had been subject to an intervention by the respondent. He claimed that by intervening in his practice, his human right to enjoy his possessions without interference had been infringed.
Held: The power of intervention was necessary to balance the need to protect the public and respect for the solicitor’s rights. Whether the solicitor’s rights to free enjoyment of his possessions had been infringed was a matter of fact and degree in the particular circumstances of each case. This case was not so clear cut, and the summary judgment for the Law Society striking out the claim was set aside. The court asked about the use of powers which would destroy a soilicitor’s practice: ‘In some cases it may be necessary because it might be a necessary evil to correct a much greater one. The more interesting question is, is it always necessary. In that case I am not convinced that it can be said that an intervention in the way in which the procedure is currently permitted to be exercised, is always necessary. It follows from that analysis that if the procedure was not necessary in that way, and it resulted in the interference in the right to possession of property, the procedure itself will infringe the claimant’s human rights. I do not see that it can be said that there is no other alternative. If a report for example, is prepared along the lines of the present case there would have been no difficulty in making an appointment at short notice to go to court for an order for an intervention or some lesser order if the court thought that appropriate. There would then be an independent review and the court (like a search order or a freezing order) would act on the evidence. If the evidence was made out, there would be an independent review of the procedure. Intervention in a full blown way might be required on occasions. Alternatively the court might feel a lesser intervention (such as a receiver, a manager) would be appropriate.. . .’

Mr Justice Peter Smith
Times 09-Sep-2002, [2002] EWHC 1599 (Ch), [2003] 1 WLR 1059
England and Wales
Citing:
Approved – Dooley v Law Society (2) ChD 23-Nov-2001
The respondent intervened in the claimant’s legal practice. He claimed a duty on the Law Society to administer his former practice in such a way as to maximize recovery of outstanding fees and disbursements.
Held: The Law Society had no duty . .

Cited by:
Appeal from – Holder v Law Society CA 24-Jan-2003
The Society had intervened in the applicant’s legal practice. He complained that the intervention was disproportionate, and by removing his right to enjoyment of his possession, infringed his human rights. The Society appealed the finding that an . .
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.

Legal Professions, Human Rights

Updated: 06 December 2021; Ref: scu.175056

Prince Jefri Bolkiah v KPMG (A Firm): HL 16 Dec 1998

Conflicts of Duty with former Client

The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of which Prince Jefri had been chairman, to investigate the whereabouts of certain assets suggested to have been used by Prince Jefri for his own benefit.
Held: The House granted an injunction restraining KPMG from acting for the Agency. The burden was on KPMG to show that there was no risk of the information coming into the possession of those within KPMG acting for the Agency. Though KPMG had tried to erect a Chinese wall, this was ad hoc and within a single department; further the two teams involved – one which had acted for Prince Jefri and the one which was acting for the Agency – contained large and rotating memberships of persons accustomed to working with each other.
A solicitor has an absolute duty to his clients, and to former clients, to protect their confidence and could not later act for an opponent. An accountant providing litigation support is bound by the same duties, an information barrier, a so-called Chinese Wall, erected within the firm is liable to be insufficient. The duty extends beyond that of refraining from deliberate disclosure, and includes the duty not to put the client at risk: ‘ . . a fiduciary cannot act at the same time both for and against the same client, and his firm is in no better position. A man cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest. His disqualification has nothing to do with the confidentiality of client information. It is based on the inescapable conflict of interest which is inherent in the situation.’ and (Lord Millett) ‘I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial.’
Lord Millett said: ‘It is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (1) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (2) that the information is or maybe relevant to the new matter in which the interests of the other client is or may be adverse to his own’.

Lord Browne-Wilkinson Lord Hope of Craighead Lord Clyde Lord Hutton Lord Millett
Times 20-Apr-1999, [1998] UKHL 52, [1999] 2 AC 222, [1999] 1 All ER 517, [1999] 2 WLR 215
House of Lords, Bailii
England and Wales
Citing:
Rejected – 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 . .
Appeal from – Bolkiah v KPMG (A Firm) CA 22-Oct-1998
When considering whether an accountancy firm could be permitted to conduct an investigation on behalf of solicitors acting in a matter acting against a client for whom it still held confidential information, the court could find a balance between . .
Criticised – 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 – Kelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
Cited – In Re A Firm of Solicitors ChD 9-May-1995
A solicitor moving from a firm acting on one side of a dispute to the firm on the other side must be able to show that no conflict of interest would arise. The court should intervene unless it is satisfied that there is no risk of disclosure. It . .

Cited by:
Cited – Koch Shipping Inc v Richards Butler (a Firm) CA 22-Jul-2002
The claimants in an arbitration sought orders with regard to a solicitor who had moved to the opponent’s firm of solicitors, but who came with privileged knowledge of the claimant’s business dealings. She offered undertakings, but the claimant . .
Cited – Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
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 . .
Cited – Young, Young, Irby v Robson Rhodes and Frank Attwood ChD 30-Mar-1999
Where a merger was proposed between two accountancy firms, who had provided litigation support services to opposing sides in a case, it was necessary to separate the two halves most rigorously including physical separation in order to ensure no . .
Cited – In Re a Firm of Solicitors TCC 16-Jul-1999
A firm of architects sought an order to prevent the defendants instructing a firm of solicitors including a solicitor who had been a partner in a firm representing them is earlier similar matters. The solicitor had personally been involved in . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – GUS Consulting Gmbh v Leboeuf Lamb Greene and Macrae CA 26-May-2006
The claimant brought an action to restrain the lawyer defendants from acting in arbitration for having previously acted for other parties.
Held: The claimant’s appeal for an injunction failed. Following Bolkiah, the burden on the defendants . .
Cited – British Sky Broadcasting Group Plc and Another v Virgin Media Communications Ltd and others CA 6-Jun-2008
The parties were involved in litigation concerning allegations of anti-consumer practices. It was agreed that commercially sensitive documents should be exchanged, but the terms protecting the confidences could not be agreed. The parties were also . .
Cited – Davies v Davies CA 4-Mar-1999
The marriage was unhappy. The wife consulted briefly but did not instruct a solicitor, Mr Tooth. Some 7 years later as divorce proceedings were considered, the husband did instruct Mr Tooth. She sought to prevent him acting, but then wanted to . .
Cited – Winters v Mishcon De Reya ChD 15-Oct-2008
The claimant sought an injunction to prevent the defendant firm of solicitors acting for his employers against him. He said that they possessed information confidential to him having acted for him in a similar matter previously. The solicitors . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – Caterpillar Logistics Services (UK) Ltd v Huesca De Crean QBD 2-Dec-2011
The claimant sought an order to prevent the defendant, a former employee, from misusing its confidential information said to be held by her. Her contract contained no post employment restrictions but did seek to control confidential and other . .
Cited – Singla v Stockler and Another ChD 10-May-2012
The claimant appealed against the striking out of his action for an injunction against the defendant solicitors to restrain them for action for a person, saying that whilst there had been no formal retainer, they had informally advised him. The . .
Cited – Albion Plc v Walker Morris (A Firm) CA 19-Mar-2006
The court was asked whether defendant firm of solicitors should be prevented from acting for potential conflict of interest. They sought leave to appeal an order restraining them from acting. They had acted in two similar matters for the client . .
Approved – Davies v Davies CA 2000
The wife had objected to the instruction by her former husband of a solicitor who had been instructed by her some seven years previously. She withdrew her objection, but the court now considered an appeal as regards costs.
Held: The court . .
Cited – ZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Information

Leading Case

Updated: 05 December 2021; Ref: scu.78470

Munro-Wilson v Olswang (A Firm): QBD 10 Apr 2003

The claimant sought damages for negligence against the respondent firm of solicitors. They responded that they had no retainer from him. Though they had acted in other matters, sums were due from him, and he had been told that no further work would be done without payment.
Held: The acts of friendship and support for the claimant from a junior partner were not sufficient to counter the clear statement that the firm were not acting.

The Hon Mr Justice Goldring
Unreported, 10 April 2003
England and Wales

Legal Professions

Updated: 05 December 2021; Ref: scu.180708