Category: Legal Professions

O’Connor v Bar Standards Board: QBD 18 Dec 2014

Appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs. The claimant said that the procedures adopted by the Board in disciplinary proceedings had (inter alia) infringed her human rights. She had eventually been cleared of any breach of her professional code. The Board said that her claim had been delayed for more than a year and was out of time.
Held: There was sufficiently pleaded a case that the BSB indirectly discriminated against the appellant on racial or ethnic grounds by bringing the disciplinary proceedings against the claimant, but the claim was time-barred by section 7(5) of the 1998 Act: ‘Here, the ‘act complained of’ in the one human rights claim that I have held to be both adequately pleaded and sustainable for the purposes of a summary judgment application is the BSB’s ‘prosecution’ of the appellant. The decision to bring proceedings was taken on 9 June 2010 or at the latest in late July 2010 when the charges were served on the appellant. If time runs from either of those dates then the one-year time limit expired some 17 or 18 months before the issue of these proceedings in February 2013. If the BSB’s ‘prosecution’ of the appellant is considered to be a continuing state of affairs up to the tribunal decision, time under section 7 expired in May 2012.’

Judges:

Warby J

Citations:

[2014] EWHC 4324 (QB)

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Cited by:

At first instance – O’Connor v Bar Standards Board CA 25-Jul-2016
The appellant said that the Board had infringed her human rights in its approach to disciplinary proceedings brought against her. She had been cleared and now sought a remedy. The Board successfully argued that her claims were out of time.
At QBD – O’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 27 November 2022; Ref: scu.540258

Dubai Aluminium Company Limited v Salaam and Others: HL 5 Dec 2002

Partners Liable for Dishonest Act of Solicitor

A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to the activities which a solicitor would normally undertake, that in favour of third parties, it must be assumed that he acted in the ordinary course of his business, and the partners were vicariously liable. It had been said that the acts were equitable wrongs, and did not fall within the compass of common law torts or deceit, but nothing in the 1890 Act restricted the applicability of the section to exclude these acts. Explicit authorisation by each partner of the acts of other partners could not be expected or required for vicarious liability to be established. ‘Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment.’
Lord Millett said: ‘Vicarious liability is a loss distribution device based on grounds of social and economic policy. Its rationale limits the employer’s liability to conduct occurring in the course of the employee’s employment. ‘The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carries on . . .the ultimate question is whether or not it is just that the loss resulting from the servant’s acts should be considered as one of the normal risks to be borne by the business in which the servant is employed.’
He also said that it is preferable to substitute dog Latin for bastard French.
Lord Nicholls said that: ‘This ‘close connection’ test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged. It provides no clear assistance on when, to use Professor Fleming’s phraseology, an incident is to be regarded as sufficiently work-related, as distinct from personal’ . . This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable.’
and ‘The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risks to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.’
Lord Millett explained the structure and effect of section 9 of the 1980 Act: ‘Section 9 is not concerned with the liability of the firm at all but with the liability of the individual partners. It provides that every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while he was a partner. Section 12 makes every partner jointly and severally liable for loss for which the firm was liable under sections 10 and 11 while he was a partner in the firm. Where section 10 makes the firm vicariously liable for loss caused by a partner’s wrongdoing, therefore, section 12 makes the liability the joint and several liability of the individual partners. Sections 11 and 13 are not concerned with wrongdoing or with vicarious liability but with the original liability of the firm to account for receipts. . . Section 11 deals with money which is properly received by the firm in the ordinary course of its business and is afterwards misappropriated by one of the partners. The firm is not vicariously liable for the misappropriation; it is liable to account for the money it received, and cannot plead the partner’s wrongdoing as an excuse for its failure to do so. Section 13 deals with money which is misappropriated by a trustee who happens to be a partner and who in breach of trust or fiduciary duty afterwards pays it to his firm or otherwise improperly employs it in the partnership business. The innocent partners are not vicariously liable for the misappropriation, which will have occurred outside the ordinary course of the firm’s business. But they are liable to restore the money if the requirements of the general law of knowing receipt are satisfied.’

Judges:

Slynn of Hadley, Nicholls of Birkenhead, Hutton, Hobhouse of Woodborough, and Millett LL

Citations:

Times 06-Dec-2002, [2003] 1 Lloyd’s Rep 65, [2002] UKHL 48, [2002] 3 WLR 1913, [2003] 2 AC 366, [2003] 1 All ER 97, [2003] 2 All ER (Comm) 451, [2003] 1 LLR 65, [2003] 1 BCLC 32, [2003] IRLR 608, [2003] 1 CLC 1020, [2003] WTLR 163

Links:

House of Lords, Bailii

Statutes:

Civil Liability (Contributions) Act 1978 1(1), Partnership Act 1890 10, Limitation act 1980 9 21

Jurisdiction:

England and Wales

Citing:

Appeal from – Dubai Aluminium Company Limited v Salaam and others CA 7-Apr-2000
The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who . .
Cited – Attorney General v Stanyforth 1721
Co-partners are liable for penalties incurred, for instance, for breach of revenue laws. . .
Cited – Barnes v Addy 12-Feb-1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .
Cited – Morris v C W Martin and Sons Ltd CA 1965
The plaintiff took her mink stole to the defendants for cleaning. An employee received and stole the fur. The judge had held that the defendants were not liable because the theft was not committed in the course of employment.
Held: The . .
Cited – Barwick v English Joint Stock Bank 1867
When considering the vicarious liability of a master for the acts of his servant, no sensible distinction could be drawn between the case of fraud and any other wrong. The general rule was that: ‘the master is answerable for every such wrong of the . .
Cited – Hamlyn v John Houston and Co CA 1903
One side of the defendant’s business as grain merchants was to obtain, by lawful means, information about its competitors’ activities. Houston, a partner in the firm, obtained confidential information on the plaintiff Hamlyn’s business by bribing . .
Cited – Lloyd v Grace, Smith and Co HL 1912
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ managing clerk, who defrauded her.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the . .
Cited – Plumb v Cobden Flour Mills Co Ltd HL 1914
In looking at restrictions by an employer to limit his vicarious liability, the court must distinguish between prohibitions which limit the sphere of employment and those which only deal with conduct within the sphere of employment:’ ‘there are . .
Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Bugge v Brown 1919
When an employee acts ‘so as to be in effect a stranger in relation to his employer with respect to the act he has committed’, his employer does not have vicarious liability for his acts. . .
Cited – Lister and others v Hesley Hall Ltd CA 7-Oct-1999
Where a residential worker at a children’s home committed sexual abuse on children within his care, the company running the home were not vicariously liable for the acts themselves, but also were not responsible where the worker did not report his . .
Cited – Kooragang Investments Pty Ltd v Richardson and Wrench Ltd PC 27-Jul-1981
(New South Wales) An employee of the defendants was authorised to carry out valuations, but he negligently carried out an unauthorised private valuation.
Held: In doing so he was not acting as an employee of the defendant company. The company . .
Cited – Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) v Export Credits Guarantee Department HL 19-Feb-1999
The wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole . .
Cited – Mara v Browne CA 17-Dec-1895
In a marriage settlement, the first defendant, a solicitor, advised the persons who were acting as trustees, though not yet formally appointed as such. He suggested a series improper of investments for the trust funds. The money was to be lent on . .
Cited – Royal Brunei Airlines SDN BHD v Tan PC 24-May-1995
(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective . .
Doubted – In re Bell’s Indenture 1980
A firm of solicitors was held not to be vicariously liable for an act of dishonest assistance made by a partner. . .
Cited – Fisher v CHT Ltd (No 2) 1966
Where more than one defendant is liable in damages, the court will make allowance for the insolvency of one when ordering a contribution from the others. . .
Cited – K v P ChD 1993
The court considered when orders might be made under the Act for a contribution to be made to damages payable. Ferris J said: ‘In my judgment the ex turpi causa defence is not available as an answer to a claim for contribution under the Act of 1978. . .
Cited – Brydges v Branfill 1842
A tenant for life of settled land set out on an elaborate fraud aiming for the capital. It required first a private Act of Parliament to enable the estate to be sold under the direction of the court and the proceeds paid into court and invested in . .
Cited – St Aubyn v Smart 1868
. .
Cited – Ashworth v Stanwix QBD 1860
Innocent partners are vicariously liable for the torts of their co-partner. . .
Cited – Meekins v Henson 1964
The section in the 1890 Act produced ‘a necessary equation of a partnership firm with employers for this purpose [vicarious liability]’. Vicarious liability is a ‘secondary liability as the liability of one person for the act of another who is . .
Cited – Re Fryer 1857
The acts of a solicitor as an express trustee are not within the scope of the ordinary business of a solicitor. . .
Cited – Taylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .
Cited – Clarkson v Davies PC 1923
In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by . .
Cited – Navarro v Moregrand Ltd 1951
The vicarious liability of an employer does not depend upon the employee’s authority to do the particular act which constitutes the wrong. It is sufficient if the employee is authorised to do acts of the kind in question. . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc v D B Thakerar and Co (a Firm); Ranga and Co (a Firm) and Sterling Financial Services Limited CA 21-Jul-1998
Where an action had been begun on basis of allegations of negligence and breach of trust, new allegations of fraud where quite separate new causes of claim, and went beyond amendments and were disallowed outside the relevant limitation period. . .
Cited – Selangor United Rubber Estates Ltd v Cradock (No 3) ChD 1968
The expressions ‘constructive trust’ and ‘constructive trustee’ are ‘nothing more than a formula for equitable relief. It is the actual control of assets belonging beneficially to a company which causes the law to treat directors as analogous to . .
Cited – Coulthard v Disco Mix Club Ltd CA 2000
The expression ‘constructive trustee’ creates a trap.This ‘type of trust is merely the creation by the court . . to meet the wrongdoing alleged: there is no real trust and usually no chance of a proprietary remedy.’ . .
At First Instance – Dubai Aluminium Company Ltd v Salaam and Others QBD 17-Jul-1998
A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later . .
See Also – Dubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:

Cited – NIRU Battery Manufacturing Company and Another v Milestone Trading Ltd and others ComC 8-May-2003
There was a contract for the sale of lead ingots. The sale was supported by letters of credit but inaccurate certificates were issued to release payment. The parties sought now to amend the contributions in the light of the Royal Brompton Hospital . .
Cited – Mattis v Pollock (T/A Flamingo’s Nightclub) CA 1-Jul-2003
A nightclub employed an unlicensed bouncer/doorman. After an altercation in and outside the club, he went home, and returned armed and seriously assaulted the customer.
Held: The club had vicarious liability for his acts. There was a . .
Cited – J J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
Cited – Bakhitar v Keosghgerian and Others QBD 3-Dec-2003
Employer liable for employee with criminal record
An employee of a firm of solicitors took pawned jewellery to show to a third party possible purchaser. The jewels were misappropriated.
Held: The person involved, who was known to have a criminal record for fraud was for all relevant purposes . .
Cited – Cochlan v Ruberella Limited CA 21-Jul-2003
The issue arose as to the liability of a firm for the acts of a partner who had made statements to the claimant regarding the rate of return on a proposed investment amounting to some 6,000 per cent per annum.
Held: The following propositions . .
Cited – The Attorney General v Hartwell PC 23-Feb-2004
PC (The British Virgin Islands) A police officer had taken the police revolver, and used it to shoot the claimant. It was alleged that the respondent police force were vicariously liable for his acts and also . .
Cited – Bernard v The Attorney General of Jamaica PC 7-Oct-2004
PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
Cited – Brown v Robinson and Sentry PC 14-Dec-2004
(Jamaica) The deceased claimant had been shot by a sentry employed by the respondent company. His estate appealed a finding that the sentry was not acting in the course of his employment.
Held: Older authorities had now been replaced by recent . .
Cited – Hawley v Luminar Leisure Ltd and others CA 24-Jan-2006
The claimant was assaulted and severely injured at a night club by a doorman supplied to the club by a third party company now in liquidation. He claimed the club was the ‘temporary deemed employer’ of the doorman. He also sought to claim under the . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust HL 12-Jul-2006
Employer can be liable for Managers Harassment
The claimant employee sought damages, saying that he had been bullied by his manager and that bullying amounting to harassment under the 1997 Act. The employer now appealed a finding that it was responsible for a tort committed by a manager, saying . .
Cited – St Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Cited – Gravil v Carroll and Another CA 18-Jun-2008
The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed from a finding that they were not vicariously liable. The defendant player’s . .
Cited – Maga v The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA 16-Mar-2010
The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
Cited – Weddall v Barchester Healthcare Ltd CA 24-Jan-2012
Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
Held: Appeals were dismissed and allowed according to their facts.
In one case, one employee . .
Cited – Reynolds v Strutt and Parker LLP ChD 15-Jul-2011
The defendant had organised a team bonding day, including a cycling event. The claimant employee was severely injured falling from his cycle. He said that the defendant had been engligent in not providing cycling helmets. The circuit hosting company . .
Cited – The Catholic Child Welfare Society and Others v Various Claimants and The Institute of The Brothers of The Christian Schools and Others SC 21-Nov-2012
Law of vicarious liability is on the move
Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
Cited – Williams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
Cited – Graham v Commercial Bodyworks Ltd CA 5-Feb-2015
The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .
Cited – Jackson v Murray and Another SC 18-Feb-2015
Child not entirely free of responsibility
The claimant child, left a school bus and stepped out from behind it into the path of the respondent’s car. She appealed against a finding of 70% contributory negligence.
Held: Her appeal succeeded (Majority, Lord Hodge and Lord Wilson . .
Cited – Cox v Ministry of Justice SC 2-Mar-2016
The claimant was working in a prison supervising working prisoners. One of them dropped a bag of rice on her causing injury. At the County Curt, the prisoner was found negligence in the prisoner, but not the appellant for vicarious liability. The . .
Cited – Mohamud v WM Morrison Supermarkets plc SC 2-Mar-2016
The claimant had been assaulted and racially abused as he left a kiosk at the respondent’s petrol station by a member of staff. A manager had tried to dissuade the assailant, and the claim for damages against the supermarket had failed at first . .
Cited – Henchley and Others v Thompson ChD 16-Feb-2017
The Claimants sought an order directing the Defendant to provide a full account of his dealings with the assets of the two trusts as a trustee or as a de facto trustee.
Held: The court has a discretion whether or not to make an order for an . .
Cited – Dixon Coles and Gill (A Former Firm) v Baines, Bishop of Leeds and Another CA 20-Jul-2021
Innocent Co-Trustee not Liable for Default
Proceedings were brought by former clients against their former solicitors. One of the partners stole money held in the firm’s client account on behalf of the claimants. The other two partners were entirely innocent of, and in no way implicated in, . .
Cited – Chell v Tarmac Cement and Lime Ltd CA 12-Jan-2022
Explosive Pellet Use Not Within Employee’s Role.
The claimant worked on a site operated by the respondent. One of the respondent’s employees exploded two pellet targets injuring the claimant’s hearing. He asserted vicarious liability in the respondent. There had been tensions between the claimant . .
Cited – WM Morrison Supermarkets Plc v Various Claimants SC 1-Apr-2020
A disgruntled senior employee had divulged on the internet personal details of several thousand employees. The claimants alleged that that had been a breach of the 1998 Act, and that the appellants were vicariously liable for that wrong.
Held: . .
Lists of cited by and citing cases may be incomplete.

Company, Vicarious Liability, Legal Professions, Limitation

Leading Case

Updated: 27 November 2022; Ref: scu.178327

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 solicitor’s duty.’ and ‘Now, it cannot be denied that it is an ordinary part of a solicitor’s business to treat for the sale or purchase of estates for his clients. For some purposes his intervention is indispensable in such transactions: he is to draw the agreements, to investigate the title, to prepare the conveyance. All these things are in the common course of his business. But it is said that the fixing of a reserved bidding and other matters connected with the sale are not of that character, inasmuch as they might be entrusted equally well to anyone else. It is impossible, however, to split the duties in that manner without getting into inextricable confusion. I consider them all parts of one transaction – the sale of an estate : and that a transaction in which solicitors are ordinarily employed by their client. That being the case, I consider that all communications which may have taken place between the witness and his client in reference to that transaction are privileged.’

Judges:

Lord Lyndhurst LC

Citations:

(1846) 1 Ph 687

Jurisdiction:

England and Wales

Citing:

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 – Herring v Clobery 1842
The court considered whether legal advice privilege should be confined to litigation: ‘But further, I think that restriction of the rule is not consistent with, and not founded on, any sound principle; for it may, and in a great variety of cases . .

Cited by:

Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Applied – Pearse v Pearse 2-Jan-1846
Legal privilege was claimed for communications related to transactions concerning the client’s lands and unconnected with any existing or anticipated litigation.
Held: The work done was all part of one transaction of the nature in which . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 26 November 2022; Ref: scu.194260

South Buckinghamshire District Council v Flanagan and Another: QBD 16 Jul 2001

The council issued enforcement notices in respect of an unauthorised use of land. An amenity notice was also issued and an appeal was entered. At an interlocutory hearing, the prosecutions were agreed to be dropped, and one of the land users alleged that the council’s solicitor agent agreed also to with draw the enforcement notices. When the council sought to revive the enforcement by way of injunction, the defendant said that they were bound by the agreement of their officer who had the ostensible authority of the council.
Held: Whilst the solicitor would have the general authority of the council, he would need explicit authority to bind the council to withdrawing the enforcement notices which were charges on the land, and would continue to affect the land even after a transfer. He did not have such an explicit authority, and the council could proceed with the enforcement.

Judges:

Harrison J

Citations:

Gazette 26-Jul-2001

Statutes:

Town and Country Planning Act 1990 187B 215

Jurisdiction:

England and Wales

Legal Professions, Planning, Local Government, Estoppel

Updated: 26 November 2022; Ref: scu.159505

Pearse v Pearse: 2 Jan 1846

Legal privilege was claimed for communications related to transactions concerning the client’s lands and unconnected with any existing or anticipated litigation.
Held: The work done was all part of one transaction of the nature in which solicitors are ordinarily employed, and it was privileged. ‘The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. . . Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much. And surely the meanness and the mischief of prying into a man’s confidential communications with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself.’

Judges:

Knight Bruce V-C

Citations:

(1846) 1 De G and Sm 12

Jurisdiction:

England and Wales

Citing:

Applied – 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 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 – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
Evidence from 3rd Party Torture Inadmissible
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 26 November 2022; Ref: scu.219415

P v P (Ancillary Relief: Proceeds of Crime): FD 8 Oct 2003

The parties sought guidance from the court on the circumstances which arose in ancillary relief proceedings where a legal representative came to believe that one party might be holding the proceeds of crime. In the course of ancillary relief proceedings, the parties legal representatives concluded that some part of the matrimonial assets might represent the proceeds of crime. If they succeeded in obtaining part of the assets for their client they would commit an offence. They disclosed their concerns but were refused permission to disclose their own disclosure.
Held: The representatives had a duty to disclose their concerns to the authorities, but if it was necessary to disclose the tip off for the proceedings and it formed no part of any criminal purpose, they could disclose the tipping off to the other party. The Act envisaged permission to a party to make authorised disclosures. The ambit of the Act was wider than for earlier provisions, and might affect many proceedings. Negotiations could be affected just as much as any actual transfer. The Act makes no distinction between degrees of criminal property. An illegally obtained sum of andpound;10 is no less susceptible to the definition of ‘criminal property’ than a sum of andpound;1million.

Judges:

Dame Elizabeth Butler-Sloss

Citations:

[2003] EWHC 2260 (Fam), Times 14-Oct-2003, Gazette 16-Oct-2003, [2004] Fam 1

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002 333(4)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Cited – Regina v Central Criminal Court ex parte Francis and Francis HL 1989
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an . .
Cited – Bank of Scotland v A Ltd and Others (Serious Fraud Office, Interested Party) CA 6-Feb-2001
A bank, having been informed that the activities of a customer involved money laundering, found itself in a position where, if it paid out the funds, it would face conviction, but if it failed to do so, it be found to be involved in tipping off the . .
Cited – Jenkins v Livesey (formerly Jenkins) HL 1985
The parties had negotiated through solicitors a compromise of ancillary relief claims on their divorce. They agreed that the house should be transferred to the wife in consideration of her release of all other financial claims. The wife however . .
Cited – Bank of Scotland v A Ltd and Others (Serious Fraud Office, Interested Party) CA 6-Feb-2001
A bank, having been informed that the activities of a customer involved money laundering, found itself in a position where, if it paid out the funds, it would face conviction, but if it failed to do so, it be found to be involved in tipping off the . .
Cited – Allan v Clibbery (1) CA 30-Jan-2002
Save in cases involving children and ancillary and other situations requiring it, cases in the family division were not inherently private. The appellant failed to obtain an order that details of an action under the section should not be disclosed . .
Cited – C v S and Others (Money Laundering: Discovery of Documents) CA 3-Oct-1998
The money laundering regulations create a conflict between private rights and criminal provisions, particularly the restriction on information which might prejudice an investigation may be under way. Conflicts were resolved by guidance from NCIS. . .

Cited by:

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

Legal Professions, Criminal Practice, Family, Litigation Practice

Updated: 25 November 2022; Ref: scu.186717

Persaud and Another v Persaud and others: CA 6 Mar 2003

Judges:

Peter Gibson LJ, Mummery LJ, Blackburne J

Citations:

[2003] EWCA Civ 394, [2003] PNLR 26, [2004] 1 Costs LR 1

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Application for leave to appeal – Dempsey v Johnstone CA 30-Jul-2003
The solicitors appealed against a wasted costs order. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 25 November 2022; Ref: scu.180729

Lovesy v Palmer: 1916

Solicitors for two parties corresponded and agreed for their clients about a proposed lease. The plaintiff said the agreement was to be on behalf of a company he was yet to form. The documents making up the memorandum made no mention of the company.
Held: The solicitor was not intended to be bound by the alleged contract, and therefore no evidence could be given that the he was agent of the intended company. No sufficient memorandum existed.

Citations:

[1916] 2 Ch 233, [1916-1917] All ER 1034

Jurisdiction:

England and Wales

Cited by:

Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Contract, Landlord and Tenant, Legal Professions, Company

Updated: 25 November 2022; Ref: scu.188461

Singh v Law Society: QBD 5 Dec 2001

Several partners in a solicitors practice may have been at fault, but only one partner had been brought before the tribunal. He appealed against an order making him solely responsible for the costs.
Held: There was nothing necessarily wrong with such an order.

Judges:

Lord Justice Kennedy, Mrs Justice Hallet and Mr Justice Stanley Burnton

Citations:

Times 21-Jan-2002, Gazette 21-Feb-2002

Statutes:

Solicitors Act 1974 47(2)(i), Solicitors (Disciplinary Proceedings) Rules 1994 (1994 No 288) 22

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 25 November 2022; Ref: scu.167394

Studdy v Sanders and others: 1823

Legal professional privilege.

Citations:

[1823] 2 D and R 347

Jurisdiction:

England and Wales

Cited by:

Cited – Miller Gardner Solicitors, Regina (on the Application of) v Minshull Street Crown Court Admn 20-Dec-2002
Police investigating crime obtained a warrant to search a solicitor’s offices for details of their clients. The solicitors appealed.
Held: The details required, namely dates of contacts with a certain telephone number were not legally . .
See Also – Studdy v Sanders And Another 2-Jun-1826
Where a contract was made between A. and B., whereby A., having a quantity of apples, agreed to sell his cyder to B. at a certain price per hogshead, to be delivered at T. at a future time, and to lend such pipes as he had for the use of the cyder, . .
Cited – SRJ v Person(s) Unknown (Author and Commenters of Internet Blogs) QBD 10-Jul-2014
The claimant sought an order for the disclosure by his solicitor of the identity of the author of an internet blog publishing critical material which, the claimant said, was its confidential information. The defendant’s solicitor had failed to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 25 November 2022; Ref: scu.197742

In re Bell’s Indenture: 1980

A firm of solicitors was held not to be vicariously liable for an act of dishonest assistance made by a partner.

Judges:

Vinelott J

Citations:

[1980] 1 WLR 1217

Jurisdiction:

England and Wales

Cited by:

Doubted – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 25 November 2022; Ref: scu.193864

Hill v Featherstonhaugh: 1831

Tindal CJ said: ‘If an attorney, through inadvertence or inexperience, – for I impute no improper motive to the plaintiff – incurs trouble which is useless to his client, he cannot make it a subject of remuneration . . Could a bricklayer, who had placed a wall in such a position as to be liable to fall, charge his employer for such an erection?’ Clearly not.’

Judges:

Tindal CJ

Citations:

(1831) 7 Bing 569

Jurisdiction:

England and Wales

Cited by:

Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 24 November 2022; Ref: scu.223352

Hughes v Hughes: 1958

Hodson LJ said: ‘There is no doubt that a solicitor who is discharged by his client during an action otherwise than for misconduct can retain any papers in the cause in his possession until the costs have been paid . . This rule applies, as the authorities show, whether the client’s papers are of any intrinsic value or not.’

Judges:

Hodson LJ

Citations:

[1958] 3 All ER 179, [1958] P 224

Jurisdiction:

England and Wales

Cited by:

Cited – Gamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 24 November 2022; Ref: scu.222603

Herring v Clobery: 1842

The court considered whether legal advice privilege should be confined to litigation: ‘But further, I think that restriction of the rule is not consistent with, and not founded on, any sound principle; for it may, and in a great variety of cases would, be of as much importance to parties that the communications made between a client and a solicitor with respect to the state of the client’s property, with respect to his liabilities, with respect to his title, should be protected, as that protection should be afforded to communications made in the progress of a cause; and it appears to me that, as individuals must from time to time resort to their legal advisers for guidance in their ordinary transactions, public policy requires that communications of that kind should be privileged and protected, in order that they may be free and unfettered.’

Judges:

Lord Lyndhurst LC

Citations:

(1842) 1 Ph 91

Jurisdiction:

England and Wales

Citing:

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 by:

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 – 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

Updated: 24 November 2022; Ref: scu.219414

Re Baron: 2000

In order to obtain an order restricting the ability of a firm of solicitors to act against a former client for a conflict of interest, the applicant had to show a reasonable apprehension of potential conflict on the part of the former client and not a ‘mere theoretical possibility.’ The facts of the particular case must be analysed.

Judges:

Pumfrey J

Citations:

[2000] 1 BCLC 272

Jurisdiction:

England and Wales

Cited by:

Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 24 November 2022; Ref: scu.200433

Gardner v Irvin: 1878

The test for legal professional privilege is that they should be ‘professional communications of a confidential character for the purpose of getting legal advice.’

Judges:

Cotton LJ

Citations:

(1878) 4 Ex D 49

Jurisdiction:

England and Wales

Cited by:

Cited – O’Shea v Wood 1891
The court set down the test for protection by legal professional privilege. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 24 November 2022; Ref: scu.194263

Weir v Grace: HL 28 Nov 1899

Opinion (by the Lord Chancellor and Lord Robertson) that where a will is made in favour of a law-agent by a client, but is prepared and carried through by an independent law-agent, then in the absence of collusion between the two law-agents the onus of proving that the will was obtained by undue influence on the part of the agent benefited by it rests, as in the ordinary case, upon the persons challenging the will.
Evidence upon which held ( aff. the judgment of Second Division) that even assuming the onus in such a case to lie upon the law-agent, he had proved sufficiently that the making of the will in his favour was the free and deliberate act of his client.

Judges:

Lord Chancellor (Halsbury), and Lords Macnaghten, Brampton, and Robertson

Citations:

[1899] UKHL 626, 37 SLR 626

Links:

Bailii

Jurisdiction:

Scotland

Legal Professions, Wills and Probate

Updated: 24 November 2022; Ref: scu.631846

EMW Law Llp v Halborg: ChD 14 Oct 2016

The claimant solicitors had been instructed under a conditional fee agreement, to act in litigation for the defendant solicitor, himself acting for his parents and a company owned by him. Though the case was one the defendant in the case refused to pay the legal bill, but then, the claimant said, paid those costs across to the now defendant.

Judges:

Master Clark

Citations:

[2016] EWHC 2526 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – EMW Law Llp v Halborg ChD 22-May-2015
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 23 November 2022; Ref: scu.570339

Berry Trade Ltd and Another v Moussavi and others: CA 22 May 2003

A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, may generally not be admitted in evidence. An exception to the rule is where there is shown ‘unambiguous impropriety.’ The judge had asked himself whether there was a serious and substantial risk of perjury. That would weaken the real test, and was incorrect. The evidence here should not have been admitted.

Judges:

Lord Justice Peter Gibson, Lord Justice Tuckey and Mr. Justice Nelson

Citations:

[2003] EWCA Civ 715, Times 03-Jun-2003, Gazette 17-Jul-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Unilever plc v Procter and Gamble Company CA 4-Nov-1999
The defendant’s negotiators had asserted in an expressly ‘without prejudice’ meeting, that the plaintiff was infringing its patent and they threatened to bring an action for infringement. The plaintiff sought to bring a threat action under section . .
Cited – Muller and Another v Linsley and Mortimer (A Firm) CA 8-Dec-1994
The plaintiff sued his former solicitors for professional negligence. The damages he sought to recover related to loss he suffered when dismissed as a director of a private company leading to a forced sale of his shares in the company. The plaintiff . .
Cited – Fazil-Alizadeh v Nikbin CA 25-Feb-1993
There are powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Distinguished – Dora v Semper CA 15-Mar-1999
The claimant sought to have admitted evidence that in the course of without prejudice negotiations, the defendant had threatened to put assets beyond the jurisdiction.
Held: The statement was not an admission as such and was admissible. . .
Distinguished – Merrill Lynch, Pierce Fenner and Smith Inc v Raffa 11-May-2000
The judge ruled on the admission of admissions made by the defendant at without prejudice meetings. There was acceptance of Mr Raffa’s involvement in the fraud though he raised the question of collaborators. If he did admit at least his involvement, . .
Cited – WH Smith Ltd v Colman CA 20-Mar-2000
The rule against admission in evidence of the content of without prejudice negotiations was not to be set aside because a party making a ‘without prejudice’ communication puts forward an implausible or inconsistent case or faces difficulty . .
Cited – Kristjansson v R Verney and Co Ltd and Another CA 18-Jun-1998
The rule against the admission of without prejudice negotiations in evidence has an exception where the rule is used to hide unambiguous impropriety. That exception was not to be used to bring in mere inconsistencies in evidence. . .
Cited – Hawick Jersey International Ltd v Caplan 11-Mar-1998
The Plaintiff (H) claimed repayment of a loan to the defendant (C) of andpound;10,000 made by means of a cheque. C denied it was a loan because he had supplied andpound;10,000 cash. C secretly tape recorded a ‘without prejudice’ meeting at which (a) . .
Cited – Greenwood v Fitt 1961
greenwood_fittBC1961
(British Columbia) In the course of without prejudice negotiations, the defendant threatened that he would give perjured evidence and bribe other witnesses to perjure themselves unless the claimants withdrew their claim.
Held: The evidence of . .

Cited by:

Followed – Savings and Investment Bank Ltd (In Liquidation) v Fincken CA 14-Nov-2003
Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .
Cited – Williams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 23 November 2022; Ref: scu.182337

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 allegations of undue influence is a question of notice.

Citations:

Times 17-Aug-1998, Gazette 26-Aug-1998, [1998] EWCA Civ 1372, [1998] 4 All ER 705

Jurisdiction:

England and Wales

Citing:

Cited – Barclays Bank Plc v O’Brien and Another HL 21-Oct-1993
The wife joined in a charge on the family home to secure her husband’s business borrowings. The husband was found to have misrepresented to her the effect of the deed, and the bank had been aware that she might be reluctant to sign the deed.
Cited – 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 – 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 by:

Disapproved in part (at 705) – Barclay’s Bank Plc v Varenka Goff CA 3-May-2001
The respondent executed an all monies charge over her property to secure the liability of companies in which she had no direct interest. The bank insisted that she employ solicitors to give her independent advice. The bank sought to enforce its . .
Disapproved – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Cited – Governor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998
The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. The guarantee had been given to support borrowings of the defendant’s company. The defendant was the wife of the director and had been . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking, Legal Professions

Updated: 23 November 2022; Ref: scu.144851

Law Society v Southall: CA 17 May 2001

Application for leave to appeal.

Citations:

[2001] EWCA Civ 756

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Application for leave – Law Society v Southall CA 14-Dec-2001
In making a strike out decision under Part 24, the court of first instance was exercising a discretion which an appellate court should be reluctant to disturb. The court should only interfere in the case of a manifest error. The Law Society had . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 22 November 2022; Ref: scu.201062

Dempsey v Johnstone: CA 30 Jul 2003

The solicitors appealed against a wasted costs order.

Judges:

Lord Justice Aldous Lord Justice Mance Lord Justice Latham

Citations:

[2003] EWCA Civ 1134, [2004] 1 Costs LR 41, [2004] PNLR 2

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Application for leave to appeal – Persaud and Another v Persaud and others CA 6-Mar-2003
. .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 20 November 2022; Ref: scu.185245

Regina v Robinson: CACD 8 Nov 2002

The defendant appealed his conviction on the ground that a police informant had been a solicitor’s clerk.
Held: Appeal dismissed, but the use of members of the legal profession as informants, must always be dangerous, and capable of undermining the interests of justice. It is necessary for suspects to be able to seek legal advice, and acting as an informant would be a breach by the solicitor or his clerk of his duty to his client, and also a breach by the police of the rights of a citizen. No comment was made as to the particular use of an informant in this case. The judge prepared questionnaires designed to ascertain whether any of the jurors had written an anonymous letter sent to him by post.

Judges:

Lord Justice Pill, The Honourable Mr Justice Keith, Sir Richard Tucker

Citations:

Times 13-Nov-2002, [2002] EWCA Crim 2489

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Smith, Regina v Mercieca HL 16-Feb-2005
A member of the jury wrote to the judge saying that other members were failing to discharge their duties properly. Smith took a tactical decision not to seek a retrial. The judge saw counsel in chambers, after which the jury were reminded of their . .
Lists of cited by and citing cases may be incomplete.

Crime, Legal Professions

Updated: 20 November 2022; Ref: scu.178116

Zwebner v Mortgage Corporation Plc; Trustee of Property of Zwebner and Brooks and Co: CA 18 Jun 1998

The claimant applied for a loan secured against a property owned with his wife. The defendant instructed solicitors who reported on title with an undertaking that documents would be executed before completion. They sent the mortgage to Mr. and Mrs. Zwebner to sign, but Mr. Zwebner forged her signature. She now brought proceedings against the defendant saying that the mortgage did not bind her. The defendant claimed against the solicitors in negligence and for breach of contract in failing to comply with the undertaking given in the report on title. The court considered the general nature and scope of a solicitor’s duty acting for a lender. They argued that it would be wrong to construe the undertaking that the documents would be ‘properly executed’ as giving rise to a warranty that they had been signed by Mrs. Zwebner in the presence of a witness. This would transfer the entire risk of fraud onto one who was merely providing professional services. The expression ‘properly executed’ should be limited to matters of form and the mechanics of completion.
Held: It was difficult to read the undertaking in the way suggested. The consequences of giving weight to the word ‘properly’ were not so unreasonable as to justify a construction which largely disregarded it. The solicitors were in breach of contract, having accepted an unqualified obligation to obtain the signature of Mrs. Zwebner.

Judges:

Robert Walker, Hobhouse and Waller LJJ

Citations:

[1998] EWCA Civ 1035, [1998] PNLR 769

Jurisdiction:

England and Wales

Cited by:

Cited – Midland Bank Plc v Cox McQueen (A Firm) CA 26-Jan-1999
Solicitors were instructed by the bank to obtain the signature of a client and of his wife to a motgage. The deed was signed by the husband and a woman pretending to be the wife.
Held: The court said that it was asked whether the bank intended . .
Cited – Platform Funding Ltd v Bank of Scotland Plc (Formerly Halifax Plc) CA 31-Jul-2008
The parties disputed the extent of duty owed by a surveyor to a lender relying on his valuation of a property to be loaned.
Held: The valuer’s appeal failed. The valuer had valued the wrong property, after being misled by the borrower. The . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 19 November 2022; Ref: scu.144514

White v White (Deceased): CA 20 Jan 2003

An appeal was made against an order refusing an award of costs against solicitors for the opposing party.
Held: The judge’s order saying that an aplication should have been forewarned earlier was made within his discretion, and was appropriate. The value at stake meant that this application was disproportionate, and satellite litigation of this sort was to be discouraged. The fact that no indication was given at the time that a wasted costs order would be sought is rarely likely to be a sufficient reason for refusing to accede to a subsequent application for such an order.

Judges:

Lord Justice Schiemann, Lord Justice Mummery, Lord Justice Dyson

Citations:

[2003] EWCA Civ 156

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Filmlab Systems International Ltd and Another v Pennington and Others ChD 9-Jul-1993
In civil litigation an application for a wasted costs order should only save in exceptional circumstances, be made after the trial. The court mentioned several dangers if applications were made at an interlocutory stage, among them the risk that a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 18 November 2022; Ref: scu.180714

Penningtons (a Firm) v Brown: CA 30 Apr 1998

The claim concerned the plaintiffs claim for costs having represented the defendant successfully. They delivered a bill which detailed disbursements, and gave a 14 line narrative, but no other detail. The defendant requested more detail, being unaware as to the consequences as to a gross sum or bill containing detailed items. Was his request a request for more details of the gross sum bill, or for a bill containing detailed items?
Held: The question must be looked at as to the substance of the request made. The intimation of taking the matter to taxation was a reference to the existing bill, not a request for a new one. The plaintiffs might have been better advised to seek clarification of the defendant’s request. However in this case the request was for a detailed bill, and the case must proceed on that basis with the risk if an increased charge to the defendant.

Judges:

Lord Justice Pill, Sir John Vinelott

Citations:

[1998] EWCA Civ 750

Links:

Bailii

Statutes:

Solicitors Act 1974 64(2)

Jurisdiction:

England and Wales

Citing:

Cited – In re Taxation of Costs In re Solicitors 1943
. .
Cited – Carlton v Theodore Goddard and Co ChD 1973
A solicitor sought to rely on a letter from his client as justifying the presentation of a new and larger bill.
Held: ‘there is the question whether the plaintiff ever required the defendants to deliver to him in lieu of the gross sum bill ‘a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 18 November 2022; Ref: scu.144228

Oleksandr Volkov v Ukraine: ECHR 9 Jan 2013

ECHR Article 6
Civil proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Structural defects of the system of judicial discipline: violation
Fair hearing
Absence of limitation period for imposing disciplinary penalty on judges and abuse of electronic vote system in Parliament when adopting decision on judge’s dismissal: violations
Tribunal established by law
Composition of chamber examining applicant’s case defined by a judge whose term of office as court’s president had expired: violation
Article 8
Article 8-1
Respect for private life
Dismissal of a judge for ‘breach of oath’ in absence of consistent interpretation of that offence and of requisite procedural safeguards: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to reform the system of judicial discipline
Execution of judgment
Individual measures
Respondent State required to secure applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date
Facts – From 2003 the applicant was a judge of the Supreme Court of Ukraine and from 2007 President of the Military Chamber of that court. In 2007 he was elected to the post of member of the High Council of Justice (‘the HCJ’), but did not assume the office following the refusal of the Chairman of the Parliamentary Committee of the Judiciary (‘the Parliamentary Committee’) to allow him to take the oath. In 2008 and 2009 two members of the HCJ – one of whom was elected president of the HCJ later – conducted preliminary inquiries into possible misconduct by the applicant. They concluded that he had reviewed decisions delivered by his wife’s brother – some of them dating back to 2003 – and that he had been culpable of gross procedural violations, some of his actions dating back to 2006. Following these inquiries, the President of the HCJ submitted two applications to the Parliament for the applicant’s dismissal from the post of judge. In 2010 the Parliament, having considered these applications by the HCJ, a recommendation by the Parliamentary Committee, voted for the applicant’s dismissal for ‘breach of oath’. According to the applicant, during the electronic vote the majority of the Members of Parliament were absent and those present used voting cards which belonged to their absent colleagues. The applicant challenged his dismissal before the Higher Administrative Court, which found that the HCJ’s application to dismiss him following the inquiry of the president of the HCJ had been lawful and substantiated. The Higher Administrative Court further found that the HCJ’s decision based on the results of the other inquiry had been unlawful, because the applicant and his wife’s brother had not been considered relatives under the legislation in force at the time. However, it refused to quash the HCJ’s acts in that case, noting that under the applicable provisions it had no power to do so.
The Higher Administrative Court further noted that there had been no procedural violations either before the parliamentary committee or at the Parliament.
Law – Article 6 – 1
(a) Applicability – In determining the applicant’s case and taking a binding decision, the HCJ, the parliamentary committee, and the plenary meeting of Parliament had been performing a judicial function in combination. The binding decision on the applicant’s dismissal had further been reviewed by the Higher Administrative Court, which was a classic court within the domestic judiciary. It could not therefore be concluded that national law ‘expressly excluded access to court’ for the applicant’s claim. Article 6 therefore applied under its civil head.
The sanction imposed on the applicant was a classic disciplinary measure for professional misconduct and, in terms of domestic law, contrasted with criminal-law sanctions for the adoption of a knowingly wrongful decision by a judge. It was also relevant that the applicant’s dismissal from the post of judge had not formally prevented him from practising law in another capacity within the legal profession. Article 6 was not, therefore, applicable under its criminal head.
(b) Independence and impartiality of the bodies determining the applicant’s case
(i) The HCJ: With respect to disciplinary proceedings against judges, the necessity of the substantial participation of judges in the relevant disciplinary body had been recognised in the European Charter on the Statute for Judges. However, the HCJ consisted of twenty members who were appointed by different bodies. Three members were directly appointed by the President of Ukraine, three by the Parliament of Ukraine and two by the All-Ukrainian Conference of Prosecutors. The Minister of Justice and the Prosecutor General were ex officio members of the HCJ. Non-judicial staff appointed directly by the executive and the legislative authorities comprised the vast majority of the HCJ’s members. As a result, the applicant’s case had been determined by sixteen members of the HCJ who had attended the hearing, only three of whom were judges. Moreover, only four members of the HCJ worked there on a full-time basis. The other members continued to work and receive a salary outside the HCJ, which inevitably involved their material, hierarchical and administrative dependence on their primary employers and endangered both their independence and impartiality. The Court referred also to the opinion of the Venice Commission that the presence of the Prosecutor General on a body concerned with the appointment, disciplining and removal of judges created a risk that judges would not act impartially in such cases or that the Prosecutor General would not act impartially towards judges of whose decisions he disapproved. Furthermore, the members of the HCJ who had carried out the preliminary enquiries in the applicant’s case and submitted requests for his dismissal had subsequently taken part in the decisions to remove the applicant from office. One of those members had been appointed President of the HCJ and had presided over the hearing of the applicant’s case. The role of those members in bringing disciplinary charges against the applicant, based on the results of their own preliminary enquiries, threw objective doubt on their impartiality when deciding on the merits of the applicant’s case. Accordingly, the facts of the present application disclosed a number of serious issues pointing both to structural deficiencies in the proceedings before the HCJ and to the appearance of personal bias on the part of certain members of the HCJ determining the applicant’s case. The proceedings before the HCJ had thus not been compatible with the principles of independence and impartiality required by Article 6 ss 1.
(ii) The Parliamentary Committee: The chairman of the committee and one of its members were also members of the HCJ and had taken part in deciding the applicant’s case at both levels. Accordingly, they may not have acted impartially when examining the submissions by the HCJ. In addition, the Court’s considerations concerning the lack of personal impartiality were equally pertinent to this stage of the procedure. Moreover, proper account should be taken of the fact that the chairman, together with two members of the Parliamentary Committee, had applied to the HCJ seeking the initiation of preliminary enquiries into possible misconduct by the applicant. At the same time, the HCJ’s members had not been able to withdraw as no withdrawal procedure was envisaged by the relevant legislation. This pointed to the lack of appropriate guarantees for the proceedings’ compliance with the test of objective impartiality.
(iii) The plenary meeting of Parliament:- At that stage, the determination of the case had been limited to the adoption of a binding decision based on the findings previously reached by the HCJ and the Parliamentary Committee. On the whole, the procedure at the plenary meeting was not an appropriate forum for examining issues of fact and law, assessing evidence and making a legal qualification of facts. The role of the politicians sitting in Parliament, who were not required to have any legal and judicial experience, had not been sufficiently clarified by the Government and had not been justified as being compatible with the requirements of independence and impartiality of a tribunal.
(iv) The Higher Administrative Court: The Higher Administrative Court had been vested with powers to declare the decisions of the HCJ and the Parliament unlawful without being able to quash them and take any further steps. There was no automatic reinstatement in the post of judge exclusively on the basis of the Higher Administrative Court’s declaratory decision. Moreover, important arguments advanced by the applicant had not been properly addressed by the Higher Administrative Court. The judicial review of the applicant’s case had thus not been sufficient. Furthermore, the judges of the Higher Administrative Court were also under the disciplinary jurisdiction of the HCJ and could also be subjected to disciplinary proceedings before the HCJ. They were therefore unable to demonstrate ‘the independence and impartiality’ required by Article 6.
The domestic authorities had thus failed to ensure independent and impartial determination of the applicant’s case and the subsequent judicial review had not remedied those defects.
Conclusion: violation (unanimously).
(c) Absence of a limitation period for imposing a disciplinary penalty – The applicant had been placed in a difficult position, as he had had to mount his defence before the HCJ in 2010 with respect to events some of which had occurred in the distant past (in 2003 and 2006). Domestic law did not provide any time bars on proceedings for dismissal of a judge for ‘breach of oath’. While the Court did not find it appropriate to indicate how long the limitation period should be, such an open-ended approach to disciplinary cases involving the judiciary posed a serious threat to the principle of legal certainty.
Conclusion: violation (unanimously).
(d) Voting procedure at the plenary meeting of Parliament – The decision on the applicant’s dismissal had been voted on in the absence of the majority of the Members of Parliament. The MPs present had deliberately and unlawfully cast multiple votes belonging to their absent peers. The decision had therefore been taken in breach of the Constitution, the Status of Members of Parliament Act and the Rules of Parliament. The vote had therefore undermined the principle of legal certainty. The Higher Administrative Court had failed to address that issue properly.
Conclusion: violation (unanimously).
(e) Composition of the chamber of the Higher Administrative Court – Under domestic law, the personal composition of the special chamber that was to examine the applicant’s case was to be defined by the President of the Higher Administrative Court, but his five-year term as President had already expired when this was done. The relevant provisions of national law regulating the procedure for appointing presidents of the courts had been declared unconstitutional and new provisions had not yet been introduced. In the meantime, the appointment of presidents of the courts had been a matter of serious controversy among the Ukrainian authorities. The Court could not find that the chamber deciding the case had been composed in a manner satisfying the requirement of a ‘tribunal established by law’.
Conclusion: violation (unanimously).
Article 8: The applicant’s dismissal had constituted interference with his right to respect for private and family life. The Court’s finding that the parliamentary vote on the decision to remove him from office had not been lawful under national law was sufficient to find that the interference in question had not been justified and was therefore in breach of Article 8. At the time the applicant’s case had been decided there were no guidelines or practice establishing a consistent interpretation of the notion of ‘breach of oath’ and no adequate procedural safeguards had been put in place to prevent arbitrary application of the relevant provisions. In particular, national law had not set any time-limits for proceedings against a judge for ‘breach of oath’, which had made the discretion of the disciplinary authorities open-ended and had undermined the principle of legal certainty. Moreover, national law had not set out an appropriate scale of sanctions for disciplinary offences and had not developed rules ensuring their application in accordance with the principle of proportionality. Finally, there had been no appropriate framework for independent and impartial review of a dismissal for ‘breach of oath’.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 in respect of non-pecuniary damage. Question of just satisfaction in respect of pecuniary damage reserved.
Article 46
(a) General measures – The case disclosed serious systemic problems as regards the functioning of the Ukrainian judiciary. In particular, the system of judicial discipline did not ensure the sufficient separation of the judiciary from the other branches of State power. Moreover, it did not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence. The respondent State would therefore be required to take a number of general measures aimed at reforming the system of judicial discipline. Those measures should include legislative reform involving the restructuring of the institutional basis of the system. The measures should also entail the development of appropriate forms and principles of coherent application of domestic law in that field.
(b) Individual measures – Having regard to the necessity of reforming the system of judicial discipline, reopening the domestic proceedings would not constitute an appropriate form of redress for the violations found. There were no grounds to assume that the applicant’s case would be retried in accordance with the principles of the Convention in the near future. The Court saw no point in indicating such a measure. Having regard to the very exceptional circumstances of the case and the urgent need to put an end to the violations of Articles 6 and 8, the Court held that the respondent State must secure the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date.

Citations:

21722/11 – Legal Summary, [2013] ECHR 288, [2013] ECHR 289

Links:

Bailii, Bailii

Statutes:

European Convention on Human Rights

Human Rights, Legal Professions

Updated: 14 November 2022; Ref: scu.472444

Mann v Carnell: 21 Dec 1999

Austlii (High Court of Australia) Practice and procedure – Preliminary discovery – Legal professional privilege – Loss of privilege – Waiver by disclosure to third party.
Australian Capital Territory – Separation of powers – Representative government – Nature of relationship between the ACT Legislative Assembly and the ACT Executive.
Words and phrases – ‘client legal privilege’.
‘What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some over-riding principle of fairness operating at large. . Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client’s actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect . . considerations of fairness may be relevant to a determination of whether there is such inconsistency.’

Judges:

Gleeson CJ, Gaudron, Gummow and Callinan JJJ

Citations:

[1999] HCA 66, [1999] 201 CLR 1, [1999] 168 ALR 86, [1999] 74 ALJR 378

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Legal Professions, Litigation Practice

Updated: 14 November 2022; Ref: scu.344013

Bennett v Chief Executive Officer of the Australian Customs Service: 25 Aug 2004

Austlii (Federal Court of Australia) EVIDENCE – Privilege – Legal professional privilege – Waiver – Letter conveying substance and effect of legal advice to third party – Inconsistency between disclosure and confidentiality – Waiver imputed where final conclusion of legal advice stated – Voluntary disclosure of the conclusion of legal advice waives privilege in relation to undisclosed reasons for conclusion – Disclosure of one conclusion does not necessarily waive privilege in relation to undisclosed conclusions
FREEDOM OF INFORMATION – Appeal from Administrative Appeals Tribunal on question of law – Exempt documents – Documents privileged from production on grounds of legal professional privilege – Principles relating to waiver of privilege in documents otherwise exempt – Decision as to waiver involved an error on a question of law as to correct application of test for waiver of privilege
FREEDOM OF INFORMATION – Administrative Appeals Tribunal – Powers of Tribunal under Freedom of Information Act 1982 (Cth) s 58 – Tribunal empowered to review any decision made by an agency or Minister – Tribunal stands in shoes of relevant agency or Minister for purpose of administrative review – Power of Tribunal to review decision of agency or Minister not severable from power to determine threshold questions in relation to reviewable decision – Tribunal not empowered to review decision to claim exemption from disclosure on grounds of privilege without reviewing validity of privilege claim itself
FREEDOM OF INFORMATION – Exempt documents – Documents privileged from production on grounds of legal professional privilege – Documents containing privileged matter not exempt if used by relevant agency to determine entitlements or obligations of persons generally under an enactment or scheme administered by that agency – Legal advice provided in relation to particular case may fall within this category in some circumstances
ADMINISTRATIVE LAW – Limits upon power of Court on appeal from Administrative Appeals Tribunal

Citations:

[2004] FCAFC 237

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 14 November 2022; Ref: scu.344012

Cullen v Campbell Hooper Wright and Supperstone (a Firm) (1): CA 4 Mar 1998

The claimant sought to appeal an order declining to compel the defendant firm of solicitors to deliver up to her the file of papers, claiming a lien for unpaid fees. The fees were for work prior to the grant of legal aid, and were payable by the defendant in the original action but the solicitors had not pursued that claim fearing a similar counterclaim.
Held: Leave should not be granted or refused without the defendant solicitors attending to answer questions as to their conduct.

Citations:

[1998] EWCA Civ 394

Jurisdiction:

England and Wales

Legal Professions

Updated: 14 November 2022; Ref: scu.143872

Nationwide Building Society v Lewis and Another: CA 24 Feb 1998

Employee solicitor held out as partner was not liable in negligence where he was neither involved in the advice nor holding out relied upon

Citations:

Gazette 18-Mar-1998, Times 06-Mar-1998, [1998] EWCA Civ 337, [1998] 3 All ER 143

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Nationwide Building Society v Lewis and Another ChD 16-Jun-1997
A solicitor’s firm is responsible for advice given by an employee signing correspondence in the firm’s name and where it seems apparent that a partner was acting. . .

Cited by:

Appealed to – Nationwide Building Society v Lewis and Another ChD 16-Jun-1997
A solicitor’s firm is responsible for advice given by an employee signing correspondence in the firm’s name and where it seems apparent that a partner was acting. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 14 November 2022; Ref: scu.143815

General of Berne Insurance Company v Jardine Reinsurance Management Limited: CA 12 Feb 1998

Where only part of action for which costs are awarded, is covered by a contentious business agreement, and the amount recoverable is limited, that part is severable from the balance. A paying party cannot be ordered to pay a receiving party more by way of costs than the receiving party is himself liable to pay by relying on a contractual cap agreed between the receiving party and his solicitor.

Citations:

Gazette 18-Mar-1998, Times 20-Feb-1998, [1998] EWCA Civ 220, [1998] 2 All ER 30, [1998] CLC 768, [1998] Lloyds Rep IR 211, [1998] 1 Costs LR 1, [1998] 1 WLR 1231

Links:

Bailii

Statutes:

Solicitors Act 1974 59

Jurisdiction:

England and Wales

Citing:

Appeal from – General of Berne Insurance Company v Jardine Reinsurance Management Ltd and Others ComC 24-Jun-1997
Costs – Contentious Business Agreement- Section Does not limit the costs recoverable by a successful party to the hourly rates agreed in a Contentious Business Agreement – the limit only applies to the global limit payable under the agreement. . .

Cited by:

Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – Garbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 14 November 2022; Ref: scu.143698

Holloway v Solicitors Regulation Authority: Admn 2 Nov 2012

The solicitor appealed against a finding that he had behaved in a way likely to diminish the trust in the legal profession in the conduct of a conveyancing transaction when he had failed to see the signs of fraudulent activity.
Held: The appeal failed. The failure to keep appropriate attendance notes itself showed a failure to exercise the apprpriate caution.

Judges:

Elias LJ, Singh J

Citations:

[2012] EWHC 3393 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 14 November 2022; Ref: scu.471245

Higham of 1 Pump Court Chambers v Horton: CA 15 Jul 2004

The claimant said he had suffered disability discrimination at the hands of the defendant, a barristers set. He had been accepted as a pupil, but then applied for a deferral which was refused. It was agreed that the set of chambers was a trade organisation.
Held: In the light of the rights and duties of the pupil within the organisation, a pupil was not a member of a chambers in any sense to give rise to a duty under the Act. (Laddies dissenting) The fact that he was not a full member did not mean that he was not a member within the Act.

Judges:

Lord Justice Peter Gibson Laddie, The Hon Mr Justice Laddie Lord Justice Jonathan Parker

Citations:

[2003] EWCA Civ 941, Times 21-Jul-2004, [2005] ICR 292, [2004] 3 All ER 852

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 13

Jurisdiction:

England and Wales

Citing:

Appeal from – 1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .

Cited by:

Appealed to – 1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Legal Professions

Updated: 13 November 2022; Ref: scu.198838

Aaron v Okoye: CA 15 Jan 1998

The plaintiff solicitor had acted for the respondent barrister in legal proceedings. The respondent was unhappy with work done on her behalf by counsel instructed by the plaintiff, and declined to pay. The solicitor taxed his bill excluding counsel’s fees, and negotiations proceeded to agree counsel’s fees. The respondent then claimed the bill should not have been taxed without counsel’s fees.
Held: The omission of counsel’s fees from the first bill was understandable and did not vitiate the taxation. Nor did the separate delivery of a bill for counsel’s fees deny any right to taxation of that bill. Appeal dismissed.

Judges:

Lady Justice Butler-Sloss, Lord Justice Hobhouse

Citations:

[1998] EWCA Civ 25

Jurisdiction:

England and Wales

Citing:

Cited – Cobbett v Wood 1908
Counsel’s fees having been omitted from the solicitor’s bill as taxed, they could not later be claimed. . .
Cited – Chamberlain v Boodle and King 1982
A second solicitor’s bill was not susceptible to taxation because it related to what was in effect one continuous matter for which a bill had already been taxed. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 13 November 2022; Ref: scu.143503

Council for Licensed Conveyancers v Mooney and Another; Mooney v Council for Licensed Conveyancers and Viney: CA 18 Dec 1997

The respondent’s practice had suffered intervention by the Council. He complained that they had not followed the required procedure.
Held: The notices were lawful. The issues were ones of public law, and the respondent was required to frame his claim by way of judicial review, and to use an ordinary action would be an abuse of process. This was not a case in which the public law element was incidental.

Citations:

[1997] EWCA Civ 3038

Statutes:

Administration of Justice Act 1985 31

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Judicial Review

Updated: 13 November 2022; Ref: scu.143437

Scotlife Home Loans (No 2) Limited v Melinek and Melinek: CA 16 Dec 1997

The claimant loaned money to the defendants. Mr M was a solicitor who, with his partner, perpetrated a fraud. Mrs M appealed an order for possession saying the claimant was fixed with notice of the fraud by the solicitors acting as its agent.
Held: The loan was completed before the documents were signed, and became mixed with other clients’ money, and was stolen by the solicitors before it was received by the borrowers. At that time they were acting as agent for the claimant. The charge must be set aside.

Judges:

The Vice-Chancellor (Sir Richard Scott) Lord Justice Otton Lord Justice Aldous

Citations:

[1997] EWCA Civ 3012

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Leave granted – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .

Cited by:

Full Appeal – Scotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
Lists of cited by and citing cases may be incomplete.

Agency, Legal Professions

Updated: 13 November 2022; Ref: scu.143411

BT v Crown Prosecution Service: CA 16 Dec 1997

The plaintiff appealed against dismissal of his claim for malicious prosecution brought against the Service.
Held: Actions for malicious prosecution, against the Crown Prosecution Service are to be examined closely to ensure that they are not a mere circumvention of negligence immunity: ‘The fact that someone in the Crown Prosecution Service may have been negligent or incompetent in the course of reaching a decision to commence or to continue the prosecution – whether by failing to evaluate the evidence correctly at the outset, or in failing to review the evidence after committal or in the light of new material – cannot, in itself, justify an inference of malice. If that is all the evidence that there is, the question of malice cannot be left to the jury. It is because, in many of these cases, that that will be all the evidence there is, an attempt to dress up a claim in respect of negligence or incompetence in the guise of malicious prosecution must fail. ‘ The question to be asked was whether there was ‘a proper case to lay before the court’.

Judges:

Kennedy, Judge, Chadwick LJJ

Citations:

Times 29-Dec-1997, [1997] EWCA Civ 3000

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hicks v Faulkner 1878
Before charging a prisoner, a police officer must have ‘an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – Glinski v McIver HL 1962
The court considered the tort of malicious prosecution when committed by a police officer, saying ‘But these cases must be carefully watched so as to see that there really is some evidence from his conduct that he knew it was a groundless charge.’ . .
Cited – Brown v Hawkes CA 1891
The court considered the issue of malice as an element of malicious prosecution. It is a matter to be proved by the plaintiff or the case may be withdrawn, but in a proper case it may be inferred from want of reasonable and probable cause although . .

Cited by:

Cited – Howarth v Gwent Constabulary and Another QBD 1-Nov-2011
The claimant alleged malicious prosecution and misfeasance in public office against the defendant. He had been charged with perverting the course of justice. He had worked for a firm of solicitors specialising in defending road traffic prosecutions. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Legal Professions

Updated: 13 November 2022; Ref: scu.143399

Knox D’Arcy Operations Ltd and Another v Manches Llp: CA 7 Feb 2013

The defendant solicitors appealed, asking whether, as they claimed, they were entitled to use money held in their client account in settlement of outstanding fees owed by Templeton Insurance Limited (‘Templeton’), a wholly-owned subsidiary of Operations. The claimants’ contrary case was that, before Manches received such money, they had been given notice of the assignment of the beneficial entitlement to it by Templeton (via Investments) to Operations so that it followed that, having received the money with notice of and subject to such assignment, they were not entitled to retain and use it in settlement of fees owed by Templeton.

Judges:

Pill, Rimer Black LJJ

Citations:

[2013] EWCA Civ 33

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 13 November 2022; Ref: scu.470829

Falter Zeitschriften Gmbh v Austria (No 2) (2044): ECHR 18 Sep 2012

ECHR Article 10-1
Freedom of expression
Publication of untrue statements concerning alleged judicial bias: no violation
Facts – In May 2005 a certain HP was acquitted in criminal proceedings of the attempted rape of an asylum-seeker. The applicant company published an article which was highly critical of those proceedings, in particular on account of the manner in which evidence was taken and assessed and of alleged bias on the part of the presiding judge. The judge then brought an action in defamation against the applicant company on account of statements in the impugned article accusing her of ignoring relevant evidence, giving a ‘scandalous’ judgment and having ‘unfinished business’ with the alleged victim. In December 2005 a regional court found for the judge and ordered the applicant company to pay EUR 7,000 in compensation and to publish a summary of the judgment.
Law – Article 10: The issue discussed in the impugned article concerned a matter of public interest, but in addition to criticising HP’s trial also contained particularly harsh criticism of the presiding judge as having been biased. The statements in question must be considered as statements of fact, which the applicant company unsuccessfully sought to prove before the domestic courts. The seriousness of the allegation that the judge had purposely given too little weight to some evidence and too much weight to other evidence required a very solid factual basis, which the applicant company was unable to rely on. The applicant company was ultimately ordered to pay EUR 7,000, a reasonable amount taking into account the length and content of the impugned article. In sum, in awarding such compensation in respect of an article that was so damaging to the judge’s reputation, the State had acted within its margin of appreciation.
Conclusion: no violation (unanimously).

Citations:

3084/07 – CLIN, [2012] ECHR 2044

Links:

Bailii

Statutes:

European Convention on Human Rights 10-1

Jurisdiction:

Human Rights

Citing:

See Also – Falter Zeitschriften Gmbh v Austria (No 2) (1707) ECHR 18-Sep-2012
. .
Lists of cited by and citing cases may be incomplete.

Human Rights, Defamation, Legal Professions

Updated: 12 November 2022; Ref: scu.467000

Hejduskova (Formerly Searle) v Raskin: CA 28 Nov 1997

The claimant sought leave to appeal against the strike out of his claim against the respondent solicitor alleging disability discrimination. The solicitor had acted against him for his wife, and, becoming concerned as to his mental health had challenged his capacity to continue proceedings, and invited the involvement of the Official Solicitor. The judge had found that the claimant had not established that he was disabled, and that the reference to the OS had been proper.
Held: ‘whether a person is disabled within the Act is different from the question whether he is sufficiently disabled so as to be unfit to conduct the proceedings and to need a guardian ad litem.’ However even assuming that the claimant was disabled within the Act, nothing done by the defendant fell within the range of provision of services. Leave to appeal was refused.

Citations:

[1997] EWCA Civ 2856

Jurisdiction:

England and Wales

Discrimination, Legal Professions

Updated: 12 November 2022; Ref: scu.143255

Mortgage Agency Services Number Four Ltd v Alomo Solicitors (a firm): Merc 25 Oct 2011

(Birmingham Mercantile Court) The claimant lender alleged tortious involvement by the defendant firm of solicitors in a mortgage frauds committed by their clients.

Judges:

Simon Brown QC J

Citations:

[2011] EWHC B22 (Mercantile)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Torts – Other

Updated: 11 November 2022; Ref: scu.449895

In Re A Solicitor: 1966

A solicitor (Mr Lincoln) had given undertakings to hold certain leases to the order of the Bank, but did not have them. The court considered enforcement of the undertakings. Pennycuick J said: ‘Prima facie, it is open to Mr Lincoln to obtain that lease by paying off the first mortgage, in which case he would be entitled to require the first mortgagee to hand over the lease to him and he could then hand over the lease in turn to the Bank. There might, of course, be circumstances in which it would be difficult or impossible for him to achieve that result, but there is no evidence before me to show that any such difficulty or impossibility exists, and in the absence of any evidence it seems to me that I ought to proceed on the basis that Mr Lincoln is able to perform this undertaking.’
He went on to say: ‘When one comes to look at the cases it seems that in all of them what happened was that the person to whom the undertaking was given sought from the court an order upon the solicitor to do the act which he had undertaken to do, that being an act which it was within his power to do – for example, the payment of money, the entering of an appearance, or the like. In one case the application was for committal, but that part of the application was stood over, the court making an immediate order on the solicitor to perform the undertaking. It therefore appears that in the exercise of this jurisdiction, what in practice has always been done is that the court, if the circumstances warrant it, makes an order upon the solicitor to do the act which he has undertaken to do. Then if the solicitor disobeys that order, no doubt an application for committal would follow and the order would be made.
No case was cited in which the court made an order for committal upon direct application to commit for breach of the undertaking without having first made an order to perform the undertaking. I do not say that there is no jurisdiction to make such an order, but neither counsel was able to point to a case in which such an order had been made. There is a further difficulty that the court could not, it seems to me, make an order upon a solicitor to do an act except an act which lies in his power to do.’

Judges:

Pennycuick J

Citations:

[1966] 1 WLR 1604

Jurisdiction:

England and Wales

Cited by:

Cited – Thames Valley Housing Association Ltd and Others v Elegant Homes (Guernsey) Ltd and Others ChD 27-Oct-2009
The claimant sought to enforce against the defendant’s solicitors an undertaking given by them. The claimant contracted to buy property subject to a charge in favour of the third defendant bank securing loans over other property. The bank gave no . .
Cited – Coll v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .
Cited – Coll v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 09 November 2022; Ref: scu.377317

Sanders v Parry: 1967

An assistant employed by a sole practitioner solicitor undertook as part of his duties work brought in by an important client. The client having said that if he left to set up on his own account he would transfer his business, the assistant handed in his notice and did so. And the client did follow him. The sole practitioner sued for breach of the implied terms of the contract of employment that the assistant would serve him with good faith and fidelity. The defence was that it was the client who had initiated the arrangement.
Held: It did not matter. Even were it to be so, the assistant having accepted the client’s offer whilst he was still employed by another and not having informed his employer of the offer was in breach.
Havers J said: ‘Now in my view there was a duty on the defendant at all times during the substance of the (employment) agreement to protect his master’s interests, especially to do his best to retain Mr Tully as a client for his master …. I am satisfied that in accepting the offer, by such conduct the defendant was guilty of breach of duty in regard to the agreement implied therein by law that the defendant would serve the plaintiff with good faith and fidelity.’ and ‘In my view it was the duty of the defendant to have reported this dissatisfaction of the secretary to his principal to give him an opportunity, as far as he could, to satisfy her. Instead of forwarding his principal’s interests he was concerned only in promoting his own. He made this alternative offer to Mrs Stanford which she accepted and the result of it and the result of that alone was that she left Mr Sanders and joined the defendant. That was in my view a breach of contract’

Judges:

Havers J

Citations:

[1967] 1 WLR 753

Jurisdiction:

England and Wales

Cited by:

Cited – Dass Solicitors v Southcott ChD 2-Apr-2009
The claimant solicitors said that the defendant employed solicitor had sought to leave without giving the required three months’ notice and had sought to persuade clients of the firm to go to his new practice. Application was made on a without . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 09 November 2022; Ref: scu.375144

Warmingtons v McMurray: 1936

The rule that a solicitor conducting litigation for a client has an entire contract and that he must fulfil it before being entitled to payment is part of the general law of contract. Where there is an entire consideration there must be entire performance to entitle the plaintiff to remuneration. Goddard J added ‘If however a client does not perform his part of a bargain, that would discharge the solicitor and he may then sue on a quantum merit.’ He instanced a case where the client failed to put the solicitor in funds for counsel’s fees and other disbursements.

Judges:

Goddard J

Citations:

[1936] 2 All ER 745

Jurisdiction:

England and Wales

Cited by:

Cited – Richard Buxton (Solicitors) v Mills-Owens QBD 28-Jul-2008
The solicitors appealed against refusal of their costs. They had begun to act but withdrawn part way through the case. The costs judge had said that they had been wrong to do so. Though the client’s instructions would be disastrous, they were not . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 09 November 2022; Ref: scu.375582

Fen and others v D’Cruz and others: CA 13 Mar 2007

The parties disputed whether the first defendant had been held out to be a partner in the second defendant’s firm of solicitors. The first defendant had later absonded. Appeal dismissed.

Citations:

[2007] EWCA Civ 319

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) CA 1985
Proof of corruption not needed for bribe
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 09 November 2022; Ref: scu.251394

Awwad v Geraghty and Company: CA 8 Sep 1997

The court considered an application for leave to appeal as to whether a litigation agreement was champertous and void.

Judges:

Nourse, Evans LJJ

Citations:

[1997] EWCA Civ 2334, [2001] QB 570

Jurisdiction:

England and Wales

Cited by:

Cited – De Crittenden v Bayliss CA 17-Jan-2002
The defendant appealed a judgment saying the arrangement under which the plaintiff had conducted the litigation was champertous.
Held: The appeal failed. ‘[A]lthough some of what Mr De Crittenden did could be described as ‘solicitors work’, . .
See Also – Geraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 09 November 2022; Ref: scu.142732

Corbett v Bond Pearce (a Firm): CA 8 Aug 1997

The solicitors had added a date to a will executed by the client, as a result of this the will had been open to challenge. Objection was then made to the will on the ground of capacity. An action found negligence, but costs were paid from the estate of over andpound;150,000.

Citations:

[1997] EWCA Civ 531, [2001] Lloyd’s Rep PN 501, [2001] 3 All ER 769, [2001] PNLR 31, [2001] WTLR 419

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Cited – Otter v Church Adams Tatham and Co ChD 1953
The plaintiff was sole administratix of her son’s estate. He had died on active service intestate. She claimd negligence on the part of the solicitors, saying they were in breach of their duty to exercise care and skill as solicitors, having failed . .
See Also – Corbett v Newey and Others CA 15-Feb-1996
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary . .

Cited by:

See Also – Corbett v Newey and Others CA 15-Feb-1996
A will, which had been executed but left undated, awaiting for a later condition to be fulfilled, at which time it was to be dated, did not show the necessary testamentary intent, and was not a valid will. A will must have an immediate testamentary . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Wills and Probate, Legal Professions

Updated: 09 November 2022; Ref: scu.142691

Taylor and Taylor v Ribby Hall Leisure Limited and North West Leisure Holdings Limited: CA 6 Aug 1997

In supervisory proceedings against lawyers, claims of abuse of process are to be pursued at the substantive hearing and not by way of pre-emptive applications. Delay in bringing an application to enforce a solicitor’s undertaking can be relevant to the exercise of the discretion to enforce it summarily.

Judges:

Lord Woolf MR, Hutchison LJ, Mummery LJ

Citations:

Times 06-Aug-1997, [1997] EWCA Civ 2220, [1998] 1 WLR 400

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .

Cited by:

Cited – Angel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice, Contempt of Court

Updated: 09 November 2022; Ref: scu.89734

Farrer and Another v Messrs Copley Singletons (Formerly Known As Messrs Gowan and Singleton) (a Firm): CA 17 Jul 1997

Four clients together instructed the solicitor to act in the purchase of land. It was agreed to be urgent. One client gave instructions that the solicitor need not undertake the searches he would normally undertake. He acted upon them.
Held: The solicitor was liable in negligence. The instructions were to not be treated as the instructions of all four clients.

Citations:

[1997] EWCA Civ 2127, [1998] PNLR 22, (1998) 76 P and CR 169, [1997] NPC 113

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 09 November 2022; Ref: scu.142524

Myatt and others v National Coal Board (No 2): CA 16 Mar 2007

The parties had been involved in compensation claims. Complaint was made that the solicitors had recovered fees for action which substantially was intended to benefit the solicitor. The conditional fee agreements had been found to be unenforceable. At stake for each client was about pounds 2,500. At stake for the solicitors was pounds 250,000.
Held: The court did have jurisdiction to order solicitors in such a case to contribute to the costs of the other side. They should in this case pay 50% of the respondents costs.

Citations:

Times 27-Mar-2007, [2007] EWCA Civ 307, [2007] 4 All ER 1094, [2007] PNLR 25, [2007] 1 WLR 1559, [2007] 4 Costs LR 564

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Myatt, Ellis, Edwards, Rodger v National Coal Board SCCO 12-Aug-2005
. .
Cited – Symphony Group Plc v Hodgson CA 4-May-1993
A section 51 non-party costs application should not be used as a substitute for the pursuit of a related cause of action against the non-party in ordinary proceedings. Nine rules were set out for allowing a costs order against someone who is not a . .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Tolstoy-Miloslavsky v Aldington CA 27-Dec-1995
Solicitors who unreasonably commence proceedings may be subject to a wasted costs order, but there should be no award of costs against a solicitor solely because he acted without a fee. An award of costs should not be made against a solicitor who . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 06 November 2022; Ref: scu.251399

Manches and Co (a Firm) v Michael Joseph: QBD 9 Nov 2001

The claimant firm of solicitors sought their costs of representing the defendant in defamation proceedings. He was unhappy with the way the proceedings had been conducted, suggesting that an excess amount of work had been undertaken.
Held: The claim was unsustainable in law. There was clear evidence contrary to the defendant’s allegations, there was no suggestion of professional negligence or misconduct, and the defendant had been made aware throughout of the risks and costs.

Judges:

Mr Justice Eady

Citations:

[2001] EWHC QB 448

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 06 November 2022; Ref: scu.166822

Aaron v Okoye: CA 19 Mar 1997

Judges:

Lord Justice Hirst

Citations:

[1997] EWCA Civ 1274

Jurisdiction:

England and Wales

Citing:

Cited – Cobbett v Wood 1908
Counsel’s fees having been omitted from the solicitor’s bill as taxed, they could not later be claimed. . .
Cited – Chamberlain v Boodle and King 1982
A second solicitor’s bill was not susceptible to taxation because it related to what was in effect one continuous matter for which a bill had already been taxed. . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 06 November 2022; Ref: scu.141670

Swindle, Fillmore, Cox, Rowett v Harrison and Harrison: CA 25 Mar 1997

Negligence short of fraud gave no right to damages for non-disclosure.

Judges:

Evans LJ

Citations:

Times 17-Apr-1997, [1997] PNLR 641, [1997] EWCA Civ 1339, [1997] 4 All ER 705

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Lists of cited by and citing cases may be incomplete.

Equity, Legal Professions, Undue Influence

Updated: 06 November 2022; Ref: scu.141735

Dr Adoko v Law Society: CA 7 Mar 1997

The appellant had complained to the Employment Tribunal alleging race discrimination by the Respondent. That claim had failed, and several appeals had also failed. The claim alleged indirect discrimination, and the respondent admitted unwitting indirect discrimination, and accordingly no damages were payable. Because of his manner of conduct of the proceedings, including disclosure of matters he had undertaken to keep confidential, and the introduction of late amendments, costs were ordered against him. The complainant also attacked the manner of conduct of the proceedings. There were no grounds to review the decisions.

Judges:

Lord Justice Waite, Lord Justice Phillips

Citations:

[1997] EWCA Civ 1187

Statutes:

Race Relations Act 1976 12(1)

Jurisdiction:

England and Wales

Legal Professions, Administrative, Discrimination

Updated: 06 November 2022; Ref: scu.141583

Wilsons Solicitors Llp v Revenue and Customs (Procedure : Other): FTTTx 22 Oct 2018

INFORMATION NOTICE UNDER FA 2011 TO RELEVANT DATA HOLDER -whether solicitors’ partnership a relevant data holder because of obligations under the money laundering regulations to keep records – no – whether such records are relevant data – no – appeal allowed

Citations:

[2018] UKFTT 627 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 05 November 2022; Ref: scu.632378

Laker Airways Inc v FLS Aerospace Ltd: ComC 20 Apr 1999

The court was asked: ‘whether a barrister who has been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers has been instructed in the arbitration by the appointing party’. The arbitrator had offered to recuse himself if both parties requested, but not only at the request of one. The claimant said that the members of chambers shared office space and administration, and that there was no formal system to protect confidential materials.

Judges:

Rix J

Citations:

[1999] EWHC B3 (Comm), [2000] 1 WLR 113

Links:

Bailii

Statutes:

Arbitration Act 1996 24(1)(a)

Cited by:

Cited – O’Leary International Ltd v North Wales Police Admn 31-May-2012
The company employed drivers to cross the UK. They were stopped and did not have the requisite drivers records. Instead they produced certificates as to having had rest days. These proved false, and the drivers said that the had been produced for . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Legal Professions

Updated: 05 November 2022; Ref: scu.464592