Category: Legal Professions

O’Shea v Wood: 1891

The court set down the test for protection by legal professional privilege.
References: [1891] P 286
Judges: Lindley LJ, Kay LJ
Jurisdiction: England and Wales
This case cites:

  • Cited – 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.’ . .
    ((1878) 4 Ex D 49)

This case is cited by:

  • Cited – Minter v Priest HL 1930
    The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
    ([1930] AC 558)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194264

Hagart and Burn-Murdoch v Inland Revenue Commissioners: HL 1929

The mere lending of money, outside the existence or contemplation of professional help, is outside the ordinary scope of a solicitor’s business
References: [1929] AC 386
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Minter v Priest HL 1930
    The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
    ([1930] AC 558)
  • 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 . .
    (, [2004] UKHL 48, Times 12-Nov-04, , [2004] 3 WLR 1274, [2005] 1 AC 610)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194262

Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm): ChD 1978

A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact that Mr Stubbs was Geoffrey’s solicitor under some sort of general retainer imposing a duty to consider all aspects of his interest generally whenever he was consulted, but that cannot be. There is no such thing as a general retainer in that sense. The expression ‘my solicitor’ is as meaningless as the expression ‘my tailor’ or ‘my bookmaker’ in establishing any general duty apart from that arising out of a particular matter in which his services are retained. The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.
While No doubt the duties owed by a solicitor to his client are high in the sense that he holds himself out as practising a highly skilled and exacting profession. But I think that the court must beware of imposing upon solicitors – or upon professional men in other spheres – duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client’s general interest, take it upon himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases . . demonstrate that the duty is directly related to the confines of the retainer.’ The solicitors accepted ‘a common law duty not to injure their client by failing to do what they had undertaken to do and which, at their invitation, he relied on them to do.’
References: [1979] Ch 384, [1978] 3 All ER 571, [1978] 3 WLR 167, [1955-95] PNLR 95
Judges: Oliver J
Jurisdiction: England and Wales
This case cites:

  • Cited – Candler v Crane Christmas and Co CA 15-Dec-1950 ([1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371)
    Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
  • Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963 ([1964] AC 465, [1963] 2 All ER 575, , , [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, )
    The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
  • Cited – Griffiths v Evans CA 1953 ([1953] 2 All ER 1364, [1953] 1 WLR 1424)
    The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
    Held: Where there is a dispute between a . .

This case is cited by:

  • Cited – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998 (, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Cited – Brinn and Another v Russell Jones and Walker (A Firm) QBD 12-Dec-2002 (, [2002] EWHC 2727 (QB))
    Police officers had instructed their solicitor to sue in defamation. By their negligence the chance of a claim was lost. They instructed a second firm of solicitors to claim against the first, but this firm also were negligent. The damages fell to . .
  • Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004 (, [2004] EWCA Civ 130, Times 25-Feb-04, Gazette 18-Mar-04, [2004] 2 All ER 266)
    The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
    Held: The break between employments had affected his . .
  • Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .
  • Cited – John Mowlem Construction Plc v Neil F Jones and Co CA 1-Jul-2004 (, [2004] EWCA Civ 768, Times 27-Aug-04, (2005) 83 BMLR 175)
    The defendant’s solicitors were alleged to have failed to advise their clients when an issue was raised, to notify their professional negligence insurers, with the result that the insurers had been able to repudiate liability.
    Held: In the . .
  • Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005 (, [2005] EWCA Civ 114, Times 24-Feb-05, [2005] PNLR 511)
    Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
    Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
  • Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005 (, [2005] EWCA Civ 1302, Times 29-Nov-05, [2006] 1 All ER 571)
    The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
  • Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006 (, [2006] EWHC 1462 (Ch))
    The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
  • Cited – Glyn v McGarel-Groves CA 14-Jul-2006 (, [2006] EWCA Civ 998, Times 22-Aug-06)
    The claimant had employed a French veterinary surgeon to treat her horse ‘Anna’. She engaged the defendant English veterinary surgeon to attend the treament and observe. The horse died at the principal negligence of the French vet. The English vet . .
  • Cited – Hicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007 (, [2007] EWHC 940 (Ch))
    The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action . .
  • Cited – Associated Newspapers Ltd, Regina (on The Application of) v Rt Hon Lord Justice Leveson Admn 20-Jan-2012 (, [2012] EWHC 57 (Admin))
    The defendant was conducting a public enquiry into the culture, ethics and practices of national newspapers. The claimant and others objected to the admission of anonymous evidence from journalists afraid of career blight. The claimants complained . .
  • Approved – Bown v Gould and Swayne CA 1996 ([1996] 1 PNLR 130)
    Millett LJ commented that if a judge needed assistance with regard to conveyancing practice the proper way was to cite the relevant textbooks. . .
  • Cited – Kandola v Mirza Solicitors Llp ChD 27-Feb-2015 (, [2015] EWHC 460 (Ch))
    The claimant alleged professional negligence by the defendant solicitors who had acted for him in the purchase of a property. The deposit paid by the claimant had been lost after being paid to the seller’s solicitors as agents for the vendor. The . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.190233

Harington v Hoggart: 26 Nov 1830

An auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser, is a mere stake-holder, liable to be called upon to pay the money at any time ; and, therefore, although he place the money in the funds and make interest of it, he is not liable to pay such interest to the vendor when the purchase is completed ; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in Government securities.
References: (1830) 1 B and Ad 577, [1830] EngR 870, (1830) 109 ER 902
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.182547

Regina v Ulcay: CACD 19 Oct 2007

The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist saying that they had no time properly to prepare the case.
Held: The judge was right to have refused a lengthy adjournment. The defendant had himself procured the difficulty, but an adjournment of a day or so in order to take stock and, if necessary, allow new representatives to be properly instructed is another thing. If that is what fairness requires, that is what needs to happen. There is a danger that pressing on regardless may lead to errors being made and, importantly, to a situation where justice is not seen to be done.
Whilst a legal representative could not be obliged to continue in a case where he complained of professional embarrassment, where that resulted only from the lateness of instructions, he would normally be expected to do the best he could in the circumstances.
The court discussed counsel’s duty: ‘The correct meaning of the phrase ‘acting on instructions’, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client ‘instructs’ him to say. In the forensic process the client’s ‘instructions’ encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client’s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client’s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. ‘
Sir Igor Judge P discussed the effect of the regulations when considering an application to transfer a Legal Aid Order: ‘The purpose of this part of the Regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to, the fact that the lawyer offers sensible but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer’s retainer for improper motives, the court is not bound to agree to an application for a change of representation. What we find in practice in most cases is that courts faced with this problem are usually prepared to agree to at least one change of representative, provided they are proposed in reasonable time before the trial, and before substantial costs have already been expended in the preparation of the defence case. In the end, however, the ultimate decision for the court is case and fact specific, and it does not follow from the repeated [incantation] of the mantra ‘loss of confidence’ that an application will be granted.’
References: [2007] EWCA Crim 2379, Times 07-Nov-2007, [2008] 1 WLR 1209, [2008] 1 All ER 547
Links: Bailii
Judges: Sir Igor Judge P, Pitchers J, Openshaw J
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v Jones (Robert) No 2 1972 ([1972] 1 WLR 887, [1972] 56 CAR 413)
    The court was entitled to proceed to hear the case in the absence of the defendant where he had absconded. I was counsel’s prerogative not the judge’s, to decide whether he could continue to represent the defendant. . .
  • Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006 (, [2006] UKHL 16, Times 30-Mar-06, [2006] 2 WLR 772, [2006] 2 CAR 9, [2002] 2 CAR 128, [2007] 1 AC 136, [2006] 2 Cr App Rep 9, [2006] 2 All ER 741, [2007] Crim LR 66)
    Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
  • Cited – Regina v G and B CACD 2004 ([2004] 2 Cr App R 37, [2004] EWCA 1368)
    Rose LJ said: ‘Both in principle and pragmatically, whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’. . .
  • Cited – Regina v Shaw CACD 1980 ([1980] 70 CAR 313)
    It was counsel who must decide whether he could continue properly to represent a client, not the judge. . .
  • Approved – Regina v Ashgar Khan 10-Jul-2001 (Unreported, 10 July 2001)
    Judge Wakerley QC expressed his concern at the numbers of applications for transfer of representation in the Crown Court. The court has a duty to bear in mind the cost to the taxpayer and that, as a result, good reason must be established before a . .

This case is cited by:

  • Approved – Clive Rees Associates, Solicitors, Regina (on The Application of) v Swansea Magistrates Court and Another Admn 30-Nov-2011 (, [2011] EWHC 3155 (Admin))
    The claimant solicitors challenged a decision of the respondents to transfer legal aid orders for the representation of clients to a second frm of solicitors.
    Held: The court considered the various cases, finding three decisions unlawful and . .
  • Cited – In re Brownlee for Judicial Review SC 29-Jan-2014 (, [2014] UKSC 4, , UKSC 2013/0247, , , [2014] NI 188)
    The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .
  • Cited – Cadamartriea, Regina v CACD 18-Oct-2019 (, [2019] EWCA Crim 1736)
    Appeal from conviction of murder – whether a fair trial after a withdrawal by his counsel at the conclusion of his evidence. Counsel had said they were professionally embarrassed by new instructions.
    Held: The appeal succeeded. The judge had . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.260057

London Scottish Benefit Society v Chorley Crawford and Chester: 1884

References: (1884) 13 QBD 872
Ratio: A practising solicitor who represented himself in litigation was entitled to recover costs for his own time as if he had employed a solicitor.
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Malkinson v Trim CA (Times 11-Oct-02, Gazette 17-Oct-02)
    The solicitor had successfully defended proceedings brought against him personally, but employing his own firm to represent him. He sought his costs. The claimant disputed his right to costs.
    Held: The claimant had served a notice of . .
  • Cited – Khan v Lord Chancellor QBD (Times 28-Jan-03)
    The applicant was a barrister. He had been tried and acquitted of criminal charges, and had been awarded cost from central funds. He appealed from a refusal of a claim for payment for the time he spent in preparation.
    Held: The applicant was . .
  • Cited – Boyd and Hutchinson v Jennifer Joseph ChD (Bailii, [2003] EWHC 413 (Ch), Gazette 15-May-03)
    The claimant had been awarded costs, and sought to charge her time as a solicitor.
    Held: The claimant had only a limited practicing certificate, which would allow her to work for others only without charge. She could not for these proceedings . .
  • Cited – Sisu Capital Fund Ltd and others v Tucker and others (Times 04-Nov-05, Bailii, [2005] EWHC 2321 (Ch))
    The Defendants were accountants who had been sued through their partnership in KPMG. They had been granted a order for their costs. They sought payment for the time they had spent prersonally in preparing their defences.
    Held: As professionals . .

(This list may be incomplete)

Last Update: 10 March 2019
Ref: 180907

Regina v Barron: 1973

References: [1973] 1 WLR 115
Coram: Caulfield J
Ratio: The judge at trial had refused to set aside a subpoena to produce documents which had been served on behalf of the accused in a criminal trial.
Held: Caulfield J said: ‘I think the correct principle is this, and I think it must be restricted to these particular facts in a criminal trial, and the principle I am going to enunciate is not supported by any authority that has been cited to me, and I am just working on what I conceive to be the rules of natural justice. If there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused man, then in my judgment no privilege attaches. I cannot conceive that our law would permit a solicitor or other person to screen from a jury information which, if disclosed to the jury, would perhaps enable a man either to establish his innocence or to resist an allegation made by the Crown.’
This case is cited by:

  • Overruled – Regina v Ataou CACD ([1988] QB 798)
    Legal professional privilege is an interest which falls to be balanced against competing public interests: ‘When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 19-Mar-17
Ref: 580911

Hesford v General Council of the Bar; IoC 20 Aug 1999

References: Times 20-Aug-1999
Ratio: When a barrister had accepted a brief, the duty to appear on a fixed date hearing could only be set aside by conflict with another professional duty. Counsel, who were also Members of Parliament, attending at votes in the House of Commons were not, in that act, attending to such a professional duty, and so breached the Code if they failed to attend at court.
Statutes: Code of Conduct of the Bar of England and Wales 1990

Last Update: 30-Aug-16
Ref: 81348

Regina v Southampton Crown Court ex parte J and P; 21 Dec 1992

References: [1993] Crim LR 962
Coram: Watkins LJ, Auld LJ
Ratio: A special material warrant was quashed, partly because it was too widely drawn. It was suspected that there had been thefts from the solicitor’s firms client account. Watkins LJ discussed the need for a judge to give reasons for a decision under section 9 of the 1984 Act allowing the police to have access to special procedure materials: ‘The Act does not require a circuit judge to give reasons when making an order inter partes or issuing a warrant ex parte for access to special procedure material. However, challenges to decisions of circuit judges which have come before this Court demonstrate, in my opinion, especially as to ex parte applications, the need for this to be done. Reasons need not be elaborate, but they should be recorded and be sufficient to identify the substance of any relevant information or representation put before the judge in addition to the written information. They should set out what inferences he has drawn from the material relevant to the statutory conditions governing the content and form of the order or warrant sought. Where he has considered the question of legal privilege he should explain why, if he does, he has included in the order or warrant material which is prima facie privileged, or why he has excluded material as subject to privilege. In the latter case, where the excluded material consists of particular documents or categories of documents which might otherwise be included in the material to which access is given, he should explain why, if he does, he has included in the order or warrant material which is prima facie privileged, or why he has excluded material as subject to privilege. In the latter case, where the excluded material consists of particular documents or categories of documents which might otherwise be included in the material to which access is given, he should carefully describe and identify them in the order or warrant.
These requirements may seem onerous for the exercise of a power to which the police often seek recourse as a matter of urgency. But a Circuit Judge has a responsibility not only to assist the effective investigation of crime, but also to protect as needs be the holder of and the person in respect of whom he holds material in confidence from unjustified intrusion into their private affairs.’
Auld LJ said: ‘the fact that a solicitor is himself under investigation is not of itself necessarily a sufficient reason for ordering such an intrusion into his affairs and those of his clients. All the circumstances of the individual application must be taken into account, including, for example, the seriousness of the matter being investigated, the evidence already available to the police to found a prosecution based on it, and the extent to which the solicitor has already been put on notice of interest on his affairs such as might have caused him to hide or destroy or otherwise interfere with incriminating documents.’
Statutes: Police and Criminal Evidence Act 1984 9
This case is cited by:

(This list may be incomplete)

Last Update: 05-Aug-16
Ref: 260138

Tate v Hitchins And Others; 22 May 1849

References: [1849] EngR 639, (1849) 7 CB 875, (1849) 137 ER 347
Links: Commonlii
Ratio Assumpsit against several defendants for work and labour by the plaintiff as an attorney, with counts for money paid, &e. Plea,-by one of the defendants,-to the whole declaration, that the action was commenced, after the 6 & 7 Vict. e. 73, for the recovery of fees, charges, and disbursements due to the plaintiff as an attorney, as in the first count mentioned, and that no signed bill had been delivered to the defendant, or sent by the post to, or left for him at, his counting-house, office of business, dwelling-house, or last known place of abode :-Held, on special demurrer, that the word ‘disbursements’ applied to the count for money paid; and that the plea sufficiently negatived the delivery of a bill of costs within the terms of the statute

Last Update: 16-May-16
Ref: 298944

Bunn, Executor of Bunn v Guy; 7 Nov 1803

References: [1803] EngR 697, (1803) 4 East 190, (1803) 102 ER 803
Links: Commonlii
A contract entered into by a practising attorney to relinquish his business and recommend his clients t0 two other attornies for a valuable consideration, and that he would not himself practise in such business within certain limits, and would permit them to make use of his name in their firm for a certain time, but without his interference, &c was holden to be valid in law.
Last Update: 12-Dec-15 Ref: 344738

Maguire v Makaronis; 25 Jun 1997

References: (1997) 188 CLR 449, [1997] HCA 23, (1997) 144 ALR 729, (1997) 71 ALJR 781
Links: Austlii
Coram: Brennan CJ, Gaudron, McHugh, Gummow, Kirby JJ
High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of causal connection between breach of fiduciary duty and execution of mortgage – Scope of equity for rescission – Whether clients required to ‘do equity’ by honouring contractual obligation to pay principal and interest secured by mortgage – Rate of interest payable on principal sum outstanding under mortgage.
Legal practitioners – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Fiduciary duties – Equitable remedies.
‘In Australia, the measure of compensation in respect of losses sustained by reason of breach of duty by a trustee or other fiduciary is determined by equitable principles and . . these do not necessarily reflect the rules for assessment of damages in tort or contract.’
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 05-Nov-15 Ref: 554208

Carter, Esq v Sir William Henry Palmer, Bart; 17 Mar 1842

References: [1842] EngR 397, (1841,1842) 8 Cl & Fin 657, (1842) 8 ER 256
Links: Commonlii
The employment of counsel as confidential legal adviser disables him from purchasing for his own benefit charges on his client’s etates, without his permission ; and although the confidential employment ceases, the disability continues as long as the reasons on which it is founded continue to operate.
C, a barrister, who had been for several years confidential and advising couunsel to P, and had, by reason of that relation, acquired an intimate knowledge of his property and liabilities, and was particularly consulted as to a compromise of securities given by P for a debt which C considered not to be recoverable for the full amount, purchased these securities for less than their nominal amount, without notice to P after ceasing to be his counsel.
Held: that C’s purchase, while the compromise proposed by P was feasible, was in trust for P ; and that C was entitled only to the sum he had paid, with interest according to the course of the Court.
This case is cited by:

  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .

Talbot v Marshfield; 15 Jun 1865

References: [1865] EngR 589, (1865) 2 Dr & Sm 549, (1865) 62 ER 728
Links: Commonlii
Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the
suit.
Upon summons for production by the Plaintiffs :
Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production.
This case cites:

  • See Also – Talbot -v- Marshfield ([1864] EngR 762, Commonlii, (1864) 2 Dr & Sm 285, (1864) 62 ER 630)
    Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into . .

This case is cited by:

  • Cited – Dawson-Damer and Others -v- Taylor Wessing Llp and Others ChD (Bailii, [2015] EWHC 2366 (Ch))
    The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .

Smith v Mules; 17 Feb 1852

References: [1852] EngR 271, (1851-1852) 9 Hare 556, (1852) 68 ER 633
Links: Commonlii
A and B and the son of B entered into partnership as solicitors, and by articles agreed that the partners were diligently and faithfully to employ themselves in carrying on and managing all the professional business in which they or either of them might be employed or concerned; that B should use his best endeavours to obtain the appointment of the partnership firm to three offices or clerkships, which were then held by B, and such offices should be partnership appointments; that all other compatible offices should be obtained, if possible, in the name of the firm, and the emoluments treated as part of the profits of the partnership; that, if B or his son should retire, or A or B or his son should die, the share of the deceased partner should accrue to the surviving partners : that if B or his son retired they were to use their best endeavours to secure the practice to the continuing partners, and such retiring partner shouId not practise within 30 miles ; that, if either partner should not diligently and faithfully employ himself in carrying on the said partnership practice, and should, on receiving monies, bills, notes, &c., knowingly or wilfully omit immediately to make entries thereof, or if A. or the son of B should absent himself more than two months in one year, the others or other of the partners, if they or he should think fit, should be at liberty to dissolve the partnership, by giving to the offending partner a notice to that effect, and the partnership should from that time, or the time specified in the notice, be dissolved in the same manner and with the same consequences as if it had determined by the voluntary retirement of the offending partner. B. and his son subsequently prooured their own appointment, or the appointment of one of them, to the offices or clerkships, and did not endeavour to procure the appointment of A. It was afterwards discovered that B. was greatly involved in debt, and he absconded in January 1849, and did not return to the business, In May 1849 A, served a notice, in the manner pointed out by the articles, on B. and his son to dissolve the partnership from that date ; and he then filed his bill against B. and his son to have the dissolution declared by the Court, an injunction to restrain them from practising within 30 miles, and a decree that they should resign the several offices or clerkships. Held, that the Plaintiff was entitled to dissolve the partnership as to B., but not as against the other partner (the son of B.), and that he was not entitled to dissolve it by notice under the 16th clause without the concurrence of his co-partner (the son).
That B., not having procured or endeavoured to procure for the partnership firm the appointments to the several offices or clerkships, so as to give the Plaintiff at the dissolution either a share of the profits of the offices or the chance of competing for them, but such appointments having been procured for B. and his son to the exclusion of the Plaintiff, B. and his son were not to be allowed to retain the offices for their exclusive benefit.
That,inasmuch as, from the nature of the offices, they could not be sold, nor could any manager or receiver be appointed to carry them on, the Defendants ought to be charged with the value of the offices in the partnership accounts.
That, the Plaintiff having given a notice of dissolution (acting under the 16th clause), and his co-partner having adopted it, the partnership should be treated as dissolved from the time of the notice, although not with the consequences attaching to a dissolution under the 15th clause.
That, the consequences of a dissolution uncler the 15th clause not having attached, the Plaintiff, therefore, was not entitled to the injunction to restrain the Defendants from practising within 30 miles.
An agreement that, if any of several partners should not diligently and faithfully employ himself in carrying on the partnership practice, the others might give notice of dissolution, construed to refer to the diligent and faithful discharge by each partner of the portion of business carried on by him.
This case is cited by:

  • Cited – Faulks -v- Faulks ChD ([1992] 1 EGLR 9)
    One brother, as tenant farmed land under a partnership with his brother. On the death of either partner, an account was to be taken and a valuation. On the death of the tenant, there was a dispute as to whether the value of the farm’s milk quotahad . .

Trevorrow v State of South Australia (No 4); 16 Feb 2006

References: (2006) 94 SASR 64, [2006] SASC 42
Links: Austlii
Coram: The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant entitled to injunction restraining the use of the same documents which were already in the plaintiff’s possession on the ground of an equitable obligation of confidence and public interest immunity – Where confidential information in one document had already been disclosed to a third party – Whether the defendant suffered detriment – Whether misapplication of iniquity rule – Whether the documents were the subject of public interest immunity – Discussion of the principles regarding equitable doctrine of restraining use or publication of confidential information.
Held: It is the circumstances by which the person in possession of the confidential information has acquired that possession rather than the circumstances in which the information was imparted to the initial recipient that is the relevant consideration in considering whether there was a breach of confidence – No conditions of confidentiality attached to disclosure of 10 of the documents – Recipient unaware a mistake had been made if the confidential information had been disclosed unintentionally – No obligation of confidence arose – Unnecessary to consider issues of detriment or application of the iniquity rule – No error by trial judge in failing to find documents subject to public interest immunity – Even if confidentiality had not been lost, trial judge correct to find waiver of privilege – Both appeals allowed for the limited purpose of having the claim of confidentiality with respect to one document remitted to the trial judge for further consideration – Otherwise each appeal dismissed.
This case cites:

  • Cited – Goddard -v- Nationwide Building Society CA ([1987] 1 QB 670, [1986] 3 WLR 734)
    A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defednant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Vansandau and Brown v Browne; 24 Nov 1832

References: , [1832] EngR 869, (1832) 9 Bing 403, (1832) 131 ER 667
Links: Commonlii
An attorney is not compelled to proceed to the end of a suit in order to be entitled to his costs, but may, upon reasonable cause and reasonable notice, abandon the conduct of the suit, and in such case may recover his costs for the period during which he was employed.
This case is cited by:

  • Cited – Underwood, Son & Piper -v- Lewis CA ([1894] 2 QB 306)
    Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
  • Cited – Richard Buxton (Solicitors) -v- Mills-Owens and Another CA (Bailii, [2010] EWCA Civ 122, Times, [2010] WLR (D) 49, WLRD, [2010] 17 EG 96, [2010] 3 Costs LR 421, [2010] CP Rep 26, [2010] 1 WLR 1997, [2010] 9 EG 166)
    The solicitors felt that the instructions received from their client were to pursue points which neither they nor counsel thought were properly arguable. They withdrew from the case, and now appealed against a refusal of their costs on the basis . .

Upjohn Company v United States; 13 Jan 1981

References: [1981] USSC 7, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584
Links: Worldlii
Coram: Justice Rehnqist
Worldlii United States Supreme Court – When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner’s attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. – 7602 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate’s recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived and that the Government had made a sufficient showing of necessity to overcome the protection of the work-product doctrine. The Court of Appeals rejected the Magistrate’s finding of a waiver of the attorney-client privilege, but held that under the so-called ‘control group test’ the privilege did not apply ‘[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner’s] actions in response to legal advice . . for the simple reason that the communications were not the ‘client’s.’ ‘ The court also held that the work-product doctrine did not apply to IRS summonses.
Held:
1. The communications by petitioner’s employees to counsel are covered by the attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned.
(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer’s advice are one and the same, in the corporate context it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation’s lawyers. Middle-level – and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.
(b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney’s advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.
(d) Here, the communications at issue were made by petitioner’s employees to counsel for petitioner acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice
2. The work-product doctrine applies to IRS summonses.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language or legislative history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work-product doctrine.
(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications they reveal attorneys’ mental processes in evaluating the communications. As Federal Rule of Civil Procedure 26, which accords special protection from disclosure to work product revealing an attorney’s mental processes, and Hickman v. Taylor, [1947] USSC 5; 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship.
This case is cited by:

In Re Strother, A Solicitor And In Re The Act 6 and 7 Vict c 73; 11 Jul 1857

References: [1857] EngR 761, 7 Vict c 73, (1857) 69 ER 1214
Links: Commonlii
The Act 10 & 11 Vict. s. 69 does not deprive this Court of its jurisdiction to order taxation of a solicitor’s bill of costs for Parliamentary business. To entitle a client to an order for taxation of his solicitor’s bill of costs after the expiration of twelve months from its delivery he must shew either pressure or gross overcharge, amounting to what this Court designates as fraud. But it is not necessary to shew both.

Earl Cholmondeley v Lord Clinton; 3 Feb 1815

References: [1815] EngR 511, (1815) 19 Ves Jun 261, (1815) 34 ER 515
Links: Commonlii
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them.
This case cites:

  • See Also – Earl Cholmondeley -v- Lord Clinton (Commonlii, [1789] EngR 567, (1789-1817) 2 Ves Jun Supp 570, (1789) 34 ER 1231)
    A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
  • See Also – The Earl of Cholmondeley -v- Lord Clinton (Commonlii, [1813] EngR 513, (1813) 2 Ves & Bea 113, (1813) 35 ER 262)
    . .
  • See Also – Earl Cholmondeley And Ann Seymour Damer -v- Lord Clinton And Others (Commonlii, [1815] EngR 448, (1815) G Coop 80, (1815) 35 ER 484)
    A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .

This case is cited by:

Crossley v Crowther; 20 Nov 1851

References: [1851] EngR 898, (1851) 9 Hare 384, (1851) 68 ER 556
Links: Commonlii
Coram: Turner V-C
A, who was an equitable mortgagee by deposit of deeds ot property belonging to the estate of B, was paid off by C, on an agreement with the executors of B. (as their solicitor stated) that proceedings should be taken in A’s name to enforce the mortage security, and thereby to effect a sale of the whole or part of the mortgaged property; and the solicitor of the executors filed a claim for foreclosure in the name of A against the representatives of B. A denied that he had given authority to file the claim in his name, and moved that it might be taken off the file. Held that, there being only assertion against assertion, and the solicitor alone stating that the instructions were given in the presence of A, the case was to be governed by Allen v. Bone, and the claim was dismissed, with costs, to be paid by the solicitor.
That, in such a case, the Court could not adjudicate between the solicitor, by whom the claim was filed, and the Defendants, the representatives of B, by whom the instructions were given to file the claim in A’s name; and the Court left the solieitor to any legal remedy he might have against such parties.
This case is cited by:

  • Cited – Griffiths -v- Evans CA ([1953] 2 All ER 1364, [1953] 1 WLR 1424)
    The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
    Held: Where there is a dispute between a . .

Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others; 16 Jan 1815

References: [1815] EngR 448, (1815) G Coop 80, (1815) 35 ER 484
Links: Commonlii
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and the deed of dissolution stipulated that he should not act as solicitor for that party.
This case cites:

This case is cited by:

In Re Fenton; 27 May 1835

References: , [1835] EngR 741, (1835) 3 Ad & E 404, (1835) 111 ER 467 (A)
Links: Commonlii
Thie Court will not, in a summary way compel an attorney of the Court to pay over money to a party entitled to it, though the attorney has received it from a client to be paid to such party, if the application is not made on behalf of the client.

Butlin v Barry; 5 Sep 1837

References: , [1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215
Links: Commonlii
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the real and voluntary act of the testator. Under the circumstances sufficient evidence being given of the capacity of the deceased and of his knowledge of the contents of the instrument, the Court pronounced for the will and condemned the son in costs from the time of giving in his allegatian.
This case cites:

  • See Also – Barry -v- Butlin (Bailii, [1836] UKPC 9, [1838] 2 Moo PCC 480)
    The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been . .

This case is cited by:

  • Appeal from – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Greenough v Gaskell; 17 Jan 1833

References: , [1833] EngR 333, (1833) 1 My & K 98, (1833) 39 ER 618
Links: Commonlii
Coram: Lord Brougham LC
On a bill which sought to charge a solicitor with a fraud practised on the Plaintiffs in the course of proceedings on his client’s behalf, the Court refused to order the production of entries and memorandums contained in the Defendant’s books, or of written communications, made or received by him, relating to those proceedings, and admitted by the answer to he in the Defendant’s custody.
And, generally, it seems that a solicitor cannot be compelled, at the instance of a third party, to clisclose matters which have come to his knowledge in the conduct of professional business for a client, even though such business had no reference to legal proceedings, either existing or in contemplation.
Lord Brougham LC said: ‘The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.’
This case is cited by:

  • Cited – Regina -v- Derby Magistrates Court Ex Parte B HL (Independent 27-Oct-95, Times 25-Oct-95, [1996] AC 487, Bailii, [1995] UKHL 18, [1996] 1 FLR 513, [1996] 1 Cr App R 385, (1995) 159 JP 785, [1996] Fam Law 210, [1995] 3 WLR 681, [1995] 4 All ER 526)
    B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
  • Cited – Prudential Plc and Another, Regina (on The Application of) -v- Special Commissioner of Income Tax and Another SC ([2013] WLR(D) 20, Bailii, [2013] UKSC 1, Bailii Summary, UKSC 2010/0215, SC Summary, SC)
    The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
    Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .

Three Rivers District Council and others v The Governor and Company of the Bank of England (No 6): CA 1 Mar 2004

References: [2004] EWCA Civ 218, Times 03-Mar-2004, Gazette 18-Mar-2004, [2004] 3 All ER 168, [2004] QB 916, [2004] 2 WLR 1065
Links: Bailii
Coram: Lord Justice Longmore Lord Phillips Of Worth Matravers, Mr Lord Justice Thomas
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a solicitor to his client attracts privilege. The broad protection which did exist did not extend to situations where the dominant purpose was not the obtaining of legal advice and assistance in relation to legal rights and obligations. What was protected was advice which required a knowledge of the law. Here, the advice was on matters of presentation, though that might have included matters of law. That possibility would not protect the entire range of assistance given. Where the advice was as to how the witness might present his case so as perhaps to avoid criticism, that should not itself attract privilege. The inquiry was not concerned with legal rights and liabilities. The communications did not in general attract privilege.
Statutes: Tribunals of Inquiry Evidence Act 1921 1(3)
This case cites:

  • Cited – Three Rivers District Council and others -v- The Governor & Company of the Bank of England (No 7) CA (Bailii, [2003] EWCA Civ 474, Times 19-Apr-03, Gazette 12-Jun-03, [2003] 3 WLR 667, [2003] QB 1556, [2003] CPLR 349)
    Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
    Held: Legal advice privilege attached to the communications between a client and the . .
  • Appeal from – Three Rivers District Council -v- Bank of England (No 5) ComC ([2003] EWHC 2565 (Comm))
    The defendant bank sought protection from disclosure of advice it had received from its solicitors.
    Held: To the extent that the communications were for the purpose of seeking advice as to its legal rights and obligations, the communications . .
  • Cited – Balabel -v- Air India CA ([1988] Ch 317)
    When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
  • Cited – Greenhough -v- Gaskell CA ((1833) 1 My & K 98, Commonlii, [1833] EngR 105, (1833) Coop T Br 96, (1833) 47 ER 35)
    The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
  • Cited – Carpmael -v- Powis ((1846) 1 Ph 687)
    The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
  • Cited – Wheeler -v- Le Marchant CA ((1881) 17 Ch D 675)
    Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
  • Cited – Minter -v- Priest HL ([1930] AC 558)
    The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
  • Cited – Great Atlantic Insurance -v- Home Insurance CA ([1981] 2 All ER 485, [1981] 2 Lloyds Rep 138, [1981] 1 WLR 529)
    The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
    Held: The entirety of the document was privileged, but by disclosing part, the . .
  • Cited – Wilson -v- Northampton and Banbury Junction Railway Co ((1872) LR 14 Eq 477, (1874) LR 9 Ch App 279)
    Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
  • Appealed to – Three Rivers District Council and others -v- Governor and Company of the Bank of England (No 6) HL (House of Lords, [2004] UKHL 48, Times 12-Nov-04, Bailii, [2004] 3 WLR 1274, [2005] 1 AC 610)
    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 . .

This case is cited by:

X Corporation v Y; 16 May 1997

References: Unreported, 16 May 1997
Legal professional privilege might be taken to be waived if it would be unfair to allow a client to maintain it.
This case is cited by:

Re Doran Constructions Pty Ltd (in liq); 27 Mar 2002

References: [2002] NSWSC 215, 168 FLR 116, (2002) 194 ALR 101, 20 ACLC 909
Links: Austlii
Coram: Campbell J
Austlii (Supreme Court of New South Wales) CORPORATIONS – winding up – liquidator’s examination – circumstances in which liquidator entitled to ask questions relating to legal advice given to company in liquidation – EVIDENCE – liquidator’s examinations – whether evidence given at is governed by Evidence Act 1995 (NSW) – EVIDENCE – legal professional privilege – circumstances in which joint retainer of solicitor exists – EVIDENCE – procedure to adopt when deciding whether legal professional privilege does not exist – EVIDENCE – waiver of client legal privilege – disclosure of substance of advice – disclosure made knowingly and voluntarily – disclosure by agent or employee authorised to make it – disclosure made under compulsion of law
This case is cited by:

Bristol and West Building Society v Baden Barnes Groves; 22 Nov 1996

References: Unreported, 22 November 1996
Coram: Chadwick LJ
The court considered a solicitor’s duties to avoid a conflict of interest in a conveyancing transaction as between a lay client and a lender. Chadwick LJ said: ‘In my view, the words ‘if in the course of doing the work he is instructed to do’ reflect an important and significant qualification to the solicitor’s duty to disclose information relevant to the lending risk. A solicitor is obliged to disclose information which comes into his possession in the course of doing the work which the lender has instructed him to do; but he is not obliged to disclose information which has come into his possession independently of any work which the lender has instructed him to do – including, for example, information which has come into his possession as a result of earlier transactions in which he has been retained by the borrower.’
This case is cited by:

Regina v Ashgar Khan; 10 Jul 2001

References: Unreported, 10 July 2001
Coram: Judge Wakerley QC
Ratio Judge Wakerley QC expressed his concern at the numbers of applications for transfer of representation in the Crown Court. The court has a duty to bear in mind the cost to the taxpayer and that, as a result, good reason must be established before a representation order was transferred. He emphasised that the court will insist on strict compliance with the provisions of Regulation 16 which meant that the grounds of the application and full particulars need to be specified by the existing representative.
He observed: ‘This court will insist on strict compliance with the provisions of Regulation 16 . . The grounds of the application and full particulars need to be specified by the existing representatives. Next, the substantial compelling reason under subparagraph 2(4), if relied on, needs to be specified so that I can identify it. It will not generally be sufficient to allege a lack of care or competence of existing representatives . . only in extremely rare cases, and where full particulars are given in the application, will a general ground of loss of confidence or incompetence be entertained. It must further be pointed out that it will not be sufficient simply to say that there is a breakdown in the relationship between solicitor and client. Many breakdowns are imagined rather than real or as a result of proper advice’
Statutes: Criminal Defence Service (General)(No.2) Regulations 2001 16
This case is cited by:

  • Approved – Regina -v- Ulcay QBD (Bailii, [2007] EWCA Crim 2379, Times 07-Nov-07, [2008] 1 WLR 1209, [2008] 1 All ER 547)
    The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .
  • Approved – Clive Rees Associates, Solicitors, Regina (on The Application of) -v- Swansea Magistrates Court and Another Admn (Bailii, [2011] EWHC 3155 (Admin))
    The claimant solicitors challenged a decision of the respondents to transfer legal aid orders for the representation of clients to a second frm of solicitors.
    Held: The court considered the various cases, finding three decisions unlawful and . .

(This list may be incomplete)

Last Update: 20-May-16
Ref: 449711

D’Orta-Ekenaike v Victoria Legal Aid; 10 Mar 2005

References: [2005] HCA 12, (2005) 223 CLR 1, (2005) 214 ALR 92, (2005) 79 ALJR 755
Links: Austlii
(High Court of Australia) Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate’s immunity available to respondents – Whether advocate’s immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor’s liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate’s immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client’s complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
    Held: The . .

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

References: Unreported, 17 March 1994
Coram: Latham J
The court considered the management of the statutory Solicitors Compensation Fund: ‘Given, however, what I have already said about the statutory purpose of the compensation fund, it seems to me that it is appropriate to say that the clearest case in which a grant will be made, pursuant to an application for compensation, will be where the solicitor himself has been dishonest and obtained money himself from the applicant which the applicant has thereby lost. That being the general rule, it seems to me that the Law Society is entitled to say that the further the application departs from that particular set of circumstances, the more cautious the Law Society should be in making a grant. It follows that any circumstance which takes the facts behind an application outside that general rule will be a relevant consideration for the Law Society to take into account. ‘
Statutes: Solicitors Act 1974 36
This case is cited by:

  • Cited – Regina -v- Law Society ex parte Birkett Admn (Bailii, [1999] EWHC Admin 770)
    Some twenty years after the events, the claimant still sought compensation following the alleged negligence of his former solicitor. He now sought it from the Law Society’s compensation fund. The Law Society said the nature of his claim was outside . .

In Re The Duke of Brunswick, And The Sureties Of Crowl And Another; 22 Nov 1849

References: [1849] EngR 1058 (B), (1849) 4 Exch 492
Links: Commonlii
A solicitor or attorney cannot recover for business done by him in that character, unless he have obtained a certificate which was in force for the period the work was done – Where a solicitor applied for and paid for a certificate for the period between October, 1847, and November, 1848, and the officer, by mistake, dated it October, 1848, and November, 1819 – Held, that the solicitor was not enititled to recover for business done in 1849

Cooper v Grant; 24 Apr 1852

References: [1852] EngR 485, (1852) 12 CB 154, (1852) 138 ER 860
Links: Commonlii
A warrant of attorney was attested by an attorney introduced by the plaintiff, and who had on one former occasion acted professionally for the plaintiff, and who afterwards acted as the plaintiff’s attorney in entering up judgment and issuing execution upon the warrant of atttorney : The court set it aside. In such a case, the court will not impose upon the defendant the terms of bringing no action.

Farrow Mortgage Services Pty Ltd (in Liq) v Webb and others; 5 Jul 1996

References: [1996] 39 NSWLR 601, 14 ACLC 1
Links: Austlii
Coram: Meagher, Sheller JJA, Waddell AJA
Austlii (Court of Appeal of New South Wales) COMPANY LAW – s556 (1) Companies (NSW) Code; s592 (1) Corporations Law; liability of directors for debt of company – legal professional privilege – distinction between joint and common interest privilege – waiver.
This case is cited by:

Potter v Law Society; 20 Dec 1999

References: Unreported, 20 December 1999
The Law Society intervened in the solicitor’s practice where there were considerable grounds to suspect that the solicitor was knowingly allowing his firm to be used in connection with a large fraud, even if he was not a participant in the fraud himself.
Statutes: Solicitors Act 1974
This case is cited by:

  • Cited – Sheikh -v- The Law Society ChD (Bailii, [2005] EWHC 1409 (Ch), [2006] 4 All ER 717)
    The claimant challenged the intervention by the Law Society in her solicitors practice.
    Held: Though there were some breaches of the solicitors’ accounts rules there was insufficient basis for the Society to have behaved in the way it had and . .

Lyon v Baker; 30 Jun 1852

References: [1852] EngR 796 (A), (1852) 5 De G & Sm 622
Links: Commonlii
Coram: Sir James Parker VC
In a suit by a trustee against his co-trustee, a solicitor, and the parties beneficially interested under a will, some of them being infants, the costs of all parties had been ordered to be taxed and paid. It appeared that the Defendant trustee, the solicitor, had conducted his defence by his partner. The Taxing Master allowed the solicitor trustee costs out of pocket only. Held, that the rule which had allowed to solicitor trustees costs out of pocket only being well established, the Court would not, with reference to the question of costs, inquire whether the conduct of the suit by the partner of the solicitor trustee was beneficial for all parties, though no party objected to such inquiry, but that all costs beyond those out of pocket must be disallowed.

Robert Hull Terrell v James Button; 16 Mar 1854

References: [1854] EngR 361, (1854) 4 HLC 1091, (1854) 10 ER 790
Links: Commonlii
The intention of the 11th and 12th Vict. c. 45 (the Winding Up Act of 1848), was to provide for debts recoverable only in equity, as well as for those recoverable at law ; and the Master has an uncontrolled discretion (subject to appeal) to allow or disallow, or to allow as a claim only, according to the proofs adduced before him, any demand against a Company.
Certain persons proposed to form a company; they employed A. as their solicitor; he was so named, on provisional registration, under the joint Stock Company’s Act; the Directors were not to be personally liable to the officers of the Company ; the solicitor was continuously employed, until after the company had been completely formed and registered, and until it was wound up. The 44th article of the deed of settlement declared, that ‘a sufficient part of the funds of the Company should, upon complete registration, be appropriated in payment of the expenses of and incidental to the formation of the Company, including those of or having reference to the preparation and execution of that deed.’ When the Company was before the Master on the Winding-up Act, the solicitor presented a demand for services from the earliest period up to that time. The Master allowed the demand as a claim only, and not as a debt, leaving the solicitor to proceed at law : Held, reversing an order of Vice Chancellor Kindersley which had permitted the order of the Master to stand, that the Master ought to have allowed this demand as a debt, but subject to proof that the items came under the description contained in the 44th article, and subject also to taxation. As the solicitor had omitted to bring the 44th article to the notice of the Vice Chancellor, his order, though reversed, was reversed without costs.
Statutes: Winding Up Act of 1848

P v The General Council of the Bar; Re P (A Barrister); 24 Jan 2005

References: [2005] 1 WLR 3019
Coram: Colman J, Clark, Nathan
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to hear the barrister’s appeal included N, who was also a member of the Bar’s Professional Conduct and Complaints Committee. That Committee was responsible for prosecuting allegations of misconduct, although N had not been involved in prosecuting the current case. The appellant barrister objected to N’s participation: ‘Ms N would be a judge in her own cause. This would also be a situation of apparent bias for, although it was accepted that she had taken no part in the particular decision of the PCCC to prosecute the Appellant and that there was no actual bias on her part, there was nevertheless a real apprehension or danger or possibility or suspicion of bias by reason of her membership of the PCCC.’
Held: The objection succeeded. N was obliged to recuse herself both on common law principles and in order to secure compliance with ECHR article 6. The decision was rendered under the doctrine that no one must be a judge in his own cause, rendering it unnecessary to consider whether the doctrine of apparent bias was also an impediment to Ms Nathan’s participation. However, the judgment expressed the firm view that the doctrine of apparent bias did also require Ms Nathan’s recusal.
‘The decision by the PCCC to institute proceedings against a barrister thus imposes upon the PCCC as agent for the Bar Council a duty to prosecute that person and, consistently with the applicable procedure, to present the case against the barrister in a manner designed to procure conviction. Whereas it is undoubtedly true that the proceedings in which the charges are prosecuted must be fairly and justly conducted, those representing the Bar Council have a duty as its agents to procure conviction or in the case of appeals before Visitors to defeat an appeal. They do not have the function of a neutral amicus. Their interest is conviction or dismissal of appeals . .
In considering whether a lay representative on a Visitors Panel shares the interest of the PCCC, of which that person is a member, in the appeal being dismissed, an analysis of the quality of that particular member’s ability to maintain objectivity is nothing to the point. Nobody called in question Lord Hoffmann’s personal ability to be objective and impartial. Nor, in our judgment, does the fact that the purpose of including lay representatives on the PCCC and as members of the Visitors panel, have the effect of insulating such persons from having the appearance of sharing the interest of the PCCC as a prosecutor. Lord Hoffmann’s judicial oath could provide no such insulation. Nor do we find that a lay representative’s non-participation in meetings relating to the prosecution in question, cuts off that person from the responsibility which, as a member of the PCCC, that lay representative bears together with its other members for taking forward and facilitating the prosecution. Lord Hoffmann was not a decision-taker at either Amnesty International or AICL with regard to participation in the proceedings . .
Accordingly, the perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair-minded observer.
If therefore one assumes that the scope of the hypothetical fair-minded observer’s knowledge is confined to the Code of Conduct of the Bar, the Disciplinary Tribunal Regulations, the Complaints Rules and the Hearings before the Visitors Rules and does not extend to the methods of selection of the members of the PCCC or, except in so far as they should not have attended the relevant meeting of the PCCC, the Visitors panels or to the attendance records of lay representatives at meetings of the PCCC, we consider that even taking account of the high calibre of lay representatives generally and of their function in representing the public interest, there would be a perception to the fair-minded observer of a real possibility of subconscious lack of impartiality by reason of exposure to influence by such prosecuting policies as might exist amongst PCCC members generally.’
Statutes: European Convention on Human Rights 6
This case cites:

  • Cited – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .

This case is cited by:

Knight Since Deceased And His Executors, Tomkinson v Bowyer etc; 1 Jul 1857

References: [1857] EngR 716 (C), (1857) 23 Beav 609
Links: Commonlii
An annuity was granted free of all taxes ‘ except the property tax,’ and the deed contained a proviso, that in cwe the income tax should be reduced, the reduction should enure to the benefit of the grantor. This proviso was omitted in the memorial.
Held: that the memorial was sufficient.
If a solicitor purchase from his client, and institute a suit against third parties to enforce his right, the objection to the transaction, on the ground of its being a purchase by a solicitor from his client, cannot be maintained by such third parties.

Mohammad Rashid Ahmad Raza Mirza v The Joint Regulations Committee; IoC 14 May 1997

References: [1997] EWCA Civ 1685
Links: Bailii
The applicant appealed a decision of the Joint Regulation Committee. He had been admitted, and had practised as a barrister in Pakistan. He had qualifications and experience which he asserted should give some exemption from the normal examination and pupillage requirements for admission to the English Bar. The Visitors pointed out that the academic qualifications had not been recognised by the Committee. Although the applicant did indeed have considerable experience, the court could not criticise the decision of the Committee as unreasonable. They faced clear requirements which the applicant did not meet.