Category: Legal Professions

Dutton v Law Society: Admn 19 Oct 2004

The solicitor had accepted funds on an agreed basis as to the way in which they could be paid out. Having paid out the money in breach of the agreement, the tribunal was entitled to find the solicitor dishonest. The tribunal had found that a solicitor would not have given an assurance that money would be paid into client account but then given different account details. However the court granted an adjournment to allow the solicitor to to recover from his mental illness.

Judges:

Latham LJ, Curtis J

Citations:

[2004] EWHC 2669 (Admin), Times 31-Jan-2005

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 27 June 2022; Ref: scu.219717

Mensah v Islington Council and Another: CA 1 Dec 2000

Permission was sought for a McKenzie friend to address the court. Peter Gibson LJ said: ‘In accordance with the overriding objective of the CPR and to avoid the waste of today’s hearing, attended as this court had earlier directed, by counsel for the defendants, we took the exceptional course in this highly unsatisfactory situation of allowing Mr Alexander to speak for Mr Mensah.
But I must make it clear that this should not be taken as creating any precedent as to how those who have no right of audience can act as advocates for litigants in person. Anyone who aspires to be an advocate should obtain the requisite qualifications, and the court should be very slow to permit those who are allowed to be present in court as Mackenzie friends to act as advocates. That is not the proper function of a Mackenzie friend. The position in law was recently restated by this court in R v Bow County Court ex parte Pelling [1999] 1 WLR 1807. I repeat and endorse the warning given by Lord Woolf MR at page 1825 that if a person chooses to appear regularly as a Mackenzie friend and uses the litigant as a mere puppet, such behaviour could provide a firm foundation for a judge not wishing him to be present as a Mackenzie friend.’

Judges:

Peter Gibson LJ, Arden LJ

Citations:

[2000] EWCA Civ 405, [2002] CP Rep 2

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – McKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .

Cited by:

Cited – Guidance (McKenzie Friends) 2005
Sir Mark Potter gave guidance on the acceptance of McKenzie Friends as advocates: ‘A court may grant an unqualified person a right of audience in exceptional circumstances only and only after careful consideration (D v S (Rights of Audience) [1997] . .
Cited – In Re N (A Child) FD 20-Aug-2008
There had been several hearings and the father had been assisted by a McKenzie friend permitted to address the court. The father now objected to the mother’s McKenzie friend being given similar leave.
Held: Whilst Dr Pelling might make a . .
Lists of cited by and citing cases may be incomplete.

Local Government, Negligence, Legal Professions, Litigation Practice

Updated: 27 June 2022; Ref: scu.218706

Farrelly, Re Solicitor’s Act 1974, No 14 of 2001: CA 7 Nov 2001

Appeal against the decision of a Law Society Appeal Adjudicator, upholding a decision of first instance Adjudicator, that, among other matters, Mr Farrelly is not of suitable character to become a solicitor and that his student membership be revoked. He was said to have falsified his curriculum vitae.

Judges:

Lord Phillips MR

Citations:

[2001] EWCA Civ 1726

Links:

Bailii

Statutes:

Solicitor’s Act 1974

Jurisdiction:

England and Wales

Legal Professions

Updated: 27 June 2022; Ref: scu.218516

Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm): ChD 2 Jun 2004

The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the transactions were different, there remained a sufficient risk of conflict. Most cases on the issue related to single issue conflicts, but the rule was not so restricted. There was insufficient reason to think ‘the double employment rule being limited to same matter conflicts. I accept there must be some reasonable relationship between the two matters, but they do not, in my judgment, have to be the same. ‘ As to the poossible use of Chinese Wall arrangements: ‘So far as confidential information is concerned, it is obviously a huge amount of confidential information within Freshfields in relation to Marks and Spencer’s affairs through acting for it over the years, some of which may be material to the bid, if only to be discarded. I cannot see, even with a firm the size of Freshfields, that effective information barriers can be put in place given the very large number of people involved, even on the two matters. There must be very many Freshfields people with knowledge of Marks and Spencer’s confidential information. In those circumstances I am satisfied that the Chinese Walls cannot be or be seen to be sufficient.’

Judges:

Lawrence Collins J

Citations:

Times 18-Jun-2004, [2004] EWHC 1337 (Ch)

Jurisdiction:

England and Wales

Citing:

Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Re Baron Investments (Holdings) Ltd 2001
Conflict of interest – double employment . .
Cited – Dunford and Elliott v Johnson and Firth Brown CA 1977
A report which had been prepared confidentially was disclosed to 43 per cent of shareholders of a company (the institutional shareholders), but not the others, who then complained to the court.
Held: The others were entitled to the . .
Cited – Young, Young, Irby v Robson Rhodes and Frank Attwood ChD 30-Mar-1999
Where a merger was proposed between two accountancy firms, who had provided litigation support services to opposing sides in a case, it was necessary to separate the two halves most rigorously including physical separation in order to ensure no . .
Cited – Rakusen v Elliss, Munday and Clark 1912
A firm of solicitors had two partners, who did business separately without having any knowledge of the affairs of each other’s clients. The plaintiff consulted one partner in an action for wrongful dismissal a company. He changed his solicitors and . .

Cited by:

Appeal from – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 27 June 2022; Ref: scu.198394

Radford and Co v Charles and Another: ChD 5 Nov 2003

The defendant firm of solicitors appealed a wasted costs order.
Held: The jurisdiction to make a wasted costs order was to be used for breaches of duty to the court. It was not proper to make one where, as here, the failure was merely a failure in a duty to his client to act in time.

Judges:

Neuberger J

Citations:

Times 26-Nov-2003

Statutes:

Supreme Court Act 1981 51(6)

Jurisdiction:

England and Wales

Legal Professions

Updated: 27 June 2022; Ref: scu.188245

In re Burton Marsden Douglas (a Firm), Marsden and Another v Guide Dogs for the Blind Association and Others: ChD 25 Mar 2004

A solicitor had acted in the administration of an estate. His practice was merged with another, and after the merger he prepared an inflated account. He had transferred the money before the mrger. He had disappeared. The charities were residuary beneficiaries who object to the bill and sought repayment from the new partnership.
Held: The new partners were not jointly and severally liable for the debt. There had been no novation of the contract to transfer liability to the new partnership. The section could not be used to order a firm to repay money rceived.

Judges:

Lloyd J

Citations:

Times 25-Mar-2004

Statutes:

Solicitors Act 1974 71

Jurisdiction:

England and Wales

Legal Professions

Updated: 27 June 2022; Ref: scu.195954

Medcalf v Mardell, Weatherill and Another: HL 27 Jun 2002

The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar Council Code of Practice.
Held: A barrister must not draft a pleading containing an allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which, as it stands, establishes a prima facie case of fraud. There was no bar to a party asking for a wasted costs order against opposing counsel. There was no bar to an action in respect of acts outside the strict scope of courtroom advocacy. Nevertheless, fairness must be allowed. There was a risk here of the barristers being unable to defend themselves without being able to produce material protected by their clients’ legal professional privilege. The clients did not release that privilege, and so a court order could not safely be made.
Lord Bingham said: ‘ Paragraph 606(c) (of the Bar Code of Conduct) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which the judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would however agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it.’
Lord Steyn said: ‘ This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay clients interests: paragraph 203 of the Code of Conduct. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.’

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry

Citations:

Times 28-Jun-2002, Gazette 08-Aug-2002, [2002] UKHL 27, [2002] 3 All ER 731, [2003] 1 AC 120, [2002] NPC 89, [2002] PNLR 43, [2002] 3 WLR 172, [2002] CP Rep 70, [2002] CPLR 647, [2002] 3 Costs LR 428

Links:

House of Lords, Bailii

Statutes:

Supreme Court 1981 51(6)(7) 51(6)(13), Courts and Legal Services Act 1990 4, Bar Code of Conduct 606

Jurisdiction:

England and Wales

Citing:

Approved – 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 . .
Appeal from – Medcalf v Mardell and Others CA 24-Nov-2000
Counsel who wished to insert an allegation of fraudulent activity, or similar, into an application to amend a notice of appeal, must be sure not only that they have the clear and direct instructions of the clients to do this, but also that they . .
Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
See Also – Medcalf v Mardell and others CA 2-Mar-2000
. .

Cited by:

Cited – Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .
Cited – Gleaner Company Ltd and Another v Abrahams PC 14-Jul-2003
Punitive Defamation Damages Order Sustained
(Jamaica) The appellants challenged a substantial award of damages for defamation. They had wrongfully accused a government minister of corruption. There was evidence of substantial financial loss. ‘For nearly sixteen years the defendants, with all . .
Cited – Hussain and Another v Sarkar and Another CA 29-Jan-2010
The claimant sought damages saying that in a traffic accident, the first defendant driver had driven into the rear of their car. The second defendant asked for permission to amend its peading to allege fraud, that the accident had been staged, but . .
Cited – Abbar and Another v Saudi Economic and Development Company (Sedco) Real Estate Ltd and Others ChD 5-Aug-2010
The defendant sought a strike out of the claim in fraud, saying it was an abuse of process, saying that the facts as pleaded were consistent with honest dealing. The claimants said they had been induced to purchase shares.
Held: The request . .
Cited – Jones v Kaney SC 30-Mar-2011
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 . .
Cited – Media Cat Ltd v Adams and Others PCC 18-Apr-2011
The claimants had begun copyright infringement cases. Having been refused a request to be allowed to withdraw the cases as an abuse, their solicitors now faced an application for a wasted costs order.
Held: The court only has jurisdiction to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Litigation Practice

Updated: 27 June 2022; Ref: scu.174122

Schering Corporation v CIPLA Ltd and Another: ChD 10 Nov 2004

The defendants appealed against a refusal to strike out the patent infringement proceedings issued by the claimant, saying the only evidence offered was a letter written by the defendants which was headed ‘without prejudice’.
Held: The essential character of a without prejudice communication was that the writer genuinely intended it to form part of a negotiation. That might arise on the first part of a communication, as it did here. The appeal succeeded.
Laddie J referred to Standrin and said: ‘it seems to me that the Court of Appeal indicated that in determining the nature of correspondence and, in particular, in determining whether or not it is to be treated as bona fide without prejudice, it is necessary to consider all the circumstances. In that case, the common practice of negotiating when a reference to the Land Tribunal was in prospect was one factor which the Court of Appeal took into consideration. But it also took into consideration the fact that the document was headed with the words ‘without prejudice’. As Parker LJ made clear, merely putting those words on a document does not conclusively mean that the document is privileged. However the occurrence of those words may well be an important factor in determining the document’s status.
Behind this, it seems to me, is the following principle.The court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient.’

Judges:

Laddie J

Citations:

Times 02-Dec-2004, [2004] EWHC 2587 (Ch), [2005] FSR 25

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Standrin v Yenton Minster Holmes Ltd CA 28-Jun-1991
The parties had exchanged letters asserting an insurance claim. They had been marked without prejudice, and one party now objected to their admission in evidence.
Held: The letters did not have the protection sought. At the time they were . .

Cited by:

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 . .
Cited – Best Buy Co Inc and Another v Worldwide Sales Corp. Espana Sl ChD 8-Jul-2010
The claimant accused the defendant of making threats in connection with trade mark applications. The claimants operated under US trade marks associated with ‘Best Buy’ and sought similar marks in Europe. The defendant company traded under a similar . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 June 2022; Ref: scu.220265

Donsland Ltd v Van Hoogstraten and others: CA 23 Feb 2001

Application for leave to appeal granted – in what circumstances a solicitor’s implied authority may extend to taking steps in litigation without express instructions.

Citations:

[2001] EWCA Civ 339

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Donsland Limited v Nicholas Van Hoogstraton; Barnhill Investments Limited and Selective Management Limited CA 19-May-1999
. .

Cited by:

Leave – Donsland Limited v Nicholas Van Hoogstraton CA 2002
Once a transaction in respect of which the solicitor was retained is completed, the retainer comes to an end, and with it the fiduciary relationship between client and solicitor. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 27 June 2022; Ref: scu.217979

Colley v Council for Licensed Conveyancers: CA 14 Feb 2001

Directions for lodging of further argument

Judges:

Schiemann, Sedley LJJ

Citations:

[2001] EWCA Civ 259

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Colley v Council for Licensed Conveyancers CA 17-Jul-2001
The applicant had sought to exercise his statutory right of appeal from a decision by his professional body. The judge had considered that leave was necessary under the rules, and granted limited permission. The applicant appealed, saying that his . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 June 2022; Ref: scu.217973

Solicitor, Re Solicitor’s Act 1974 No 1 of 2001: CA 18 Jan 2001

Appeal by Mr Tyrone Anthony Walker against a decision by the Appeals Committee to uphold the decision of the Office for the Supervision of Solicitors (‘OSS’) to approve, for the purposes of the condition imposed upon Mr Walker’s Practising Certificate

Judges:

Lord Phillips MR

Citations:

[2001] EWCA Civ 43

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 27 June 2022; Ref: scu.217957

Onwuka, Re Solicitors Act 1974 No 3 of 2002: CA 2 Jul 2002

The trainee appealed against the decision of the Law Society to cancel his student membership on the basis that he was not a fit and proper person to become a solicitor. He had been convicted of criminal damage, but had not notified the Law Society of that conviction. He was convicted of further offences and served a term of imprisonment. When challenged by the Society he said that he was the real victim in the situations which had arisen.
Held: The appeal failed. It was based upon a misconception as to the basis of the Society’s investigation which had in fact been more generous to him than he had thought.

Judges:

Lord Phillips MR

Citations:

[2002] EWCA Civ 994

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Legal Professions

Updated: 23 June 2022; Ref: scu.217460

Pine v Law Society: CA 20 Feb 2002

The solicitor had succeeded in his challenge to the respondent’s disciplinary procedures, and the Society now accepted its liability to pay his costs, but asserted that there must be a set-off for that sum against sums it said were otherwise due to it from the solicitor.

Citations:

[2002] EWCA Civ 371

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Pine v Law Society (1) Admn 13-Dec-2000
The court considered the independence of the Law Society’s disciplinary tribunal: ‘Standing back, and bearing in mind the statutory scheme for the Disciplinary Tribunal, I see no reason to doubt its independence or impartiality. It is independent of . .
See also – Pine v Law Society CA 25-Oct-2001
The applicant said the procedure under which he was struck from the roll of solicitors was unfair. There was no provision for legal advice or representation, and given the nature and severity of the allegations and consequences, the trial was . .

Cited by:

See Also – Pine v Law Society CA 20-Feb-2002
The applicant was a solicitor. The Respondent intervened in his practice, and a solicitor agent took it over. The agent submitted its accounts for payment by the Society and the applicant, who then sought to challenge the accounts under the Act. The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 23 June 2022; Ref: scu.216832

Law Society v Bahl: CA 30 Jul 2004

The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination from her unreasonable treatment.
Held: The ability and readiness of a tribunal to infer discriminatory motives from unreasonable behaviour applied only in the absence of an explanation or justification given by the respondent. The tribunal had not properly dealt with the question of what reasons other than discrimination might have been given for the claimant’s treatment. There was no explanation or evidential basis for the findings of discrimination. The appeal was dismissed.

Citations:

Times 07-Oct-2004, [2004] EWCA Civ 1070, [2004] IRLR 799

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Appeal from – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – Qureshi v Victoria University of Manchester EAT 21-Jun-1996
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. The questions on a complaint of race discrimination are: (a) Did the act complained of actually occur? (b) If the act . .
Cited – Chapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Cited – Effa v Alexandra Healthcare NHS Trust CA 5-Nov-1999
The tribunal’s decision was found to have confused unreasonable treatment with discriminatory treatment. ‘It is common ground that an error in law is made by a tribunal if it finds less favourable treatment on racial grounds where there is no . .
Applied – King v Great Britain China Centre CA 1991
The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence . .

Cited by:

Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Discrimination

Updated: 21 June 2022; Ref: scu.216350

Re Law Society of Northern Ireland: QBNI 9 Sep 2004

The Law Society of Northern Ireland sought an order to quash a letter from the new NI Legal Service Commission declining to implement the remuneration rates set by the Society. There had been no review of charging rates by the commission for some considerable time, and the Society established its own committee to consider the issue. They argued that the duty to fix rates under the order was not dependent upon affordability. The court service had not agreed the new rates. The Society argued that they had been involved through membership of the relevant committees. There was a duty to provide fair and reasonable remuneration.
Held: ‘The constitutional requirement that parliament contains direct control of public expenditure operates as an aid to construction of statutory provisions. ‘ The Society was not free to set remuneration rates without the agreement of those who were to fund them. The Society’s solution was to approach the Lord Chancellor who set the level of funds available.

Judges:

Girvan J

Citations:

[2004] NIQB 48

Links:

Bailii

Statutes:

Legal Aid (Northern Ireland) Order 1981

Citing:

Cited – Steele Ford and Newton v Crown Prosecution Service (No.2) HL 1993
The House considered the court’s jurisdiction to award costs out of central funds.
Held: In this case there was no such power, but: ‘still more important, in the present context, is the special constitutional convention which jealously . .
Cited – Auckland Harbour Board v The King PC 1924
The making of ex gratia payments is lawful if, but not unless, there is Parliamentary authority for the disbursements: ‘It has been a principle of the British constitution now for more than two centuries . . that no money can be taken out of the . .
Cited – Regina v Brent London Borough Council ex parte Gunning 1985
The demands of fair consultation procedures will vary from case to case and will depend on the factors involved. The requirements are: ‘First, that consultation must be at a time when proposals are still at a formative stage. Second, that the . .
Cited – Regina v Lambeth Borough Council ex parte Clayhope Properties Limited 1988
A local authority may plead the invalidity of its own repairs notices in resisting tenants applications for grants to meet the costs of compliance. . .
Lists of cited by and citing cases may be incomplete.

Northern Ireland, Legal Professions

Updated: 21 June 2022; Ref: scu.213675

Cantor Fitzgerald International (formerly Cantor Fitzgerald (UK) Ltd) and Another v Tradition (UK) Ltd and Others (No 2): ChD 31 Jul 2003

The costs order required payment of the claimants’ costs. The court ordered costs to be payable only for certain stages of the case, and in particular that the appellants should pay the respondents costs of the trial commencing on a specified date. The respondents now sought recovery of brief fees for the trial.
Held: The court had to interpret ‘costs of the trial’. That might normally include the brief fee, but it had to be seen in the particular circumstances. Where brief fees were paid prior to trial they became costs incurred as and when they were paid and would be assessed on that basis.

Judges:

Patten J

Citations:

Times 11-Sep-2003, Gazette 16-Oct-2003

Jurisdiction:

England and Wales

Citing:

Cited – Loveday v Renton (No 2) 1992
A brief fee might include work done during the course of a trial. The appropriateness of the approach and the need for elements to be calculated according to the value at stake and the hourly expense rate are to be calculated realistically. . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 21 June 2022; Ref: scu.186114

Buckley v Law Society (No 2): ChD 1984

A court deciding a case about a solicitor under paragraph 6(5) of schedule 1 should come to its conclusion in the light of all the evidence existing at the time the matter came to be decided and not at the time of the relevant intervention. When hearing an application for an order for the Law Society to withdraw an intervention, the Court may have regard, not only to the material before the Society at the date of the intervention, but to any other relevant material before the Court.

Judges:

Vice Chancellor Megarry

Citations:

[1984] 1 WLR 1101

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Cited by:

Cited – Holder v Law Society CA 24-Jan-2003
The Society had intervened in the applicant’s legal practice. He complained that the intervention was disproportionate, and by removing his right to enjoyment of his possession, infringed his human rights. The Society appealed the finding that an . .
Cited – P S and others v Law Society ChD 16-Jul-2004
The applicants sought orders directing the respondent to withdraw its intervention in the solicitors practice of the first claimant. They had become concerned at the possibility that investment schemes managed by one partner were being being used . .
Cited – Sheikh v The Law Society ChD 1-Jul-2005
The claimant challenged the intervention by the Law Society in her solicitors practice.
Held: Though there were some breaches of the solicitors’ accounts rules there was insufficient basis for the Society to have behaved in the way it had and . .
Cited – Simms and others v The Law Society CA 12-Jul-2005
The appellant challenged intervention proceedings brought against his solicitors practice by the respondent. Following disciplinary proceedings, the Society had obtained summary judgment rejecting the application, and awarding costs. The solicitor . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 21 June 2022; Ref: scu.180045

Russell-Cooke Trust Co v Elliott: ChD 26 Mar 2001

The case concerned the administration of investment schemes set up by a solicitor into whose practice the Law Society had intervened.
Held: It was directed that a circular be sent to all investors to determine their views.

Judges:

Laddie J

Citations:

26th March 2001 unreported

Jurisdiction:

England and Wales

Cited by:

Cited – Independiente Ltd and others v Music Trading On-Line (HK) Ltd and others ChD 13-Mar-2003
The claimants claimed damages for the sale by the defendants in the UK of CD’s manufactured for sale only in the far East. The defendants challenged the right of a claimant phonographic society to have the right to sue on behalf of its members.
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 21 June 2022; Ref: scu.179758

Byrne v Sefton Health Authority: CA 22 Nov 2001

There was no power to make an order for wasted costs against a solicitor who had not been acting in a matter when proceedings were issued. Delays eventually led to the dismissal of a medical negligence case for limitation. The defendant authority sought their lost costs against the firm. The true test was whether the behaviour complained of was a cause of the unnecessary incurring of costs. A ‘but for’ test was insufficient.

Judges:

Lord Justice Peter Gibson, Lord Justice Chadwick and Lord Justice Longmore

Citations:

Times 28-Nov-2001, Gazette 04-Jan-2002

Statutes:

Supreme Court Act 1981 51(6)

Jurisdiction:

England and Wales

Citing:

Distinguished – Brown and Another v Bennett and Others (No 2) ChD 16-Nov-2001
The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 18 June 2022; Ref: scu.166876

Inland Revenue Commissioners v Brander and Cruickshank (A Firm): HL 8 Dec 1970

HL Income tax, Schedule D – Profits of profession – Law agents – Also acting as secretaries and registrars of companies – Compensation for loss of registrarships – Whether receipt of profession – Whether registrarships offices.

Citations:

[1970] UKHL TC – 46 – 574, 1971 SC (HL) 30, [1971] 1 All ER 36, 1971 SLT 53, 46 TC 574, [1971] 1 WLR 212

Links:

Bailii

Jurisdiction:

England and Wales

Income Tax, Legal Professions

Updated: 18 June 2022; Ref: scu.559825

Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm): CA 23 Apr 1997

Citations:

[1997] EWCA Civ 1492

Jurisdiction:

England and Wales

Citing:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .

Cited by:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.141888

Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm): CA 13 Nov 1996

Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract between the two principals which contemplates two possible alternative future events and by which the parties agree to pay a sum of money to a stakeholder to abide the happening of one or other of them . . The second contract is the tripartite contract which results from the deposit of the money with the stakeholder on terms that he is to keep it until one or other of the relevant events happens and then pay it to one or other the parties accordingly. The stakeholder is a party to the second contract but not the first. His rights and obligations are not normally expressly spelled out. They are implicit in the transaction itself, and must be discovered not by implying terms, but by analysing the relationship of the parties which arises from the deposit of the money.
The following propositions emerge from the authorities:
(1) The relationship between the stakeholder and the depositors is contractual, not fiduciary. The money is not trust money; the stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors: Potters v Loppert [1973] Ch. 399, 406; Hastingwood Ltd v Saunders Bearman [1991] Ch. 114, 123. The underlying relationship is that of debtor and creditor, and is closely analogous to the relationship between a banker and his customer.
(2) Until the specified event occurs, the stakeholder is entitled to retain the interest on the money. This is usually as his reward for holding the money: see Harington v Hoggart (1830), I BandAd 577. The right may be excluded by special arrangement, and was excluded in the present case.
(3) Until the event happens the stakeholder holds the money to the order of both depositors and is bound to pay it (strictly speaking an equivalent sum) to them or as they may jointly direct: Rockeagle v Alsop Wilkinson [1992] Ch. 47.
(4) Subject to the above, the stakeholder is bound to await the happening of the event and then to pay the money to one or other of the parties according to the event. The money is payable to the party entitled on demand, and if the stakeholder fails to pay in accordance with a proper demand he is liable for interest from the date of the demand: Lee v Munn [1817] EngR 769; (1817) 8 Taunt. 45; Gaby v Driver (1828) 2 YandJ 549.
(5) If the occurrence of the event is disputed, the stakeholder cannot safely pay either party, for if he mistakenly pays the party not entitled the payment will not discharge his liability to the other. In these circumstances he may (i) interplead and pay the money into Court; (ii) retain the money pending the resolution of the dispute; or (iii) take the risk of paying one party. The choice is entirely his.
(6) If he takes the second course, he may notify the parties that he is content to abide the outcome of the dispute. There is then no need to join him in any proceedings which are taken to resolve it. If he is not joined, the Court cannot order the money to be paid to the successful party. All it can do is to declare that the successful party is entitled to give a good receipt for the money: see Smith v Hamilton [1951] Ch. 175.
(7) If the stakeholder is not content to abide the outcome of the proceedings, he may be joined in order to bind him. This was done in the present case, albeit on the application of the stakeholder.’

Judges:

Millett LJ

Citations:

[1996] EWCA Civ 942

Jurisdiction:

England and Wales

Citing:

Cited – Rockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
Cited – Potters v Loppert ChD 1973
The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a . .

Cited by:

Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
See Also – Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm) CA 23-Apr-1997
. .
See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.140809

The Law Society of England and Wales v Pathania: CA 28 Mar 2019

This appeal raises an issue as to the assets that are caught by the statutory trust which arises when the Law Society of England and Wales (the ‘Law Society’) has intervened in a solicitor’s practice on the grounds that it has reason to suspect dishonesty.

Judges:

Sir Geoffrey Vos, Ch

Citations:

[2019] EWCA Civ 517

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 17 June 2022; Ref: scu.635241

O’Rourke v Darbishire and Others: HL 26 Feb 1920

The fact that the solicitor of a trust is also a trustee does not affect the privilege attaching to confidential communications seeking or giving professional advice. In re Postlethwaite, 1887, 35 Ch. D. 722, considered and distinguished.
Where fraud is claimed to defeat such privilege a prima facie case must be established-dicta of Romer, L.-J., and Lord Davey in Bullivant v. Attorney-General for Victoria, [1900] 2 Q.B. 163, [1901] A.C. 196, considered.
The right to refuse production of documents on the ground that they relate solely to the case of the resisting party is not confined to such documents as the resisting party could put in as evidence in support of his own case.
Knight v. Waterford (Marquess of), 1836, 2 Y. and C., Ex. 22; Bey v. De la Hey, 1886, W.N. 101, distinguished. Bewicke v. Graham, 1881, 7 Q.B.D. 400, approved.

Observations on the competency of appeal against the decision of a judge who, in the course of proceedings before him for discovery, at the request of both parties has looked at certain documents to ascertain whether they should be produced. Decision of the Court of Appeal, [1919] 1 Ch. 320, affirmed (Lord Finlay dissenting with regard to one item).

Judges:

Lords Finlay, Sumner, Parmoor, and Wrenbury

Citations:

[1920] UKHL 730, 57 SLR 730

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 17 June 2022; Ref: scu.631510

Tombling v Universal Bulb Co: CA 1951

Denning LJ said: ‘The duty of counsel to his client in a civil case – or in defending an accused person – is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty.’

Citations:

[1951] 2 TLR 28

Jurisdiction:

England and Wales

Cited by:

Cited – Vernon v Bosley (3) CA 19-Dec-1996
The plaintiff claimed damages for acute stress after failing to rescue his two daughters in an accident caused by the defendant. After the accident, he became involved in family proceedings concerning custody of other children. Medical reports used . .
Lists of cited by and citing cases may be incomplete.

Legal professions, Litigation Practice

Updated: 17 June 2022; Ref: scu.381568

Hallinan, Blackburn-Gittings and Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another: Admn 15 Nov 2004

In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed legal professional privilege.
Held: Where there is evidence of specific agreement to pervert the course of justice, which is freestanding and independent, in the sense that it does not require any judgment to be reached in relation to the issues to be tried in the case in the solicitor’s office, the court may well be in a position to evaluate whether what has occurred falls within or outwith the protection of legal professional privilege as explained in Cox and Railton.

Judges:

Rose LJ, Leveson J

Citations:

[2004] EWHC 2726 (Admin), Times 29-Nov-2004, [2005] 1 WLR 766

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 9(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions 1988
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing . .
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 by:

Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 17 June 2022; Ref: scu.219930

Herbert v H H Law Ltd: CA 3 Apr 2019

‘This appeal raises two principal issues of general importance in relation to a detailed assessment of solicitor and client costs pursuant to the Solicitors Act 1984 s.70 and CPR 46.9. The first issue concerns the proper meaning and application of CPR 46.9(3) as regards a success fee of 100% under a Conditional Fee Agreement (‘the CFA’), which has been fixed at that level without any regard to the risk of failure of the claim. The second issue is whether the cost of the premium for an After The Event (‘ATE’) insurance policy was properly to be treated as a solicitor’s disbursement or merely an entry in the client account.’

Judges:

Sir Terence Etherton MR

Citations:

[2019] EWCA Civ 527

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 14 June 2022; Ref: scu.635249

Barclays Bank Plc v Khaira and Another: ChD 6 May 1992

A Bank owed no duty of care to explain the effect of a charge despite the chargee having an account with them. However, if a bank, or its solicitors, elect to give an explanation of documents then it has a duty to explain them accurately

Judges:

Deputy Judge Morison QC

Citations:

Gazette 06-May-1992, [1992] 1 WLR 623

Jurisdiction:

England and Wales

Banking, Legal Professions

Updated: 14 June 2022; Ref: scu.78208

Kelly and Shiels, In the Matter of: CANI 15 Feb 2000

Appeal against refusal of judicial review of refusal to admit the applicants for study on a postgraduate legal professional course leading to potential admission as a solicitor. The applicants questioned: ‘the validity of the provision in the regulations made by the Law Society whereby an applicant for registration as a student of the Society must establish that he has been offered a place in the Institute. The case made by the appellants was that that provision was ultra vires the enabling legislation and void, and they sought a series of consequential remedies.’

Judges:

Carswell LCJ

Citations:

[2000] NICA 1

Links:

Bailii

Northern Ireland, Legal Professions

Updated: 13 June 2022; Ref: scu.201921

Crowther v C B Gallon Cuthbertson Solicitors: CA 31 Jul 2001

The claimant had succeeded in his action against his former solicitors, but sought now to appeal saying he wanted a retrial with a jury.
Held: There was no prospect of the court ordering a retrial, and leave to appeal was not granted.

Citations:

[2001] EWCA Civ 1423

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Updated: 13 June 2022; Ref: scu.201227

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 had no prospect of success. The principle against a firm of solicitors acting against former clients was not restricted to not acting in the same transaction. ‘The court must consider what the relationship is between the two transactions concerned.’ That a takeover might be accepted was not sufficient to avoid the presence of a potential conflict of interest. As to the possible use of a Chinese Wall: ‘had the applicants had a sufficient system for preventing conflicts of interest from arising and legitimate allegations of breach of confidence arising, the fact that they had advised in a substantial way about the Davies arrangements would have alerted them at any rate to the possibility that a conflict of interest had arisen. ‘

Judges:

Pill, Kay LJJ

Citations:

[2004] EWCA Civ 741

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
Cited – Rakusen v Elliss, Munday and Clark 1912
A firm of solicitors had two partners, who did business separately without having any knowledge of the affairs of each other’s clients. The plaintiff consulted one partner in an action for wrongful dismissal a company. He changed his solicitors and . .
Cited – Dunford and Elliott v Johnson and Firth Brown CA 1977
A report which had been prepared confidentially was disclosed to 43 per cent of shareholders of a company (the institutional shareholders), but not the others, who then complained to the court.
Held: The others were entitled to the . .
Cited – Young, Young, Irby v Robson Rhodes and Frank Attwood ChD 30-Mar-1999
Where a merger was proposed between two accountancy firms, who had provided litigation support services to opposing sides in a case, it was necessary to separate the two halves most rigorously including physical separation in order to ensure no . .
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Mothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
Cited – Boulting v Association of Cinematograph, Television and Allied Technicians CA 1963
There must be a real conflict and not a theoretical conflict, before a solicitor can be restrained from acting in a matter against a former client. In order to give fully informed consent, the person entitled to the benefit of the rule must: ‘fully . .
Cited – Newton v Cammell Laird and Co (Shipbuilders and Engineers) Ltd CA 1969
The court considered when the limitation period in a personal injury claim would start to run, where the plaintiff might be unaware of the damage: ‘You have to ask yourself: At what date was it reasonable for him – for the sick man himself – to have . .
Cited – 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 . .
Cited – Bristol and West Building Society v Baden Barnes Groves 22-Nov-1996
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’ . .

Cited by:

Mentioned – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 11 June 2022; Ref: scu.199982

British American Tobacco (Investments) Ltd v United States of America: CA 30 Jul 2004

The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign decision rested on an assumption that the co-operation had been voluntary. There had been no choice to disclose the documents and so there was no waiver of legal professional privilege.

Citations:

[2004] EWCA Civ 1064

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Macnaughton v Macnaughton’s Trustees IHCS 1953
It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm) CA 11-Mar-1999
A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ . .
Cited – Bourns Inc v Raychem Corporation; Latham and Watkins (a Firm) CA 30-Mar-1999
Documents disclosed in support an application in a costs taxation, remained subject to implied duties of confidence, and they could not be used for any other purpose, including to support litigation abroad. Where questions of US law arose, a US . .
Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Lists of cited by and citing cases may be incomplete.

International, Legal Professions

Updated: 11 June 2022; Ref: scu.199595

Camacho, Regina (on the Application of) v The Law Society: Admn 12 Jul 2004

The Solicitors Disciplinary Tribunal had suspended the applicant, with recommendations as to conditions to be imposed by the Law Society if the suspension was later lifted. The solicitor appealed.
Held: The Tribunal itself had power to impose such conditions, and if it thought them appropriate then it should make its own orders accordingly, and not delegate this to the Law Society later.

Judges:

Thomas LJ, Silber J, Goldring J

Citations:

[2004] EWHC 1674 (Admin), Times 05-Oct-2004, [2004] 1 WLR 3037

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Citing:

Cited – in Re a solicitor, No 6 of 1993 CA 23-Jul-1993
‘The purpose of a condition on a practising certificate is not punitive, but is intended to ensure that a solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life at . .

Cited by:

Cited – Taylor v The Law Society CA 1-Nov-2005
‘the SDT should not give orders or directions to the Law Society. It should decide what, if any, conditions should be imposed and if it decides that conditions should be imposed it should impose them pursuant to its wide powers ‘to make such order . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 11 June 2022; Ref: scu.198859

Locke v Camberwell Health Authority: CA 23 May 1991

The court discussed the relative duties of solicitor and counsel. Taylor LJ set out the principles that: 1) In general a solicitor, is entitled to rely upon the advice of counsel properly instructed;
2) For a solicitor, without special experience in a particular field, to rely on counsel’s advice is to make normal and proper use of the Bar;
3) However the solicitor must not do so blindly but must exercise his independent judgment. If he thinks that counsel’s advice is obviously or glaringly wrong, he is under a duty to reject it;
4) Although a solicitor should not assist a litigant where prosecution of the claim amounts to an abuse of process, it is not his duty to assess the result of a conflict of evidence or impose a pre-trial screen on a litigant’s claim.

Judges:

Taylor LJ

Citations:

[1991] 2 Med LR 249

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Justices of Luton Family Proceedings Court; Her Honour Judge Pearce of Luton County Court; Director of Social Services of Bedfordshire County Council ex parte Abdul Rahman and Azra Bi Admn 16-Dec-1996
In the course of urgent children proceedings, counsel advised solicitors inappropriately to seek judicial review of a court decision. The application was persisted with despite warnings from the respondents that they intended to seek a wasted costs . .
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 – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Lists of cited by and citing cases may be incomplete.

Health, Costs, Legal Professions

Updated: 11 June 2022; Ref: scu.179861

The Accident Group Test Cases; Sharratt v London Central Bus Company and Other Cases: CA 20 May 2004

The Accident Group operated a system whereby they introduced potential claimants to personal injury lawyers, arranging costs insurance for them. They appealed a finding that the payment was made in breach of the 1990 code, and was not recoverable.
Held: The appeal was dismissed. The company making the risk assessment operated as agent of the solicitor, but the obligation to pay arose before a solicitor-client relationship was created. It was therefore a referral fee, and irrecoverable.

Judges:

Lord Justice Buxton Lord Justice Kennedy Lord Justice May

Citations:

[2004] EWCA Civ 575, Gazette 10-Jun-2004

Links:

Bailii

Statutes:

Access to Justice Act 1999 29, Solicitors Introduction and Referral Code 1990

Jurisdiction:

England and Wales

Citing:

See Also – Sharratt v London Central Bus Co and Other Cases SCCO 27-Nov-2002
. .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 10 June 2022; Ref: scu.197056

Fletcher and Son v Jubb, Booth and Helliwel: CA 1920

Scrutton LJ said: ‘it would be extremely difficult to define the exact limit by which the skill and diligence which a solicitor undertakes to furnish in the conduct of a case is bounded, or to trace precisely the dividing line between that reasonable skill and diligence which appears to satisfy his undertaking, and that crassa negligentia, or lata culpa mentioned in some of the cases, for which he is undoubtedly responsible. It is a question of degree and there is a borderland within which it is difficult to say whether a breach of duty has or has not been committed.’

Judges:

Scrutton LJ

Citations:

[1920] 1 KB 275

Jurisdiction:

England and Wales

Cited by:

Cited – G and K Ladenbau (UK) Ltd v Crawley and De Reya QBD 25-Apr-1977
The defendant solicitors acted for the plaintiff in the purchase of land, but failed to undertake a commons search which would have revealed an entry which would prevent the client pursuing his development. The defect was discovered only when . .
Cited – Simmons v Pennington and Son CA 1955
Solicitors Followed Historical Practice
Premises owned by the plaintiff were subject to an obsolete covenant restricting their use to that of a private dwelling house. It had in fact been used continuously for many years, both before and after the plaintiff became owner, for business . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 10 June 2022; Ref: scu.182176

USP Strategies Plc and Another v London General Holdings Ltd and others: ChD 1 Mar 2004

In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the documents retained the characteristic which gave it protection from disclosure.

Judges:

Mann J

Citations:

[2004] EWHC 373 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – City of Gotha v Sotheby’s and Another CA 19-Jun-1997
An abandonment of privilege within discovery proceedings did not imply general waiver of same privilege; limited to instant proceedings. . .
Cited – Black v Sumitomo Corporation CA 3-Dec-2001
The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 10 June 2022; Ref: scu.194434

Regina on the Application of Thompson v The Law Society: CA 20 Feb 2004

The claimant complained at the disciplinary procedures of the Law Society.
Held: A failure to hold a disciplinary hearing in public was not an infringement of the claimant’s human rights. The two questions of whether there had been a determination of articlce 6 rights, and then whether there had been an infringement of them must not be separated artifiicially. Despite the professional consequences, the the decision to issue a reprimand did not become a determination of his civil rights.

Judges:

Lord Justice Clarke Lord Justice Kennedy Lord Justice Jacob

Citations:

[2004] EWCA Civ 167, Times 01-Apr-2004, Gazette 01-Apr-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Law Society ex parte Singh and Choudry (A Firm) QBD 1-Apr-1994
The disciplinary jurisdiction of the Law Society is not dependent on prejudice having been shown to have affected any client. The jurisdiction is disciplinary in nature, its intention being to maintain standards in the profession. . .
Cited – Pine v Law Society CA 25-Oct-2001
The applicant said the procedure under which he was struck from the roll of solicitors was unfair. There was no provision for legal advice or representation, and given the nature and severity of the allegations and consequences, the trial was . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 10 June 2022; Ref: scu.193884

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 privileged: ‘the name and telephone number of the caller were taken down as a formality ‘to create the channel through which advice may later flow’. The judge’s discretion had been properly exercised.
Fulford J (as he then was) in the Divisional Court in R (Miller Gardner) v Minshull Street Crown Court at [19] and he thereafter continued: ‘As Lord Bingham stated during the course of his judgment, it is necessary to consider the function and nature of the documents. As a result although documents may be located at a solicitor’s office, they do not attract legal professional privilege for that reason alone.
That decision provides strong support for the proposition that the provision of an individual’s name, address and contact number cannot, without more, be regarded as being made in connection with legal advice. It records nothing which passes between the solicitor and client in relation to the obtaining of or giving of legal advice. Taking down the name and telephone number is a formality that occurs before the legal advice is sought or given. As my Lord observed during argument, providing these details does no more than create the channel through which advice may later flow: see in this regard the case of Studdy v Sanders and others (1823) 2 D and R 347.
It follows, in my judgment, that the identity of the person contacting the solicitor is not information subject to legal professional privilege and the telephone numbers of the brothers, equally, are not covered by this protection; neither are the dates when one or either of those men phoned the office. Moreover, the record of appointments in the office diary and attendance notes, in so far as they merely record who was speaking to the solicitor and the number they were calling from, fall within the same category. Other details contained within the attendance notes may well be covered by legal professional privilege depending on what, if anything, was discussed.’

Judges:

Fulford J, Rose LJ VP CACD

Citations:

[2002] EWHC 3077 (Admin)

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 Sch1, European Convention of Human Rights and Fundamental Freedoms 6 8

Citing:

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 – Regina v Manchester Crown Court ex parte Rogers (Legal Professional Privilege) Admn 2-Feb-1999
The police had sought disclosure from the applicant’s solicitors of records of the time at which the applicant arrived at the solicitors’ premises on a particular date and like documents.
Held: Such records are not privileged because they did . .
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 Crown Court ex parte Baines and Baines 1988
The court considered special procedure material arising out of the Brinks-Mat robbery.
Held: The records of the financing of a transaction for the purchase of a property were not to be subject to legal professional privilege under section 10 . .
Cited – Studdy v Sanders and others 1823
Legal professional privilege. . .
Cited – Regina v Leeds Crown Court ex parte Switalski 1991
It is preferable, in an ordinary case, for an application for a search warrant in a solicitor’s office to be made on notice. However, if a solicitor under investigation were to have knowledge of what was contemplated the material sought might . .
Cited – Regina v Maidstone Crown Court ex parte Waitt QBD 1988
The solicitor applicant challenged the grant of a search order under section 9.
Held: The order was quashed. The court underlined the need for judges to be scrupulous in discharging their responsibilities so as to ensure that use of the . .

Cited by:

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, Police

Updated: 08 June 2022; Ref: scu.189108

Marsh v Sofaer and Another: ChD 3 Dec 2003

The claimant had instructed the defendant firm of solicitors in civil proceedings. At a later time, she was prosecuted convicted and sentenced for criminal acts. She claimed that the defendant solicitor who had come to believe that she did not have mental capacity, should have passed on that view to the other firm, which may have affected the outcome of her criminal trial.
Held: The claim failed. The solicitor had no duty to inform the other solcitor of his view. The second solicitor could be assumed toi be able to make such an assessment himself, and it would have been a breach of his duty of confidence to the claimant.

Judges:

Sir Andrew Morritt, VC

Citations:

Times 10-Dec-2003, [2003] EWHC 3334 (Ch), [2007] Lloyd’s Rep PN 10

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Marsh v Sofaer and Another ChD 25-May-2006
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 08 June 2022; Ref: scu.188701

Re A Solicitor No 8 of 2003: Firmin: CA 15 Oct 2003

The solicitor appealed an order that he should practise as a solicitor only in approved employment. His accountant confirmed that the delay in filing his accounts was entirely his fault.
Held: The only matter of substantial complaint related to the failure to deliver accounts. The condition as to employment was removed.

Judges:

The Master Of The Rolls (Lord Phillips)

Citations:

[2003] EWCA Civ 1478

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 08 June 2022; Ref: scu.187424

Cannan v Governor of HMP Sutton and Another: CA 9 Oct 2003

The governor instituted a rule requiring that prisoners and their legal advisers wishing to exchange documents must first obtain authorisation. The prisoner challenged the rule, and particularly also that if prior authorisation had not been obtained, permission on the day could only been given in exceptional circumstances.
Held: The rule was a response to problems of security, as such it was proportionate and valid, even though the court expressed the wish that the prison should not construe the phrase ‘exceptional circumstances’ too tightly.

Judges:

Hooper J

Citations:

Times 30-Jan-2003, [2003] EWCA Civ 1480

Links:

Bailii

Jurisdiction:

England and Wales

Prisons, Legal Professions

Updated: 08 June 2022; Ref: scu.187579

Gene Chandler Laib v Renuka Aravindan (Practicing As HKH Partnership Solicitors) Khurram Mian: QBD 30 Oct 2003

The appellant claimed damages for professional negligence against his former solicitors. His bank had obtained posession of his mortgaged flat. He had requested his solicitors to issue a counterclaim. His action was dismissed on the basis that the possibility of a counterclaim had been lost with the order for possession.
Held: There were circumstances where the action might have continued after the possession order, and in those proceedings he might have counterclaimed. He had now lost that chance. There was a difference between a satisfied judgment and a satisfied claim.

Judges:

The Hon Mr Justice Morland

Citations:

[2003] EWHC 2521 (QB), Times 13-Nov-2003

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 08 June 2022; Ref: scu.187279

Dickinson v Rushmer: SCCO 21 Dec 2001

CourtService After strenuously contested proceedings in the County Court for an account the claimant recovered some andpound;18,000, and subsequently submitted a bill for andpound;86,000 odd. The indemnity principle was raised before a Deputy Costs Judge who then asked to see the client care letter, the bill of costs sent to the client and the calculations of payments made thereunder, but refused to show these documents to the paying party, holding that he was satisfied that there had been no breach of the indemnity principle after considering the documents, and then proceeded with the assessment, which resulted in some, but only modest, reductions in the figure claimed. The defendant appealed, contending that he should have been permitted to see the documents shown to the Costs Judge.
In this case, in contrast with the case of South Coast Shipping (No.15 of 2001), the learned Judge felt able to decide the issue purely on careful analysis of the English authorities, without reference to the European legislation or authorities, though they were cited to him.
The gist of the Judge’s decision allowing the appeal is in paragraph 33 of his judgment, which reads:
‘In my view, the procedure adopted by the costs judge was unfair. I can in any event see no good reason why the client care letter and the payment calculations could not have been disclosed to the defendant, since I have not been persuaded that they were privileged. But if anything in them might have been regarded as privileged, one course which might at least have been considered was the redaction from them of the privileged parts, a course which could or might also have been considered in relation to Wakefields’ bills. Ultimately, however, this was a simple situation in which the claimant chose to prove his version of a disputed issue of fact by reference to certain documents. In my view, the basic principle is that, if he wanted to do so, fairness required him also to disclose the documents to the defendant.’
The learned Judge earlier held that in his opinion the bill to the client was, on the basis of the judgment of Sir G J Turner V-C in Chant v Brown [1852] 9 HARE 790, privileged from production.

Judges:

Mr Justice Rimer sitting with Assessors

Citations:

[2002] 1 Costs LR 98, [2001] EW Costs 17, [2001] EWHC 9018 (Costs)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dickinson (T/a John Dickinson Equipment Finance) v Rushmer (T/a F J Associates) CA 14-Feb-2000
. .

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

Costs, Legal Professions

Updated: 08 June 2022; Ref: scu.185957

Sweetman v Nathan and others: CA 25 Jul 2003

The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: Although the claimant’s fraud on the bank was a ‘but for’ cause of his loss, the claim in negligence should not be struck out on the basis that, given the fraud finding, the claimant had no prospect of success in any action against his solicitor for negligent conveyancing. The key factors were that: (1) the claim against the solicitor for negligence was conceptually entirely separate from the fraud upon which both of them had been engaged: there was force in the analogy with a case I had posited at paragraph 42 of the judgment; and (2) the negligence action could be pleaded and proved without reliance upon any part of the fraud assumed to have been committed on the bank.

Judges:

Lord Justice Schiemann Lord Justice Waller Lord Justice Dyson

Citations:

[2003] EWCA Civ 1115, Times 01-Sep-2003, [2004] PNLR 89

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Standard Chartered Bank v Pakistan National Shipping Corporation and Others (No 3) ComC 27-May-1998
A company making a false statement on a bill of lading would be held liable for the tort of deceit when it knew that the bill must be relied upon by bankers and others making arrangements on its contents. A claimant ‘cannot recover for a loss . .
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Specialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
Cited – Cottingham v Earl of Shrewsbury 1843
‘If a plaintiff can not get at his right without trying and deciding a case between Co-defendants the Court will try and decide that case, and the Co-defendants will be bound. But, if the relief given to the Plaintiff does not require or involve a . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Munni Bibi v Tirloki Nath PC 1900
(Year unknown) A res judicata estoppel will normally have effect between a plaintiff and defendant, but can also have effect between defendants. ‘In such a case three conditions are requisite: (1) There must be a conflict of interest between the . .
Cited – Saunders v Edwards CA 24-Mar-1986
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation, Seaways Maritime Ltd, SGS United Kingdom Ltd, Oakprime International Ltd, Arvind Mehra (No 2) CA 27-Jul-2000
Where a deceit was established leading to an award of damages, that award of damages was not capable of being reduced under the 1949 Act through a contribution to the loss occasioned by the claimant’s own behaviour, where that behaviour did not fall . .

Cited by:

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

Legal Professions

Updated: 08 June 2022; Ref: scu.185878

Crown Prosecution Service, Regina (on the Application of) v Portsmouth Crown Court: Admn 1 May 2003

The CPS appealed against dismissal of their case by the Crown Court after no representative had appeared at court to present the case. Counsel had two cases, and had asked this to be held pending completion of the other which then overran. Counsel knew of the conflict but had not requested a ‘not before’ listing.
Held: The court should have waited a little longer until counsel was in a position to prosecute the appeal.

Judges:

Scot Baker LJ, Pitchford J

Citations:

[2003] EWHC 1079 (Admin)

Links:

Bailii

Statutes:

Code of Conduct for the Bar of England and Wales 701

Citing:

Cited – Regina v Bournemouth Crown Court ex parte Wright 1984
Lord Fraser said: ‘Whatever the position may be at a trial before a court of first instance, when it comes to procedure before quarter sessions sitting as an appeal court there is a clear distinction of principle between allowing an appeal against . .
Cited – Regina v Sutton Justices ex parte Director of Public Prosecutions Admn 1992
Counsel was known to be on his way to court, but the magistrates dismissed the case when he was late.
Held: The appeal succeeded. The magistrates should have enquired further and waited.
Mann LJ said: ‘the bench should have paused for an . .
Cited – Regina v Hendon Justices ex parte Director of Public Prosecutions QBD 1993
The court considered an application for judicial review by the DPP of a decision to acquit the defendant because the prosecutor had failed to appear for trial.
Held: Dismissing the information, and acquitting the accused had been an . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 07 June 2022; Ref: scu.185352

Gray v Avadis: QBD 30 Jul 2003

The claimant had made complaints against the defendant solicitor to the Office for the Supervision of Solicitors. In answer the defendant made assertions about the claimant’s mental health, and she now sought to bring action iin defamation on those statements. The defendant said the statements were protected by absolute privilege.
Held: Given the status and nature of the Office it had the characteristics of a tribunal to which the principle in Trapp should be extended. The response had absolute privilege and the claim was bound to fail.

Judges:

The Honourable Mr Justice Tugendhat

Citations:

[2003] EWHC 1830 (QB), Times 19-Aug-2003

Links:

Bailii

Statutes:

Solicitors Act 1974 34A

Jurisdiction:

England and Wales

Citing:

Cited – Addis v Crocker CA 1961
The proceedings of the Solicitors Disciplinary Tribunal attract absolute privilege even though they sat in private. . .
Cited – Trapp v Mackie HL 1979
Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – A v The United Kingdom ECHR 17-Dec-2002
The applicant complained that the absence of legal aid to allow a challenge what had been said about her in Parliament by way of defamation, violated her right of access to court.
Held: The right to absolute parliamentary privilege was within . .
Cited – Mahon, Kent v Dr Rahn, Biedermann, Haab-Biedermann, Rahn, and Bodmer (a Partnership) (No 2) CA 8-Jun-2000
The defendant’s lawyers wrote to a financial services regulatory body investigating the possible fraudulent conduct of the plaintiff’s stockbroking firm. The letter was passed to the Serious Fraud Office who later brought criminal proceedings . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Defamation

Updated: 07 June 2022; Ref: scu.185246

Compensation Specialists Limited, Corry, Wright, Chapman v Compensation Claims Service Limited: CA 24 Jul 2003

The claimants acted as franchisees of the defendants, having agreed commission arrangements for the introduction of personal injury claimants. Following new rules, the sharing of such commissions became unlawful. The parties had failed to renegotiate a fee arrangement. The defendants appealed saying that the claimants had continuing duties to the lay clients.
Held: The duty of client care continued during the life of the claims. The fee payable was a single fee for that entire service. The defendants would accordingly be able to deduct from outstanding commissions the sums paid out fulfilling the obligations undertaken by the claimants.

Judges:

Lord Justice Brooke Mr Justice Holman Lord Justice Jonathan Parker

Citations:

[2003] EWCA Civ 1108, Gazette 02-Oct-2003

Links:

Bailii

Statutes:

Access to Justice Act 1999

Jurisdiction:

England and Wales

Contract, Commercial, Legal Professions

Updated: 07 June 2022; Ref: scu.184871

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, or whether, without distortion of language, it can be given the label of a transaction in which solicitors ordinarily engage. Rather, it is necessary to examine the substance of the transaction to see whether, viewed fairly and properly, it is the kind of transaction which forms part of the ordinary business of a solicitor.’ This transaction, promising huge returns could not be seen in this way. Appeal dismissed.

Judges:

Lord Justice Peter Gibson, Lord Justice Dyson And Lord Justice Longmore

Citations:

[2003] EWCA Civ 1057, Times 26-Aug-2003, Gazette 02-Oct-2003, [2007] Lloyd’s Rep PN 25

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – 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 . .
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 – United Bank of Kuwait Ltd v Hammond and Others CA 1988
It will only be in the ordinary course of business of the firm for a solicitor to do an act where there was an underlying transaction of a kind which was part of the usual business of a solicitor. ‘On the facts represented to the [third party] would . .
Cited – Hirst v Etherington and Another CA 21-Jul-1999
A solicitor, who re-assured a lender that his guarantee of a borrower’s loan, was given by him in the normal course of business, was not in fact so acting. The lender, if wanting to rely upon that re-assurance to claim against the solicitor’s . .
Cited – Uxbridge Permanent Building Society v Pickard CA 1939
It is not within the actual authority of a solicitor’s clerk to commit a fraud. But it is within his ostensible authority to perform acts of the class which solicitors would normally carry out: ‘so long as he is acting within the scope of that class . .
Cited – Langley Holdings v Seakens QBD 19-Oct-2000
The claimant sought recovery from one of two partners in a solicitors’ firm of solicitors of sums paid to the firm and misappropriated by the partner, who had conspired with others to offer a fraudulent investment. The claimant admitted that the . .
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 – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 07 June 2022; Ref: scu.184826

Polley v Warner Goodman and Streat (A Firm): CA 30 Jun 2003

A cause of action in negligence is complete once the claimant has suffered loss as a result of the negligence, even if the existence of the loss (and indeed of the negligence) is not, and could not be, known to him, and even where that loss is much less than the loss which he ultimately suffers as a result of the negligence. The the issues identified in Hatton should be added ‘a sixth proposition, namely: damage often occurs before it can be crystallised, and difficulties of quantification do not prevent damage from being said to have occurred.’

Judges:

Clarke LJ

Citations:

[2003] EWCA Civ 1013, [2003] PNLR 40

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hatton v Messrs Chafes (A Firm) CA 13-Mar-2003
The defendant firm appealed against a refusal to strike out the claimant’s claim for professional negligence, asserting that the judge should have considered the limitation issue in the light of Khan v Falvey.
Held: By the time that the . .
Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .

Cited by:

Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Contract, Legal Professions

Updated: 07 June 2022; Ref: scu.184814

Fitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman: CA 1 Jul 2003

The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made under unusual circumstances on appeal from the original costs order.
Held: The conflict of interest had been recognised, and appropriate proposals rejected. It was not significant, and did not contribute to the costs (Ridehalgh). A different form of action would have not saved any costs. The executors were met with a threat to challenge the will, which undermined their capacity to administer the estate. The position was not clear. The primary responsibility for the difficult task of protecting the interest of litigants in person must rest with the court. Appeal allowed.

Judges:

Sir Christopher Staughton Lord Justice Carnwath

Citations:

A3/2002/2244, Gazette 17-Jul-2003, [2003] EWCA Civ 886

Links:

Bailii

Statutes:

Supreme Court Act 1981 51

Jurisdiction:

England and Wales

Citing:

Cited – In Re Freudiana Holdings Ltd CA 4-Dec-1995
A judge can discharge his own wasted costs order when issues came to required the re-litigation of the case. . .
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 – Medcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Wills and Probate

Updated: 07 June 2022; Ref: scu.184169

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 CFA, as a matter of fairness she should ordinarily be put to her election under the Pamplin procedure. The legislation should be given a purposive construction. Parliament did not mean to make unenforceable a CFA which met the requirements to safeguard justice, protect the client, and acknowledge the interests of other parties. The other party has no legitimate interest in avoiding his obligations by seizing on an apparent breach which is immaterial in the context of the other two purposes of the statutory regulation. It should become normal practice for a CFA to be disclosed for the purpose of costs proceedings in which a success fee is claimed. If the CFA contains confidential information relating to other proceedings, it may be suitably redacted before disclosure takes place. Attendance notes and other correspondence should not ordinarily be disclosed, but the judge conducting the assessment may require the disclosure of material of this kind if a genuine issue is raised.
The indemnity principle is now recognised by Parliament: ‘This common law principle, by which 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, is now enshrined in statute, so far as solicitors are concerned, by section 60(3) of the Solicitors Act 1974, which provides:
‘A client shall not be entitled to recover from any other person under an order for the payment of any costs to which a contentious business agreement relates more than the amount payable by him to his solicitor in respect of those costs under the agreement.’
24. In 1999 Parliament showed itself well aware of the possible application of the indemnity principle in the context of the reforms it introduced in the 1999 Act, because by section 31 it provided:
”In section 51 of the Supreme Court Act 1981 (costs) in subsection (2) (rules regulating matters relating to costs) insert at the end ‘or for securing that the amount awarded to a party in respect of the costs to be paid by him to such representatives is not limited to what would have been payable by him to them if he had not been awarded costs’.
This section, however, has not yet been brought into force. (It will be noticed that these two sections state the principle in different ways, but that need not concern us for the purposes of these appeals.)’

Judges:

Lord Justice Brooke Lady Justice Hale Lady Justice Arden

Citations:

[2003] EWCA Civ 718, Times 10-Jun-2003, Gazette 17-Jul-2003, [2003] 1 WLR 2487

Links:

Bailii

Statutes:

Access to Justice Act 1999 27, Conditional Fee Agreements Regulations 2000 30

Jurisdiction:

England and Wales

Citing:

Cited – Swain v The Law Society HL 1983
The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. . .
Cited – Hughes v Kingston Upon Hull City Council QBD 9-Nov-1998
The Solicitors Practice Rules have the effect of law, and it is still improper to agree to pursue contentious proceedings on a contingency fee arrangement without specific statutory sanction, especially in criminal proceedings. An agreement for . .
Cited – Thai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
Cited – Callery v Gray, Russell v Pal Pak Corrugated Ltd (No 1) CA 18-Jul-2001
Claimants in modest, straightforward personal injury claims cases should have re-imbursed to them by the defendant, the cost of after the event insurance, if necessary by costs only proceedings. The solicitor’s success fee should also be recovered. . .
Cited – Harold v Smith 1860
‘Before stating the principle on which the Master acted on this taxation, it may be as well that I should state what we consider the principle upon which he ought to have acted. I think the question is one of considerable importance, and therefore, . .
Cited – Gundry v Sainsbury 1910
A party’s inability to recover more by way of costs than the amount for which he is himself liable by way of costs is known as the indemnity principle. . .
Cited – 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 . .
Cited – Callery v Gray (1) and (2) HL 27-Jun-2002
Success fees and ATE premiums were recoverable
Objection was made to a claimed uplift of 20% sought by the plaintiff’s solicitors. The defendant’s insurers said that there had been little at risk for them.
Held: The system of conditional fees insurance had been introduced to remedy defects . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Goldman v Hesper 1988
The court has power in costs proceedings to order the receiving party to disclose such documents, orginally to the court, as are necessary to make its decision.
Held: It would be rare to exercise this discretion. . .
Cited – Pamplin v Express Newspapers Ltd 1985
A costs judge does not have any power to order discovery to be given: he does not have any power to override a right of privilege. But he has a duty if the respondent raises a relevant factual issue to require the claimant to prove the facts on . .
Cited – Hazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .
Distinguished – Bailey v IBC Vehicles Limited CA 27-Mar-1998
The claimant succeeded in an action for personal injuries. The defendants agreed damages with costs. The claimant was assisted financially by his union. The defendants objected to elements of the bill, and asked for evidence that the bill was not in . .
Cited – Dickinson v Rushmer SCCO 21-Dec-2001
CourtService After strenuously contested proceedings in the County Court for an account the claimant recovered some andpound;18,000, and subsequently submitted a bill for andpound;86,000 odd. The indemnity . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – Hodgson and others v Imperial Tobacco Limited Gallagher Limited etc CA 12-Feb-1998
A large number of plaintiffs brought actions against the defendants, three tobacco companies, claiming damages for personal injuries by reason of cancer which they claimed was caused by smoking cigarettes manufactured by the defendants. A hearing . .
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Approved – South Coast Shipping v Havant Borough Council 21-Dec-2001
With respect to privileged material produced to the Costs Judge, once a document is of sufficient importance to be taken into account in arriving at a conclusion as to recoverability, then, unless otherwise agreed, it must be shown to the paying . .
Cited – Regina (Factortame Ltd and Others) v Secretary of State for Transport, Local Government and the Regions (No 8) CA 3-Jul-2002
A firm of accountants had agreed to provide their services as experts in a case on the basis that they would be paid by taking part of any damages awarded. The respondent claimed that such an agreement was champertous and unlawful.
Held: The . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .

Cited by:

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 . .
Cited – Campbell v MGN Ltd (No 2) HL 20-Oct-2005
The appellant sought to challenge the level of costs sought by the claimant after she had succeeded in her appeal to the House. Though a relatively small sum had been awarded, the costs and success fee were very substantial. The newspaper claimed . .
Cited – Gaynor v Central West London Buses Ltd CA 28-Jul-2006
The solicitors appealed a finding that a conditional fee agreement with their client was unenforceable as against their client for failing to meet the requirements of the 1990 Act, which in turn deprived them of a right to claim the costs from the . .
Cited – Jones v Wrexham Borough Council CA 19-Dec-2007
The claimant appealed against a decision that the conditional fee agreement with her solicitors had been unenforceable because the solicitors had not disclosed to her a conflicting interest in recommending insurers. The issue was whether the CFA was . .
Cited – Tankard v John Fredricks Plastics Ltd; Jones v Attrill etc CA 11-Dec-2008
The defendants sought to argue that the conditional fee arrangement used by the claimant’s solicitors had been void under the 2000 regulations. They claimed that the solicitors had failed to disclose an interest in the policies sold.
Held: No . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 07 June 2022; Ref: scu.182358

Tasyurdu v Secretary of State for the Home Department: CA 24 Mar 2003

The case was listed to be heard on the Monday. On the Friday before it had been settled. The court complained of the lawyers that they had not informed the court, and that consequently much of the judge’s time over the weekend had been wasted in preparatrion. The parties must recognise that a judge would now make such preparations, and act accoridingly.

Judges:

Phillips MR, Sedley LJ

Citations:

[2003] EWCA Civ 447, Times 16-Apr-2003

Links:

Bailii

Statutes:

Civil Procedure Rules 1.3

Jurisdiction:

England and Wales

Cited by:

Cited – Yell Ltd v Garton CA 2-Feb-2004
The court considered steps to be taken after a very late withdrawal of an appeal. . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Legal Professions

Updated: 07 June 2022; Ref: scu.181616

Wagstaff v Colls and Another: CA 2 Apr 2003

The action had been stayed by an order on agreed terms. The claimant sought a wasted costs order against the defendants’ solicitors on the ground that they had witheld certain facts during the litigation. The defendants argued that they should first apply for a lift of the stay.
Held: An application of a wasted costs order was only tangential to the main proceedings, and it was not necessary first to apply to lift the stay. The action was not dead as if it had been dismissed. The actions required under the Tomlin order had been concluded, and a wasted costs application had nothing to with the defendants and would not affect them adversely. There was no need to lift the stay, just as there would be no need for permission to pursue such an applcation after a final order in any proceedings.

Judges:

Ward, Buxton, Arden LJJ

Citations:

Times 17-Apr-2003, [2003] EWCA Civ 469, [2003] 4 Costs LR 535, [2003] CP Rep 50, [2003] PNLR 29

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rofa Sport Management AG v DHL International (UK) Ltd CA 1989
After an action had been stayed, it remained technically in being. It cannot proceed or resume without a court order, but it cannot properly be regarded as dead, in the same way as it might had it been dismissed or discontinued by order. . .
Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
See Also – Wagstaff v Colls SCCO 2-Apr-2003
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 07 June 2022; Ref: scu.181180

Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5): CA 3 Apr 2003

Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the solicitor where proceedings were not contemplated, but did not attach to supporting documents. Privilege stemmed from the confidential relationship of client and solicitor and attached only to communications between the client and solicitor. The shift in focus from the dominant purpose of the document to the dominent purpose of the retainer was doubted. Documents prepared for the enquiry rather than as part seeking legal advice were not privileged.

Judges:

Lord Justice Sedley The Master Of The Rolls Lord Justice Longmore

Citations:

[2003] EWCA Civ 474, Times 19-Apr-2003, Gazette 12-Jun-2003, [2003] 3 WLR 667, [2003] QB 1556, [2003] CPLR 349, [2003] All ER (D) 59

Links:

Bailii

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 – In Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
Cited – Southwark and Vauxhall Water Company v Quick CA 1878
The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Cited – Re Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
Cited – Price Waterhouse v BCCI Holdings (Luxembourg) SA CA 1992
A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all . .
Cited – Hellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .

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 – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
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 – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – USP Strategies Plc and Another v London General Holdings Ltd and others ChD 1-Mar-2004
In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the . .
Cited – Ford, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Cited – Astex Therapeutics Ltd v Astrazeneca Ab ChD 8-Nov-2016
The parties had agreed to work tgether in the development of new drugs, but came to dispute whether certain projects were subject to the agreement. The claimant sought details of the defendant’s internal documents justifying that conclusion. The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 07 June 2022; Ref: scu.180588

Gregory and Gregory v Turner, Turner; Regina (Morris) v North Somerset Council: CA 19 Feb 2003

The parties were involved in a boundary dispute. One granted an enduring power of attorney, and sought to appear as a litigant in person through the power.
Held: The right of a litigant in person to represent himself was a personal right, and as such was not capable of being delegated. The Act created a complete code setting out those with rights of audience. The 1995 Act did not change the underlying position, and the 1990 Act preserved exising rights. Those did not give a right for a non-qualified agent to act. However, a litigation friend does not have to act by a solicitor and can conduct the litigation on behalf of P, though a litigation friend who does not otherwise have a right of audience requires the permission of the court to act as an advocate on behalf of P.

Judges:

Lord Justice Brooke Lord Justice Sedley Lord Justice Carnwath

Citations:

Times 21-Feb-2003, [2003] EWCA Civ 183, [2003] 1 WLR 1149

Links:

Bailii

Statutes:

Enduring Powers of Attorney Act 1995, Courts and Legal Services Act 1990

Jurisdiction:

England and Wales

Citing:

Application for leave – Gregory and Another, Regina (on the Application Of) v Turner and Another CA 7-Dec-2001
Application for leave to appeal. . .
Applied – Regina (on the Application of Sivasubramaniam) v Wandsworth County Court Admn 13-Dec-2001
The applicant sought to appeal against a refusal of leave to appeal against an arbitration. There had been some delay for the applicant’s health.
Held: Leave to appeal having been refused there was no further right of appeal under the 1999 . .

Cited by:

Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Cited – Andre Agassi v S Robinson (H M Inspector of Taxes) (No 2) CA 2-Dec-2005
The taxpayer had been represented in proceedings throughout by tax law experts, Tenon Media, who were not legally admitted, but had a right to conduct litigation under the 1990 Act. The Inspector objected to paying costs as if the representatives . .
Cited – In re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
Lists of cited by and citing cases may be incomplete.

Agency, Litigation Practice, Legal Professions

Updated: 07 June 2022; Ref: scu.179484

Carr v Bower Cotton: CA 18 Dec 2002

The claimant had been victim to a substantial fraud. The defendant solicitors had been an innocent tool of the fraud. The claimant sought damages alleging professional negligece.

Judges:

Lord Justice Chadwick Lord Justice Ward Lady Justice Arden

Citations:

[2002] EWCA Civ 1788

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 07 June 2022; Ref: scu.178816

Burstein v Times Newspapers Ltd (No 2): CA 28 Nov 2002

The defendant complained that the agreement under which the claimant’s solicitors had continued to act on his behalf, despite any realistic prospect of him ever being able to pay their costs, was a sham, and requested a full hearing to determine whether he would be able to pay those costs.
Held: The solicitors were entitled to continue to act. The material submitted did not undermine the agreement. Such an agreement did not become champertous because of the impecuniosity of the claimant. The importance of champerty and maintenance had been much reduced by the 1999 Act. Satellite litigation about costs is a blot on the civil justice system, and costs Judges should prevent such proceedings from being protracted by allegations without substance.

Judges:

Phillips of Worth Matravers MR, Mance, Latham LJJ

Citations:

Times 06-Dec-2002, Gazette 23-Jan-2003, [2003] 1 Costs LR 111, [2002] EWCA Civ 1739, [2002] All ER (D) 442

Links:

Bailii

Statutes:

Access to Justice Act 1999

Jurisdiction:

England and Wales

Citing:

Cited – Hazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .
Lists of cited by and citing cases may be incomplete.

Defamation, Legal Professions

Updated: 06 June 2022; Ref: scu.178354