Category: Legal Professions

Regina v Hall: CACD 31 Jul 2002

The defendant appealed saying that because his counsel had been diagnosed seriously ill immediately after his trial, he had not had competent representation.
Held: The actual decisions made by counsel during the trial were within the range of decisions a competent counsel would make. It was for the professional bodies concerned and the common sense of the lawyer to make appropriate decisions. There was no reason here to allow the appeal.

Judges:

Lord Justice Rose, Mr Justice Colman and Mr Justice Roderick Evans

Citations:

Times 27-Aug-2002, [2002] EWCA Crim 1881

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice, Legal Professions

Updated: 06 June 2022; Ref: scu.174749

Boodram v The State: PC 10 Apr 2001

(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to assess what could be done to redress any prejudice or potential prejudice to the defendant. He also failed to pursue an allegation that the defendant had signed her confession only after being raped in the cells by a police sergeant. The appellant was accused of having murdered her husband by poisoning.
Held: Where a defence case had clearly been conducted in an incompetent manner, to an extent that the defendant could not be said to have had a fair trial, then it was appropriate to set aside the conviction which followed. An appellate court should approach complaints about counsel’s incompetence and its effects on a trial, with a healthy scepticism, but where the failure was fundamental, a court should only with great care find that the jury would have reached the same decision even with competent counsel.

Judges:

Citations: Times 15-May-2001, No 65 of 2000, [2001] UKPC 18, [2002] 1 Cr App R 103

Links:

Bailii, PC, PC

Citing:

Cited – Flowers v The Queen PC 30-Oct-2000
(Jamaica) Where a defendant claimed that his constitutional right to a trial within a reasonable time had been infringed, it was correct for the appellate courts to take account of the fact that it remained clear that the defendant was guilty of a . .
Cited – Reid v The Queen PC 1980
It is not in the interests of justice for the prosecution to be given a second chance to make good deficiencies in its case. The Board gave guidance on the considerations relevant to ordering a new trial: ‘… the interest of justice that is served . .
Cited – Charles, Steve Carter and Leroy Carter v The State PC 26-May-1999
(Trinidad and Tobago) A third trial for murder, with a capital sentence to follow, after a long delay, and when one verdict had been set aside, and a second jury undecided, became an abuse of process. This is usually a judge’s discretion and should . .
Cited – Lawrence Pat Sankar v State of Trinidad and Tobago PC 16-Dec-1994
(Trinidad and Tobago) An advocate’s failure to advise his client on the need for him to give evidence, and the consequences of his not doing so may be enough to justify an appeal against conviction. . .
Cited – Regina v Clinton CACD 1993
Where counsel’s conduct is called in question, the general principle requires the court to focus on the impact of the faulty conduct on the trial and result. . .

Cited by:

Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Commonwealth

Updated: 06 June 2022; Ref: scu.174516

Hilton v Barker Booth & Eastwood (a Firm): CA 22 May 2002

The firm of solicitors acted for both parties in a conveyancing transaction, in a situation when they were permitted to do so. The firm had previously acted for one party in a case where he had been convicted of a crime. The other party said the solicitors had a duty to them to disclose this fact about the other party.
Held: The solicitors were not under a duty to disclose to their client something which had come to their knowledge in an unrelated earlier transaction. The duty of disclosure depended upon the extent of the retainer. He had a duty to keep confidential information derived from an earlier transaction. If a solicitor acted for two parties, he may become obliged to disclose to the other information obtained in the course of that retainer, and could not excuse his duty to one by reference to the duty to the other.

Judges:

Lord Justice Jonathan Parker, Walker LJ

Citations:

Times 06-Jun-2002, Gazette 06-Jun-2002, [2002] EWCA Civ 723, [2002] Lloyds Rep PN 500

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Mortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .
Cited – Bristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Distinguished – Moody v Cox and Hatt CA 1917
An action was brought for rescission of a contract of sale of a public house and four cottages, with a counterclaim for specific performance. The sellers, Hatt and Cox, were respectively a solicitor and his managing clerk. They were the trustees of . .

Cited by:

Appeal from – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Contract

Updated: 06 June 2022; Ref: scu.171276

White v Office for the Supervision of Solicitors and others: Admn 17 Dec 2001

The claimant solicitor sought a judicial review, on the grounds of procedural unfairness, of the decisions of the respondent in upholding complaints against him. The procedure involved several stages, an investigatory stage, an adjudication, an appeal, and a further appeal to the Tribunal. The solicitor complained that the adjudicator had failed to follow up certain enquiries.
Held: It was for the solicitor to present his evidence. The solicitor had been told that the adjudicator would not examine original documents unless requested to. The solicitors were entitled to a fair hearing, but this need not always be an oral hearing. Lightman J criticised the absence of any document setting out properly the complaints scheme for third parties: ‘These proceedings have revealed that there is no single document setting out the procedure to be followed on the investigation and determination of such complaints against solicitors. There are merely a series of information sheets supplied by the Law Society to the parties at the various stages of the proceedings. The parties (and most particularly solicitors) are accordingly unable to find any statement in a single document of the procedures or any guidance in this regard in any authoritative Law Society publication or in any text book (e.g. Cordery on Solicitors). This lacuna is most unfortunate . . ‘

Judges:

Lightman J

Citations:

[2001] EWHC Admin 1149

Links:

Bailii

Statutes:

Solicitors Act 1974 37A

Cited by:

Cited – Napier and Another v Pressdram Ltd CA 19-May-2009
The claimant solicitors appealed against the refusal to grant them an injunction to prevent the publication of the outcome of a complaint against them to the Law society, and of the Ombudsman’s report. They said that the material remained . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 June 2022; Ref: scu.168010

Petersen v Personal Petersen (Deceased), Representative of: CA 31 Jan 2002

The claim was against a solicitor for negligence. The claimant had purchased a property in respect of which there was an unsettled dispute, He claimed that the solicitor had accepted a condition under which he accepted a proportion of the liability for the action. The estate of the client now appealed a finding of no damages for the one head of liability allowed.
Held: The court must examine the scope of the relevant duty by reference to the kind of damage from which the solicitor must take care to save the plaintiff harmless. The transaction was entirely neutral as to the value of the assets eventually held by the estate. The appeal failed.

Judges:

Lord Justice Potter Lord Justice May Sir Murray Stuart Smith

Citations:

[2002] EWCA Civ 194

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 05 June 2022; Ref: scu.167914

Ezekiel v Lehrer: CA 30 Jan 2002

The applicant claimed that his solicitor had been negligent with regard to the execution of a mortgage. The solicitor said his claim was time barred. The claimant said the solicitor had hidden the true situation from him, and the solicitor replied that he had merely refused to answer a question put to him, but had instead advised him to take independent advice. The claimant appealed a finding against him.
Held: The claimant asserted that he had learned of the facts, then forgotten them until five years later. He could not claim to have been unaware of them so as to extend the limitation period.

Judges:

Lord Justice Ward Lord Justice Jonathan Parker And Mr Justice Harrison

Citations:

[2002] EWCA Civ 16, [2002] Lloyd’s Law Rep PN 260

Links:

Bailii

Statutes:

Limitation Act 1980 32(1)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Sheldon and Others v R H M Outhwaite (Underwriting Agencies) Ltd and Others HL 5-May-1995
The limitation period did not run whilst relevant facts were deliberately concealed after the damage had been concealed. Section 32 could apply where the concealment of the relevant fact took place after the event as well as at the time of it. The . .
Appeal from – Ezekiel v Lehrer ChD 21-Mar-2001
The claimant had given instructions to the defendant with regard to a charge. The defendant came to know that he had made an error, and when asked by the claimant, declined to answer, and referred the claimant to independent advice. The claimant now . .
Cited – Cave v Robinson Jarvis and Rolf CA 20-Feb-2001
The court was asked as to the meaning of the word ‘deliberate’ as it appeared in section 32(2) of the 1980 Act. . .
Cited – James Brocklesby v Armitage and Guest (a Firm) CA 9-Jul-1999
A failure by an adviser to make his position clear when he thought he had been negligent, could constitute a ‘deliberate’ act within section 32 even if the defendant’s actions were not motivated by any intention to deceive the claimant: ‘it is not . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence, Limitation

Updated: 05 June 2022; Ref: scu.167903

Braymist Limited and Others v Wise Finance Company Limited: CA 20 Feb 2002

The claimant company set out to sell land whilst it was still only in the process of incorporation. Its solicitors had signed as agents, and now sought an order for the purchaser to complete the contract. The respondent had not known of the non-incorporation of the company. The claimant later rescinded the contract, and forfeited the deposit. At first instance Etherton J had held that the solicitors had been capable of rescinding and had rescinded the agreement, that the contractual deposit was forfeit to the solicitors and that Wise was liable to pay the solicitors damages for breach of contract.
Held: The appeal failed. The section in the 1985 Act implemented a clause in the 1972 Act and the 1968 directive. Was the agent both liable under the contract and able to enforce it, and was the agreement unenforceable for failure to comply with the 1989 requirement for an appropriate memorandum? The European directive was to be interpreted directly. It was a compromise of different laws through member states, but was silent as to the ability of an agent to enforce such a contract. Section 36C should not be read down to limit its meaning. In this case, the solicitor agent could enforce the contract. As a party to the contract, he could also sign, and the 1989 Act should not be read too strictly.
Latham LJ said:
‘It is common ground that section 36C of the Companies Act 1985, and its predecessor, was enacted in order to give effect to article 7 of the First Council Directive (68/151/EEC) already referred to by Arden L.J. in her judgment, and in particular to reverse the decision of this court in Newborne v. Sensolid (Great Britain) Ltd. [1954] 1 QB 45. It also put to rest any doubts that there might have been as to the liability of a person who purports to act as an agent in such a situation . .’
Judge LJ explained to effect of Section 36C:
‘ . . The purported contract, otherwise a nullity, ‘has effect’, not as one made with the unformed company but as one made with the purported agent, who is ‘personally liable’ to [the other party] on the contract.’
Judge LJ, ultimately favoured ‘the broad view’ and said:
‘My difficulty is created by the concluding words of the subsection, ‘and he is personally liable on the contract accordingly’. If the contract ‘has effect’ as one made with the purported agent of the company, B [the ‘agent’] would become personally liable on the contract without the concluding words of the subsection. The contract ‘has effect’. The language of section 36C(1) reflects the broad thrust of the First Council Directive (68/151/EEC), first implemented domestically in its predecessor, section 9(2) of the European Communities Act 1972 . The recital twice refers to ‘protecting’ third parties . .
If the broad view is correct, the statute has gone much further than the creation of new protection for A [the other contracting party]. Plainly, as a matter of statutory construction, section 36C(1) may have extended beyond simple compliance with the Directive. Nevertheless the concluding words add something: if surplusage, they would not be there. Their presence provides a clear indication that the highlight of section 36C(1) is protection for A.’
Judge LJ continued:
‘In principle, the identity of the other party to a contract often matters, sometimes very much indeed. A might happily contract with C, but not with either B, or even D, even if identical terms were available. He may have a complete antipathy to being beholden to or under any legal obligation personally to B, or indeed anyone other than C. There are, of course, well understood exceptions to the principle that an individual is free to decide whether and with whom to enter or not to enter, a contract (for example, the legislation in relation to discrimination on the grounds of sex or race). But I may illustrate the difficulties by considering a contract of employment, underlining that so far as unformed companies are concerned, there are no limits to the contracts to which section 36C(1) applies: it applies to them all. A may welcome the opportunity of employment, as, say, an office manager for a particular company, with which he is contracting. If the company is unformed, is he bound to accept similar employment on identical contractual terms, with B? Or become liable to B for breach of contract if he refuses or fails to do so? Surely not. The answer however is not that the contract is automatically deprived of the ‘effect’ which section 36C(1) has created, but rather, that just as section 36C(1) is not apt to exclude considerations such as illegality, or misrepresentation, or other incidents of a contract, it is equally inappropriate to exclude relief on the basis of the identity of the contracting party, if relief would be available on ordinary contractual principles.’

Judges:

Lord Justice Judge, Lord Justice Latham, Lady Justice Arden

Citations:

Gazette 28-Mar-2002, Times 05-Apr-2002, [2002] EWCA Civ 127, [2002] Ch 273, [2002] 1 BCLC 415, [2002] 2 All ER 333, [2002] 3 WLR 322

Links:

Bailii

Statutes:

Companies Act 1985 36C(1), European Communities Act 1972 9(2), First EC Company Law Directive (68/151/CEE OJ No. 1968 L6) Art 7, Law of Property (Miscellaneous Provisions) Act 1989 2(1) 3

Jurisdiction:

England and Wales

Citing:

Cited – Phonogram Ltd v Lane CA 1982
A collateral contract was entered into with a company which had not then been incorporated under which an advance by Phonogram to support an intended new pop group was repayable by the company if a recording contract was not entered into within one . .

Cited by:

Cited – Royal Mail Estates Limited v Maple Teesdale Borzou Chaharsough Shirazi ChD 2-Jul-2015
A contract had been made but one of the parties was not yet incorporated. The court was asked whether it was deemed to have been made with the signatory.
Held: For section 36C(1), a ‘contrary agreement’ would be established if the parties, . .
Lists of cited by and citing cases may be incomplete.

Company, Land, Legal Professions, European, Contract

Updated: 05 June 2022; Ref: scu.167665

China National Petroleum Corporation and others v Fenwick Elliott, Techint International Construction Company: ChD 31 Jan 2002

In the course of a dispute, the claimants concluded that the respondents had acquired documents of a confidential nature, and sought restoration and disclosure of the source. The solicitors for the respondents suggested that the claimants were in breach of disclosure orders, and that the materials were not privileged, and would be subject to disclosure in any event. It was then alleged that the respondent firm had acted improperly in seeking privileged information from employees of the claimants. It was argued that the sources of the information should be disclosed, but the respondents argued that this might put them at personal risk. In this case there was no evidence of privilege inhering, and no specific allegations, and the respondents claim of privilege attaching to his interviews of witnesses succeeded. The claim had no prospect of success and was struck out.

Judges:

The Vice-Chancellor

Citations:

[2002] EWHC 60 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Ashworth Security Hospital v MGN Ltd CA 18-Dec-2000
The court can order the identity of a wrongdoer to be revealed where the person against whom the order was sought had become involved in his tortious acts. This might apply even where the acts were unlawful, but fell short of being tortious. There . .
Lists of cited by and citing cases may be incomplete.

Construction, Intellectual Property, Information, Legal Professions

Updated: 05 June 2022; Ref: scu.167535

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 unfair.
Held: The Convention was to be applied to the particular facts. In this case, the applicant was experienced and was capable of representing himself, and had ample opportunity to present his case. No breach of his rights had taken place.

Judges:

Sir Andrew Morritt V-C, Buxton, Arden LJJ

Citations:

Gazette 04-Jan-2001, [2001] EWCA Civ 1574, [2002] 2 All ER 658, [2002] UKHRR 81

Links:

Bailii

Statutes:

European Convention on Human Rights 6

Jurisdiction:

England and Wales

Cited by:

Cited – 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 . .
Cited – Gadd v Solicitors Regulation Authority CA 6-Jun-2013
Renewed application for permission to appeal against grant of summary judgment n favour of the defendant. He had sought to have set aside the respondent’s intervention in his solicitor’s practise. He said that he shuld have had legal assistance in . .
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 . .
See also – 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights

Updated: 05 June 2022; Ref: scu.167324

Miller v Allied Sainif (UK) Ltd: ChD 31 Oct 2000

In a simple case it was appropriate for a solicitor to apply by post for an order to declare that he had ceased to represent a party. This was a reasonable way of minimising costs for all parties, but the solicitor must be ready to consider whether attendance might be required.

Citations:

Times 31-Oct-2000

Jurisdiction:

England and Wales

Litigation Practice, Legal Professions

Updated: 05 June 2022; Ref: scu.83723

Regina v Law Society, ex parte Mortgage Corporation: QBD 30 Nov 2000

The corporations sought compensation where a solicitor had been dishonest. They had lent to the solicitor, a sole practitioner, and asked him to act for them in that transaction. They were found to have failed to take care in its decisions. The practitioner had a clear conflict of interest and the applicants conduct was imprudent. The decision of the compensation committee might have given in greater detail, but the reasoning was clear and could not be said to be irrational.

Citations:

Gazette 30-Nov-2000

Jurisdiction:

England and Wales

Legal Professions

Updated: 05 June 2022; Ref: scu.88527

Brennan v The United Kingdom: ECHR 16 Oct 2001

The applicant had complained that, after his arrest he had been refused adequate access to a lawyer. He had not been allowed to see his solicitor for two days, and only then in the presence of a police officer. No inferences had been drawn from his silence in the period before access to his lawyer, and therefore no detriment was shown because of the delay. The applicant was also protected in several ways in the adversarial system from that delay. However, if a lawyer is unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose its usefulness. The Convention guarantees rights that were practical and effective. Though jurisprudence indicated that such rights could be restricted for good cause, the manner of the officer’s presence did infringe his right to an effective exercise of his defence rights under art 6.1.
After citing S v Switzerland, the court held: ‘The Court has noted above that Article 6(3) normally requires that an accused be allowed to benefit from the assistance of a lawyer in the initial phases of an interrogation. Furthermore, an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial and follows from Article 6(3)(c). If a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective. The importance to be attached to the confidentiality of such consultations, in particular that they should be conducted out of the hearing of third persons, is illustrated by the international provisions cited above. However, the Court’s case-law indicates that the right of access to a solicitor may be subject to restrictions for good cause and the question in each case is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing. While it is not necessary to prove, assuming such were possible, that restriction had a prejudicial effect on the course of the trial, the applicant must be able to claim he had been directly affected by the restriction in the exercise of the rights of the defence.
In this case, the trial judge found that the restriction served the purpose identified under section 45 of the 1991 Act of preventing information being passed on to suspects still at large. There was however no allegation that the solicitor was in fact likely to collaborate in such an attempt, and it was unclear to what extent a police officer would be able to spot a coded message if one was in fact passed. At most, it appears that the presence of the police officer would have had some effect in inhibiting any improper communication of information, assuming there was any risk that such might take place. While the Court finds that there is no reason to doubt the good faith of the police in imposing and implementing this measure-there is no suggestion, as pointed out by the Government, that the police sought to use the opportunity to obtain evidence for their own purposes, it nonetheless finds no compelling reason arising in this case for the imposition of the restriction.’
The court considered proportionality, and concluded ‘that the presence of the police officer would have inevitably prevented the applicant from speaking frankly to his solicitor and given him reason to hesitate before broaching questions of potential significance to the case against him’ [62] and that the presence of the police officer at the hearing and within earshot during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights and that there had been, in consequence, a violation of Article 6(3)(c) read in conjunction with Article 6(1).’

Judges:

JP Costa, President and Judges W Fuhrmann, L Loucaides, Sir Nicolas Bratza, HS Greve, K Traja and M Ugrekhelidze Section Registrar S. Dolle

Citations:

Times 22-Oct-2001, 39846/98, (2002) 34 EHRR 18, [2002] Crim LR 216, [2001] ECHR 596, [2001] Po LR 387, [2011] ECHR 2271

Links:

Bailii, Bailii

Statutes:

Prevention of Terrorism Act 1984, European Convention on Human Rights 6(3)

Jurisdiction:

Human Rights

Citing:

Cited – S v Switzerland ECHR 28-Nov-1991
ECHR Judgment (Merits and just satisfaction) – Violation of Art. 6-3-c; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs and expenses award – Convention . .

Cited by:

Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Legal Professions

Updated: 04 June 2022; Ref: scu.166600

McDougall v Tawse: ScSf 14 Sep 2001

Application was made to deny a certificate that a case had been fit for the employment of counsel, despite his not actually having appeared in court. The matter was a personal injury case with an order obtained without attendance.
Held: There is no reason why counsel need appear before such sanction can be given.

Citations:

[2001] ScotSC 17

Links:

Bailii, ScotC

Citing:

Cited – Williams v Fraser 1991
. .
Lists of cited by and citing cases may be incomplete.

Scotland, Legal Professions, Costs

Updated: 04 June 2022; Ref: scu.166525

Sarwar v Alam: CA 19 Sep 2001

Litigation had followed an accident. The claimant, a passenger, sought and won damages for personal injuries. He had taken out legal expenses insurance, and at dispute was the recovery of the cost of that insurance. He had been unaware of having the insurance and had also paid out for after the event insurance. He sought to recover the costs of the legal expenses insurance. A challenge of a judge’s award in costs only proceedings should only rarely succeed. In such questions, the danger of conflicts of interest between the various insurance companies is real, and had been provided for in the regulations. Solicitors should inspect the client’s various policies to clarify what legal expenses insurance was available. The need to provide free choice of solicitors did not override common provisions for small cases referring such matters to insurance panel solicitors. In a case where a passenger sued his driver, it was not appropriate for his choice of solicitor to be determined by the defendant’s insurers, and after the event legal expenses insurance was a proper and reasonable expense and should be recoverable.

Judges:

Judge Halbert, District Judge Wallace

Citations:

Times 11-Oct-2001, [2001] EWCA Civ 1401, [2002] RTR 12, [2001] 4 All ER 541, [2002] 1 WLR 125, [2002] 1 Costs LR 37, [2002] Lloyd’ Rep IR 126, [2002] PIQR P15

Links:

Bailii

Statutes:

Insurance Companies (Legal Expenses Insurance) Regulations 1990, Conditional Fee Agreements Regulations 2000, Civil Procedure Rules 44.12A

Jurisdiction:

England and Wales

Citing:

Cited – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages, Costs, Legal Professions, Insurance

Updated: 04 June 2022; Ref: scu.166184

Nationwide Building Society v Lewis and Another: ChD 16 Jun 1997

A solicitor’s firm is responsible for advice given by an employee signing correspondence in the firm’s name and where it seems apparent that a partner was acting.

Citations:

Times 16-Jun-1997

Jurisdiction:

England and Wales

Citing:

Appealed to – Nationwide Building Society v Lewis and Another CA 24-Feb-1998
Employee solicitor held out as partner was not liable in negligence where he was neither involved in the advice nor holding out relied upon . .

Cited by:

Appeal from – Nationwide Building Society v Lewis and Another CA 24-Feb-1998
Employee solicitor held out as partner was not liable in negligence where he was neither involved in the advice nor holding out relied upon . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 04 June 2022; Ref: scu.84226

Thomson and Another v Sheriff Ross and Others: SCS 25 Oct 2000

The pursuers and reclaimers seek damages against the defenders on the ground that they have suffered loss, injury and damage by reason of the libellous and defamatory statements of the defenders and respondents. At the time that the statements were made the pursuers were enrolled solicitors and partners in a law firm, Gordon Thomson and Co. Damages are sought both for injury to their feelings and their reputation and for substantial financial loss including loss of their legal business and two related businesses. The defenders are, respectively, the individual who was President of the Law Society of Scotland at the relevant time (the first defender), the Law Society itself (the second defenders) and, as the fourth to ninth named individuals, those individuals who constituted the members of the Scottish Solicitors Discipline Tribunal, which between October 1994 and April 1995 heard two complaints alleging professional misconduct concerning the pursuers’ law firm and the partners of it.
Held: Stateable cases having been presented, the case should be allowed to go ahead.

Judges:

Lord Cameron of Lochbroom, Lord Cameron of Lochbroom, Lord Dawson, Lord Wheatley

Citations:

[2000] ScotCS 264

Links:

Bailii

Jurisdiction:

Scotland

Citing:

See Also – Gordon Coutts Thomson and Another v Council of Law Society of Scotland SCS 12-Mar-1999
The petitioner solicitors appealed against a decision striking them off for dishonesty. They said that the allegations of dishonesty had been withdrawn.
Held: The appeals succeeded, but since not all the allegations had been withdrawn the case . .
See Also – In Petition To the Nobile Officium By Gordon Coutts Thomson and Maria Teresa Thomson SCS 9-Jun-1999
First Division, Inner House. The petitioner solicitors had been dsiciplined by the Law Society of Scotland. Their appeal had been successful, but the court indicated that since it appeared that not all allegations of dishonesty had been withdrawn, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Defamation

Updated: 04 June 2022; Ref: scu.164004

In Petition To the Nobile Officium By Gordon Coutts Thomson and Maria Teresa Thomson: SCS 9 Jun 1999

First Division, Inner House. The petitioner solicitors had been dsiciplined by the Law Society of Scotland. Their appeal had been successful, but the court indicated that since it appeared that not all allegations of dishonesty had been withdrawn, the matter should be remitted. The petitioners now pointed out that all such claims had in act been withdrawn and now requested that the opinion be withdrawn or corrected.
Held: History could not be rewritten: ‘None the less, as the petitioners point out, the opinion of the court has been published on the Internet and elsewhere. If the Law Society’s position is actually that the Fiscal at the original hearing withdrew the allegations of personal dishonesty and that the Society do not allege personal dishonesty, then it is proper that this state of affairs should be given equivalent publicity. In the course of the short hearing we accordingly asked Mr. Macdonald to clarify the position of the Law Society. He readily did so. Based on what he told us, for the avoidance of doubt, we record that the Law Society of Scotland agree that the findings of the Discipline Tribunal issued on 8 June 1995, so far as inferring personal dishonesty on the part of the petitioners, did not reflect the pleas tendered by the petitioners and accepted by the Fiscal and those findings should therefore not have been made by the Tribunal.’

Judges:

Lord President

Citations:

[1999] ScotCS 140

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Gordon Coutts Thomson and Another v Council of Law Society of Scotland SCS 12-Mar-1999
The petitioner solicitors appealed against a decision striking them off for dishonesty. They said that the allegations of dishonesty had been withdrawn.
Held: The appeals succeeded, but since not all the allegations had been withdrawn the case . .

Cited by:

See Also – Thomson and Another v Sheriff Ross and Others SCS 25-Oct-2000
The pursuers and reclaimers seek damages against the defenders on the ground that they have suffered loss, injury and damage by reason of the libellous and defamatory statements of the defenders and respondents. At the time that the statements were . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 04 June 2022; Ref: scu.163572

Gordon Coutts Thomson and Another v Council of Law Society of Scotland: SCS 12 Mar 1999

The petitioner solicitors appealed against a decision striking them off for dishonesty. They said that the allegations of dishonesty had been withdrawn.
Held: The appeals succeeded, but since not all the allegations had been withdrawn the case must be remitted for further consideration.

Citations:

[1999] ScotCS 77

Links:

Bailii

Statutes:

Solicitors’ (Scotland) Act 1980

Jurisdiction:

Scotland

Cited by:

Cited – In Petition To the Nobile Officium By Gordon Coutts Thomson and Maria Teresa Thomson SCS 9-Jun-1999
First Division, Inner House. The petitioner solicitors had been dsiciplined by the Law Society of Scotland. Their appeal had been successful, but the court indicated that since it appeared that not all allegations of dishonesty had been withdrawn, . .
See Also – Thomson and Another v Sheriff Ross and Others SCS 25-Oct-2000
The pursuers and reclaimers seek damages against the defenders on the ground that they have suffered loss, injury and damage by reason of the libellous and defamatory statements of the defenders and respondents. At the time that the statements were . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 04 June 2022; Ref: scu.163509

Regina (on the application of Pamplin) v Law Society: Admn 30 Mar 2001

A solicitors clerk had arrested and investigated on an allegation of having altered an attendance note. The police had reported the matter to the Law Society without informing the suspect first. The clerk now sought to restrain the Society from beginning disciplinary proceedings, saying that the note was confidential, that it should not have been disclosed and could not found such proceedings.
Held: The restraint was refused. That material was confidential did not necessarily or automatically attract the protection of article 8. At the same time something could be confidential without being necessarily connected with a person’s private life.

Judges:

Newman J

Citations:

[2001] All ER (D) 204

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Legal Professions, Human Rights

Updated: 04 June 2022; Ref: scu.536642

Reiseburo Broede v Sandker: ECJ 12 Dec 1996

ECJ (Judgment) 1 Freedom to provide services – Restrictions – Whether permissible – Conditions
(EC Treaty, Art. 59)
2 Freedom to provide services – Judicial recovery of debts – Restrictions – Obligation to use the services of a lawyer – Justification on grounds of the general interest – Protection of recipients of services and proper administration of justice – Permissible
(EC Treaty, Art. 59)
3 A national rule preventing nationals of other Member States from engaging in the provision of services does not fall outside the prohibition laid down by Article 59 of the Treaty unless four conditions are fulfilled, namely that it must be applied in a non-discriminatory manner, must be justified by imperative requirements in the general interest, must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it, and restrictions justified by overriding reasons in the general interest are permissible only if that interest is not already safeguarded by the rules to which the provider of the service is subject in the Member State where he is established.
4 Article 59 of the Treaty does not preclude a national rule which prohibits an undertaking established in another Member State from securing judicial recovery of debts owed to others on the ground that the exercise of that activity in a professional capacity is reserved to the legal profession. Such a prohibition is not discriminatory, since it applies without distinction to national providers of services and to those of other Member States, is intended to protect recipients of services against the harm which they could suffer as a result of using the services of persons not possessing the necessary professional or personal qualifications and to safeguard the proper administration of justice, is capable of achieving that objective on account of the guarantee of competence attaching to the services of a lawyer, and cannot be described as disproportionate, even if it is not applied in other Member States, since it is for the Member States to decide the extent to which activities are to be reserved to the legal profession.
‘the application of professional rules to lawyers, in particular those relating to organization, qualifications, professional ethics, supervision and liability, ensures that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience’.

Judges:

J.C. Moitinho de Almeida, P

Citations:

C-3/95, [1996] ECR I-6511, [1997] 1 CMLR 224, [1996] EUECJ C-3/95

Links:

Bailii

Jurisdiction:

European

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

European, Legal Professions

Updated: 03 June 2022; Ref: scu.161490

Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano: ECJ 30 Nov 1995

Practice by lawyers in other European jurisdictions were governed by the general principles of freedom of establishment under the Treaty: ‘National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it.’
ECJ A national of a Member State who pursues a professional activity on a stable and continuous basis in another Member State where he holds himself out from an established professional base to, amongst others, nationals of that State comes under the chapter relating to the right of establishment and not the chapter relating to services. As appears from the third paragraph of Article 60 of the Treaty, the rules on freedom to provide services cover – at least where the provider moves in order to provide his services – the situation in which a person moves from one Member State to another, not for the purposes of establishment there, but in order to pursue his activity there on a temporary basis. The temporary nature of the activities in question has to be determined in the light of its duration, regularity, periodicity and continuity. This does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question. 3. The possibility for a national of a Member State to exercise his right of establishment, and the conditions for his exercise of that right, must be determined in the light of the activities which he intends to pursue on the territory of the host Member State. Where the taking-up of a specific activity is not subject to any rules in the host State, a national of any other Member State will be entitled to establish himself and pursue that activity there. On the other hand, where the taking-up or the pursuit of a specific activity is subject to certain conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them. Such conditions, which may consist in particular of an obligation to hold particular diplomas, to belong to a professional body or to comply with certain rules of professional conduct or with rules relating to the use of professional titles, must fulfil certain requirements where they are liable to hinder or make less attractive the exercise of a fundamental freedom guaranteed by the Treaty, such as freedom of establishment. There are four such requirements: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it. As far as conditions relating to the possession of a qualification are concerned, Member States must take account of the equivalence of diplomas and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned.
The court accepted that it does not have jurisdiction under the preliminary reference procedure to rule on the compatibility of a national measure with EU law

Citations:

Times 13-Dec-1995, C-55/94, [1995] ECR 1-4165, [1995] EUECJ C-55/94

Links:

Bailii

Statutes:

EC Treaty 43, Council Directive 77/249/EEC

Jurisdiction:

European

Citing:

Cited – Ordre des avocats au Barreau de Paris v Onno Klopp ECJ 12-Jul-1984
Europa In laying down that freedom of establishment shall be attained at the end of the transitional period, article 52 imposes an obligation to attain a precise result the fulfilment of which must be made easier . .
Cited – Groupement National des Negociants en Pommes de Terre de Belgique Belgapom) v ITM Belgium SA and Vocarex SA ECJ 11-Aug-1995
European Community quantitative restrictions on import not relevant to every states legislation. Measures applying equally to all traders within a member state were not discriminatory.
Trade between Member States is not likely to be impeded, . .
Cited – Jean Reyners v Belgian State ECJ 21-Jun-1974
Europa The rule on equal treatment with nationals is one of the fundamental legal provisions of the community. As a reference to a set of legislative provisions effectively applied by the country of establishment . .
Cited – Jean Thieffry v Conseil de l’ordre des avocats a la cour de Paris ECJ 28-Apr-1977
Europa Freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the treaty. In so far as community law makes no special provision, these . .
Cited – Kraus v Land Baden-Wurttemberg ECJ 31-Mar-1993
Diplomas acquired in one member state require may authorisation for use in another state. . .
Cited – Vlassopoulou v Ministerium fur Justiz, Bundes- u Europaangelegenheiten Baden-Wurttemberg ECJ 7-May-1991
The authorities of a Member State when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a . .

Cited by:

Cited – Regina on Application of Dinev and Others v Westminster City Council Admn 24-Oct-2000
Street artists had operated in Leicester Square for many years without either licenses or being prosecuted. The respondent introduced a scheme to regulate them, and the applicants sought to challenge it by way of judicial review, alleging a failure . .
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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, European

Updated: 03 June 2022; Ref: scu.161295

Regent Leisuretime Ltd and others v Skerrett and Another: CA 4 Jul 2006

The court set aside a first stage wasted costs order made by the judge below against the solicitors Reynolds Porter Chamberlain. The judge had been given no indication of the costs claimed and did not have material on which he could form a view as to whether significant unnecessary costs had been caused to be incurred by reason of the solicitor’s conduct. Also, once the costs in question were considered, Lloyd LJ found that they would likely be of an order that would be totally disproportionate to the costs involved in a second stage hearing, and ‘It seems to me that although an oral application in the course of the hearing is possible pursuant to paragraph 53, that is only likely to be sensible if the scope of the application to the costs said to have been wasted is narrow and clear; . .’

Judges:

Mummery, Lloyd LJJ

Citations:

[2006] EWCA Civ 1032

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
Cited – Thames Chambers Solicitors v Miah QBD 16-May-2013
The solicitors appealed against a wasted costs order. They had accepted instructions to act for a bankrupt in pursuing a debt before his discharge and without the debt having been assigned to him by the trustee in bankruptcy.
Held: The order . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Costs

Updated: 02 June 2022; Ref: scu.243366

Malkinson v Trim: CA 20 Sep 2002

The solicitor had successfully defended proceedings brought against him personally, but employing his own firm to represent him. He sought his costs. The claimant disputed his right to costs.
Held: The claimant had served a notice of discontinuance of the action, and by doing so made himself liable for costs. The judge had applied the London Scottish case. There should be no difference between work done by an employee of a solicitor, and work done by a partner. Rule 48.6 had not changed the situation.

Judges:

Potter LJ, Chadwick LJ, Wall J

Citations:

Times 11-Oct-2002, Gazette 17-Oct-2002

Statutes:

Civil Procedure Rules 48.6

Jurisdiction:

England and Wales

Citing:

Cited – London Scottish Benefit Society v Chorley Crawford and Chester CA 30-May-1884
Where an action is brought against a solicitor who defends it in person and obtains judgment, he is entitled upon taxation to the same costs as if he had employed a solicitor, except in respect of items which the fact of his acting directly renders . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions, Civil Procedure Rules

Updated: 02 June 2022; Ref: scu.177397

Penna v Law Society: ChD 29 Jun 1999

The regulatory function of the Law Society in intervening in a legal practice was not merely protective, and a solicitor facing accusations of past dishonesty could not expect to be relieved of the consequences merely because he had completed the transactions at issue without loss. The intervention could proceed.

Citations:

Times 29-Jun-1999

Statutes:

Solicitors Act 1974 35

Jurisdiction:

England and Wales

Legal Professions

Updated: 02 June 2022; Ref: scu.84655

Rozzell v Speakman and Co: CA 27 Jun 2001

The defendants appealed againt a finding of negligence with regard to the execution of a second mortgage. The claimant said she had not been properly advised about the consequences of a charge to secure repayment of her husband’s debts. She said she had not been advised that on a bankruptcy, her own share in the property would be protected.
Held: The judge’s interpretation of the attendance notes, and his conclusion were inconsistent. He should have found that the risks and consequences had been explained.

Judges:

Lord Justice Longmore, Mr Justice Carnworth

Citations:

[2001] EWCA Civ 996

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 01 June 2022; Ref: scu.160084

Patel and Another v Daybells (a Firm): CA 27 Jul 2001

Land was purchased and a resale negotiated before it was registered. An undertaking was accepted that the seller’s solicitor would discharge all charges. The purchasers sought to avoid completion by saying the Act required them to be registered before completion. The matter was completed but the seller’s bank refused to sign the release. The bank gave one figure to release the charge, but then demanded more. The buyers’ solicitors were alleged to have been negligent, having completed on the basis of the vendor solicitor’s undertaking to discharge the mortgage. This was standard practice in conveyancing transactions.
Held: In accepting the vendor’s solicitors undertaking, the client was exposed to some degree of risk. Nevertheless, it was enough to show that the routine and approved practice of English solicitors is one on which ‘the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter’ The solicitors were not negligent.

Judges:

Mr Justice Carnwath, Lord Justice Robert Walker, Lord Justice Longmore

Citations:

[2001] EWCA Civ 1229, [2002] PNLR 6

Links:

Bailii

Statutes:

Land Registration Act 1925 110(5), Law Society’s Code for Completion by Post 1984

Jurisdiction:

England and Wales

Citing:

Cited – Edward Wong Finance Co Ltd v Johnson Stokes and Master PC 1984
(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – National Home Loans Corporation v Kaufmann 21-Jun-1995
. .

Cited by:

Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Damages

Updated: 01 June 2022; Ref: scu.159904

Stewart v Secretary of State for Scotland (Scotland): HL 22 Jan 1998

The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not unfair.

Judges:

Lord Lloyd of Berwick, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hutton, Lord Saville of Newdigate

Citations:

Times 28-Jan-1998, [1998] UKHL 3, 1998 SC (HL) 81

Links:

House of Lords, Bailii

Statutes:

Sherriffs Courts (Scotland) Act 1971

Jurisdiction:

England and Wales

Citing:

Appeal from – Stewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:

Cited – Meerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
Appealed to – Stewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .
Lists of cited by and citing cases may be incomplete.

Administrative, Scotland, Legal Professions

Updated: 31 May 2022; Ref: scu.158934

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 statutory right of appeal could not be limited except by clear and specific provision. The court agreed that interpreting the rules to impose a general provision requiring leave to appeal would produce inconsistency, and could only be done with some interpolation: ‘ The wording of Rule 52.3(1)(b), in particular the words in parenthesis, is more consistent with the requirement that the Practice Direction should make specific provision for specific appeals; and this Practice Direction does not do so’ (Sir Andrew Morritt VC).

Judges:

Morritt VC, May LJ, Dyson LJ

Citations:

Times 06-Aug-2001, Gazette 31-Aug-2001, [2001] EWCA Civ 1137, [2002] 1WLR 160

Links:

Bailii

Statutes:

Civil Procedure Rules 52.3(1)(b), Administration of Justice Act 1985 267

Jurisdiction:

England and Wales

Citing:

Cited – Colley v Council for Licensed Conveyancers CA 14-Feb-2001
Directions for lodging of further argument . .

Cited by:

Cited – In re MB (A Patient) (Court of Protection: Appeal) CA 1-Nov-2005
The applicant appealed an order that a statutory will be executed for the patient, who suffered from Alzheimer’s disease. The will substituted a solicitor for the applicant as executor, and made technical improvements. The court considered its . .
Lists of cited by and citing cases may be incomplete.

Civil Procedure Rules, Legal Professions

Updated: 31 May 2022; Ref: scu.147619

Regina v A Special Commissioner ex parte Morgan Grenfell and Co Ltd; Regina v Martyn Rounding (HM Inspector of Taxes) ex parte Morgan Grenfell and Co Ltd: CA 2 Mar 2001

The inspector of taxes had power to issue a notice requiring access to legally privileged material. The power given by the section included certain exceptions, and those were not to be extended. The special or general commissioners had no power to hear from a taxpayer oral representations as to the issue of such a notice. The statutory procedure requiring the inspector to place all matters before the commissioner when applying for the commissioner’s consent to the notice was a substitute for any inter partes procedure, and displaced any such entirely.

Citations:

Gazette 03-May-2001, Times 17-Apr-2001, [2001] EWCA Civ 329

Links:

Bailii

Statutes:

Taxes Management Act 1970 20(1)

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v A Special Commissioner, ex parte Morgan Grenfell and Co Ltd Admn 8-Nov-2000
The rights of the inspectors to demand papers under the Act could override the protection of legal privilege which might otherwise be given to them. Construing the Act as a whole it was clear that legal professional privilege was not respected save . .

Cited by:

Cited – Three Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Appeal from – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Legal Professions, Income Tax

Updated: 31 May 2022; Ref: scu.147457

Regina v The Chief Constable of the Northumbria Constabulary ex parte Thompson: CA 8 Mar 2001

A police officer had been dismissed but was pursuing an action against the authority. At the same time he obtained work as a probationary solicitor’s clerk doing police station work. The Chief Constable issued an order that he should not, under PACE be admitted to any police station.
Held: The order was unlawful, since it prevented the necessary exercise of a lawful discretion by individual officers. The circumstances might suggest that general advice be given about his character, and it would be surprising if any police officer would admit him.

Citations:

Times 20-Mar-2001, Gazette 20-Apr-2001, [2001] EWCA Civ 321

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984

Jurisdiction:

England and Wales

Police, Administrative, Legal Professions

Updated: 31 May 2022; Ref: scu.147460

Somatra Limited v Sinclair Roche and Temperley (a Firm) etc: CA 26 Jul 2000

In an action between clients and their solicitors, the solicitors produced at an interlocutory hearing evidence derived from without prejudice discussions. The claimants applied for disclosure of all such documents, but this was rejected on the basis that the evidence would not be admissible at trial.
Held: The evidence having been introduced already by the defendants, it would not be just if they were not admitted in evidence in full at trial.
Clark LJ said: ‘The infringement in the present case is that Sinclair’s opened up issues on the merits which will be the very questions to be determined by the trial judge. It seems to me that no party who has taken part in without prejudice discussions should be entitled to use them to his advantage on the merits of the case in one context, but then assert a right to prevent its opponent from doing so on the merits at the trial.’

Judges:

Clark LJ

Citations:

Gazette 14-Sep-2000, Times 22-Sep-2000, [2000] EWCA Civ 229, [2000] 1 WLR 2453

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .

Cited by:

Cited – Jamie v Management Solution Partners Ltd EAT 31-Jan-2006
The claimant received an email from his employers and resigned claiming unfair dismissal saying that it was repudiatory. The employers objected to the admission of the email into evidence saying that it was marked without prejudice and subject to . .
Cited – Ravenscroft v Canal and River Trust ChD 14-Sep-2016
Special Circumstances to appoint McKenzie Friend
An application was made to have a nominated person appointed as McKenzie friend and as advocate for the claimant. The claimant’s narrow boat had been seized by the defendant for non payment of licence fees and for not having a Pleasure Boat . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Professional Negligence

Updated: 31 May 2022; Ref: scu.147262

Chief Constable of Kent v Rixon, Rixon (Suing As Rixons Solicitors) and Wilson: CA 5 Apr 2000

A detainee has a right to see a solicitor whilst under arrest at a police station. That founds no separate right of any solicitor to enter the cells area, and there could be no cause of action arguable that a solicitor might sue for damages for being excluded. The right belonged to the client, and any interference in it lay at his door to seek compensation.

Citations:

Times 11-Apr-2000, [2000] EWCA Civ 104

Links:

Bailii

Jurisdiction:

England and Wales

Police, Legal Professions

Updated: 31 May 2022; Ref: scu.147137

Her Majesty’s Attorney General v Foley and Foley: CA 1 Mar 2000

A respondent to an application by the Attorney General for a vexatious litigant order asserted that the Attorney-General had not instructed the Treasury Solicitor to act in this case.
Held: The Attorney-General and Treasury solicitor in this case were as client and solicitor, and proper instruction should be presumed. If the respondent did bring evidence, which was absent in this case, of such a lack, then there would be a requirement to give an explanation. Without such evidence, no explanation should be required.

Citations:

Gazette 30-Mar-2000, Times 07-Mar-2000, [2000] EWCA Civ 62

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional, Legal Professions

Updated: 31 May 2022; Ref: scu.147095

Regan v Taylor: CA 9 Mar 2000

The claimant alleged defamation by the defendant, his then opponent’s solicitor. He now appealed summary judgment against him.
Held: A solicitor properly appointed by his client to represent his client in legal proceedings and responding to attacks at the door of the court was protected by qualified legal privilege. His agency authority could now naturally be considered to extend to such activities. The privilege was not a blanket permission to libel, but rather the ability of an agent to borrow the authority as agent for his client and to operate within the range of privilege afforded to that client.

Judges:

Henry, Chadwick, May LJJ

Citations:

Times 15-Mar-2000, [2000] EWCA Civ 68, [2000] EMLR 549

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Khader v Aziz and Another QBD 31-Jul-2009
The defendant sought to strike out a claim in defamation. Acting on behalf of his client the solicitor defendant was said to have called a journalist and defamed the claimant. The words were denied.
Held: Assuming (which was denied) that the . .
Cited – Khader v Aziz and Others CA 23-Jun-2010
The claimant brought defamation proceedings after she had found and returned a valuable necklace belonging to the first respondent. The claim had been dismissed as an abuse of process.
Held: The claimant’s appeal failed: ‘there is such a . .
Cited – Economou v De Freitas QBD 27-Jul-2016
Failed action for defamation on rape allegations
The claimant had been accused by the defendant’s daughter of rape. He was never charged but sought to prosecute her alleging intent to pervert the course of justice. She later killed herself. The defendant sought to have the inquest extended to . .
Lists of cited by and citing cases may be incomplete.

Defamation, Legal Professions

Updated: 31 May 2022; Ref: scu.147101

UCB Bank Plc v Hepherd Winstanley and Pugh (a Firm): CA 29 Jul 1999

Where the losses to a lender arising from a claim against a solicitor could properly be seen as in breach of an implied term requiring a retainer to be exercised with reasonable care and skill, that was akin to a claim for negligence, and contributory negligence of the lender could be applied to reduce the damages.

Citations:

Gazette 08-Sep-1999, [1999] EWCA Civ 2029

Links:

Bailii

Statutes:

Law Reform (Contributory Negligence) Act 1945

Jurisdiction:

England and Wales

Legal Professions

Updated: 31 May 2022; Ref: scu.146944

Goulden v Wilson Barca: CA 14 Jul 1999

Obligations under contract between a solicitor and an expert witness to appear in a legally aided case were not limited by Legal Aid Regulations, and a solicitor agreeing to pay a witness’s fees for attending as a witness was bound to pay them. The contract was not void for illegality, despite the statutory arrangements for payment for such attendances out of central funds.

Citations:

Times 20-Aug-1999, Gazette 11-Aug-1999, Gazette 13-Oct-1999, [1999] EWCA Civ 1828, [1999] EWCA Civ 1837

Links:

Bailii, Bailii

Statutes:

Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 (1989 No 344) 55

Jurisdiction:

England and Wales

Legal Professions, Legal Aid

Updated: 31 May 2022; Ref: scu.146743

Ministry of Justice v Burton and Another: CA 12 Jul 2016

This appeal raises a short point. It arises out of the long running litigation about whether, and to what extent, part-time fee-paid judges have been treated less favourably than full-time salaried judges contrary to the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.
Held: The Ministry’s appeal failed. The appellant had not established any perversity in the ET’s judgment to the high level required on such an appeal.

Judges:

Elias, Kitchin, King LJJ

Citations:

[2016] EWCA Civ 714, [2016] ICR 1128, [2016] WLR(D) 383

Links:

Bailii, WLRD

Statutes:

Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000

Jurisdiction:

England and Wales

Legal Professions, Employment, Discrimination

Updated: 30 May 2022; Ref: scu.566851

Regina v ex parte Mealing-Mcleod: CA 18 Feb 1999

Formal order acknowledging settlement in favour of the applicant.

Citations:

[1999] EWCA Civ 814

Jurisdiction:

England and Wales

Citing:

Appeal From – Regina v Common Professional Examination Board ex parte Sally Mealing-Mcleod Admn 4-Nov-1997
The claimant challenged decisions taken as to the extension of time to allow her to pass the Common Professional Examination to become a member of the Bar. An application had some time before made for an oder under the 1981 Act. There was no taint . .

Cited by:

See Also – Regina v Common Professional Examination Board (ex parte Sally Mealing Mcleod) Admn 19-Apr-1999
. .
See Also – Regina v Common Professional Examination Board ex parte Mealing-Mcleod CA 21-Apr-1999
. .
See Also – Mcleod v Common Professional Examination Board SCCO 13-Mar-2000
. .
See Also – Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead CA 19-Apr-2000
A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 30 May 2022; Ref: scu.145729

Joseph, Regina (on the Application Of) v Manches and Co: CA 29 Jan 2002

Citations:

[2002] EWCA Civ 188

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Approved – Thomas Watts and Co (a Firm) v Smith CA 16-Mar-1998
The court considered the status of an untaxed solicitor’s bill of costs against a client for whom he had acted in defamation proceedings. Sir Richard Scott V-C said: ‘It is a fact that [the client] never entered into any contract to pay the sums as . .

Cited by:

Cited – Truex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 30 May 2022; Ref: scu.216711

Johnson v Gore Wood and Co (a Firm): CA 12 Nov 1998

The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the claimant. The defendants appealed orders against them. They knew that he had personally guaranteed the borrowings of the company.
Held: It was arguable that the plaintiff had a general retainer with the defendants, and that they had duties to him over and above those to the company. Double recovery remained a problem, and the case law unclear. That was enough to say the plaintiff’s case was arguable. As to abuse, the first proceedings had been settled by compromise. Each case depends upon its own facts. The plaintiff had also been in control of the first proceedings. The plaintiff’s appeal against a strike out for abuse of process failed.

Judges:

Lord Justice Nourse, Lord Justice Ward And Lord Justice Mantell

Citations:

[1998] EWCA Civ 1763, [1999] BCC 474

Jurisdiction:

England and Wales

Citing:

Cited – Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) ChD 1978
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact . .
Cited – R P Howard Ltd and Witchell v Woodman Matthews and Co (a firm) 1983
The solicitor defendant knew that the company was a family company effectively run by Mr Witchell from whom they received their instructions. The question raised was as to the duty of the solicitor to company and director.
Held: There is no . .
Cited – Verderame v Commercial Union Assurance Co Plc CA 2-Apr-1992
The insurance brokers, acting to arrange insurance for a small private limited company did not owe a duty in tort to the directors of that company personally. Where an action was brought in a tort and in breach of contract, damages could not be . .
Cited – Foss v Harbottle 25-Mar-1843
Company alone may sue for legal wrong against it.
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .
Cited – Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) CA 1982
A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
Not followed – Christensen v Scott 1996
(New Zealand Court of Appeal) Thomas J said: ‘the diminution in the value of Mr and Mrs Christensen’s shares in the company is by definition a personal loss and not a corporate loss. The loss suffered by the company is the loss of the lease and the . .
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 by:

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 . .
Appeal from – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 30 May 2022; Ref: scu.145242

Christie v Wilson; McVicar and Alexside Limited: CA 10 Jun 1998

The same rules must apply to solicitor and barrister advocates, as regards conduct of litigation, once having given advice which was acted upon, and on which claim the action was based. A solicitor was not barred from acting as advocate in defamation who had advised that no defamation existed.

Citations:

Times 06-Jul-1998, Gazette 29-Jul-1998, [1998] EWCA Civ 951

Jurisdiction:

England and Wales

Citing:

See also – Christie v Wilson and Others CA 13-Jan-1999
The second defendant appealed an order that he pay the costs of the claimant in his successful defamation action. The action had been decided by a jury rejecting the assertion that the claimant an athlete had used drugs.
Held: There was no . .

Cited by:

See Also – Christie v Wilson and Others CA 13-Jan-1999
The second defendant appealed an order that he pay the costs of the claimant in his successful defamation action. The action had been decided by a jury rejecting the assertion that the claimant an athlete had used drugs.
Held: There was no . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Defamation

Updated: 30 May 2022; Ref: scu.144430

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 breach of the indemnity principle. A letter was produced which stated that the union’s relationship with the solicitor was that the solicitors were entitled to make a full solicitor/client charge. The district judge held that they were entitled to disclosure of the relevant material.
Held: The Court were concerned about satellite litigation in assessment proceedings, but that there was no breach of the indemnity principle merely because the litigant was a supported by his union. The paying party agreed that the costs judge could be provided with the information he needed. The solicitor’s Client Care letter should be attached to the bill of costs for inspection for taxation of costs, in order to demonstrate that no more is being charged than would have been charged to the client. The court attached considerable importance to the fact that solicitors are officers of the court and that they are trusted not to mislead the court or to allow it to be misled. Accordingly, the court indicated that it would expect solicitors to disclose the existence of a limit on the fees which they could recover from their client.

Judges:

Butler-Sloss, Henry and Judge LJJ

Citations:

Times 09-Apr-1998, [1998] EWCA Civ 566, [1998] 3 All ER 570

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Costs, Legal Professions

Updated: 30 May 2022; Ref: scu.144044

Lucas v Millman: QBD 5 Nov 2002

The Solicitor’s Disciplinary Tribunal had decided that the solicitor had no case to answer. The complainant sought to appeal under the 1974 Act.
Held: The proper respondent to such an appeal was the solicitor himself. The Law Society and the Tribunal were to be notified of the appeal, but were not parties to it.

Judges:

Kennedy LJ, Pitchers J

Citations:

Times 22-Nov-2002, Gazette 09-Jan-2003

Statutes:

Solicitors Act 1974 49(2), Civil Procedure Rules 52

Jurisdiction:

England and Wales

Legal Professions, Civil Procedure Rules

Updated: 29 May 2022; Ref: scu.178294

Taylor Monarch Assurance Plc v Director of Serious Fraud Office, McKenzie, Law Society Rogerson: CA 22 Jul 1997

Qualified privilege attached to defamatory documents which had been prepared as part of a criminal investigation. For the court to allow an action would be approve a form of parasitic attack on the trial.

Citations:

Gazette 24-Sep-1997, Times 27-Aug-1997, [1997] EWCA Civ 2163

Jurisdiction:

England and Wales

Cited by:

Appeal from – Taylor and Others v Director of The Serious Fraud Office and Others HL 29-Oct-1998
The defendant had requested the Isle of Man authorities to investigate the part if any taken by the plaintiff in a major fraud. No charges were brought against the plaintiff, but the documents showing suspicion came to be disclosed in the later . .
Lists of cited by and citing cases may be incomplete.

Defamation, Legal Professions

Updated: 29 May 2022; Ref: scu.142560

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

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

Citations:

[1997] EWCA Civ 1685

Links:

Bailii

Legal Professions

Updated: 29 May 2022; Ref: scu.142081

In The Matter Of ‘RSD’ (A Barrister) and In The Matter Of An Appeal Against Conviction And Sentence From A Hearing Of The General Council Of The Bar Disciplinary Tribunal: CA 23 Jun 1997

The appellant had been convicted by the Bar Disciplinary Tribunal of professional misconduct in having supplied legal services as a barrister, and having held himself out as willing and able to provide legal services as a barrister in independent practice. He had not completed his 12 months pupillage. In fact, on appeal it appeared that he had not practised, and had not supplied legal services. Although he may have held himself out as qualified to the chambers, that was not the charge. The second charge was presented on the basis that he had so held himself out when applying to the Law Society for admission as a solicitor. Again, it appeared that in fact he had not got as far as making an application. Accordingly the findings were set aside.

Citations:

[1997] EWCA Civ 1932

Jurisdiction:

England and Wales

Legal Professions

Updated: 29 May 2022; Ref: scu.142328

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 to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust.
Held: A claim for damages for a solicitor’s failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: ‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.’
He is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary: ‘A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as ‘the double employment rule.” and
‘Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability.’
As to breach of the duty: ‘Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.’
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as ‘primarily restitutionary or restorative rather than compensatory’.

Judges:

Millett LJ

Citations:

Times 02-Aug-1996, [1996] EWCA Civ 533, [1998] Ch 1, [1997] 2 WLR 436, [1996] 4 All ER 698

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Birmingham Midshires Building Society v Infields (A Firm) TCC 20-May-1999
The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. . .
Cited – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Cited – Barnes and Another v Black Horse Ltd QBD 31-May-2011
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Portman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Cited – Leeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
Cited – FHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Cited – Halton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Equity, Agency

Updated: 29 May 2022; Ref: scu.140400

Regina (Van Hoogstraten) v Governor of HM Prison Belmarsh: QBD 23 Sep 2002

The prisoner was awaiting sentence. He had dismissed his legal team, and wanted to appoint Italian lawyers, and avvocato to advise him, in the expectation that the Italian lawyer would later engage English lawyers to present his case in court. He wanted his lawyer to see him in prison, and appealed the prison’s refusal to allow access for the lawyer.
Held: The rule required a ‘legal adviser’, and an avvocato was included within the 1978 order, which in turn implemented European Law. As a prisoner awaiting sentence, he was undergoing a trial process, and had his rights governed by the Convention, which meant that he must have adequate opportunity to prepare his mitigation and his defence. The Italian lawyer must be allowed entry to the prison.

Judges:

Jackson J

Citations:

Gazette 31-Oct-2002, Times 05-Nov-2002

Statutes:

Prison Rules 1999 2, European Communities (Services of Lawyers) Order 1978, European Convention on Human Rights

Jurisdiction:

England and Wales

Prisons, Legal Professions, European, Human Rights

Updated: 29 May 2022; Ref: scu.177844

Regina v A Special Commissioner, ex parte Morgan Grenfell and Co Ltd: Admn 8 Nov 2000

The rights of the inspectors to demand papers under the Act could override the protection of legal privilege which might otherwise be given to them. Construing the Act as a whole it was clear that legal professional privilege was not respected save where expressly preserved.

Citations:

Gazette 15-Dec-2000, Times 22-Nov-2000, [2000] EWHC Admin 415

Links:

Bailii

Statutes:

Taxes Management Act 1970

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v A Special Commissioner ex parte Morgan Grenfell and Co Ltd; Regina v Martyn Rounding (HM Inspector of Taxes) ex parte Morgan Grenfell and Co Ltd CA 2-Mar-2001
The inspector of taxes had power to issue a notice requiring access to legally privileged material. The power given by the section included certain exceptions, and those were not to be extended. The special or general commissioners had no power to . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, Legal Professions

Updated: 29 May 2022; Ref: scu.140231

Regina v Law Society ex parte Birkett: Admn 30 Jul 1999

Some twenty years after the events, the claimant still sought compensation following the alleged negligence of his former solicitor. He now sought it from the Law Society’s compensation fund. The Law Society said the nature of his claim was outside the provisions for the compensation fund, since it was not a matter arising from dishonesty and nor from misuse of client funds.
Held: The claim failed. The decision by the Society’s committee was not irrational, and the claimant had not properly understood the nature of the fund.

Citations:

[1999] EWHC Admin 770

Links:

Bailii

Statutes:

Solicitors Act 1974 836

Jurisdiction:

England and Wales

Citing:

Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Cited – Regina v Law Society, ex parte Matthews 17-Mar-1994
The court considered the management of the statutory Solicitors Compensation Fund: ‘Given, however, what I have already said about the statutory purpose of the compensation fund, it seems to me that it is appropriate to say that the clearest case in . .
Cited – Regina v Law Society ex parte Mortgage Express Limited; Regina v Law Society ex parte Alliance and Leicester Building Society CA 17-Dec-1996
The court considered the duties of the respondent in administering the Compensation Fund: ‘It seems clear from the current legislation that the history of the fund and the mode of operating it that the solicitors’ profession was never intended or . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 28 May 2022; Ref: scu.140034

Regina v Lewes Crown Court and Chief Constable of Sussex Police ex parte Nigel Weller and Co: Admn 12 May 1999

The applicant sought judicial review of a decision to grant a search warrant in respect of his offices, saying that the material covered was protected by legal privilege. The warrant had been unavailable under section 8 because of the privilege, and so the police had applied to a circuit judge under section 9.
Held: The order should be quashed. The judge should have given reasons for his order. ‘it is not always easy for a hard-pressed circuit judge to remember to give reasons when he has no more assistance than can be provided by a police officer on his own making what the officer no doubt regards as a formal ex parte application, but the reality is that –
(1) the person or persons against whom an order has been made are entitled to know why it is made:
(2) the requirement to give reasons should help to ensure that a judge does, as he must, address each of the statutory requirements before making the order, and –
(3) if it is necessary to review an order in this court reasons will be of great assistance. We will know why the judge decided as he did. ‘
Neither the police nor the court below appeared to have given thought to the need to resptrict the scope of the search order, and thus to bypass the protection given by the Act to special material.

Judges:

Kennedy LJ VP, Mitchell J

Citations:

[1999] EWHC Admin 424

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 8 9

Citing:

Cited – Regina v Central Criminal Court Ex Parte Propend Finance Pty Ltd and Others QBD 17-Mar-1994
A Home Secretary requesting warrants must be specific on the type he required. It was his duty, and not that of the police to state the method of seizure of documents for use in a foreign jurisdiction. A judge making an order should give reasons for . .
Cited – Regina v Southampton Crown Court ex parte J and P 21-Dec-1992
A special material warrant was quashed, partly because it was too widely drawn. It was suspected that there had been thefts from the solicitor’s firms client account. Watkins LJ discussed the need for a judge to give reasons for a decision under . .
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 – 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 Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Cited – Regina v Lewes Crown Court ex parte Hill 1991
Bingham LJ said: ‘The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a . .

Cited by:

Cited – Mills and Another, Regina (on The Application of) v Sussex Police and Another Admn 25-Jul-2014
The claimants faced criminal charges involving allegations of fraud and corruption. They now challenged by judicial review a search and seizure warrant saying that it was unlawful. A restraint order had been made against them and they had complied . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Police

Updated: 28 May 2022; Ref: scu.139688

Hanley v J C and A Solicitors: QBD 28 Sep 2018

Whether the Court, under the inherent jurisdiction over its officers and/or s. 68 Solicitors Act 1974, has the power to order a solicitor to make and supply to his client (or former client) copies of documents which are the property of the solicitor, subject to payment of reasonable costs for the task.
Held: The appeal failed. The court did not have the discretion to make such an order.

Judges:

Soole J

Citations:

[2018] EWHC 2592 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice

Updated: 28 May 2022; Ref: scu.625531

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 not relate to legal advice or the subject matter of legal advice. Records of appointments made are not protected, although extracts are not to be made from advice records. A record of an attendance at a solicitor’s office by a client for an appointment, which must involve giving the name of the client, was a communication between client and solicitor, but not one that attracted legal professional privilege.
Lord Bingham LC said: ‘It is in my judgment important to remind oneself of the well established purpose of legal professional privilege, which is to enable a client to make full disclosure to his legal adviser for the purposes of seeking legal advice without apprehension that anything said by him in seeking advice or to him in giving it may thereafter be subject to disclosure against his will. It is certainly true that in cases such as Balabel v Air India [1988] Ch 317, the court has discountenanced a narrow or nit-picking approach to documents and has ruled out an approach which takes a record of a communication sentence by sentence and extends the cloak of privilege to one and withholds it from another. It is none the less true that legal professional privilege applies, and applies only, to communications made for the purpose of seeking and receiving legal advice.
In this case we must consider the function and nature of the documents with which we are concerned. The record of time on an attendance note, on a time sheet or fee record is not in my judgment in any sense a communication. It records nothing which passes between the solicitor and the client and it has nothing to do with obtaining legal advice. It is the same sort of record as might arise if a call were made on a dentist or a bank manager. A record of an appointment made does involve a communication between the client and the solicitor’s office but is not in my judgment, without more, to be regarded as made in connection with legal advice. So to hold would extend the scope of legal privilege far beyond its proper sphere, in my view . . ‘

Judges:

Lord Bingham CJ

Citations:

Times 15-Feb-1999, Gazette 10-Mar-1999, [1999] EWHC Admin 94, [1999] 1 WLR 832

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984

Jurisdiction:

England and Wales

Citing:

Leave granted – Regina v Manchester Crown Court ex parte Rogers Admn 6-Nov-1998
Application for leave to apply for judicial review granted. . .

Cited by:

Full review – Regina v Manchester Crown Court ex parte Rogers Admn 6-Nov-1998
Application for leave to apply for judicial review granted. . .
Cited – Regina (Howe) v South Durham Magistrates Court QBD 13-Feb-2004
The defendant was convicted of driving whilst disqualified. He had put the prosecution to proof of the fact that it was he who had been prosecuted. The prosecution called his solicitor to give evidence that it was his client who had been banned on . .
Cited – Miller Gardner Solicitors, Regina (on the Application of) v Minshull Street Crown Court Admn 20-Dec-2002
Police investigating crime obtained a warrant to search a solicitor’s offices for details of their clients. The solicitors appealed.
Held: The details required, namely dates of contacts with a certain telephone number were not legally . .
Cited – Curtis v Curtis CA 8-Mar-2001
The mother sought leave to call in evidence in proceedings for contact, an affidavit sworn by the father’s previous solicitors when applying to be removed from the record, which related the contents of telephone calls from the father to their . .
Cited – Regina v Manchester Crown Court, ex parte McCann and others QBD 22-Nov-2000
An application for an anti-social behaviour order against an individual was a civil, not a criminal proceeding. The standard of evidence required was on the balance of probability; the civil standard. Such proceedings were not subject to the . .
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, Crime

Updated: 28 May 2022; Ref: scu.139358

Legal Services Commission v Henthorn: QBD 4 Feb 2011

The claimant sought to recover overpayments said to have been made to the defendant barrister in the early 1990s. Interim payments on account had been made, but these were not followed by final accounts. The defendant, now retired, said that the claims were defeated by limitation and laches and were an abuse of process because of long delay by the claimant.
Held: The case of Rasool was on point and settled it that the relation between the lawyer and his client under the legal aid system remained the same despite the funding arrangement under legal aid. Under that arrangement the claimant could have begun its claim, time ran from the date that the work under the certificate was actually completed and all but two of the claims were time barred.
The claimant also claimed in restitution. However, ‘the exclusive remedy available to the LSC is that provided for by regulation 100(8)’ and no restitutionary claim could arise on the basis of the claims pleaded, and if it were available it would now be defeated by laches and limitation. Similarly the claimant had been unreasonable or unfair in its use of its powers in this way. The claim for abuse of process succeeded.
‘the Regulations gave the LSC full powers to obtain all necessary information and also provided strict time limits for the assessment process. What regrettably occurred throughout the 1990s was a culture of acquiescence in which the LSC did not seek regular reports on stale cases, did not exercise its powers of discharge when cases went to sleep and were not reported on, did not ensure that bills that were lodged for taxation outside the three month period permitted by the RSC were subject to penalties so as to discourage such delays and did not require solicitors who delayed in lodging bills of costs to lodge them under threat of discharge and consequent non-payment. In any event, it is not possible to identify the ingredients of the relevant cause of action by reference to the relaxed way in which the regulations were implemented.’

Judges:

Anthony Thornton QC J

Citations:

[2010] EWHC 3329 (QB)

Links:

Bailii

Statutes:

Civil Legal Aid (General) Regulations 1989, Limitation Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Coburn v Colledge CA 5-Apr-1897
A solicitor commenced an action on June 12th, 1896 for his fees for work which had been completed on May 30th 1889.
Held: A period of limitation runs from the date on which the ingredients of the cause of action are complete. The statute of . .
Cited – London Borough of Hillingdon v ARC Limited CA 7-Apr-1998
The company sought compensation for land taken under compulsory purchase powers by the defendants several years before. It now appealed against the defeat of its claim as time-barred.
Held: The appeal failed. The limitation period for a claim . .
Cited – Legal Services Commission v Rasool CA 5-Mar-2008
The defendant had in 1993 obtained legal aid. Work was done but the certificate was then revoked. The Commission sought repayment of the sums paid on account to his solicitors. He replied that the claim was out of time. The Commission argued that . .
Cited – Leivers v Barber Walker and Co Ltd CA 1943
Goddard LJ (dissenting) said that section 2(1)(d) of the 1939 Act changed the former position altogether, leaving the provision for limitation as regards specialties to apply only to deeds and other documents under seal (or to claims other than for . .
Cited – Central Electricity Generating Board v Halifax Corporation HL 1963
Under the 1947 Act, the assets of electricity undertakings were transferred to to electricity boards. Property held by local authorities as authorised undertakers should, on vesting day, vest in the relevant board. A question arose as to whether . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Cited – Child Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Cited – Barber v London Borough of Croydon CA 11-Feb-2010
The tenant who suffered learning and behavioural difficulties appealed against an order for possession of his council flat. He had become aggressive with the caretaker. The council sought possession, and he defended the claim saying that the council . .

Cited by:

Appeal from – Legal Services Commission v Henthorn CA 30-Nov-2011
The Commission sought to recover what it said were payments made on account to the respondent barrister, but only after many years had passed. The Commission argued that time only began to run once it requested repayment.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Equity, Limitation, Legal Aid

Updated: 27 May 2022; Ref: scu.428706