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Legal Professions - From: 1849 To: 1899

This page lists 81 cases, and was prepared on 02 April 2018.

 
Keene v Ward (1849) 13 QB 513
1849


Legal Professions

1 Citers


 
Pelly v Wathen [1849] EngR 398; (1849) 7 Hare 351; (1849) 68 ER 144
15 Mar 1849


Legal Professions
The lien of a solicitor on the deeds of his client is a legal right which cannot be greater in extent than the interest of the client in the deeds, and does not enable the solicitor to retain the deeds against third parties, where the client could not against such third parties give the solicitor a lien upon the property to which the deeds relate. In determining the extent of such lien equity follows the law; and although the deeds might have come to the possession of the solicitor without notice of a prior equitable claim, the Court gives effect as against the solicitor to such prior equitable right.
A solicitor does not, as solicitor, acquire a lien for his costs upon the documents of his client which came into the possession of the solicitor, not in that character but as mortgagee of the client’s estate.
A solicitor does not acquire a lien for costs due to himself solely upon documents which came into the joint possession of himself and his partner or partners; but he does not lose his lien for such costs upon documents which, having come into his own possession, are afterwards continued in the possession of himself and his partner or partners.
1 Citers

[ Commonlii ]
 
Tate v Hitchins And Others [1849] EngR 639; (1849) 7 CB 875; (1849) 137 ER 347
22 May 1849


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

 
 In Re The Duke of Brunswick, And The Sureties Of Crowl And Another; 22-Nov-1849 - [1849] EngR 1058 (B); (1849) 4 Exch 492
 
Ex Parte Keighley, In Re Keighley v Goodman [1850] EngR 345; (1850) 9 CB 339; (1850) 137 ER 924
25 Feb 1850


Legal Professions
The 91st section of the County Court Act, 9 & 10 Vict. c. 95, does not preclude an attorney from recovering from his client a reasonable remuneration for his work and labour done out of court, before the institution of a suit, or take away the right of the superior courts to allow on t,axation a reasonable remuneration for this description of labour.
[ Commonlii ]
 
Crossley v Crowther [1851] EngR 898; (1851) 9 Hare 384; (1851) 68 ER 556
20 Nov 1851

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

[ Commonlii ]

 
 Cook v Gillard; 1852 - (1852) 1 E & B 26; [1852] EngR 942; (1852) 1 El & Bl 26; (1852) 118 ER 346
 
Smith v Mules [1852] EngR 271; (1851-1852) 9 Hare 556; (1852) 68 ER 633
17 Feb 1852


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

[ Commonlii ]

 
 Cooper v Grant; 24-Apr-1852 - [1852] EngR 485; (1852) 12 CB 154; (1852) 138 ER 860

 
 Lyon v Baker; 30-Jun-1852 - [1852] EngR 796 (A); (1852) 5 De G & Sm 622
 
Re Catlin (1854) 18 Beav 508
1854
CA
Sir John Romilly MR
Legal Professions
Sir John Romilly MR said: "It is, I am informed, well established in practice that where a solicitor has delivered a bill of costs to his client, and proceedings between the parties have been taken to tax it under the statute, no alteration can be made in it except by consent. The reason and justice of this is obvious, and it appears to me to rest not less on principle than on practice. If one species of alteration be made, any other might. Who is to determine what alteration might or might not be made and if any alteration may be made? It is clear that a bill could be altered to meet the turn which the taxation was taking, In my opinion, the Master has no jurisdiction in taxation to permit any alterations or amendments to be made in the bill, except such as the client may consent to."
Solicitors Act 1843
1 Citers



 
 Robert Hull Terrell v James Button; 16-Mar-1854 - [1854] EngR 361; (1854) 4 HLC 1091; (1854) 10 ER 790
 
Calley v Richards [1854] EngR 734; (1854) 19 Beav 401; (1854) 52 ER 406
8 Jul 1854
CA
Sir John Romilly MR
Legal Professions
Communications between a person and his legal adviser, who had been a solicitor, but at the time of the communications had, without his knowledge ceased to practise, are privileged. The communication had reference to the validity of a will, and passed between the Plaintiff and his legal adviser between the date of the will and the death of the testator. It was objected that they could not have taken place in contemplation of a suit respectiing the validity of the will, and were therefore not protected. Held, that this did not take them out of the rule.
1 Cites

1 Citers

[ Commonlii ]
 
Tomson v Judge [1855] EngR 631; (1855) 3 Drew 306; (1855) 61 ER 920
25 Jun 1855

Kindersley VC
Legal Professions, Undue Influence
A, who was proved to have entertained feelings of peculiar personal regard for B, his solicitor, conveyed to him certain rea1 estate by a deed, on the face of it a purchase deed the consideration was £1000, the real value upwards of £1200. B. produced evidence to shew that no money passed ; that the transaction was never intended to be a purchase, but a gift for his services and from affection. B. had himself prepared the deed, and A. had no other advice. Held, that the rule is absolute that a solicitor cannot sustain a gift from his client made pending the relation of solicitor and client; and the deed was set aside.
Kindersley V-C said the solicitor must show that: 'the transaction was perfectly fair, that the client knew what he was doing, and that a fair price was given'.
1 Citers

[ Commonlii ]
 
Re Fryer (1857) 3 K & J 317
1857


Legal Professions
The acts of a solicitor as an express trustee are not within the scope of the ordinary business of a solicitor.
1 Citers


 
Haigh v Ousey (1857) 7 El & Bl 578
1857


Legal Professions

1 Citers



 
 Knight Since Deceased And His Executors, Tomkinson v Bowyer etc; 1-Jul-1857 - [1857] EngR 716 (C); (1857) 23 Beav 609
 
In Re Strother, A Solicitor And In Re The Act 6 and 7 Vict c 73 [1857] EngR 761; 7 Vict c 73; (1857) 69 ER 1214
11 Jul 1857


Legal Professions
The Act 10 & 11 Vict. s. 69 does not deprive this Court of its jurisdiction to order taxation of a solicitor’s bill of costs for Parliamentary business. To entitle a client to an order for taxation of his solicitor’s bill of costs after the expiration of twelve months from its delivery he must shew either pressure or gross overcharge, amounting to what this Court designates as fraud. But it is not necessary to shew both.
[ Commonlii ]
 
Lawrence v Campbell (1859) 4 Drew 485; [1859] EngR 385; (1859) 62 ER 186
1859

Sir Richard Kindersley VC
Legal Professions
Legal privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London. Held: "the same principle that would justify an Englishman consulting his English solicitor would justify a Scotchman consulting a Scotch solicitor."
The court described those communications between solicitor and client which attracted legal privilege as "professional communications in a professional capacity." It was now sufficient for privilege if communications passed as professional communications in a professional capacity, even though they were not made either during or relating to an actual or even to an expected litigation.
1 Citers

[ Commonlii ]
 
Re Cullen [1859] EngR 442; (1859) 27 Beav 51; (1859) 54 ER 20
23 Mar 1859


Legal Professions

[ Commonlii ]
 
The Bank of London v Tyrrell [1859] EngR 789; (1859) 27 Beav 273; (1859) 54 ER 107
30 Jun 1859
CA
Sir John Romilly MR
Legal Professions, Equity
A solicitor is accountable to his clients for the benefits which he may have derived clandestinely in transactions in which he was professionally engaged.
A solicitor was active in founding a banking company. Before its establishment he entered into a secret arrangement with a stranger, that the, latter should purchase some property eligible for the banking house on a joint speculation. After its establishment the company purchased part of the premises for their banking house, not knowing that their solicitor was interested in it. Held, that the solicitor must account to the company for all the profit made by him by the whole transaction ; but that the stranger was under no such liability.
Sir John Romilly MR said that the solicitor had held on trust for the client both (i) his interest in (and therefore his subsequent share of the proceeds of sale of) the Hall, and (ii) with "very considerable hesitation", his interest in the adjoining land
1 Citers

[ Commonlii ]
 
The Parish of St Pancras, Middlesex v The Parish of Clapham, Surrey (1860) 2 El & El 742
1860

Cockburn CJ, Crompton J, Blackburn J
Employment, Legal Professions
An attorney's clerk, articled by indenture, was held to be an apprentice and to gain a settlement as such for poor law purposes. In legal acceptation an apprentice is a person who is bound to and who serves another, for the purpose of learning something which the other is to teach him. Crompton J said: "The meaning, in law, of the word "apprentice" is well known. He is a person bound to serve a master who is bound to teach him. Such was the meaning of the term, when the statute [of 1814] passed, no less than it is at present."
1 Citers


 
Cooper v Hubbuck [1860] EngR 1297; (1860) 30 Beav 160; (1860) B)
19 Dec 1860


Company, Legal Professions
A partnership between two solicitors for their joint lives may be dissolved instanter, if one of the parties fraudulently sells out trust funds and applies the produce to his own use.
[ Commonlii ]
 
Tyrrell v The Bank Of London And Sir J v Shelley And Others [1862] EngR 498; (1862) 10 HLC 26; (1862) 11 ER 934
27 Feb 1862
HL
Lord Westbury LC, Lord Cranworth and Lord Chelmsford
Legal Professions
A solicitor retained to act for a company in the course of formation secretly arranged to benefit from his prospective client's anticipated acquisition of a building called the "Hall of Commerce" by obtaining from the owner a 50% beneficial interest in a parcel of land consisting of the Hall and some adjoining land. After the client had purchased the Hall from the owner, it discovered that the solicitor had secretly profited from the transaction and sued him. The solicitor now appealed against a finding against him. Held: Thile the Master of the Rolls was right about the solicitor's interst in the hall. He had been wrong about the adjoining land: although the client had an equitable claim for the value of the solicitor's interest in the adjoining land, it had no proprietary interest in that land.
The fact that the client had not been formed by the time that the solicitor acquired his interest in the land did not prevent the claim succeeding as the client had been "conceived, and was in the process of formation".
1 Cites

1 Citers

[ Commonlii ]
 
Tilleard, Thomas Tilleard And Daniel Alexander Freeman, Solicitors Of This Court; And In The Matter Of John Tilleard, Thomas Tilleard, William Godden And James Wilson Holme, Solicitors Of This Court [1863] EngR 624; (1863) 3 De G J & S 519; (1863) 46 ER 736
2 Jun 1863


Legal Professions

[ Commonlii ]
 
Memoranda [1865] EngR 35 (A); (1865) 18 CB NS 219
1865


Legal Professions

[ Commonlii ]
 
Talbot v Marshfield [1865] EngR 589; (1865) 2 Dr & Sm 549; (1865) 62 ER 728
15 Jun 1865


Trusts, Litigation Practice, Legal Professions
Trustees took counsel's opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the suit.
Upon summons for production by the Plaintiffs :
Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production.
1 Cites

1 Citers

[ Commonlii ]
 
Gardener v Ennor Humby v Moody [1866] EngR 156; (1866) 35 Beav 549; (1866) 55 ER 1009
25 May 1866


Legal Professions

[ Commonlii ]
 
In Re Moss [1866] EngR 160 (B); (1866) 35 Beav 526
2 Jun 1866


Legal Professions, Insolvency

[ Commonlii ]
 
In The Matter Of Thomas James Wallace, An Attorney And Barrister [1866] EngR 178; (1866) 4 Moo PC NS 140; (1866) 16 ER 269
2 Nov 1866
PC

Legal Professions

[ Commonlii ]
 
St Aubyn v Smart (1868) LR 3 Ch App 646
1868


Vicarious Liability, Legal Professions

1 Citers


 
Re Cathcart, ex parte Campbell (1869-70) LR 5 Ch App 703
1869
CA
James LJ
Legal Professions
The court considered a request for an order that a solicitor should reveal his client's address. Held: James LJ said: "If, indeed, the gentleman's residence had been concealed; if he was in hiding for some reason or other, and the solicitor had said, 'I only know my client's residence because he has communicated it to me confidentially, as his solicitor, for the purpose of being advised by me, and he has not communicated it to the rest of the world', then the client's residence would have been a matter of professional confidence; but the mere statement by the solicitor, that he knows the residence only in consequence of his professional employment, is not sufficient."
1 Citers



 
 Appendix; PC 1870 - [1870] EngR 4; (1870) 6 Moo PC NS 21; (1870) 16 ER 827

 
 Appendix; HL 1870 - [1870] EngR 3; (1870) 6 Moo PC NS 9; (1870) 16 ER 827
 
Thomas v Secretary of State for India in Council (1870) 18 WR 312
1870

James VC
Legal Professions, Trusts
Subscribers to an annuity fund asserted claims to surplus money belonging to the fund. The trustees took advice in relation to that claim. One of the subscribers filed a Summons to compel the production of the legal opinion. Held: Where there is a conflict of interest between the trustee and the beneficiaries and the trustee procures an opinion of counsel for his own protection, the beneficiaries are not entitled to inspect the opinion.
James VC said: "There is a difference between an opinion taken by a trustee on his own behalf, and one taken on behalf of the trust estate. In this case the opinion was taken by the trustees on their own behalf, after litigation had been commenced, and with a view to resisting future litigation. It is absurd to say that that is taken by a trustee on behalf of his cestuis que trustent. You might as well ask for production of the instructions given by the defendants to their counsel in this present case. The application must be refused."
1 Citers


 
Thomas Newton v The Hon C A Turner, R Spankie, And G D Turnbull, Puisne Judges Of The High Court, North-Western Provinces [1871] EngR 47; (1871) 8 Moo PC NS 202; (1871) 17 ER 288
22 Nov 1871
PC

Commonwealth, Legal Professions
Two Orders of the High Court of the North-Western Provinces, the one being an Order nisi calling on the Appellant, a Barrister and Advocate practising in that Court, to show cause why he should not be suspended from the practice of his profession as an Advocate of that Court, and the other Order declaring him guilty of gross professional misconduct, and suspending him from practice for five years, on appeal, as to the rule on which the first Order was made discharged, and the second Order reversed; the Judicial Committee being of opinion, that, though the Appellant had been guilty of a grave irregularity and deserving of censure, yet the facts proved did not amount to that mala praxis on which the High Court, having regard to the position and functions of an Advocate in the North-Western Provinces, could fairly found any proceeding of a penal character.
[ Commonlii ]
 
Thomas Newton v The Hon C A Turner, R Spankie, And G D Turnbull, Puisne Judges Of The High Court, North-Western Provinces [1871] EngR 48; (1871) 14 Moo Ind App 267; (1871) 20 ER 787
22 Nov 1871
PC

Legal Professions, Commonwealth
Two Orders of the High Court of the North-Western Provinces, the one being an Order nisi calling on the Appellant, a Barrister and Advocate practising in that Court, to show cause why he should not be suspended from the practice of his profession as an Advocate of that Court, and the other Order declaring him guilty of gross professional misconduct, and suspending him from practice for five years, on appeal, as to the rule on which the first Order was made discharged, and the Second Order reversed ; the Judicial Committee being of opinion that, though the Appellant had been guilty of a grave irregularity and deserving of censure, yet the facts proved did not amount to that mala praxis on which the High Court, having regard to the position and functions of an Advocate in the North-Western Provinces, could fairly found any proceeding of a penal character.
[ Commonlii ]
 
Wilson v Northampton and Banbury Junction Railway Co (1872) LR 14 Eq 477; (1874) LR 9 Ch App 279
1872

Lord Selborne LC
Legal Professions, Evidence, Equity
Lord Selborne LC said: "It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any contract entered into between man and man . . may lead to litigation before the contract is completed. Any correspondence passing between the date of the contract which afterwards becomes the subject of litigation and the litigation itself is, in my opinion, on principle, within the privilege extended to the non-production of communications between solicitors and clients . . it is absolutely essential to the interest of mankind that a person should be free to consult his solicitor upon anything which arises out of a contract which may lead to litigation; that the communications should be perfectly free, so that the client may write to the solicitor, and the solicitor to the client, without the slightest apprehension that those communications will be produced if litigation should afterwards arise on the subject to which the correspondence relates."
Lord Selborne LC spoke about the discretion available under the law of equity, saying that equity sets out to "do more perfect and complete justice" than would be the result of leaving the parties to their remedies at common law.
1 Citers


 
Macfarlan v Rolt (1872) LR 14 Eq 580
1872

Sir John Wickens V-C
Legal Professions, Litigation Practice
Communications between a client and his foreign lawyers were treated as being entitled as a matter of course to the same legal advice privilege as communications with English lawyers in like circumstances.
1 Cites

1 Citers


 
Robins v Goldingham (1872) LR 13 Eq 440
1872


Equity, Legal Professions
Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs.
1 Citers


 
Minet v Morgan (1873) LR 8 Ch 361; (1873) 8 Ch App 361
1873
CA
Lord Selborne LC
Legal Professions
A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps.
1 Cites

1 Citers



 
 Anderson v Bank of British Columbia; CA 1876 - (1876) 2 ChD 644
 
Gardner v Irvin (1878) 4 Ex D 49
1878

Cotton LJ
Legal Professions
The test for legal professional privilege is that they should be "professional communications of a confidential character for the purpose of getting legal advice."
1 Citers


 
Southwark and Vauxhall Water Company v Quick (1878) 3 QBD 315
1878
CA
Cockburn CJ and Brett LJ
Legal Professions, Litigation Practice
The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor's advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s current engineer) was not so used. Inspections was sought of the documents. Held: If a party seeks to inspect a document which comes into existence merely as the materials for the brief, or the equivalent, the document cannot be seen. It is privileged. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because afterwards it was not laid before the solicitor. Cockburn CJ: "The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk" Brett LJ: ". . it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained 'at the instance' or 'at the request' of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into 'merely for the purpose of being laid before the solicitor for his advice or for his consideration'".
1 Citers


 
Slade v Tucker (1880) 14 Ch D 824
1880
CA
Sir George Jessel MR
Legal Professions
Sir George Jessel MR said that legal advice privilege is to be "confined to communications between a client and his legal adviser, that is, between solicitor and client or barrister and client."
1 Citers



 
 Wheeler v Le Marchant; CA 1881 - (1881) 17 Ch D 675
 
In re Long, ex parte Fuller (1881) 16 Ch D 617
1881


Legal Professions

1 Citers


 
The Palermo (1883) 9 PD 6
1883


Evidence, Legal Professions
A copy of an original document which is not itself privileged is privileged only if (a) the copy came into existence for the purpose of litigation, and (b) the original document is not and has not at any time been in the control of the party claiming privilege.
1 Citers


 
Ex parte Cobeldick (1883) 12 QBD 149
1883
CA
Bowen LJ
Legal Professions
The disciplinary jurisdiction of the High Court over solicitors includes the power to strike a solicitor off the Roll, to order him to deliver up money or documents received by him as a solicitor.
Bowen LJ said: "All that has been shewn has been a case in which the party ought to establish his right by an action at law, and not by appealing to the summary jurisdiction of the court."
1 Citers



 
 The Law Society of the United Kingdom v Waterlow Brothers and Layton; HL 1883 - (1883) 8 App Cas 407

 
 The Fore Street Warehouse Company Ltd v Durrant and Co; 1883 - (1883) 10 QBD 471

 
 In re Massey and Carey; 1884 - (1884) 26 ChD 459
 
London Scottish Benefit Society v Chorley Crawford and Chester (1884) 13 QBD 872
1884


Legal Professions, Costs
A practising solicitor who represented himself in litigation was entitled to recover costs for his own time as if he had employed a solicitor.
1 Citers


 
Regina v Cox and Railton (1884) 14 QBD 153
1884

Stephen J
Legal Professions
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton to Cox in respect of his assets. The trial judge permitted the prosecution to call a solicitor to testify that the defendants had sought his advice as to whether anything could be done to prevent property being seized in execution by the judgment creditor and that, when he had told them that Railton could not give a bill of sale to Cox because of the partnership between them, nether Cox nor Railton had made any mention of the partnership having been dissolved; on the contrary, Railton asked whether anyone knew of the partnership, to which the solicitor replied that the only people who knew of it were Cox and Railton and himself and his clerks. Held: A client must be free to consult his legal advisers without fear of his communications being revealed. However: "The question, therefore is, whether, if a client applies to a legal adviser for advice intended to facilitate or to guide the client in the commission of a crime or fraud, the legal adviser being ignorant of the purpose for which his advice is wanted, the communication between the two is privileged? We expressed our opinion at the end of the argument that no such privilege existed. If it did, the result would be that a man intending to commit treason or murder might safely take legal advice for the purpose of enabling himself to do so with impunity, and that the solicitor to whom the application was made would not be at liberty to give information against his client for the purpose of frustrating his criminal purpose. Consequences so monstrous reduce to an absurdity any principle or rule in which they are involved. Upon the fullest examination of the authorities we believe that they are not warranted by any principle or rule of the law of England, but it must be admitted that the law upon the subject has never been so distinctly and fully stated as to shew clearly that these consequences do not follow from principles which do form part of the law, and which it is of the highest importance to maintain in their integrity."
Legal privilege does not attach where the advice sought was being obtained for the purpose of committing a crime. "Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure."
Referring to the rule on Greenough: "This rule has been accepted and acted upon ever since, and we fully recognise its authority, but we think that the present case does not fall either under the reason on which it rests, or within the terms in which it is expressed. The reason on which the rule is said to rest cannot include the case of communications, criminal in themselves, or intended to further any criminal purpose, for the protection of such communications cannot possibly be otherwise than injurious to the interests of justice and to those of the administration of justice. Nor do such communications fall within the terms of the rule. A communication in furtherance of a criminal purpose does not 'come into the ordinary scope of professional employment'."
Stephen J said, as regards the circumstances in which it can be assumed that the protection does not exist: "We have one other matter to notice. We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorized to say upon this matter is, that in each particular case the Court must determine upon the facts actually given in evidence or proposed to be given in evidence, whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it. We are far from saying that the question whether the advice was take before or after the offence will always be decisive as to the admissibility of such evidence. Courts must in every instance judge for themselves on the special facts of each particular case, just as they must judge whether a witness deserves to be examined on the supposition that he is hostile, or whether a dying declaration was made in the immediate prospect of death. In this particular case the fact that there had been a partnership (which was proved on the trial of the interpleader issue), the assertion that it had been dissolved, the fact that directly after the verdict a solicitor was consulted, and that the execution creditor was met by a bill of sale which purported to have been made by the defendant to the man who had been and was said to have ceased to be his partner, made it probable that the visit to the solicitor really was intended for the purpose for which, after he had given his evidence, it turned out to have been intended. If the interview had been for an innocent purpose, the evidence given would have done the defendants good instead of harm. Of course the power in question ought to be used with the greatest care not to hamper prisoners in making their defence, and not to enable unscrupulous persons to acquire knowledge to which they have no right, and every precaution should be taken against compelling unnecessary disclosures."
1 Citers


 
Lyell v Kennedy (No 3) (1884) 27 ChD 1
1884

Cotton LJ, Bowen LJ
Evidence, Legal Professions
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant's possession barred the plaintiff's claim. This in turn raised issues as to the intestate's pedigree and as to the heirship to her estate. In the course of preparing the defendant's defence in the action, his solicitors had obtained copies of and extracts from certain entries in public registers, together with photographs of certain tombstones and houses. By his affidavit of documents the defendant objected to produce these documents on the ground firstly that they had come into existence for the purpose of the litigation, and secondly: "that for the purpose of his defence . . he had through his solicitors to obtain the assistance of counsel, and for that purpose to make searches and inquiries, and obtain copies of entries in registers, public records, and other original documents, not in his possession, and that his solicitors employed confidential clerks, and confidential agents, and his solicitors and their clerks and agents in the course of such employment and for the purposes aforesaid, made and obtained the copies, and procured the photographs". The plaintiff sought disclosure, contending that the documents in question were unprivileged. Opposing disclosure, the defendant argued that: ".... the discretion exercised by the solicitor .... in the choice of a series of extracts and copies, records and registers, and the omission of others, prevents it being a mere servile copying of public documents, which would not be privileged, but that it represents the work of the solicitor's mind, and might be a means of showing to the Plaintiff the idea entertained by him of his client's case." Held: As to privilege: "What ought we to do here? Here is a litigation about pedigree and the heirship to a lady who died many years ago; and it is sworn by the Defendant that for the purpose of defending himself against various claimants he has made inquiries, and that he has obtained every one of those documents for the purpose of protecting himself, and that he has got them, not himself personally, but that his solicitors have got them, for the purpose of his defence, for the purpose of instructing his counsel, and for the purpose of conducting this litigation on his behalf. Now no case has been quoted where documents obtained under such circumstances have been ordered to be produced. In my opinion it is contrary to the principle on which the court acts with regard to protection on the ground of professional privilege that we should make an order for their production; they were obtained for the purpose of his defence, and it would be to deprive a solicitor of the means afforded for enabling him to fully investigate a case for the purpose of instructing counsel if we required documents, although perhaps publici juris in themselves, to be produced, because the very fact of the solicitor having got copies of certain burial certificates and other records, and having made copies of the inscriptions on certain tombstones, and obtained photographs of certain houses, might shew what his view was as to the case of his client as regards the claim made against him. There is no case, as I have said before, which is exactly in point, but Walsham v. Stainton, though different in its circumstances, somewhat illustrates the principle to which I am referring, because there, when that case came before Vice-Chancellor Wood, he protected the records and extracts from books which had been made by an accountant for the defendants, who had collected together a number of entries, because the extracts, when put together, shewed the view which he and the solicitor of the defendants took of the particular fraud which they were there investigating, and the Judge considered that to order the defendants to produce them would be not only giving production to the parties who were asking for production, but giving them a clue to the advice which had been given by the solicitor, and giving them the benefit of the professional opinion which had been formed by the solicitor and those who had acted in a professional capacity for the defendant. In my opinion, therefore, in this case, without saying what ought to be done if there were any different case made before the Court with regard to documents like these, it would not be in accordance with the rules which have guided this Court in deciding what is professional privilege in regard to the production of documents, to order their production."
1 Citers


 
Re Thompson (1885) 30 Ch D 441
1885
CA
Cotton LJ
Legal Professions
Cotton LJ said: "Now, it has been well established that, when a solicitor sends in his bill, he gives the client to whom he sends it in a right to have that bill taxed. That rule was laid down to prevent any attempt being made by solicitors to impose on clients, who did not know what the proper charges were, by sending in a bill which would not stand taxation, and then, when taxation was insisted on or threatened, sending in another bill which they knew could stand taxation. The rule has been carried so far that even where objections have been made to particular items of a bill delivered, and the solicitors have, with the assent of the client, taken back the bill for the purpose of reconsideration and have struck out certain items, the Court has held that the bill to be taxed must be the bill as it was originally sent in and not the bill as amended."
Solicitors Act 1843


 
 Pearce v Foster; CA 1885 - (1885) 15 QBD 114
 
Nottingham Patent Brick Co v Butler (1886) 16 QBD 778
1886


Contract, Legal Professions
A solicitor stated that he was not aware that property was subject to any restrictions, but his failure to add that he had not read the relevant deeds made his statement a misrepresentation.
1 Citers


 
Chadwick v Bowman (1886) 16 QBD 561
1886
CA
Mathew J, Denman J
Evidence, Legal Professions
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations "really" came into existence for the purposes of the action. "I think that danger would follow if the privilege against inspection were made to cover such a case as this. It does not appear to me that these documents really came into existence for the purposes of the rule upon which the defendant's counsel relied."
1 Citers


 
Moseley v The Victoria Rubber Co (1886) 3 RPC 351
1886
ChD
Chitty J
Legal Professions
There is no general professional privilege covering communications between a person and his patent agent.
1 Citers


 
Batten v Wedgwood Coal and Iron Company (1886) 31 Ch D 346
1886
ChD
Pearson J
Legal Professions, Professional Negligence
A solicitor was held to owe a duty to a party other than his client where, having carriage of the court's order, he failed to comply with the duty (imposed by a rule of court) to lodge a request for the investment of money in court at the Chancery pay office and he was be liable to compensate the other party for the loss. Pearson, J. said: "The conduct of the sale rested with him because he was the solicitor of the Plaintiff, and as such he was discharging the duty which devolved upon him, and no other solicitor would have been entitled to charge for that which he was doing. But he was acting as an officer of the Court, and in that character, I conceive, he was liable to the Court for the due discharge of his duty. Until I am corrected by a higher tribunal I shall hold that the Court has a summary jurisdiction to make a solicitor liable for not properly discharging his duty under such circumstances. I think, therefore, that he is liable to make good to the receiver the loss of interest which has resulted from the non-investment of the money."
1 Citers


 
Re Arnott ; ex parte Chief Official Receiver (1888) 60 LTNS 109; [1899] IR 201
1888

Cave J
Legal Professions, International
(Ireland) Cave J was asked whether a witness in bankruptcy proceedings (a solicitor's clerk) should be ordered to disclose the address of the debtor client, which had been communicated in confidence to the solicitor for the purpose of obtaining legal advice in relation to the bankruptcy proceedings. Cave J held that the witness was entitled to refuse to answer the question. He considered that the case was covered by Ex parte Campbell, which was binding on him and which "decides that this address was a matter of professional confidence".
Cave J reject a submission that the bankrupt and his solicitor were engaged in doing something wrong, and concluded: "Here proceedings had been taken against the debtor in bankruptcy, and he might wish to be advised as to them, and, in as much as there is a perfectly legitimate subject-matter for professional advice, we are not to assume, when such exists, that the solicitor was engaged in doing something wrong. I think it is of the highest importance that a man should be able to consult his solicitor without fear, and therefore I refuse this application."

 
Blackburn Low and Co v Haslam (1888) 21 QBD 144
1888


Legal Professions, Insurance


 
Gourand v Edison Gower Bell Telephone Co of Europe Ltd (1888) 57 LJ Ch
1888
ChD
Chitty J
Company, Legal Professions
Shareholders in the defendant company challenged its claim to legal privilege. They argued that when the directors obtained the advice in question, they did so on behalf of the company as a whole, and that they could not, therefore, assert privilege in the advice as against the shareholders. Held: The shareholders were entitled to discovery of the documents in question by analogy with the practice that applied in partnership cases (and those concerning trustees and beneficiaries) where advice had been obtained for the benefit of the partnership or trust estate. The rationale of such cases is that there is no distinction between the interests of the partnership and the individual partners and the trust and its beneficiaries.
1 Citers


 
In Re Taylor, Stileman and Underwood [1891] 1 Ch 590
1891


Legal Professions
A solicitor taking security for his costs waves his lien over the proceeds of the litigation only if the lien is incompatible with the charge.
1 Citers


 
O'Shea v Wood [1891] P 286
1891

Lindley LJ, Kay LJ
Legal Professions
The court set down the test for protection by legal professional privilege.
1 Cites

1 Citers


 
Re Gray v Coles (1891) 65 LT 743)
1891

North J
Legal Professions
North J said that there should be a special retainer to defend a suit as well as to institute it. There is power for the court to make an order setting aside an appearance the entry of which has not been authorised.
the court, having a supervisory jurisdiction over solicitors may oder such to pay costs if proceedings are found to have been commenced without authorisation.
1 Citers


 
Stumore v Campbell [1892] 1 QB 314
1892


Legal Professions

1 Citers



 
 Browne v Dunn; HL 1893 - [1893] 6 R 67

 
 Collins v London General Omnibus Company; 1893 - (1893) 68 LT NS 831

 
 Soar v Ashwell; CA 1893 - [1893] 2 QB 390
 
Underwood, Son and Piper v Lewis [1894] 2 QB 306
1894
CA
Lord Esher MR, AL Smith LJ
Legal Professions
Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor may terminate his retainer without cause and judgment was entered in favour of the solicitors. Held: The retainer could only be lawfully terminated on reasonable grounds. The court considered the potential for conflict for a solicitor acting in litigation and the extent of his retainer. Lord Esher MR said: "When one considers the nature of a common law action, it seems obvious that the law must imply that the contract of the solicitor upon a retainer in the action is an entire contract to conduct the action to the end. When a man goes to a solicitor and instructs him for the purpose of bringing or defending such an action, he does not mean to employ the solicitor to take one step, and then give him fresh instructions to take another step, and so on; he instructs the solicitor as a skilled person to act for him in the action, to take all the necessary steps in it, and to carry it on to the end. If the meaning of the retainer is that the solicitor is to carry on the action to the end, it necessarily follows that the contract of the solicitor is an entire contract - that is, a contract to take all the steps which are necessary to bring the action to a conclusion. When it is shewn that there were no special terms, but only the ordinary retainer for the purposes of the action, the implication I have mentioned is that which every reasonable person would make, and therefore the implication which the law makes in such a case . . there may be circumstances which justify the solicitor in putting an end to the contract, but . . he cannot do so without giving reasonable notice. The result. . seems to me to be that, though there may be valid reasons for giving such a notice, if no such notice is given, the contract of the solicitor is an entire contract, and he cannot sue for his costs before the termination of the action." and "I do not propose to go through all the cases cited but it seems to me that from time downwards it has been held that a solicitor cannot sue for his costs until his contract has been entirely fulfilled, unless the case is brought within some recognised exception to the general rule."
AL Smith LJ said: "On the other hand, it is clear that the solicitor may be placed in such a position by the client as to absolve him from the further performance of that contract. It appears to me from the case of Vansandau v Browne and the subsequent cases which have been cited, that the client may put the solicitor in such a position as to entitle him to decline to proceed; for instance, if the solicitor asks for necessary funds for disbursements, and such funds are refused by the client, the solicitor is not bound to go on; and, speaking for myself I should say that the solicitor is not bound to go on acting for the client if the client insists on some step being taken which the solicitor knows to be dishonourable; and many other cases may be supposed in which the solicitor may be entitled to refuse to act for the client any further. I should say that when a solicitor is in a position to show that the client has hindered and preventing him from continuing to act as a solicitor should act, then upon notice he should decline to act further; and in such a case the solicitor would be entitled to sue for the costs already incurred. But we have not now to deal with such a case. The sole question here is whether the solicitor is entitled without rhyme or reason to throw up his retainer having giving due notice of intention to do so. I do not think that he is so entitled."
1 Cites

1 Citers



 
 Baker v Carrick; 1894 - [1894] 1 QB 838
 
Anderson v Gorrie [1895] 1 QB 668
1895
CA
Lord Esher MR
Torts - Other, Legal Professions
An action had been brought against a colonial judge, alleging malice. Held: Lord Esher MR said: "the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie." and "The ground alleged from the earliest times as that on which this rule rests is that if such an action would lie the judges would lose their independence, and that the absolute freedom and independence of the judges is necessary for the administration of justice . . The public are deeply interested in this rule, which indeed exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions."
1 Citers


 
Mara v Browne [1896] 1 Ch 199
1896
HL
Lord Herschell, A L Smith LJ, Rigby LJ
Vicarious Liability, Legal Professions
In a marriage settlement, the first defendant, a solicitor, advised the persons who were acting as trustees, though not yet formally appointed as such. He suggested a series improper of investments for the trust funds. The money was to be lent on speculative building, and the margin was unsatisfactory. The money was lost. Lord Herschell considered that, if the claimants had charged him with negligence as a solicitor and brought the action in time, they might well have succeeded, in which case both he and his partner would have been liable. But any such action was barred by the Statute of Limitations. Accordingly the claimants alleged that HB had intermeddled with the trust and was liable as a trustee de son tort. They alleged that he had laid out the trust moneys at a time when there were no trustees, and therefore must be taken to have acted as a principal in the matter and not as a mere agent for the trustees. Such a claim was not statute-barred. Held: It is not within the scope of the implied authority of a partner in a firm of solicitors that he should act to make himself a constructive trustee, and thereby subject his partner to liability. "it is not within the scope of the implied authority of a partner in . . [a solicitor's] business that he should so act as to make himself a constructive trustee, and thereby subject his partner to the same liability".
1 Citers


 
Rochefoucald v Boustead (1896) 65 LJ Ch 794
1896


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



 
 Pittman v Prudential Deposit Bank Ltd; CA 1896 - (1896) 13 TLR 110; (1896) 41 Sol Jo 129
 
Coburn v Colledge [1897] 1 QB 702
1897
CA

Limitation, Legal Professions
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 limitations began to run from the time the work was completed, not from the expiration of a month from the delivery of the bill of costs. The court accepted this definition of "cause of action": "Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court."
1 Citers


 
Calcraft v Guest [1898] 1 QB 759
1898
CA

Litigation Practice, Legal Professions
A trial had taken place in which the principal issue was the upper boundary of the plaintiff's fishery. On appeal the defendant proposed to rely on new evidence discovered among the papers in another action tried over a hundred years before. The papers included proofs of witnesses. The papers had been prepared on behalf of John Calcraft, a predecessor in title of the plaintiff. The defendant was allowed to inspect them and copies were handed to the defendant by the grandson of the late Mr Calcraft's solicitor, in each case without any authority. On the appeal, there were two questions: first, whether the documents were privileged, and, second, whether the appellant could give secondary evidence of their contents. Held: If a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means They remained privileged: "once privileged always privileged" However, notwithstanding the privilege, the appellant could give secondary evidence of their contents.
1 Citers


 
Savill Bros v Langman [1898] 79 LT 44
1898


Litigation Practice, Legal Professions
The court considered whether an agreement was champertous in the context of an application to licensing justices who were not considered to be sitting as a court and before whom there is no contest.
1 Citers


 
In re Hollis' Hospital and Hague's Contract [1899] 2 Ch 540
1899


Land, Legal Professions
The practice of conveyancers of repute was strong evidence of real property law.
1 Citers


 
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