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Legal Professions - From: 1930 To: 1959

This page lists 26 cases, and was prepared on 02 April 2018.

 
Minter v Priest [1930] AC 558
1930
HL
Lord Buckmaster, Lord Dunedin, Lord Atkin
Legal Professions
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the deposit payable under the transaction but was not prepared to do so and declined to act. Held: The conversation was not privileged on the ground that the defendant was not acting as a solicitor at the relevant time because he was not undertaking the duty of a solicitor on the proposal made to him but had made a proposal involving "a malicious scheme" to keep the plaintiff out of the transaction, with a view to making a profit from it himself: "The relationship of solicitor and client being once established, it is not a necessary conclusion that whatever conversation ensued was protected from disclosure. The conversation to secure this privilege must be such as, within a very wide and generous ambit of interpretation, must be fairly referable to the relationship . ." and ". . the idea that it was possible to split the interview into two parts, treating the first as a proposal to lend money personally and the second, contingent on this, to act as a solicitor is, to my mind, outside the bounds of reasonable inference . . I am not prepared to assent to a rigid definition of what must be the subject of discussion between a solicitor and his client in order to secure the protection of professional privilege."
Lord Atkin said: "If a person goes to a professional legal adviser for the purpose of seeing whether the professional person will give him professional advice, communications made for the purpose of indicating the advice required will be protected. And included in such communications will be those made on occasions such as the present where the parties go to a solicitor for the purpose of seeing whether he will either himself advance or procure some third person to advance a sum of money to carry out the purchase of real property. Such business is professional business, and communications made for its purpose appear to me to be covered by the protection, whether the solicitor eventually accedes to the request or not."
1 Cites

1 Citers



 
 Warmingtons v McMurray; 1936 - [1936] 2 All ER 745
 
Myers v Rothfield [1939] 1 KB 109; [1938] 3 All ER 498
1938
CA
Greer and Slesser LJJ, MacKinnon LJ
Legal Professions, Costs
The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such misconduct in allowing the inadequate affidavits of documents to be made. He ordered the solicitor to pay one-third of the plaintiff's costs of the action and two-thirds of the costs of the application. Held: (MacKinnon LJ dissenting) Assuming that the acts in question, if done by a solicitor personally, would constitute professional misconduct on his part, the solicitor was not liable as he had appointed a fully qualified clerk to prepare the defences and affidavits of documents, and the acts had been done not by the solicitor himself but by the clerk.
1 Citers



 
 Uxbridge Permanent Building Society v Pickard; CA 1939 - [1939] 2 KB 248
 
Myers v Elman [1940] AC 282; [1939] 4 All ER 484; (1939) 56 TLR 177; (1939) 162 LT 113; (1939) 109 LJKB 105
1939
HL
Viscount Maugham, Lord Wright and Lord Porter
Legal Professions, Costs
The solicitor had successfully appealed against an order for a contribution to the other party's legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor's appeal had been successful. Held: The Court of Appeal's decision was reversed. The plaintiff was not asking the court to exercise its disciplinary jurisdiction over officers of the court but, rather, its jurisdiction to order a legal practitioner to pay costs by reason of some misconduct, default or negligence in the course of proceedings, a jurisdiction which could be exercised where the solicitor was merely negligent, so that the solicitor could not "shelter himself behind a clerk, for whose actions within the scope of his authority he is liable"
A solicitor's duty advising his client on discovery is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. He has overall responsibility for the process and should not leave it all to his client. The House considered and set out the court's powers to disallow an award of costs, or to award them to be paid by the solicitor personally: "The court's jurisdiction to make a wasted costs order against a solicitor is founded on breach of the duty owed by the solicitor to the court to perform his duty as an officer of the court in promoting within his own sphere the cause of justice."
and "The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger C.B. in Stephens v. Hill. (1) The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action."
Viscount Maugham said: “My Lords, as I understand the judgment of Greer and Slesser L.JJ., those learned judges were of opinion that the jurisdiction of the Court to order a solicitor to pay the cost of proceedings is a punitive power resting on the personal misconduct of the solicitor and precisely similar to the power of striking a solicitor off the rolls or suspending him from practice . . The jurisdiction to strike off the rolls or to suspend a solicitor seems to me to be of a very different character. Apart from the statutory grounds it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: in Re a Solicitor. Ex parte The Law Society (1912) 1 K.B. 302. Mere negligence even of a serious character, will not suffice.” and “These cases did not depend on disgraceful or dishonourable conduct by the solicitor, but on mere negligence of a serious character, the result of which was to occasion useless costs to the other parties . . I think the authorities show that the jurisdiction may be exercised where the solicitor is merely negligent.”
Lord Wright said: "A solicitor was long ago held to be an officer of the Court on the Roll of which he was entered and as such to be subject to the discipline of that Court. The Court might strike him off or suspend him . . But alongside the jurisdiction to strike off the Roll or to suspend, there existed in the Court the jurisdiction to punish a solicitor or attorney by ordering him to pay costs, sometimes the costs of his own client, sometimes those of the opposite party, sometimes, it may be, of both. The ground of such an order was that the solicitor had been guilty of professional misconduct (as it is generally called) not, however, of so serious a character as to justify striking him off the Roll or suspending him."
“The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally as was said by Abinger C.B. in Stevens v. Hill [(1842) 10 M.& W. 28]. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term 'professional misconduct' has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action Thus, it may, in proper cases, take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive, but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.”
Lord Wright went on to say that the jurisdiction applied for the costs of either party, and was as to behaviour which was professional misconduct falling short of what might lead to a striking off, and: "The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v Hill (1842) 10 M & W 28. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an Affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve a personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty too. The summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence or an action for breach of warranty of authority brought by the person named as Defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party to the action."
and "The summary jurisdiction thus involved a discretion both as to procedure and as to substantive relief "
Lord Atkin said: "From time immemorial judges have exercised over solicitors . . a disciplinary jurisdiction in cases of misconduct . . If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case . . What is the duty of the solicitor? He is at the early stage of the proceedings engaged in putting before the court on the oath of his client information which may afford evidence at the trial. Obviously he must explain to his client what is the meaning of relevance: and equally obviously he must not necessarily be satisfied by the statement of his client that he has no documents or no more than he chooses to disclose. If he has reasonable ground for supposing that there are others, he must investigate the matter; but he need not go beyond taking reasonable steps to ascertain the truth."
As to the awarding of costs against a solicitor, he considered this to be a disciplinary jurisdiction arising by the solicitor's failure in its duty to the court itself, and not a form of summary jurisdiction in contract or tort in awarding compensation. As to the standard of misconduct: "by misconduct is meant something which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute; for example wilfully misleading the Court in the conduct of a case."
1 Cites

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Groom v Crocker [1939] 1 KB 194
1939


Legal Professions, Contract, Professional Negligence
An action by a client against a solicitor alleging negligence in the conduct of the client's affairs, is an action for breach of contract. A solicitor is not entitled to payment of his costs by his client where his own negligence makes the work he did quite ineffective.
1 Citers


 
In re Taxation of Costs In re Solicitors [1943] KB 69
1943


Costs, Legal Professions

1 Citers


 
In re A Solicitor [1945] 1 All ER 445
1945
CA
Scott LJ
Legal Professions
An appeal against the findings of the Tribunal to the CA is by way of a rehearing and the Court may make such as order as it thinks fit.
1 Citers


 
Eccles v Bryant and Pollock [1948] Ch 93; [1947] 2 All ER 865
1947
CA
Lord Greene MR, Cohen and Asquith LJJ
Landlord and Tenant, Contract, Legal Professions, Agency
The Plaintiff contended that a letter written by the purchaser's solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the vendor, created a binding contract between the parties. Held: Negotiations 'subject to contract' for the grant of a lease remain in a state of negotiation until exchange of lease and counter-part.
Letters written by solicitors, acting as solicitors relating to a proposed grant of a lease, or related to a proposed acquisition of property by sale, are letters written by agents of the parties who have no authority to conclude a contract; they are not written by agents within whose ostensible authority there lies the function of making a contract. Once the documents had been exchanged however, the parties would be bound.
Lord Greene MR said: "One thing is quite clear on the facts of this case to my mind, that both firms of solicitors, one of whom - that is the vendors' solicitors - practised in East Grinstead and the other of whom, the purchaser's solicitors, practised in London, when they were instructed to carry this matter through by their respective clients, contemplated and intended from beginning to end to do so in the customary way which is familiar to every firm of solicitors in the country, namely, by preparing the engrossment of the draft contract when agreed in duplicate, the intention being to do what I have no doubt at this very moment is happening in dozens of solicitors' offices all over the country, namely, to exchange the two parts when signed by their respective clients." and
"When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intentions of the parties express or implied. In such a contract as this, there is a well-known, common and customary method of dealing; namely, by exchange, and anyone who contemplates that method of dealing cannot contemplate the coming into existence of a binding contract before the exchange takes place.
Lord Greene MR continued: "It was argued that exchange is a mere matter of machinery, having in itself no particular importance and no particular significance. So far as significance is concerned, it appears to me that not only is it not right to say of exchange that it has no significance, but it is the crucial and vital fact which brings the contract into existence. As for importance, it is of the greatest importance, and that is why in past ages this procedure came to be recognised by everybody to be the proper procedure and was adopted. When you are dealing with contracts for the sale of land, it is of the greatest importance to the vendor that he should have a document signed by the purchaser, and to the purchaser that he should have a document signed by the vendor. It is of the greatest importance that there should be no dispute whether a contract had or had not been made and that there should be no dispute as to the terms of it. This particular procedure of exchange ensures that none of those difficulties will arise. Each party has got what is a document of title, because directly a contract in writing relating to land is entered into, it is a document of title. That can be illustrated, of course, by remembering the simple case where a purchaser makes a sub-sale. The contract is a vital document for the purpose of the sub-sale. If he had not got the vendor's part, signed by the vendor, to show to the sub-purchaser, he would not be able to make a good title. "If the argument for the purchaser is right and the contract comes into existence before exchange takes place, it would mean that neither party could call upon the other to hand over his part. The non-exchanged part would remain the property of the party who signed it, because exchange would be no element in the contract at all and therefore you could get this position, that the purchaser might wish to resell and would have no right to obtain from the vendor the vendor's signed part."
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Loescher v Dean [1950] Ch 491
1950
ChD
Harman J
Legal Professions
The plaintiff sought specific performance, and obtained an order that the defendant vendor should convey the property to him on the payment for it. The plaintiff paid the sum to the defendant's solicitors, who paid it into their client account. The plaintiff then served a garnishee order nisi on those solicitors for his costs against the defendant. The solicitors, who had not yet rendered a bill of costs to their client, took out a summons for a charging order under s 69 of the 1932 Act, on the sum paid by the plaintiff. Held: The money was not entrusted to the solicitor for any specific purpose, but was paid in the ordinary course of his business as solicitor of the client. He received it as the client's agent. On receipt of the money the solicitor had a lien over it for his unpaid costs and therefore a creditor could not attach it.
The obligation of the solicitor under a particular purpose trust to repay his client was distinguished from the obligation of a solicitor who holds a client's money as trustee in a client account. In the latter case, the solicitor's obligation to repay such money to his client is not incompatible with the solicitor exercising a right of lien or set off. The solicitor is entitled to say to the client: "you have not paid my bill and I shall not pay you your money until you have"
Solicitors Act 1932 69
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 Hollington Bros v Rhodes; ChD 1951 - [1951] 2 TLR 691

 
 Jarman v Lambert and Cooke Contractors Ltd; CA 1951 - [1951] 2 KB 937
 
Barratt v Gough-Thomas [1951] Ch 242
1951


Legal Professions

1 Citers



 
 Korner v Korner and Co; CA 1951 - [1951] 1 Ch 10
 
Tombling v Universal Bulb Co [1951] 2 TLR 28
1951
CA

Legal professions, Litigation Practice
Denning LJ said: "The duty of counsel to his client in a civil case - or in defending an accused person - is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty."
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 Terrell v Secretary of State for the Colonies; 1953 - [1953] 2 QB 482; [1953] 2 All ER 490; [1953] 3 WLR 331

 
 Griffiths v Evans; CA 1953 - [1953] 2 All ER 1364; [1953] 1 WLR 1424

 
 Rabin v Mendoza and Co; CA 1954 - [1954] 1 WLR 271; [1954] 1 All ER 247
 
Goodman v Eban (J) Ltd [1954] 1 All ER 763
1954
CA
Sir R Evershed (MR)
Legal Professions
The Court considered whether a rubber stamp facsimile of a solicitor’s firm on a bill of costs met the requirement for the bill to be "signed". Held: In connection with authentication: "It follows, I think, that the essential requirement of signing is the affixing, either in writing with a pen or pencil or by otherwise impressing on the document one’s name or "signature" so as to personally authenticate the document".
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In re a Solicitor (Taxation of Costs) [1955] 2 QB 252
1955
CA
Denning, Parker LJJ
Legal Professions, Costs
Matrimonial proceedings were in contemplation but the instructions to solicitors were terminated before a petition for judicial separation was filed. The client complained as to the costs bill submitted by the solicitors.
Denning LJ disposed of the submission that the line should be drawn between contentious and non-contentious business according to the date of the issue of the writ in the following way: "Let me test the position by taking a case where a client asks his solicitor to bring an action. The solicitor thereupon instructs counsel to draft the writ and the statement of claim to be served with it. If the action goes for trial, the costs of that work are recoverable as costs in the action. They are not disallowed simply because the work was done before the writ was issued. It is clearly contentious business. Now suppose that in that very case the solicitor had to take statements from witnesses so as to enable counsel to settle the statement of claim. If the action goes for trial, the cost of that work would also be recoverable as costs in the action . . It would also be contentious business.
Now suppose that after the solicitor had done all that work, but before the writ was actually issued, the case was settled by the defendant paying the claim. Does the work take on a different character simply because the case was settled? Surely not. If it is contentious business when the case goes for trial, it is also contentious business when the case is settled before the writ is issued. The issue of the writ does not alter the nature of the business; nor should it alter the method or amount of the solicitor's charges. He should get the same reward for the same work, no matter whether the case goes for trial or is settled the moment before the writ issued or the moment after it."
He said of what was required to be contained in a bill of costs for non-contentious business as follows: "[I]t must contain a summarized statement of the work done, sufficient to tell the client what it is for which he is asked to pay. A bare account for "professional services" between certain dates, or for "work done in connection with your matrimonial affairs" would not do. The nature of the work must be stated, such as, advising on such and such a matter, instructing counsel to do so and so, drafting such and such a document, and so forth."
Solicitors' Remuneration Order 1929
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Polak v Marchioness of Winchester [1956] 1 WLR 818
1956
CA
Jenkins LJ
Legal Professions, Costs
The paying party objected that Counsel's bill had not been paid at the time the solicitors' bill was presented. Held: The court had an inherent jurisdiction to permit a solicitor to withdraw his incorrect bill of costs and to substitute a fresh correct bill. Jenkins LJ said: "I entirely agree with the judge when he said that one has to take a strict view to maintain the necessary safeguards, and nothing I say is to be regarded as suggesting to solicitors that they can be careless or unbusiness like in a matter such as this, and then as of course apply for and receive the assistance of the court. It is only in exceptional cases, cases of special circumstances, of genuine mistake of inadvertence, that assistance ought to be given."
Solicitors Act 1843
1 Citers


 
Bhandari v Advocates Committee [1956] 1 WLR 1442
1956
PC
Lord Tucker
Commonwealth, Legal Professions
Complaints of professional misconduct against a member of a legal profession are to be proved to the criminal standard. Lord Tucker said: "With regard to the onus of proof the Court of Appeal [for East Africa] said: 'We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.' This seems to their Lordships an adequate description of the duty of a tribunal such as the Advocates Committee and there is no reason to think that either the Committee or the Supreme Court applied any lower standard of proof."
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Hughes v Hughes [1958] 3 All ER 179; [1958] P 224
1958

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


 
Fick and Fick Ltd v Assimakis [1958] 1 WLR 1006; [1958] 3 All ER 182
1958
CA

Legal Professions
"It is at this point that the defendant has discerned what might be for her a tabula in naufragio ..." (a plank in a storm).


 
 Seabrook v British Transport Commission; 1959 - [1959] 1 WLR 509
 
Watson v Cammell Laird and Co Ltd [1959] 1 WLR 702
1959
CA
Chadwick v. Bowman
Evidence, Legal Professions
Referring to the case of Chadwick v. Bowman: ".... the essential fact was that certain letters which the defendant had received, and copies of letters which he had written, had been at some stage destroyed by the defendant, and in order to replace them the defendant obtained from the third party, from and to whom they had been written, copies, which therefore would be available as secondary evidence of the original documents which he himself had lost or destroyed. The court said, accordingly, that these copies, the mere replacements of something which he would have had to produce himself, must be produced."
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