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Legal Professions - From: 1970 To: 1979

This page lists 37 cases, and was prepared on 02 April 2018.


 
 In re S (A Barrister); 1970 - [1970] 1 QB 160
 
D'Silva v Lister House Development Ltd [1971] Ch 17; [1970] 1 All ER 858
1970

Buckley J
Landlord and Tenant, Legal Professions
Even an unlawful sub-tenancy can have protection under Part II of the 1954 Act. The court described as fallacious the submission that section 74(1) does not extend to or answer the question whether the document has ever been delivered, saying: "The section says that the document is to be deemed to have been duly executed and execution imports not only sealing the document, but also delivering it as an executed document." and "It is . . established by authority that negotiations subject to contract for the grant of a lease remain in a state of negotiation until exchange of lease and counter-part . . Accordingly that letter is a bar to any claim by the Plaintiff that there was a contract by correspondence, for the correspondence must, I think, be taken as correspondence in the course of negotiations which were conducted upon the footing that everything would remain in a state of negotiation until exchange of lease and counterpart. " and "The letters relied on here are letters between solicitors and in the absence of special authority in my judgment, they cannot be relied upon as constituting a contract by correspondence".
Landlord and Tenant Act 1954 Part II - Law of Property Act 1925 74(1)
1 Cites

1 Citers


 
Inland Revenue Commissioners v Brander and Cruickshank (A Firm) [1970] UKHL TC_46_574; 1971 SC (HL) 30; [1971] 1 All ER 36; 1971 SLT 53; 46 TC 574; [1971] 1 WLR 212
8 Dec 1970
HL

Income Tax, Legal Professions
HL Income tax, Schedule D - Profits of profession - Law agents - Also acting as secretaries and registrars of companies - Compensation for loss of registrarships - Whether receipt of profession - Whether registrarships offices.
[ Bailii ]
 
Geoffrey Silver and Drake v Baines (trading as Wetherfield Baines and Baines) (a firm) [1971] 1 QB 396; [1971] 1 All ER 473
1971
CA
Megaw LJ, Lord Denning MR
Legal Professions
The court's summary jurisdiction over solicitors is extraordinary, and therefore should only be exercised sparingly (i) if justice requires this procedure to be adopted, as opposed to some other procedure.
There is a recognised jurisdiction to punish a solicitor for failure to comply with an undertaking given in his or her capacity as a solicitor.
Lord Denning MR said: ""This court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the court and are answerable to the court for anything that goes wrong in the execution of their office. Even if the solicitor has been guilty of no fault personally, but it is the fault of his clerk, he is accountable for it: see Myers v Elman [1939] 4 All ER 484, [1940] AC 282.
This jurisdiction extends so far that, if a solicitor gives an undertaking in his capacity as a solicitor, the court may order him straightaway to perform his undertaking. It need not be an undertaking to the court. Nor need it be given in connection with legal proceedings. It may be a simple undertaking to pay money, provided always that it is given 'in his capacity as a solicitor': see United Mining and Finance Corpn Ltd v Becher [1910] 2 KB 296 at 306, [1908-10] All ER Rep 876 at 881, per Hamilton J. If such an undertaking is given, the court may summarily make an order on the solicitor to fulfil his undertaking (see Re a Solicitor [1966] 3 All ER 52, [1966] 1 WLR 1604) and, if he then fails to do so, the court may commit him to prison. Alternatively, if it is an order to pay money, execution may be levied against his property. This summary jurisdiction means, however, that the solicitor is deprived of the advantages which ordinarily avail a defendant on a trial. There are no pleadings; no discovery; and no oral evidence save by leave. The jurisdiction should, therefore, only be exercised in a clear case"
Denning MR said: "This court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the court and are answerable to the court for anything that goes wrong in the execution of their office. Even if the solicitor has been guilty of no fault personally, but it is the fault of his clerk, he is accountable for it. This jurisdiction extends so far that, if a solicitor gives an undertaking in his capacity as a solicitor, the court may order him straightaway to perform his undertaking. It need not be an undertaking to the court. Nor need it be given in connection with legal proceedings . . This summary jurisdiction means, however, that the solicitor is deprived of the advantages which ordinarily avail a defendant on a trial. There are no pleadings; no discovery; and no oral evidence save by leave. The jurisdiction should, therefore, only be exercised in a clear case."
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In re Horgan [1971] P 50
1971
ChD
Latey J
Wills and Probate, Legal Professions
The court considered the form of appointment of a solicitor as executor in a will. The will had appointed a partnership firm of solicitors "who may act through any partner or partners of that firm or their successors in business at the date of my death not exceeding two in number to be the executors and trustees of this my will", but the firm not having a personality in law probate could not be granted probate to it.
Latey J said: "testators often want their solicitors to act as executors and, in case the individual solicitors they have in mind at the time of giving instructions pre-decease them, they want an appointment which will enable succeeding partners to act. Also they want such appointment to cover such contingencies as the sale of the practice or its amalgamation with another . .
The law does not permit the appointment as executor of a partnership firm as such. Where a will is so phrased as to purport to do this, the court construes it as appointing the individual partners as executor . .
Mr Bingham [for the Law Society] argued that prima facie it is wholly inappropriate to say: 'I appoint X, Y and Z and they can act through A, B and C.' But, he says, meaning can be given to it if one were to treat the firm as though it were a company and say 'I want the partners at the date of my death …' the natural construction of the clause as a whole is that the testator was contemplating and intending the appointment of all [the partners], a grant to two and power reserved to the others."
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Regina v Barron [1973] 1 WLR 115; [1972] 2 All ER 1192
1971

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


 
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners [1972] 2 QB 102
1972
CA
Lord Denning MR
Legal Professions, VAT
Legal advice given by employed lawyers to their employers, rather than lawyers in independent practice may be privileged before a tax tribunal.
Lord Denning MR justified the result primarily on the ground that, although the communications of a corporation with an in-house legal adviser were internal to the corporation, nevertheless the adviser was performing the same function as the lawyer in independent practice.
1 Citers



 
 Beech v Freeson; QBD 1972 - [1972] 1 QB 14
 
Regina v Jones (Robert) No 2 [1972] 1 WLR 887; [1972] 56 CAR 413
1972


Criminal Practice, Legal Professions
The court was entitled to proceed to hear the case in the absence of the defendant where he had absconded. I was counsel's prerogative not the judge's, to decide whether he could continue to represent the defendant.
1 Citers


 
Duchess of Argyll v Beuselinck [1972] 2 Lloyd's Rep 172
1972
ChD
Megarry J
Negligence, Legal Professions
The court found that the plaintiff's solicitor had not been under a duty to give tax advice in the context of the particular transaction. The performance must be judged in the light of the events known at the time. The court advised against the use of hindsight.
Megarry J said: "In this world there are few things that could not have been better done if done with hindsight. The advantages of hindsight include the benefit of having a sufficient indication of which of the many factors present are important and which are unimportant. But hindsight is no touchstone [of negligence]. The standard of care to be expected of professional men must be based on events as they occur, in prospect and not in retrospect . . on any footing, the duty of care is not a warranty of perfection . . a marginal case does not make negligence." and "hindsight is not the touchstone of negligence."
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 Bates v Lord Hailsham of St Marylebone; ChD 1972 - [1972] 1 WLR 1373; [1972] 3 All ER 1019

 
 Mauroux v Sociedade Comercial Abel Pereira da Fonseca SARL; 1972 - [1972] 2 All ER 1085; [1972] 1 WLR 962

 
 Carlton v Theodore Goddard and Co; ChD 1973 - [1973] 1 WLR 623
 
Sirros v Moore [1975] QB 118; [1974] 3 All ER 776
1974
CA
Lord Denning MR
Constitutional, Legal Professions
Lord Denning MR discussed the immunity of judges from suit: "Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear . . These words apply not only to the judges of the superior courts, but to judges of all ranks, high or low." However the doctrine of judicial immunity does not apply: "if it be shown that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it."


 
 Rowe and Maw (a firm) v Customs and Excise Commissioners; QBD 1975 - [1975] STC 340
 
Hearn v Rhay (1975) 68 FRD 574
1975

Neil CJ
Legal Professions, International
(United States District Court, Eastern District of Washington) Neill CJ said: "All of these established exceptions to the rules of privilege have a common denominator; in each instance, the party asserting the privilege placed information protected by it in issue through some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information would have been manifestly unfair to the opposing party. The factors common to each exception may be summarized as follows: (I) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense. Thus, where these conditions exist, a court should find that the party asserting a privilege has impliedly waived it through his own affirmative conduct."
1 Citers


 
Morris v Duke Cohan (1975) 119 SJ 826
1975


Legal Professions, Professional Negligence
A solicitor has a duty to explain to a client buying land what are the consequences of accepting a reduced deposit, and is acting outside his implied authority unless he has his client's consent.

 
Kenward v Adams Times, 29 November 1975; [1975] CLY 3591
29 Nov 1975
ChD
Templeman J
Wills and Probate, Legal Professions
The court set out certain precautions which might be taken by a solicitor drawing up a will for an aged testator or one who has been seriously ill. One such precaution was that if there was an earlier will it should be examined and any proposed alterations should be discussed with the testator. It is prudent for legal advisors to seek the opinion of a medical practitioner (preferably one experienced in the field) and, if the practitioner is satisfied that the person does have the requisite capacity, he should act as one of the attesting witnesses.
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 Leopold Lazarus v Secretary of State for Trade and Industry; 1976 - (1976) Costs Law Reports, Core Volume 62
 
Currie and Co v The Law Society [1977] QB 990; [1976] 3 All ER 832; [1976] 3 WLR 785
1976

May J
Legal Aid, Legal Professions, Costs
Set-off of costs or damages to which one party is entitled against costs or damages to which another party is entitled depends upon the application of equitable rules. May J said: "[T]he set-off takes precedence over the solicitor's particular lien, which will then be limited to the balance, if any, due to his client after the set off" and it is "a 'question for the court's discretion.'
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 Dunford and Elliott v Johnson and Firth Brown; CA 1977 - [1977] 1 Lloyd's Rep. 505
 
In re Simpson Deceased; Schaniel and Another v Simpson and Others (1977) NLJ 487; (1997) SJ 121 224
1977
ChD
Templeman J
Wills and Probate, Legal Professions
Templeman J reminded solicitors of their duty to ensure the satisfactory execution of a will: "In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and findings."
1 Citers


 
Buckley v Lane Herdman [1977] CLY 3143
1977


Legal Professions
A solicitor who was acting in conveyancing transactions and who was to achieve a simultaneous exchange of contracts on his client's sale and purchase, but failed to do so may be liable in damages for negligence if the client suffered loss.

 
Buckley v Lane Herman and Co [1977] CLY 3143
1977


Land, Professional Negligence, Legal Professions
A solicitor instructed to exchange contracts on a related sale and purchase must achieve simultaneous exchange. If he failed to do so he will be liable in negligence to the client for any losses.

 
Regina v Tompkins (1977) 67 Cr App R 181
1977
CACD

Criminal Practice, Legal Professions

1 Citers


 
Jean Thieffry v Conseil de l'ordre des avocats a la cour de Paris C-71/76
28 Apr 1977
ECJ

European, Legal Professions
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 objectives may be attained by measures enacted, pursuant to article 5 of the treaty, by the member states. If freedom of establishment can be ensured in a member state either under the provisions of the laws and regulations in force, or by virtue of the practices of the public service or of professional bodies, a person subject to community law cannot be denied the practical benefit of that freedom solely by virtue of the fact that, for a particular profession, the directives provided for by article 57 of the treaty have not yet been adopted. Since the practical enjoyment of freedom of establishment can thus in certain circumstances depend upon national practice or legislation, it is incumbent upon the competent public authorities - including legally recognized professional bodies - to ensure that such practices or legislation are applied in accordance with the objective defined by the provisions of the treaty relating to freedom of establishment. With regard to the distinction between the academic effect and the civil effect of the recognition of equivalence of foreign diplomas, it is for the competent national authorities, taking account of the requirements of community law in relation to freedom of establishment, to make such assessments of the facts as will enable them to judge whether a recognition granted by a university authority can, in addition to its academic effect, constitute valid evidence of a professional qualification. The fact that a national legislation provides for recognition of equivalence only for university purposes does not of itself justify the refusal to recognize such equivalence as evidence of a professional qualification. This is particularly so when a diploma recognized for university purposes is supplemented by a professional qualifying certificate obtained according to the legislation of the country of establishment. When a national of one member state desirous of exercising a professional activity such as the profession of advocate in another member state has obtained a diploma in his country of origin which has been recognized as an equivalent qualification by the competent authority under the legislation of the country of establishment and which has thus enabled him to sit and pass the special qualifying examination for the profession in question, the act of demanding the national diploma prescribed by the legislation of the country of establishment constitutes, even in the absence of the directives provided for in article 57, a restriction incompatible with the freedom of establishment guaranteed by article 52 of the treaty.
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Saif Ali v Sydney Mitchell and Co (a Firm) [1980] AC 198; [1978] 3 All ER 1033; [1978] 3 WLR 849; [1978] UKHL 6
1978
HL
Lord Diplock. Lord Salmon, Lord Wilberforce, Lord Keith of Kinkel
Legal Professions, Professional Negligence
The House considered the extent of a barrister's immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings. Held: A barrister’s immunity from suit extended only to such pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more remote legal services such as advice (including advice not to go to Court). Barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss. The immunity of barristers from suit could be justified on two other grounds. The analogy of the general immunity from civil liability which attaches to all persons participating in proceedings before a court. Second was the public interest in not permitting decisions to be challenged by collateral proceedings.
Lord Diplock said that a barrister is not liable for an error of judgment "unless the error was such as no reasonably well-informed and competent member of that profession could have made."
He considered the barrister's overriding duty to the court: "The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered."
Lord Wilberforce said: "Some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer." and "In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill. The immunity as regards litigation is an exception from this and applies only in the area to which it extends. Outside that area, the normal rule must apply." and "Much if not most of a barrister's work involves the exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel [for advice] precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is unlikely to succeed."
Lord Salmon: "Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent." However “it can only be the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court.” and "The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his vocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care."
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[ Bailii ]
 
Treasury Solicitor v Regester [1978] 1 WLR 446
1978

Donaldson J
Costs, Legal Professions
A challenge was made as to the legal costs on the grant of a lease of a valuable commercial property. Held: In relation to the time spent on the business which was the third factor in the 1972 Order: "The magnetic attraction of factor (iii) as a foundation for assessment of fair and reasonable remuneration is that, in the absence of an approved scale applied to value, it is the only figure which is readily calculable. It is an attraction which must be sternly resisted in cases of this sort where one or more of the other factors is such as to dwarf it into insignificance."
Solicitors Remuneration Order 1972
1 Citers


 
Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm) [1979] Ch 384; [1978] 3 All ER 571; [1978] 3 WLR 167; [1955-95] PNLR 95
1978
ChD
Oliver J
Professional Negligence, Legal Professions
A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: "Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact that Mr Stubbs was Geoffrey's solicitor under some sort of general retainer imposing a duty to consider all aspects of his interest generally whenever he was consulted, but that cannot be. There is no such thing as a general retainer in that sense. The expression 'my solicitor' is as meaningless as the expression 'my tailor' or 'my bookmaker' in establishing any general duty apart from that arising out of a particular matter in which his services are retained. The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.
While No doubt the duties owed by a solicitor to his client are high in the sense that he holds himself out as practising a highly skilled and exacting profession. But I think that the court must beware of imposing upon solicitors - or upon professional men in other spheres - duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client's general interest, take it upon himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases . . demonstrate that the duty is directly related to the confines of the retainer." The solicitors accepted "a common law duty not to injure their client by failing to do what they had undertaken to do and which, at their invitation, he relied on them to do."
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 Hilborne v The Law Society of Singapore; PC 7-Mar-1978 - [1978] 1 WLR 841; [1978] UKPC 6; [1978] 2 All ER 757
 
Nea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) [1981] Comm LR 138
11 Dec 1978

Mustill J
Litigation Practice, Legal Professions
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 which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood." and "Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood. . . I would describe that as the cherry picking aspect." and "The key word here is 'deploying'. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document's effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party's need to give full and frank disclosure, eg on a without notice (ex parte) application."
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Wilson v Bloomfield [1979] 123 SJ 860
1979


Legal Professions
Negligence of solicitor in answering replies to preliminary enquiries on a sale of land.
1 Citers


 
Knight v Attorney General [1979] ICR 194
1979


Employment, Legal Professions
A judge's status does not bring her within the scope of the 1975 Act as an 'employee'.
Sex Discrimination Act 1975
1 Citers


 
Metropolitan Properties v Cordery (1980) 39 P & CR 10; (1979) 251 EG 567; (1979) 39 P&CR 10
1979
CA

Legal Professions, Agency, Landlord and Tenant
The tenant sought to impose knowledge by the landlord of the condition of the property. The landlord employed porters in the building. Held: The presence of the porters was sufficient to fix the landlord with knowledge of the breach of his covenant. The Court applied the principle of deemed knowledge in the law of agency: " When any fact or circumstance, material to any transaction, business or matter in respect of which an agent is employed, comes to his knowledge in the course of such employment, and is of such a nature that it is his duty to communicate it to his principal, the principal is deemed to have notice thereof as from the time when he would have received such notice if the agent had performed his duty, and taken such steps to communicate the fact or circumstance as he ought reasonably to have taken . . ."
1 Citers



 
 Waugh v British Railways Board; HL 12-Jul-1979 - [1980] AC 521; [1979] UKHL 2; [1979] 3 WLR 150; [1979] 2 All ER 1169
 
Domb and Another v Isoz [1980] 2 WLR 565; [1980] Ch 548; [1980] 1 All ER 942
29 Nov 1979
CA
Buckley, Bridge and Templeman LJJ
Legal Professions, Contract, Land, Agency
In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor's solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor's solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract. Held: A contract had been created. The solicitor had his client's authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance.
Buckley LJ: "the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party's solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange."
BRIDGE LJ: "A solicitor acting for a vendor or a purchaser who holds his client's signed part of the contract has his client's ostensible authority to effect exchange of contracts."
Templeman LJ: "In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law."
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[ lip ]
 
Gamlen Chemical Co (UK) Ltd v Rochem Ltd [1980] 1 WLR 614; [1980] 1 All ER 1049; [1983] RPC 1
4 Dec 1979
CA
Goff and Templeman LJJ
Company, Legal Professions, Evidence
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect subject to an undertaking to maintain its condition and to respect the solicitors' lien. The first firm appealed. Held: The practice embodied in the order was appropriate. Where a solicitor discharged himself, a mandatory order should be available. Legal professional privilege will not be upheld if the relevant document came into being as a step in a criminal or illegal proceeding.
Templeman LJ explained why the normal response of the court, when faced with a solicitor who has discharged himself in the course of litigation, even where the solicitor is entitled to discharge himself, is to order the solicitor to hand over the client's papers to the client's new solicitors, subject to an undertaking from the new solicitors to preserve the lien of the original solicitor. This course is usually adopted "in order to save the client's litigation from catastrophe".
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