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Legal Professions - From: 1980 To: 1984

This page lists 34 cases, and was prepared on 02 April 2018.

 
Regina v Shaw [1980] 70 CAR 313
1980
CACD

Legal Professions, Criminal Practice
It was counsel who must decide whether he could continue properly to represent a client, not the judge.
1 Citers


 
Regina v Wilkinson [1980] 1 WLR 396; [1980] 1 All ER 597
1980

Robert Goff J
Legal Professions, Costs
The court was attracted by the Law Society's submission that the general principles that costs should reflect the amount at stake and the expense of providing the service, should govern also court attendances during litigation. The court identified what it saw to be weakness in the Law Society's booklet, The Expense of Time. The taxing officer's task is to determine 'the broad average direct costs of work done' by a partner and assistant solicitor ' in the relevant area at the relevant time'.
1 Citers


 
In re Eastwood [1980] 1 WLR 396
1980


Legal Professions, Costs
The court identified two elements to make up a solicitor's hourly rate in contentious matters. The expense of time and a percentage mark up applied to take account of amongst other matters the amount of any money or property involved. Held: These two elements as the general principle governing taxation in contentious work.
1 Citers



 
 CIA Barca de Panama SA v George Wimpey and Co Ltd; CA 1980 - [1980] 1 Lloyds Rep 598
 
In re Bell's Indenture [1980] 1 WLR 1217
1980

Vinelott J
Legal Professions
A firm of solicitors was held not to be vicariously liable for an act of dishonest assistance made by a partner.
1 Citers



 
 Karpenko v Paroian, Courey, Cohen and Houston; 1981 - (1981) 117 DLR (3d) 383

 
 Trendtex Trading Corporation v Credit Suisse; HL 1981 - [1982] AC 679; [1981] 3 WLR 766; [1981] 3 All ER 520

 
 Great Atlantic Insurance v Home Insurance; CA 1981 - [1981] 2 All ER 485; [1981] 2 Lloyds Rep 138; [1981] 1 WLR 529

 
 In Re Laceward Ltd; ChD 1981 - [1981] 1 WLR 133

 
 Buttes Oil and Gas Co v Hammer; CA 1981 - [1981] 1 QB 223
 
Upjohn Company v United States [1981] USSC 7; 449 U.S. 383; 101 S.Ct. 677; 66 L.Ed.2d 584
13 Jan 1981

Justice Rehnqist
International, Legal Professions
Worldlii United States Supreme Court - When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner's attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. § 7602 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate's recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived and that the Government had made a sufficient showing of necessity to overcome the protection of the work-product doctrine. The Court of Appeals rejected the Magistrate's finding of a waiver of the attorney-client privilege, but held that under the so-called "control group test" the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner's] actions in response to legal advice . . for the simple reason that the communications were not the 'client's.' " The court also held that the work-product doctrine did not apply to IRS summonses.
Held:
1. The communications by petitioner's employees to counsel are covered by the attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned.
(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same, in the corporate context it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation's lawyers. Middle-level - and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.
(b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney's advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law.
(d) Here, the communications at issue were made by petitioner's employees to counsel for petitioner acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice
2. The work-product doctrine applies to IRS summonses.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language or legislative history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work-product doctrine.
(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications they reveal attorneys' mental processes in evaluating the communications. As Federal Rule of Civil Procedure 26, which accords special protection from disclosure to work product revealing an attorney's mental processes, and Hickman v. Taylor, [1947] USSC 5; 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship.
1 Citers

[ Worldlii ]
 
AM and S Europe Ltd v Commission of The European Communities C-155/79R; [1981] EUECJ C-155/79R; [1983] QB 878
4 Feb 1981
ECJ
Sir Gordon Slynn AG
Legal Professions, European
Sir Gordon Slynn AG discussed legal advce priviege: "Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks."
1 Citers

[ Bailii ]
 
Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 WLR 906; [1981] UKHL 13; [1981] 3 All ER 727
19 Nov 1981
HL
Lord Diplock, Lord Russell of Killowen, Lord Keith of Kinkel, Lord Roskill, Lord Brandon
Legal Professions, Police, Estoppel
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. Held: This was a collateral attack amounting to an abuse of process, not because of the the limits of police immunity, but to provide an effective immunity. The purpose of the action was not in truth to obtain damages from the Chief Constable but to undermine the conviction. Unless debarred from doing so, defendants convicted after a full and fair trial who failed to appeal successfully, may challenge their convictions by suing advocates who appeared for them. Public policy requires a defendant, who seeks to challenge his conviction, to do so directly by seeking to appeal his conviction.
Lord Diplock said: "My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."
. . And "The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."
Civil Evidence Act 1968 11
1 Cites

1 Citers

[ Bailii ]

 
 Legione v Hateley; 1982 - [1982-1983] 152 CLR 406
 
Re Orwell's Trust [1982] 1 WLR 1337
1982
ChD
Vinelott J
Wills and Probate, Legal Professions, Company
The term "firm" may include a company: "Whilst the term 'firm' in its narrowest sense is apt to describe an unincorporated partnership it is in ordinary usage frequently applied as a description of a private company."
1 Citers



 
 Waugh v H B Clifford and Sons; CA 1982 - [1982] Ch 374

 
 Chamberlain v Boodle and King; 1982 - [1982] 3 All ER 188
 
R and T Thew Ltd v Reeves (No 2) [1982] 3 All ER 1086; [1982] QB 1283; [1982] 3 WLR 869
2 Jan 1982
CA
Lord Denning MR
Legal Professions, Costs
The remedy of an award of costs against a solicitor personally is only available to make good loss where the solicitor is guilty of inexcusable misconduct such as to merit reproof.
It is not always easy to separate the effect of a disciplinary order from its purpose or objective.
Lord Denning MR, after reference to the authorities, said of the supervisory compensatory jurisdiction: "The cases show that it is not available in cases of mistake, error of judgment or mere negligence. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof."
O'Connor LJ, with whom Dunn LJ agreed, said: "The cases show that such an order ought not to be made unless it is shown that the Thews have suffered loss as a result of serious misconduct by the solicitors in the case."
1 Cites

1 Citers



 
 Home Office v Hariette Harman; HL 11-Feb-1982 - [1983] 1 AC 280; [1982] 2 WLR 338; [1982] 1 All ER 532; (1982) 126 SJ 136
 
AM and S Europe Ltd v Commission of The European Communities C-155/79; [1982] EUECJ C-155/79; [1983] 1 All ER 705; [1982] FSR 474; [1982] ECR 1575; [1983] 3 WLR 17; [1982] 2 CMLR 264; [1983] QB 878
18 May 1982
ECJ
Advocate-General Sir Gordon Slynn
European, Legal Professions
The court set out the rationale for legal professional privilege: "Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks." and "Community law, which derives from not only the economic but also the legal interpretation of the member states, must take into account the principles and concepts common to the laws of those states concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirement, the importance of which is recognised in all of the member states, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it."
1 Cites

1 Citers

[ Bailii ]
 
R P Howard Ltd and Witchell v Woodman Matthews and Co (a firm) [1983] BCLC 117; [1983] QB 117
1983

Staughton J
Landlord and Tenant, Legal Professions, Professional Negligence
The solicitor defendant knew that the company was a family company effectively run by Mr Witchell from whom they received their instructions. The question raised was as to the duty of the solicitor to company and director. Held: There is no necessary legal impediment to a professional adviser owing concurrent duties both to a company and to its members or to its directors. The solicitor owed a duty to exercise all reasonable care and skill in connection with his client's business, the precise nature of his duty would depend inter alia upon the experience of his client and therefore an inexperienced client was entitled to expect a solicitor to take this into consideration in giving advice. The defendant was negligent in omitting to remind the plaintiffs of the need to initiate an application to the County Court in order to obtain the protection of the Landlord and Tenant Act 1954.
Staughton J said: 'In my judgment, in the circumstances of this case, Mr Witchell as well as the company was the client of Mr Mason. That seems to me to reflect the reality of the situation. Mr Mason knew that Mr Witchell … was the company. He probably knew that Mr Witchell derived his livelihood and some profit from the company, and was vitally concerned in its well-being. Mr Witchell had first been his personal friend, and had then come to him in connection with other matters for legal advice, both as the representative of the company and in a personal capacity. When Mr Witchell sought his advice on . . [a matter concerning the company] Mr Mason owed a contractual duty of care both to the company and to Mr Witchell."
1 Citers



 
 Swain v The Law Society; HL 1983 - [1983] 1 AC 598; [1982] 2 All ER 827

 
 Wilson v Craig; 1983 - 1983 SLT 556
 
Dormeuil Trade Mark [1983] RPC 13
1983
ChD
Nourse J
Legal Professions, Litigation Practice
Parties had together applied to register a trade mark. Later one applied and the other opposed, and application. At various times they had been represented by trade mark agents and solicitors. Protection against discovery was now sought as to communications with the trade mark agents. Held: Nourse J refused to extend the protection of legal advice privilege. The 1968 Act had extended the privilege to patent attorneys, but not to trade mark agents.
Nourse J noted that historically cases had been conducted only by solicitors and counsel and added this: "[Counsel for the defendants] says that in those days it was never necessary for anybody to consider whether the privilege should apply in a case where other professional men, far less non-professional men, were concerned in advising clients, or indeed in conducting litigation on their behalf. He says that in these days the rule should be different. Like the learned Master, I see great force in that submission. It does seem to me to be a little odd and possibly perverse, that if a trade mark agent is entitled to advise a client in relation to certain legal matters and to conduct certain legal proceedings on his behalf, the same privilege should not apply as would certainly apply in a case where the advice was being given and the proceedings were being conducted by a solicitor. Nevertheless I do not think it is open to me in this court to fly in the face of the established rule, as enunciated in Wheeler v Le Marchant, the statement of Chitty J in Moseley v Victoria Rubber Company, and the fact that in 1968 the legislature seemed to think it was necessary expressly to extend the privilege to the case of patent agents."
Civil Evidence Act 1968 15 - Patents Act 1977 104
1 Citers


 
Allied Finance and Investments Ltd v Haddow and Co [1983] NZLR 22
1983

Cooke J
Commonwealth, Legal Professions, Professional Negligence
(New Zealand Court of Appeal) The fact that a certificate is sent by a solicitor to a lender confirming the giving of independent advice and that guarantors had signed the guarantee voluntarily may place a duty of care on the solicitor in relation to the lender.
Cooke J said: "the relationship between two solicitors acting for their respective clients does not normally of itself impose a duty of care on one solicitor to the client of the other. Normally the relationship is not sufficiently proximate. Each solicitor is entitled to expect that the other party will look to his own solicitor for advice and protection."
1 Citers


 
Oswald Hickson Collier and Co (a firm) v Carter Ruck [1984] AC 720; [1984] 2 All ER 15
1984
HL
Lord Denning MR
Legal Professions, Company
A firm is a partnership of two or more persons, and a one man practice is not a firm.
Lord Denning MR said: "It was submitted by Mr Cullen that - as the relationship between a solicitor and his client is a fiduciary relationship - it would be contrary to public policy that he should be precluded from acting for a client when that client wanted him to act for him: especially in pending litigation. It seems to me that that submission is right. I cannot see that it would be proper for a clause to be inserted in a partnership deed preventing one of the partners from acting for a client in the future. It is contrary to public policy because there is a fiduciary relationship between them. The client ought reasonably to be entitled to the services of such solicitor as he wishes. That solicitor no doubt has a great deal of confidential information available to him. It would be contrary to public policy if the solicitor were prevented from acting for him by a clause of this kind."
1 Citers


 
Edward Wong Finance Co Ltd v Johnson Stokes and Master (1983) 80 LSG 3163; [1984] 2 WLR 1; [1983-84] ANZ Conv R 640; [1984] AC 296; [1983] UKPC 32
1984
PC
Diplock, Elwyn-Jones, Roskill, Brandon of Oakbrook, Brightman LL
Professional Negligence, Legal Professions, Commonwealth
(Hong Kong) The defendant's solicitors completed a mortgage in "Hong Kong style" rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This allowed a dishonest solicitor for the borrower to abscond with an advance without providing the documents. Held: Even though completion in Hong Kong style was almost universally adopted in Hong Kong and was in accordance with a body of professional opinion there, the defendant's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible. In medical negligence, in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence. Nevertheless, it will very seldom be right for a judge to reach the conclusion that views generally held by a competent medical expert are unreasonable.
1 Citers

[ Bailii ]
 
Davy-Chiesman v Davy-Chiesman [1984] 2 WLR 291; [1984] Fam 48; [1984] 1 All ER 321
1984
CA

Legal Professions, Costs


 
Re Highgrade Traders Ltd (1984) BCLC 151
1984
CA
Oliver LJ
Legal Professions, Evidence
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a number of earlier authorities, held that litigation privilege might be claimed in respect of documents brought into being at a time when litigation was reasonably in prospect.
1 Cites

1 Citers


 
Buckley v Law Society (No 2) [1984] 1 WLR 1101
1984
ChD
Vice Chancellor Megarry
Legal Professions
A court deciding a case about a solicitor under paragraph 6(5) of schedule 1 should come to its conclusion in the light of all the evidence existing at the time the matter came to be decided and not at the time of the relevant intervention. When hearing an application for an order for the Law Society to withdraw an intervention, the Court may have regard, not only to the material before the Society at the date of the intervention, but to any other relevant material before the Court.
Solicitors Act 1974
1 Citers


 
A v B [1984] 1 All ER 265
1984

Leggatt J
Legal Professions
Solicitors acting for a ship owner incurred costs which remained unpaid by the client, and the solicitors arrested that client's ship as security. The litigation was continuing. The solicitors took themselves off the court record and obtained judgment for the outstanding costs. The client sought the return of the litigation papers. Held: The arrest of the vessel did not operate to waive the solicitors' lien over the papers. A usual order might be for the papers to be handed over against an undertaking, but this was not always to be ordered. The court was required to make the order which would least interfere with the course of justice. The solicitors had acted correctly, and the clients were simply trying to avoid payment. The order was refused, even with the offer of an undertaking from the new solicitors to hold the papers to the order of the first firm.
1 Citers


 
Ordre des avocats au Barreau de Paris v Onno Klopp C-107/83
12 Jul 1984
ECJ

European, Legal Professions
Europa In laying down that freedom of establishment shall be attained at the end of the transitional period, article 52 imposes an obligation to attain a precise result the fulfilment of which must be made easier by, but not made dependent on, the implementation of a programme of progressive measures. Consequently the fact that the council has failed to issue the directives provided for by articles 54 and 57 cannot serve to justify failure to meet the obligation.
The rule in article 52 of the treaty, according to which the progressive abolition of the restrictions on freedom of establishment applies to restrictions on the setting up of agencies, branches or subsidiaries by nationals of any member state established in the territory of another member state must be regarded as a specific statement of a general principle, applicable equally to the liberal professions, according to which the right of establishment includes freedom to set up and maintain, subject to observance of the professional rules of conduct, more than one place of work within the community.
Even in the absence of any directive coordinating national provisions governing access to and the exercise of the legal profession, article 52 et seq. Of the eec treaty prevent the competent authorities of a member state from denying, on the basis of the national legislation and the rules of professional conduct which are in force in that state, to a national of another member state the right to enter and to exercise the legal profession solely on the ground that he maintains chambers simultaneously in another member state.
1 Citers


 
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; (1984) 55 ALR 417; (1984) 58 ALJR 587; 4 IPR 291; [1984] HCA 64
25 Oct 1984

Mason J
International, Legal Professions
High Court of Australia - A solicitor's duty of loyalty to his client's interest, and his duty to respect his client's confidences, have their roots in the fiduciary nature of the solicitor-client relationship, but may have to be moulded and informed by the terms of the contractual relationship.
Mason J said:"That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its construction."
Mason J explained: "But entitlement to act in one's own interests is not an answer to the existence of a fiduciary relationship, if there be an obligation to act in the interests of another. It is that obligation which is the foundation of the fiduciary relationship, even if it be subject to qualifications including the qualification that in some respects the fiduciary is entitled to act by reference to his own interests. The fiduciary duty must then accommodate itself to the relationship between the parties created by their contractual arrangements. And entitlement under the contract to act in a relevant matter solely by reference to one's own interests will constitute an answer to an alleged breach of the fiduciary duty. The difficulty of deciding under the contract when the fiduciary is entitled to act in his own interests is not in itself a reason for rejecting the existence of a fiduciary relationship, though it may be an element in arriving at the conclusion that the person asserting the relationship has not established that there is any obligation to act in the interests of another."
1 Citers

[ Austlii ]
 
Harry Lee Wee v The Law Society of Singapore [1984] UKPC 50; [1985] 1 WLR 362; [1984] UKPC 50
3 Dec 1984
PC
Lord Bridge
Commonwealth, Legal Professions
(Singapore) The principles of autrefois acquit applied to professional disciplinary proceedings. Lord Bridge said: "No one would dispute that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory code by which any profession is governed."
1 Citers

[ Bailii ] - [ Bailii ]
 
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