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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Legal Professions - From: 1985 To: 1989

This page lists 32 cases, and was prepared on 02 April 2018.

 
Wilden Pump Engineering Co v Fusfeld [1985] FSR 159
1985
CA
Dillon, Waller LJJ
Legal Professions
The 1977 Act conferred privilege on any communication involving patent attorneys made for the purpose of proceedings before the Comptroller of Patents or the Patents Appeal Tribunal. The defendants claimed privilege for all communications with their patent attorneys in relation to the manufacture of the pumps in question. Held: At common law communications with patent attorneys are not protected by any privilege analogous to legal professional privilege
Dillon LJ said: "But it seems to me that it would be quite impossible for this court, in the face of that limited grant of privilege by Parliament, to hold that there exists a much wider, general privilege covering the advice of patent agents to their clients on matters of law – not even limited to matters arising under the Patents Act."
Patents Act 1977 104
1 Citers


 
In re a solicitor: H v United Kingdom 8083/77; [1980] ECC 493
1985
ECHR

Human Rights, Legal Professions

European Convention on Human Rights 5
1 Citers


 
Farrington v Rowe McBride and Partners [1985] 1 NZLR 83
1985

Richardson J
Commonwealth, Legal Professions
(New Zealand) When a solicitor acts for two clients and there is a conflict in his responsibilities, the solicitor must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting. There may be circumstances, notwithstanding such disclosure, where it is impossible for the solicitor to act fairly and adequately for both parties: "A solicitor's loyalty to his client must be undivided. He cannot properly discharge his duties to one whose interests are in opposition to those of another client. If there is a conflict in his responsibilities to one or both he must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting . . And there will be some circumstances in which it is impossible, notwithstanding such disclosure, for any solicitor to act fairly and adequately for both."
1 Citers


 
Valente v The Queen [1985] 2 SCR 673; 52 OR (2d) 779; 1985 CanLII 25 (SCC); 24 DLR (4th) 161; 23 CCC (3d) 193; 49 CR (3d) 97; 64 NR 1; [1985] CarswellOnt 129; [1985] SCJ No 77 (QL); 14 OAC 79; 15 WCB 326; 19 CRR 354; 37 MVR 9
19 Dec 1985

Dickson CJ and Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ
Human Rights, Natural Justice, Legal Professions
Canlii Supreme Court of Canada - Courts -- Charter of Rights -- Independent tribunal -- Provincial Court judge declined jurisdiction on ground Provincial Court (Criminal Division) not an independent tribunal -- Whether or not judge of Provincial Court (Criminal Division) an independent tribunal.
Constitutional law -- Charter of Rights -- Courts -- Independent tribunal -- Jurisdiction declined on ground Provincial Court (Criminal Division) not an independent tribunal -- Whether or not judge of Provincial Court (Criminal Division) an independent tribunal -- Canadian Charter of Rights and Freedoms, s. 11(d) -- Constitution Act, 1982, s. 52(1) -- Provincial Courts Act, R.S.O. 1980, c. 398 -- Public Service Act, R.S.O. 1980, c. 418 -- Public Service Superannuation Act, R.S.O. 1980, c. 419 -- Provincial Courts Amendment Act, 1983, 1983 (Ont.), c. 18, s. 1 -- Provincial Judges and Masters Statute Law Amendment Act, 1983, 1983 (Ont.), c. 78, s. 2(2) -- Courts of Justice Act, 1984, 1984 (Ont.), c. 11.
1 Citers

[ Canlii ]
 
Goddard v Nationwide Building Society [1987] 1 QB 670; [1986] 3 WLR 734
1986
CA
Nourse, May LJJ
Legal Professions, Litigation Practice, Equity
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defednant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, and he disclosed his note of the attendance on the plaintiff to the defendant. The note was protected by legal professional privilege. The defendant referred to the note in its defence, which was subsequently the subject of litigation between them, sent to the defendant a copy of his file note of the information which he had given to the plaintiff prior to the completion of the transaction. The defendant pleaded the substance of the contents of the note in its Defence. The plaintiff sought to restrain its use. The defendant now appealed against an order striking out those elements of its defence. Held: The defendant's appeal succeeded. In the circumstances in which the file note was made, the privilege attaching to it belonged exclusively to the plaintiff. Orders were made requiring the defendant to deliver up the document and restraining him from using it.
May LJ said: "I think that the ratio of the decision in Lord Ashburton v. Pape was founded upon the confidential nature of the content of the letters written by Lord Ashburton to Nocton. The Court of Appeal was concerned to protect that confidence, in the same way for instance, as the courts protect the trade secrets of an employer against the unauthorised use of them by an employee, both while he remains such as well as after he has left the employment . . I confess that I do not find the decision in Lord Ashburton v. Pape logically satisfactory, depending as it does upon the order in which applications are made in litigation. Nevertheless I think that it and Calcraft v. Guest [1898] 1 Q.B. 759 are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by the person in whom the privilege is vested for delivery up of the copies and to restrain him from disclosing or making any use of any information contained in them."
Nourse LJ said: "The second question has confronted us, in a simple and straightforward manner, with the task of reconciling the decisions of this court in Calcraft v. Guest [1898] 1 Q.B. 759 and Lord Ashburton v. Pape [1913] 2 Ch. 469. I agree that those decisions are authority for the proposition which May L.J. has stated. However unsatisfactory its results may be thought to be, that proposition must hold sway unless and until it is revised by higher authority.
. . Although, for the reasons given by May LJ, I am in no doubt that our decision must be governed by Lord Ashburton v. Pape [1913] 2 Ch. 469, the confusion which the existing authorities have caused in this case and are liable to cause in others has prompted me to deal with the matter at somewhat greater length than would otherwise have been necessary."
It was crucial that the holder of the privilege should seek relief before the party to whom the confidential communication was disclosed has adduced it in evidence or otherwise relied on it at trial. Second, this equitable jurisdiction can prevail over the rules of evidence relating to privilege. Thirdly, the right of the party seeking equitable relief "does not in any way depend on the conduct of the third party into whose possession the record of the confidential communication has come" Fourth, once the equitable jurisdiction in Ashburton has arisen, there is no discretion to rely upon views of the the materiality of the communication or the justice of admitting or excluding it or like considerations: "The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay."
Fifth, even if the equitable jurisdiction can no longer apply, public policy (rather than the exercise of discretion) may nevertheless preclude a party who has acted improperly in the proceedings from using the communication. Last, there should be no distinction in the exercise of the equitable jurisdiction in relation to civil and criminal proceedings.
The court discussed the requirement for confidence in the protection given by legal professional privilege: "A lawyer must be able to give his client an unqualified assurance, not only that what passes between them shall never be revealed without his consent in any circumstances, but that should he consent in future to disclosure for a limited purpose those limits will be respected."
1 Cites

1 Citers



 
 Hussain v Hussain; CA 1986 - [1986] Fam 134; [1986] 2 WLR 801; [1986] 1 All ER 961

 
 Deborah Lawrie-Blum v Land Baden-Wuerttemberg; ECJ 3-Jul-1986 - C-66/85; R-66/85; [1986] EUECJ R-66/85; [1986] ECR 2121; [1987] ICR 483
 
Orchard v South Eastern Electricity Board [1987] QB 565; [1987] 1 All ER 95; [1987] 2 WLR 102
1987
CA

Legal Professions, Costs
The threat of applications for a wasted costs order should not be used to intimidate, but if one side considers that the other to have behaved in an improper, unreasonable or negligent way and likely to cause a waste of costs, it is not objectionable to alert the other side to that view. Drawing the distinction between unacceptable intimidation and acceptable notice must depend on the professional judgment of those involved.
1 Citers



 
 Fox (John) v Bannister, King and Rigbeys; CA 1987 - [1988] QB 925; [1987] 1 All ER 737
 
Udall v Capri Lighting Ltd (in liquidation) [1988] QB 907; [1987] 3 All ER 262; [1987] 3 WLR 465; [1987] ANZ Conv R 466
1987
CA
Balcombe LJ, Kerr LJ, Neill LJ
Legal Professions
A claim was made for the price of goods sold and delivered. The defendant's solicitor gave an oral undertaking to his counterpart to procure the execution by directors of his client company of charges over their homes in return for an adjournment sine die. The charges were not executed, and the defendant company went into liquidation, and the plaintiff sought to enforce the undertaking. Held: It was wrong for the judge at first instance not to take into account the fact that it was impossible for the solicitor to perform the undertaking or to consider the possibility of making a compensatory order against him. The case was remitted for further consideration. The jurisdiction to enforce solicitors' undertakings is essentially compensatory and not punitive, though it does have a disciplinary function as well.
Lord Justice Balcombe set out the principles upon which the courts will order a solicitor to pay compensation for breach of an undertaking. The court's jurisdiction to order compensation to be paid by solicitors found guilty of misconduct ought not to be exercised unless "the conduct of the solicitor is inexcusable and such as to merit reproof." Four principles were found: i) the Court acts where there has been professional misconduct " although the jurisdiction is compensatory and not punitive, it retains a disciplinary slant " acting " to enforce honourable conduct on the part of the Court's own officers." (see In re Gray [1892] 2 QB 440)
ii) while the general rule is that the remedy is only available where the conduct of the solicitors is " inexcusable and such as to merit reproof . . a mere mistake or error of judgment is not generally sufficient "; this is qualified by the rule that:
iii) failure to implement a solicitor's undertaking (to which I would equate failure to observe the legal obligations imposed by receiving documents subject to another's lien) is prima facie misconduct, even though there has been no dishonourable conduct or "personal obliquity". But this in its turn is subject to the proviso that the solicitor "may be able to give an explanation for his failure to honour his undertaking which may enable the Court to say that there has been no misconduct in the particular case ".
iv) The remedy is discretionary.
Kerr LJ said: "Since the purpose of the procedure is disciplinary, being designed to ensure a high standard of conduct on the part of solicitors, an order for enforcement of the undertaking or for compensation for its non-performance will not necessarily follow as a matter of course. Before making such an order the court will have to be satisfied that by failing to perform the undertaking the solicitor has been guilty of professional misconduct or a serious dereliction of professional duty. If it is not satisfied about this then it seems to me that it must still be open to the court to decline to make any order and to hold that the matter must proceed by action, if at all, on the ground that the circumstances do not warrant an order of a disciplinary nature against an officer of the court."
1 Cites

1 Citers



 
 English and American Insurance Co Ltd and Others v Herbert Smith; ChD 1987 - (1987) NLJ 148; Times, 22 January 1987; [1988] FSR 232

 
 Chandler v Church; 1987 - (1987) 177 NLJ 451
 
Regina v Crown Court ex parte Baines and Baines [1988] QB 579
1988


Legal Professions
The court considered special procedure material arising out of the Brinks-Mat robbery. Held: The records of the financing of a transaction for the purchase of a property were not to be subject to legal professional privilege under section 10 of the Police and Criminal Evidence Act as the conveyancing matter was wholly unconnected with litigation.
Police and Criminal Evidence Act 1984 10
1 Citers


 
Al-Kandari v J R Brown and Co [1988] 1 QB 665; [1988] EWCA Civ 13; [1988] 1 All ER 833
1988
CA
Donaldson L MR, Dillon LJ, Bingham LJ
Professional Negligence, Legal Professions
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the children. Held: The court should be prepared to find a duty of care on the part of someone who undertook to act in a particular capacity to the plaintiff and to the court as custodian of the plaintiff's children's passports, notwithstanding that the solicitor also owed a conflicting professional duty of care to his client. He had accepted a duty to act as an independent custodian of the passport subject to the direction of the court and the joint directions of the parties, and in that capacity owed the opposing party a duty to take reasonable care to keep the passport in his possession (save as the opposing party might otherwise agree) and to inform it if for any reason it ceases to be in his possession.
1 Cites

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[ Bailii ]
 
United Bank of Kuwait Ltd v Hammond and Others [1988] 1 WLR 1051
1988
CA
Glidewell LJ
Vicarious Liability, Legal Professions
It will only be in the ordinary course of business of the firm for a solicitor to do an act where there was an underlying transaction of a kind which was part of the usual business of a solicitor. "On the facts represented to the [third party] would a reasonably careful and competent person [such as the third party] have concluded that there was an underlying transaction of a kind which was part of the usual business of a solicitor?"
An undertaking given by a solicitor or clerk in the course of the business of a firm is enforceable against the firm for which he works.
1 Citers


 
Strover v Harrington [1989] ANZ Conv R 352; [1988] 1 Ch 396; [1988] 09 EG 61; [1988] 2 WLR 572
1988

Sir Nicholas Browne-Wilkinson VC
Land, Legal Professions
A property was at first wrongly described by the agents as having mains drainage. Correcting information was sent to the buyer's solicitors by the Agents, but the solicitors did not pass on the correction to their client. The mistake was later repeated by the valuer. Held: Sir Nicholas Browne-Wilkinson VC said: "if it is once shown that a misrepresentation has been made, it is no answer for the representor to say that the representee has been negligent and could have found out the true facts if he had acted otherwise. The representee is under no duty of care to the representor to check on the accuracy of the representation. The representor is bound by his representations, however careless the representee may have been." However when documents were received by the purchaser's solicitor, he was obliged to communicate them to his client, and that therefore there was from that time no concealment. The knowledge of the solicitor was imputed to his client. It was for a purchaser to satisfy himself as to the condition of what he purchased. The cause of the loss was not any misrepresentation, but the solicitor's failure. In any event the property was worth the price paid.
Browne-Wilkinson VC: "In this, as in all other normal conveyancing transactions, after there has been a subject to contract agreement the parties hand the matter over to their solicitors who become the normal channel for communication between vendor and purchaser in all matters relating to that transaction. In so doing, in my judgment the parties impliedly give actual authority to those solicitors to receive on their behalf all relevant information from the other party relating to that transaction. The solicitors are under an obligation to communicate that relevant information to their own clients. At the very least, the solicitors are held out as having ostensible authority to receive such information. Whether there be express or ostensible authority, the purchaser is in my judgment estopped from denying that he received the information relating to the transaction which has been communicated to his solicitors acting in the same transaction. In my judgment, such knowledge should be imputed to the principal."
1 Citers


 
Regina v Ataou [1988] QB 798
1988
CACD
Wolff LJ, Waterhouse and French JJ
Legal Professions, Criminal Practice
Legal professional privilege is an interest which falls to be balanced against competing public interests: "When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it."
1 Cites

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Balabel v Air India [1988] Ch 317
1988
CA
Taylor LJ
Legal Professions
When considering claims for legal professional privilege, the court should acknowledge the 'continuity of communications'. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be extended with it. "Although originally confined to advice regarding litigation, the privilege was extended to non-litigious business. Nevertheless, despite that extension, the purpose and scope of the privilege is still to enable legal advice to be sought and given in confidence. In my judgment, therefore, the test is whether the communication or other document was made confidentially for the purpose of legal advice. Those purposes have to be construed broadly. Privilege obviously attaches to a document conveying legal advice from solicitor to client and to a specific request from the client for such advice. But it does not follow that all other communications between them lack privilege. In most solicitor and client relationships, especially where a transaction involves protracted dealings, advice may be required [as] appropriate on matters great or small at various stages. There will be a continuum of communication and meetings between the solicitor and client. … Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach. A letter from the client containing information may end with such words as "please advise me what I should do". But, even if it does not, there will usually be implied in the relationship an overall expectation that the solicitor will at each stage, whether asked specifically or not, tender appropriate advice. Moreover, legal advice is not confined to telling the client the law; it must include advice as to what should prudently and sensibly be done in the relevant legal context." However " … to extend privilege without limit to all solicitor and client communication upon matters within the ordinary business of a solicitor and referable to that relationship [would be] too wide." And "Once solicitors are embarked on a conveyancing transaction they are employed to ensure that the client steers clear of legal difficulties, and communications passing in the handling of that transaction are privileged (if their aim is the obtaining of appropriate legal advice) since the whole handling is experience and legal skill in action and a document uttered during the transaction does not have to incorporate a specific piece of legal advice to obtain that privilege."
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Regina v Maidstone Crown Court ex parte Waitt [1988] Crim LR 384
1988
QBD
Lloyd LJ
Legal Professions, Criminal Practice
The solicitor applicant challenged the grant of a search order under section 9. Held: The order was quashed. The court underlined the need for judges to be scrupulous in discharging their responsibilities so as to ensure that use of the procedures, which constitute a serious inroad upon the liberty of the subject, are not abused. In addition the court made clear that fulfilment of each part of the relevant conditions is a matter of substance. The reasons for authorising the seizure must be made clear and applications without notice must be fully justified. As to section 9: “The special procedure under section 9 and schedule 1 is a serious inroad upon the liberty of the subject. The responsibility for ensuring that the procedure is not abused lies with circuit judges. It is of cardinal importance that circuit judges should be scrupulous in discharging that responsibility. The responsibility is greatest when the circuit judge is asked to issue a warrant under paragraph 12. It is essential that the reason for authorising the seizure is made clear. The preferred method of obtaining material for a police investigation should always be by way of an inter partes order under paragraph 4, after notice of application has been served under paragraph 8. An ex parte application under paragraph 12 must never become a matter of common form and satisfaction as to fulfilment of the conditions is an important matter of substance.”
Police and Criminal Evidence Act 1984 10
1 Citers


 
John Fox v Bannister, King v Rigbeys [1988] QB 925 (Note)
1988
CA

Legal Professions
An undertaking had been given by the defendant solicitor to retain a sum of £18,000 in his hands or to the credit of his client, a Mr Watts, until various matters had been sorted out. In breach of that undertaking, the solicitor subsequently paid the £18,000 over to Mr Watts and Mr Watts subsequently went bankrupt. That was the position at the date when the enforcement of the undertaking came before the court. Held: It was no longer possible in any meaningful sense to require the defendant to honour the undertaking, because the result of doing that would only be to make the sum of £18,000 available to Mr Watts' trustee in bankruptcy. It would not in itself achieve payment of any sum to the claimant, who at no stage had more than the security offered by the undertaking to retain the £18,000 until matters had been sorted out. There had never been an unconditional undertaking to pay £18,000 to the claimant. It was not possible to enforce the undertaking in its original form and instead the appropriate course was to direct an inquiry as to what loss, if any, the claimant had suffered by reason of the breach of the undertaking.
1 Citers


 
Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions [1988] QB 532
1988

Glidewell LJ
Legal Professions, Criminal Practice
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing his civil action for assault. The 1974 Act made it an offence for anyone seeking legal aid knowingly to make a false statement or representation when furnishing any information required from him. Held: The common law principle of legal professional privilege cannot be excluded, by the exception established in Cox and Railton in cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, merely because such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings. It had been submitted by the DPP that the communication with the area office of the Law Society to obtain legal aid was made in furtherance of a crime. Held: "Obviously, not infrequently persons allege that accidents have happened in ways other than the ways in which they in fact happened or that they were on the correct side of the road when driving while actually they were on the wrong side of the road and matters of that sort. Again, litigants in civil litigation may not be believed when their cases come to trial but that is not to say that the statements they had made to their solicitors pending the trial, much less the applications which they made if they applied for legal aid, are not subject to legal privilege. The principle to be derived from R v Cox and Railton applies in my view to circumstances which do not cover the ordinary run of cases such as this is" For the purposes of section 10(2) it was the holder who had to have the criminal purpose, and that the Law Society was the holder and that the Law Society had no intention of furthering a criminal purpose:- "No intention could be further from its thoughts."
Legal Aid Act 1974 23
1 Cites

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Wimpey Construction (UK) Ltd v Martin Black and Co (Wire Ropes) Ltd 1988 ST 264
1988


Legal Professions, Costs
The provisions of the Table of Fees under the Rules of Court were only applicable to Scottish solicitors. The court set out how fees incurred to solicitors practising outside Scotland are recovered in a Scottish taxation of expenses. In summary: 1. If an English solicitor is properly employed in a Scottish litigation he is entitled to be remunerated for his work according to an English scale of remuneration. 2. Such remuneration is treated as part of the outlays in the account of expenses. 3. In considering the English account, the Auditor must in the first place determine which items on the account would be admissible in a Scottish party and party account. In order to do that, he may require the English account to be stated in such a form as to disclose clearly what items of work were in fact done by the English solicitors: ibid. at 1988 SC 288. At this stage the Auditor must obviously apply Scottish principles, in exactly the same way as he would when dealing with a party and party account rendered by Scottish solicitors. 4. Thereafter, the Auditor must discover what charges for the admitted items in the account are appropriate in accordance with English law and practice. The Auditor has a wide discretion as to how he goes about this task, although with an English account consulting the taxing master is an obvious step to take: ibid. at 1988 SC 288-289. At this stage, therefore, the Auditor must ascertain and apply the relevant English scale of charges.
1 Citers


 
Suleman v Shahisavari [1989] 3 All ER 460; [1988] 1 WLR 1181
1988


Contract, Legal Professions
A solicitor signing a contract on behalf of his client should do so only with his client's express authority. A failure would leave him liable for breach of warranty of authority. The authority should preferably be written either by a power of attorney or by an express authority.


 
 Sinclair-Jones v Kay; CA 1988 - [1989] 1 WLR 114; [1988] 2 All ER 611
 
Regina v Samuel [1988] QB 615; [1988] 2 WLR 920; (1987) Cr App R 232
1988
CA
Hodgson J
Criminal Practice, Legal Professions, Police
The defendant had been arrested on suspicion of armed robbery. He asked for a solicitor, but one was refused under section 58 of the 1984 Act. He appealed against his conviction saying that he should have been allowed access to a solicitor. Held: The appeal was allowed. He could not be refused access to a solicitor after charge where, as here, the initial charges had been of burglary, and the inspector refusing access had to justify the refusal of access to any particular solicitor. The right of a suspect to consult and instruct a lawyer "as one of the most important and fundamental rights of a citizen".
Police and Criminal Evidence Act 1984 58(1)
1 Citers


 
Kemp Properties (UK) Ltd v Dentsply Research and Development Corporation [1989] 2 EGLR 205
1989


Legal Professions, Torts - Other
The court considered a Solicitor's possible personal liability for misrepresentation made in replies given to enquiries before contract on acting on the sale of land.
1 Citers


 
Finley v Glaxo Laboratories (1989) Costs Law Reports 106
1989

Hobhouse J
Costs, Legal Professions
Hobhouse J said: "I would not lend support to the adoption of an unduly low hourly rate and then seeking to put it right by applying a higher uplift percentage. The right approach is that which I have emphasised, namely to adopt a realistic approach to the hourly rate to reflect the actual cost of the fee earner involved, and then to apply an appropriate but not excessive uplift".
1 Citers


 
In re Konigsberg (A Bankrupt) [1989] 1 WLR 1257
1989

Peter Gibson J
Litigation Practice, Legal Professions, Insolvency
The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt's entitlement to legal professional privilege vests in the trustee so that neither the bankrupt nor the bankrupt's solicitor can claim privilege under examination.
Peter Gibson J said: "Finally I return to the first ground on which Mr Walker relies for his submission that privilege cannot be asserted by Mrs Konigsberg against the trustee. Mr Walker referred me to the following passage in Phipson on Evidence, 13th ed., para.15-11, under the heading 'Joint retainer': 'When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other - e.g. a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though it is otherwise as to communications made to the solicitor in his exclusive capacity.'
Thus if the communication with or from the solicitor in his joint capacity must be disclosed, privilege cannot be asserted by one of the two parties against the other in proceedings against each other. This is established by Shore v. Bedford (1843) 5 M. & G. 271. In that case the plaintiff having a claim against the defendant went with the defendant to the plaintiff's solicitor, who agreed to write on the defendant's behalf to a third party. The defendant made a statement in the plaintiff's presence to the solicitor and the plaintiff subsequently brought an action against the defendant. It was held that the statement was not a privileged communication and questions could be asked of the solicitor's clerk as to what had been said."
1 Citers


 
Regina v Central Criminal Court ex parte Francis and Francis [1989] 1 AC 347
1989
HL
Lord Griffiths, Lord Goff of Chieveley
Legal Professions, Crime
The police had obtained an ex parte order for the production of files from a firm of solicitors relating to financial transactions of one of their clients. The police believed that the client had been provided with money to purchase property by an alleged drug trafficker. The solicitors relied on the exemption in section 27(4)(ii) that the material to which the order related included 'items subject to legal privilege'. The definition of 'items subject to legal privilege' was to be found in section 10(1) of the 1984 Act. Held: On a purposive construction of section 10(2), the relevant "intention" did not have to belong to the particular person holding the items; rather, if the intention of furthering a criminal purpose were held by anyone, the items would lose their privilege. A drug trafficker with criminal intent could not protect himself by placing his documents in the hands of a solicitor. Privilege belonged to the client, not the solicitor, and a criminal intent disentitled the client to privilege." A solicitor ought to consult his client before relying upon a claim for legal professional privilege for that client's documents. (Lord Griffiths) "I have no doubt that … if an order to give access to documentation is made under section 27, the solicitor-client relationship provides a reasonable excuse within the meaning of the section for the solicitor to take his client's instructions as to whether the order should be contested." Lord Goff: Section 10 expresses, but does not amend or vary, the common law position with regard to legal professional privilege.
The House approved the first part of Glidewell LJ's reasoning in Snaresbrook:- "I have to recognise that . . . my conclusion in the present case undermines part of the reasoning of Glidewell LJ [in the Snaresbrook case]. But it does not necessarily undermine the conclusion of the Divisional Court in that case. This is because I am inclined to agree with Glidewell LJ that the common law principle of legal professional privilege cannot be excluded, by the exception established in R v Cox and Railton 14 QBD 153 in cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, merely because such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings" (emphasis supplied).
Drug Trafficking Offences Act 1986 27(4)(ii) - Police and Criminal Evidence Act 1984 10(1) 27(4(1)
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Regina v Board of Inland Revenue, ex parte Goldberg [1989] QB 267
1989


Taxes Management, Legal Professions
Photocopies of documents were sent to leading counsel. The Inland Revenue sought their production under s20. Held: The copies had been produced for purposes attracting legal professional privilege, and were not discoverable to the Revenue even though the originals might have been.
Taxes Management Act 1970 20
1 Citers


 
Bray v Stuart A West and Co (1989) 139 NLJ 753
1989

Warner J
Legal Professions, Limitation
The court's inherent supervisory jurisdiction over legal professions are not proceedings founded on any cause of action, and so are not subject to the Limitation Act.
1 Citers


 
Harrison v Tew [1989] 1 QB 307
1989
CA
Dillon LJ
Legal Professions, Costs
The client sought only taxation of his solicitor's bill of costs, but more than twelve months after the bill had been paid, if not under the statutory provisions, then under the “inherent jurisdiction” of the Court. Held: Any inherent jurisdiction of the Court was ousted by the Act.
Solicitors Act 1974
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