Links: Home | swarblaw - law discussions

swarb.co.uk - law index


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: 1991 To: 1991

This page lists 13 cases, and was prepared on 02 April 2018.

 
David Lee and Co (Lincoln) Ltd v Coward Chance [1991] Ch 259; [1990] 3 WLR 1278
1991
ChD
Browne-Wilkinson J
Legal Professions
The liquidator of two companies brought actions asserting fraud, including by a firm of solicitors as to a faudulent breach of trust. Two firms which had been previously involved on differing sides, merged. The defendants sought an order to prevent the new firm acting for the liquidators. Held: Each such case must be examined on its own facts. No general rule existed. Where serious dishonesty was alleged however, that was enough to warrant extra care.
Browne-Wilkinson J said: "When one has sensitive information in a firm or in any other group of people, there is the element of seepage of that information through casual chatter and discussion, the letting slip of some information which is not thought to be relevant but may make the link in the chain of causation or reasoning. It therefore is important, I think, to see what is the position on the facts of this case." On the facts, in this case: "I am not satisfied that the amalgamated firm has demonstrated that the Chinese walls that they are proposing to erect will be soundproof.
Experience in this court demonstrates that the maintenance of security on either sides of Chinese walls in the context of the city does not always prove to be very easy. I think it is a very difficult task. No concrete steps have so far been taken to ensure that staff, as opposed to the partners, were aware and are aware of the delicacy of the position."
1 Cites

1 Citers


 
Gupta v Comer [1991] 2 WLR 494; [1991] 1 QB 629; [1991] 1 All ER 289
1991
CA

Legal Professions, Costs
The plaintiff applied for an Order that costs be paid personally by the defendant's solicitors on the basis that the solicitors had incurred such costs unreasonably and had failed to conduct the proceedings with reasonable competence and expedition. The solicitors objected to an Order being, saying that the Court had no jurisdiction to make such an Order unless serious dereliction of duty by the solicitor could be established. Held: The solicitors' appeal against an order that certain costs be paid personally by them failed, and the Order had been properly made even though the solicitors had not been guilty of serious dereliction of duty or gross negligence or neglect. The purpose of making a wasted costs order against a solicitor in pursuance of this rule is compensatory and not punitive.
1 Citers


 
Regina v General Council of the Bar ex parte Percival [1991] 1 QB 212
1991


Administrative, Legal Professions
The Bar Council was amenable to judicial review for an alleged failure to comply with its own Professional Conduct Committee Rules (annexed to the Code of Conduct for the Bar of England and Wales) even though neither the Code of Conduct nor the Professional Conduct Committee Rules had any statutory underpinning.
1 Citers


 
Regina v Leeds Crown Court ex parte Switalski [1991] COD 119; (1991) CLR 559
1991

Judge Savill QC, Neill LJ
Criminal Practice, Police, Legal Professions
It is preferable, in an ordinary case, for an application for a search warrant in a solicitor's office to be made on notice. However, if a solicitor under investigation were to have knowledge of what was contemplated the material sought might disappear or be tampered with before it could be seen by the investigator, a judge might be persuaded that an ex parte application was appropriate and necessary.
Neill LJ said: "There is . . . a very powerful argument in support of the proposition that a warrant issued under section 9 schedule 1 of the 1984 Act should, however wide its scope, contain some express condition to exclude items subject to legal privilege."
Police and Criminal Evidence Act 1984 10
1 Citers


 
Black and Decker Inc v Flymo [1991] 1 WLR 753
1991

Hoffmann J
Litigation Practice, Legal Professions
Legal professional privilege is a right to resist the compulsory disclosure of information. "It is not possible to assert a right to refuse to disclose in respect of a document which has already been disclosed. Once the document has passed into the hands of the other party the question is no longer one of privilege but of admissibility.”
1 Citers



 
 Ventouris v Mountain; CA 1991 - [1991] 1 WLR 607; [1991] 3 All ER 472
 
Alliance and Leicester Building Society v Edgestop Unreported, 18 January 1991
18 Jan 1991

Hoffmann J
Trusts, Legal Professions
The plaintiff building society had paid moneys to solicitors and the solicitors had wrongly paid them away in breach of their instructions. Held: The building society obtained orders for interim payment against the solicitors on the grounds that they were liable for breach of trust. If the building society had known the true facts it would not have made the advance. At the date of judgment a certain loss had been demonstrated in that the breach of trust had caused the building society to enter into a transaction in which they would not have participated had there been no breach of trust.

 
Abdul Rahim Rajudin v The Law Society of Singapore Co [1991] UKPC 3
21 Jan 1991
PC

Commonwealth, Legal Professions
Singapore
[ Bailii ]
 
Locke v Camberwell Health Authority [1991] 2 Med LR 249
23 May 1991
CA
Taylor LJ
Health, Costs, Legal Professions
The court discussed the relative duties of solicitor and counsel. Taylor LJ set out the principles that: 1) In general a solicitor, is entitled to rely upon the advice of counsel properly instructed;
2) For a solicitor, without special experience in a particular field, to rely on counsel's advice is to make normal and proper use of the Bar;
3) However the solicitor must not do so blindly but must exercise his independent judgment. If he thinks that counsel's advice is obviously or glaringly wrong, he is under a duty to reject it;
4) Although a solicitor should not assist a litigant where prosecution of the claim amounts to an abuse of process, it is not his duty to assess the result of a conflict of evidence or impose a pre-trial screen on a litigant's claim.
1 Citers


 
Re a firm a solicitors Times, 20 June 1991; [1992] 1 QB 959
20 Jun 1991
CA
Parker LJ
Legal Professions
Where a conflict of interest in a firm of solicitors acting is suggested, the proper approach "is to consider whether a reasonable man informed of the facts might reasonably anticipate such a danger." Where a Chinese Wall is proposed, "Save in a very special case such as Rakusen's I doubt very much whether an impregnable wall can ever be created and I consider that it is only in very special cases that any attempt should be made to do so."
1 Citers


 
Re G (Chambers Proceedings: McKenzie friend) [1999] 2 FLR 59; CAT 679/1991
10 Jul 1991
CA
Parker LJ, Balcombe LJ
Litigation Practice, Legal Professions
A proposed McKenzie friend was a solicitor who was to be paid, but did not wish to be on the record. H appealed a refusal to allow him to be present in chambers. The Judge had taken the view that the proceedings were of a highly confidential nature and that it was unnecessary for the LIP to have a McKenzie Friend. Held: The court upheld a decision of Waite J to refuse to allow a party to wardship proceedings to have a McKenzie friend on the basis that the decision as to who was permitted to be present in a chambers matter was one for the judge alone. Who, other than a party to the proceedings, his solicitor on the record or counsel, shall be permitted to attend proceedings in chambers is always a matter for the discretion of the judge. (reported 1999)
Parker LJ said: "In the present case the proceedings are in Chambers and in my judgment it must be a matter for the judge to have control over whom he permits to remain in a Chambers’ proceeding. There are, no doubt, many cases in which a judge will find it proper to exercise his discretion in favour of allowing a McKenzie Friend to be in Chambers and he should and will naturally view any application in that behalf with sympathy, as I have no doubt the learned judge did in this case, but, save in exceptional cases, it would be quite wrong for this court to interfere with the decision of a learned judge as to the persons whom he will allow to be present in a Chambers’ matter."
Balcombe LJ said: "I agree. The position of litigants in person, who are ineligible for legal aid but at the same time unable to afford the normal services of a solicitor, is one where the use of a McKenzie Friend in appropriate circumstances can be very helpful. For that reason I agree with what my Lord has said that one hopes, and indeed expects, that judges of the Family Division, when dealing with cases in Chambers, will consider with understanding any application for a litigant in person to have the assistance of a McKenzie Friend where appropriate. But having said that, I agree entirely with what my Lord has said that this must be a matter for the discretion of the judge to conduct his or her own proceedings in Chambers."
1 Citers


 
S v Switzerland 12629/87;13965/88; [1991] ECHR 54
28 Nov 1991
ECHR

Human Rights, Legal Professions, Police
ECHR Judgment (Merits and just satisfaction) - Violation of Art. 6-3-c; Non-pecuniary damage - financial award; Costs and expenses award - domestic proceedings; Costs and expenses award - Convention proceedings.
A number of the applicant's meetings with his lawyer were supervised by a police official, and his letters to his lawyer were intercepted and used for graphological reports. Held: "an accused's right to communicate with his advocate out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6(3)(c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective (see inter alia the Artico judgment of 13 May 1980, series A no.37, p.16, para.33)."
1 Citers

[ Bailii ]
 
S v Switzerland 12629/87; 13965/88; (1991) 14 EHRR 670
28 Nov 1991
ECHR

Human Rights, Legal Professions
Access to legal advice on a private and confidential basis is a fundamental principle not lightly to be interfered with. Fair trial rights may require communications with lawyers to be protected, and that confidential communications between lawyers and clients fall within the protection of private life, home and correspondence accorded by Article 8.
Council of Europe Standard Minimum Rules for the Treatment of Prisoners - European Convention on Human Rights 8
1 Citers


 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.