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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: 1995 To: 1995

This page lists 36 cases, and was prepared on 02 April 2018.

 
Aratra Potato Co Ltd v Taylor Joynson Garrett [1995] 4 All ER 695
1995

Garland J
Legal Professions
The defendant solicitors acted in several matters for a client on terms specifying hourly rates but providing also for "a 20% reduction from solicitor/client costs for any lost cases". Held: The agreement amounted to a contingency fee agreement which was unenforceable as being contrary to public policy. The court rejected the solicitors' argument that the agreement might be saved by severing the offending phrase. The clients were not liable for unpaid bills but, where bills had already been paid, the clients were not entitled to a refund: "Bills paid
Can it be said that the plaintiffs are entitled to recover their money because the consideration has wholly failed, being a consideration contrary to public policy or rendered under a contract which was void? If so, should such recovery only be on terms allowing TJG some remuneration including disbursements and profit? Can the concept non in pari delicto apply and, if so, what remedy would be open to the plaintiffs? I freely admit to finding these matters of the greatest difficulty. There is no clear guidance to be found in the authorities or in the textbooks. To allow the plaintiffs to recover but on terms would in effect be to allow TJG to recover on a quantum meruit if not to enforce the agreement. This cannot be right. Conversely, can it be a correct approach to take the view that the agreement is unenforceable and that the parties must therefore be left in the position in which they find themselves? This would enable TJG to take advantage of the champertous agreement dependent upon the plaintiffs' discovery of its true nature. Conversely, is justice done by allowing the plaintiffs to take advantage of the services rendered by TJG without having to pay for them? One aspect of the law is tolerably clear, and that is, where property or goods are transferred under an illegal transaction or a lease granted for an illegal or an immoral purpose, the property will pass and an estate be created (see Feret v Hill (1854) 15 CB 207, [1843–60] All ER Rep 924, Belvoir Finance Co Ltd v Stapleton [1970] 3 All ER 664, [1971] 1 QB 210 and Tinsley v Milligan [1993] 3 All ER 65, [1994] 1 AC 340).
At the end of the day I take the view that, subject to any question of severance, where services have been rendered and paid for under an unenforceable contract in circumstances where it cannot be suggested that the payee has, apart from entering into the agreement, acted unconscionably towards the payer or been unjustly enriched at his expense, it is unreal to hold that the consideration, albeit one contrary to public policy, has wholly failed and that the plaintiff is entitled to recover the price of those services while retaining the benefit of them. The better rationale is that the champertous agreement is unenforceable rather than void or voidable. This view appears to be consistent with Re Hutley's goods and Cole v Booker (1913) 29 TLR 295. In Rees v De Bernardy [1896] 2 Ch 437 there are references to 'champertous and void' but the agreement was apparently treated as voidable and set aside on the grounds of undue influence. Ratification was argued and negatived on the grounds that the co-heiresses at law never knew of their right to rescind the agreement. There could not have been any question of rescinding a void agreement.
Severance
Mr Spearman [for the solicitors] submitted that severance could be effected by deleting the words 'for any lost cases' from the sentence ending 'our bills will be delivered when each matter is finalised in all respects with a 20% reduction from solicitor/client costs for any lost cases'. To my mind, this is not severance but an attempt at unilateral rectification by removing, to TJG's pecuniary disadvantage, the words creating a differential fee. Severance is not possible.
I therefore conclude as follows: (1) the plaintiffs are not liable for unpaid bills; (2) where bills have been paid, the parties must remain where they find themselves."

 
Regina v Solicitors' Complaints Bureau, ex parte Singh and Chowdury (1995) 7 Admin LR 249
1995
Admn
Lord Taylor LCJ
Legal Professions
The court considered the disciplinary duties of the Law Society: "The object of the provision is disciplinary. It is to assist in maintaining the standards to be achieved by solicitors and to provide sanctions in terms of costs and payment if the proper standards are not reached. It is the quality of the service . . . which is of importance."
Solicitors Act 1974 Sch1A
1 Citers


 
Nederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding [1995] 1 All ER 976
1995

Colman J
Legal Professions
A Dutch corporation had obtained advice from lawyers and other professionals before purchasing share capital in insurance companies. After the purchase the corporation discovered that it was exposed to large losses and began proceedings in negligence against its non-legal advisors. Held: Such claims did not give rise to an implied waiver in relation to privileged communications between the corporation and its legal advisors.
The statement of the law in Balabel v Air India does not disturb or modify the principle affirmed in Minter v Priest, that all communications between a solicitor and his client relating to a transaction in which the solicitor has been instructed for the purpose of obtaining legal advice will be privileged, notwithstanding that they do not contain advice on matters of law or construction, provided that they are directly related to the performance by the solicitor of his professional duty as legal adviser of his client.
Colman J said: "The true analysis of what the courts are doing in such cases of so-called implied waiver of privilege is, in my judgment, to prevent the unfairness which would arise if the plaintiff were entitled to exclude from the court's consideration evidence relevant to a defence by relying upon the privilege arising from the solicitor's duty of confidence. The client is thus precluded from both asserting that the solicitor has acted in breach of duty and thereby caused the client loss and, to make good that claim, opening up the confidential relationship between them and at the same time seeking to enforce against that same solicitor a duty of confidence arising from their professional relationship in circumstances where such enforcement would deprive the solicitor of the means of defending the claim. It is fundamental to this principle that the confidence which privilege would otherwise protect arises by reason of the same professional relationship between the parties to the litigation. The underlying unfairness which the principle aims to avoid arises because the claim is asserted and the professional relationship opened for investigation against the very party whose duty of confidence is the basis of the privilege. It is against the unfairness of both opening the relationship by asserting the claim and seeking to enforce the duty of confidence owed by the defendant that the principle is directed."

After referring to Hearn v Rhay, Colman J said: "If the reasoning in Hearn v. Rhay was of general application it would involve a fundamental inroad into the scope of legal professional privilege. Waiver of privilege would operate if it could be established that the communications between the plaintiff and his solicitor were likely to be evidentially relevant to an issue and it would be unfair if the defendant did not have access to them in order to assist his defence. But, as I have already explained, the foundation of the waiver is not merely that the assertion of privilege leads to the inaccessibility of evidence relevant to a defence. It is the inconsistency of the plaintiff on the one hand opening the professional relationship to the inspection of the court and on the other hand seeking to enforce confidentiality so as to exclude communications to which the professional relationship between the same parties has given rise. Thus, whatever the United States courts now regard to be the scope of waiver of privilege, the reasoning in Hearn v. Rhay certainly does not represent English Law."
1 Cites

1 Citers


 
Pioneer Concrete (NSW) Pty Ltd v Webb (1995) ACSR 418
1995

Simos J
Commonwealth, Legal Professions
(New South Wales) The defendant, Mr Webb claimed joint interest privilege in advice given pursuant to a retainer with C H Webb (the company). His argument had three bases. First, that the advice was given not only to the company as client, but also to him as client even though the company paid the lawyers' fees. Secondly, that he was entitled to claim privilege because he 'believed on reasonable grounds that, in giving the advices, the lawyers were acting for both' him and the company. Thirdly, he claimed common interest privilege. Held: Joint interest privilege was established on the evidence before him. He concluded (a) that Mr Webb believed that the communications were to him as client; (b) that on reasonable grounds he believed that the lawyers were his lawyers when giving advice; and (c) that the true substance of the arrangement was that advice was being given to the company and to the directors in their personal capacities.
1 Citers


 
Bristol and West Building Society v A Kramer and Co Independent, 26 January 1995; Times, 06 February 1995
26 Jan 1995
ChD

Negligence, Legal Professions
Solicitors who acted in breach of the Building Society's express instructions in failing to report an adverse change in circumstances were liable to repay mortgage advance.


 
 Practice Direction (Family Proceedings: Case Management); FD 31-Jan-1995 - Times, 08 February 1995
 
Oxfordshire County Council v P (A Minor) Times, 08 February 1995; Independent, 03 February 1995
3 Feb 1995
FD

Legal Professions, Children
A confession to a guardian ad litem in care proceedings is confidential to those proceedings.
Children Act 1989 98


 
 White and Another v Jones and Another; HL 16-Feb-1995 - Independent, 17 February 1995; Times, 17 February 1995; [1995] 2 AC 207; [1995] UKHL 5; [1995] 1 All ER 691; [1995] 2 WLR 187
 
Johnson v Bingley and Others Times, 28 February 1995
28 Feb 1995
QBD
B A Hytner QC
Legal Professions, Professional Negligence
A breach by a solicitor of the Law Society's 'Guide to Professional Conduct' was not ipso facto negligence. The guide set out what was proper and accepted practice. It was hot however mandatoty to follow it, and the existence of negligence was to be determined in accordance with the principles set out following Donoghue v Stevenson.


 
 Wood v Law Society; CA 1-Mar-1995 - Times, 02 March 1995; Independent, 01 March 1995
 
Boston and Co v Roberts Times, 17 March 1995
17 Mar 1995
CA

Legal Professions
Solicitors were wrong to accept a bare guarantee on costs where there was a clear doubt as to ability to pay.

 
In Re A Barrister (Wasted Costs Order No 4 of 1993) Times, 21 April 1995
21 Apr 1995
CA

Legal Professions
Wasted costs order set aside; no allowance had been made for the vagaries of listing.


 
 In Re A Firm of Solicitors; ChD 9-May-1995 - Times, 09 May 1995; Independent, 16 May 1995; [1997] Ch 1; [1995] 3 All ER 482

 
 Cox v Bankside Members Agency Ltd and Others; CA 16-May-1995 - Independent, 09 June 1995; Times, 16 May 1995; [1995] 2 Lloyd's Rep 437
 
Sampson v John Boddy Timber Ltd Independent, 17 May 1995; (1995) CAT 552
17 May 1995
CA
Sir Thomas Bingham MR
Legal Professions
A barrister should not liable for wasted costs when he pursues arguable point for his client. Unless a party makes plain its intention that a settlement offer is made on an open basis, it remains covered by the cloak of the without prejudice rule
1 Citers


 
Alliance and Leicester Building Society and Others v Edgestop Ltd and Others (No 2) Times, 24 May 1995
23 May 1995
CA

Insolvency, Legal Professions
A receiver's remuneration may be set by the court on either the standard or indemnity basis.

 
Penn v Bristol and West Building Society and Others Gazette, 13 July 1995; Times, 19 June 1995; [1995] FLR 938
19 Jun 1995
ChD

Legal Professions, Professional Negligence
Solicitors acting for a vendor were liable to the buyers' mortgagees for breach of warranty of authority for vendor. The solicitor was negligent in not having verified the instructions from the wife who was the joint tenant.
1 Cites

1 Citers



 
 Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another; ChD 27-Jun-1995 - Ind Summary, 24 July 1995; Times, 27 June 1995; Gazette, 13 July 1995; [1996] Ch 1

 
 In Re A Solicitors (Wasted Costs Order) (No 1 of 1994); CACD 27-Jun-1995 - Times, 27 June 1995; Gazette, 19 July 1995
 
Practice Direction: Court Dress Gazette, 05 July 1995
5 Jul 1995
LCJ

Legal Professions
After consultation within the professions and elsewhere, the wearing of wigs is not to be extended to solicitor advocates.
Courts and Legal Services Act 1990


 
 In Re A Solicitor (No S2700 of 1995); ChD 11-Jul-1995 - Times, 11 July 1995

 
 Target Holdings Ltd v Redferns (A Firm) and Another; HL 21-Jul-1995 - Gazette, 06 September 1995; Times, 21 July 1995; Independent, 10 August 1995; [1996] 1 AC 421; [1995] UKHL 10; [1995] 3 All ER 785

 
 Mortgage Express Ltd v Bowerman and Partners (A Firm); CA 1-Aug-1995 - Times, 01 August 1995; [1996] 2 All ER 836; [1996] 1 PNLR 62

 
 Barclays Bank Plc v Eustice; CA 3-Aug-1995 - Times, 03 August 1995; [1995] 1 WLR 1238

 
 Re A Solicitor; ChD 4-Sep-1995 - Ind Summary, 04 September 1995
 
Joyce v Kammac (1988) Ltd Gazette, 18 October 1995; Times, 16 October 1995
16 Oct 1995
QBD

Legal Professions, Costs
A contract between a lawyer and his client to recover only the excess of the costs over the 'Green Form' costs the lawyer which would be allowed, was illegal and a sham. Those excess costs could not therefore be recovered from a third party.


 
 Regina v Derby Magistrates Court Ex Parte B; HL 19-Oct-1995 - Independent, 27 October 1995; Times, 25 October 1995; [1996] AC 487; [1995] UKHL 18; [1996] 1 FLR 513; [1996] 1 Cr App R 385; (1995) 159 JP 785; [1996] Fam Law 210; [1995] 3 WLR 681; [1995] 4 All ER 526

 
 Giles v The Law Society; CA 20-Oct-1995 - Gazette, 25 October 1995; Times, 20 October 1995; [1995] 8 Admn LR 105
 
Ablitt v Mills and Reeve (A Firm) and Another Times, 25 October 1995
24 Oct 1995
ChD
Blackburne J
Litigation Practice, Legal Professions
A solicitor receiving privileged documents where there had been an obvious, error should return them. The defendant solicitors who, on their client's instructions, reviewed privileged information sent to them in error by counsel for the other party, were restrained from continuing to act. Blackburne J said: "it offends elementary notions of fairness and justice" if, by knowingly taking advantage of the mistaken delivery of privileged papers, a party to litigation, "although not itself told what those papers contain, can continue to have the services in the action of those who on its instructions have read all the papers and who, as a result, have a very accurate perception of just how those who act for the plaintiff view the merits of the plaintiff's claim and of the steps, tactically and otherwise, which they are advising the plaintiff to take in pursuit of his claim".
1 Citers



 
 In Re P (Minors) (Representation); FD 16-Nov-1995 - Times, 16 November 1995
 
Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano Times, 13 December 1995; C-55/94; [1995] ECR 1-4165; [1995] EUECJ C-55/94
30 Nov 1995
ECJ

Legal Professions, European
Practice by lawyers in other European jurisdictions were governed by the general principles of freedom of establishment under the Treaty: "National measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it."
ECJ A national of a Member State who pursues a professional activity on a stable and continuous basis in another Member State where he holds himself out from an established professional base to, amongst others, nationals of that State comes under the chapter relating to the right of establishment and not the chapter relating to services. As appears from the third paragraph of Article 60 of the Treaty, the rules on freedom to provide services cover - at least where the provider moves in order to provide his services - the situation in which a person moves from one Member State to another, not for the purposes of establishment there, but in order to pursue his activity there on a temporary basis. The temporary nature of the activities in question has to be determined in the light of its duration, regularity, periodicity and continuity. This does not mean that the provider of services within the meaning of the Treaty may not equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question. 3. The possibility for a national of a Member State to exercise his right of establishment, and the conditions for his exercise of that right, must be determined in the light of the activities which he intends to pursue on the territory of the host Member State. Where the taking-up of a specific activity is not subject to any rules in the host State, a national of any other Member State will be entitled to establish himself and pursue that activity there. On the other hand, where the taking-up or the pursuit of a specific activity is subject to certain conditions in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with them. Such conditions, which may consist in particular of an obligation to hold particular diplomas, to belong to a professional body or to comply with certain rules of professional conduct or with rules relating to the use of professional titles, must fulfil certain requirements where they are liable to hinder or make less attractive the exercise of a fundamental freedom guaranteed by the Treaty, such as freedom of establishment. There are four such requirements: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it. As far as conditions relating to the possession of a qualification are concerned, Member States must take account of the equivalence of diplomas and, if necessary, proceed to a comparison of the knowledge and qualifications required by their national rules and those of the person concerned.
The court accepted that it does not have jurisdiction under the preliminary reference procedure to rule on the compatibility of a national measure with EU law
EC Treaty 43 - Council Directive 77/249/EEC
1 Cites

1 Citers

[ Bailii ]

 
 Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another; CA 1-Dec-1995 - Times, 01 December 1995; Gazette, 11 January 1996; [1996] Ch 207
 
In Re Freudiana Holdings Ltd Times, 04 December 1995
4 Dec 1995
CA

Legal Professions
A judge can discharge his own wasted costs order when issues came to required the re-litigation of the case.
1 Citers


 
Thatcher v Douglas and Another Independent, 16 January 1996; Times, 08 January 1996
19 Dec 1995
CA

Legal Professions, Registered Land
The Court rejected the contention that Celsteel was wrongly decided and that the Rule only applied to legal easements. The court followed Celsteel and applied it to equitable easements, holding them to be overriding interests by virtue of Rule 258. A barrister was wrong to make allegations against a judge without having supporting evidence.
Land Registration Rules 1925 8258
1 Cites

1 Citers



 
 Kershaw v Whelan; QBD 20-Dec-1995 - Times, 20 December 1995

 
 Tolstoy-Miloslavsky v Aldington; CA 27-Dec-1995 - Gazette, 10 January 1996; Independent, 03 January 1996; Times, 27 December 1995; [1996] 1 WLR 736
 
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