Swain v The Law Society: HL 1983

The Solicitors’ Practice Rules had the force of a statute, being rules made by the Council of the Law Society with parliamentary sanction for the protection of that section of the public who might be in need of legal advice, assistance or oversight. Failure to comply may result in a complaint to the Solicitors Disciplinary Tribunal. Lord Diplock discussed the adoption of a construction of a statute as a juristic subterfuge ‘to mitigate the effect of the lacuna resulting from the non-recognition of a jus quaesitum tertio.’
Lord Diplock set out the role of the Law Society in making practice rules: ‘It is quite otherwise when the Society is acting in its public capacity. The Act of 1974 imposes upon the Society a number of statutory duties in relation to solicitors whether they are members of the Society or not. It also confers upon the Council of the Society, acting either alone or with the concurrence of the Lord Chief Justice and the Master of the Rolls or of the latter only, power to make rules and regulations having the effect of subordinate legislation under the Act. Such rules and regulations may themselves confer upon the Society further statutory powers or impose upon it further statutory duties. The purpose for which these statutory functions are vested in the Society and the Council is the protection of the public or, more specifically that section of the public that may be in need of legal advice, assistance or representation. In exercising its statutory functions the duty of the Council is to act in what it believes to be the best interests of that section of the public, even in the event (unlikely though this may be on any long-term view) that those public interests should conflict with the special interest of members of the Society or of members of the solicitor’s profession as a whole. The Council in exercising its powers under the Act to make rules and regulations and the Society in discharging functions vested in it by the Act or by such rules or regulations are acting in a public capacity and what they do in that capacity is governed by public law; and although the legal consequences of doing it may result in creating rights enforceable in private law, those rights are not necessarily the same as those that would flow in private law from doing a similar act otherwise than in the exercise of statutory powers.’

Lord Brightman, Lord Diplock, Lord Bingham
[1983] 1 AC 598, [1982] 2 All ER 827
Solicitors Act 1974 31(2)
England and Wales
Cited by:
CitedHollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
(Overlooked?)Thai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
CitedSecretary of State for Trade and Industry v Frid HL 13-May-2004
The company went into insolvent liquidation. The secretary of state was to make payments to employees and there were other state preferential creditors. At the same time a refund of VAT was due from the Commissioners of customs and Excise.
CitedAlfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
CitedGarbutt and Another v Edwards and Another CA 27-Oct-2005
The client challenged his opponent’s solicitors bill of costs, saying that the other side had not been given an estimate of costs. The solicitor acted on several matters for the client and had not given a formal estmate.
Held: The absence of . .
CitedWinters v Mishcon De Reya ChD 15-Oct-2008
The claimant sought an injunction to prevent the defendant firm of solicitors acting for his employers against him. He said that they possessed information confidential to him having acted for him in a similar matter previously. The solicitors . .
CitedMohammed v Alaga and Co (A Firm) ChD 2-Apr-1998
A party to an agreement to share in solicitors’ fees contrary to professional rules was unable to enforce it in any way. . .
CitedMohammed v Alaga and Co (A Firm) CA 30-Jun-1999
A party appealed against a finding that an agreement as to fee sharing with a solicitors’ firm, being in breach of the Solicitors Practice Rules, was unenforceable and void.
Held: The appeal failed. Bingham LJ summarised the arguments of the . .
CitedWestlaw Services Ltd and Another v Boddy CA 30-Jul-2010
The claimant said that it was due sums from the estate of the deceased solicitor. The executors said that the agreement was unlawful in that it had amounted to an agreement to share fees with an unauthorised body.
Held: The agreement was . .
CitedHughes v Kingston Upon Hull City Council QBD 9-Nov-1998
The Solicitors Practice Rules have the effect of law, and it is still improper to agree to pursue contentious proceedings on a contingency fee arrangement without specific statutory sanction, especially in criminal proceedings. An agreement for . .
CitedSibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
AnalogyWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
CitedAIG Europe Ltd v Woodman and Others SC 22-Mar-2017
The parties disputed the effect of a clause aggregating claims for the purposes of limiting an insurer’s liability under professional negligence insurance.
Held: the claims of each group of investors arise from acts or omissions in a series of . .

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Updated: 02 November 2021; Ref: scu.182512