Dubai Bank v Galadari (No 6): ChD 22 Apr 1999

Morritt J said: ‘The rationale for the principle, and the decisions cited all pointed to the conclusion that communications in furtherance of a crime or fraud were not protected from disclosure if they were relevant to an issue in the action whether of not the plaintiff’s claim was founded on that crime or fraud.
Different considerations might apply to litigation privilege. It was plain from the authorities that litigation privilege was not displaced solely by virtue of the original fraud or crime: see R v Cox and Railton (at p 175); O’Rourke v Darbishire ([1920] AC 581, 622-3); R v Snaresbrook Crown Court, ex parte DPP ([1988] 1 QB 532, 537); and Francis and Francis . .
But none of those cases dealt with the situation where a client, having committed a fraud, sought to further that fraud by stifling it yet further after proceedings were anticipated or commenced by putting forward to his solicitors bogus defences.
The rationale behind the principle that by deceiving his solicitor the client deprived the communication of the necessary element of professional confidence was as applicable to communications after proceedings had been brought as to those which took place before.’

Judges:

Morritt J

Citations:

Times, 22 April 1999

Jurisdiction:

England and Wales

Cited by:

CitedOmar’s Trustees v Omar ChD 2000
A wife and mistress (D) had conspired, after the death of the husband, to remove money in bank accounts from his estate by taking the bearer shares in the company in whose name the accounts were held. The first action, in which D was legally . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 23 May 2022; Ref: scu.622383

Haigh v Westminster Magistrates Court and Others: Admn 8 Dec 2017

The Claimant sought judicial review of an order made against him for payment of defence wasted costs after he withdrew his private prosecution against the defendants. The claimant said that he had been dilatory in his claim.
Held: ‘wasted costs proceedings are ancillary to the substantive proceedings (in this case the substantive application for judicial review). For the reasons already given, there is an onus on the applicant for a wasted costs order in particular to proceed with due expedition. The applicants in the present matter have not done that.’

Judges:

Gross LJ, Nicol J

Citations:

[2017] EWHC 3197 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Costs, Legal Professions

Updated: 23 May 2022; Ref: scu.601437

Stein v Blake: ChD 31 Oct 2000

When a Legal Aid certificate was withdrawn, leading to an opposing party suffering abortive costs in continuing the action, it was not a duty of the Legal Services Commission to inform the opposing side. They would have no access to arrangements made by the formerly assisted person for continuing the action or otherwise, and the duty must fall on the solicitor appointed to act.

Citations:

Times 31-Oct-2000, Gazette 09-Nov-2000

Jurisdiction:

England and Wales

Citing:

See AlsoStein v Blake CA 13-May-1993
The plaintiff argued that: ‘Nothing in the wording of section 323 changes the nature of set-off as it operates between solvent parties; it merely widens the categories of claim capable of being, and which must be, set off.’
Held: The decision . .
See AlsoStein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .
See AlsoStein v Blake and others CA 13-Oct-1997
The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason . .
Lists of cited by and citing cases may be incomplete.

Legal Aid, Legal Professions

Updated: 20 May 2022; Ref: scu.89540

Secured Residential Funding plc v Douglas Goldberg Hendeles and Co (a Firm): CA 19 Apr 2000

Two linked companies were in business from the same premises lending money on mortgage. A loan from one company was made but supported only by documentation in the name of the other. The error was noticed, but new documents not prepared until after completion. In possession proceedings, the lender had to show that the money had been advanced by its associate as its agent. The operative date was the date on which the mortgage advance was made, not on completion.

Citations:

Times 26-Apr-2000, Gazette 25-May-2000, [2000] EWCA Civ 144

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Land, Legal Professions

Updated: 20 May 2022; Ref: scu.89148

Dubai Bank Ltd v Galadari: CA 1990

A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the purpose of advising his client and obtaining evidence and the solicitor has exercised skill and judgment in the selection.’

Judges:

Dillon LJ

Citations:

(1990) Ch 98

Jurisdiction:

England and Wales

Citing:

CitedChadwick v Bowman CA 1886
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against . .
See AlsoDubai Bank Ltd v Galadari (No 2) CA 1990
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the . .

Cited by:

CitedBrown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
CitedSumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
See AlsoDubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
See AlsoDubai Bank Ltd v Galadari and Others (No 5) 25-Jun-1990
A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions, International

Updated: 19 May 2022; Ref: scu.181214

Penn v Bristol and West Building Society and Others: CA 24 Apr 1997

The solicitor innocently accepted instructions to sell a property, but was misled as to the identity of the wife – one of the joint owners. Unknown to him, however, Mr Penn had forged his wife’s signature on the contract documents. He was sued by the lender to the buyer (who had also been involved in the fraud).
Held: The Solicitor acting for vendor was to be held liable as having given a warranty that he was instructed by the true owners.
Waller LJ having said that the solicitor thought he was acting for the wife as well as the husband and, in all the pre-contract correspondence, negotiations and completion, held himself out as duly authorised by the husband and wife jointly, held that the building society had to establish that a promise had been made to it by the agent, to the effect that the agent had the authority of the principal, and that it had provided consideration by acting in reliance on that promise. He concluded that all the necessary ingredients were present for establishing a warranty by the solicitor in favour of the building society that the solicitor had the authority of Mrs Penn.

Judges:

Staughton, Waite, Waller LJJ

Citations:

Times 24-Apr-1997, [1997] 3 All ER 470, [1997] EWCA Civ 1416, [1997] 1 WLR 1356, [1997] PNLR 607

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromPenn v Bristol and West Building Society and Others ChD 19-Jun-1995
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. . .

Cited by:

Appealed toPenn v Bristol and West Building Society and Others ChD 19-Jun-1995
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. . .
CitedA and J Fabrications (Batley) Ltd v Grant Thornton and Others ChD 1998
The plaintiffs, the majority creditors of a company in liquidation, alleged that they had agreed with Grant Thornton, the defendants, to support the appointment of one of the firm’s partners or employees as liquidator of the company, with a view to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 19 May 2022; Ref: scu.84653

O Palomo Sa v Turner and Co; Turner and Co v O Palomo Sa: CA 28 Jul 1999

A solicitor’s bill could only be taxed within one year of its delivery, but the common law right to challenge a bill on the grounds that the amount charged was unreasonable could continue after that time limit. The common law right to object to paying more than was reasonable was not displaced by the Act, and could allow a court to tax a bill outside the one year limit.
Evans LJ said: ‘the position apart from the Act is broadly as follows. If the solicitor wishes to be paid and is not in funds he will need to sue and prove that his charges were either expressly agreed or are reasonable charges. If he is in funds and purports to deduct the amount of his bill but the client challenges the deduction, the solicitor will still need to prove that the charges were either expressly agreed or were reasonable charges. The question is whether the client loses these rights to challenge the amount of the bill after the period for taxation has passed . . a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now s. 70 of the 1974 Act has expired. .
Nor do we consider that the solicitor is disadvantaged by the possibility that the client is entitled to have the reasonableness of the charges assessed by the court after the statutory periods for taxation have expired. He can himself claim an order for taxation under s. 70(2), without any time limit, and obtain a form of summary judgment when the taxation certificate is issued . .
We do not see any difficulty in holding that the solicitor’s claim is for a reasonable sum, whether by statute or at common law, and not for a liquidated sum. Again in accordance with general principles, the burden of proving that the sum is reasonable rests upon him. This is supported, if authority is needed, by the judgments in Re Park [Re Park, Cole v. Park (1889) 41 Ch D 326] and Jones and Son v. Whitehouse [[1918] 2 KB 61] . . ‘

Judges:

Evans LJ

Citations:

Times 30-Aug-1999, Gazette 08-Sep-1999, [1999] EWCA Civ 2007, [2000] 1 WLR 37

Links:

Bailii

Statutes:

Solicitors Act 1974 70

Jurisdiction:

England and Wales

Citing:

ApprovedThomas Watts and Co (a Firm) v Smith CA 16-Mar-1998
The court considered the status of an untaxed solicitor’s bill of costs against a client for whom he had acted in defamation proceedings. Sir Richard Scott V-C said: ‘It is a fact that [the client] never entered into any contract to pay the sums as . .

Cited by:

CitedTruex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.84402

Mohammed v Alaga and Co (A Firm): CA 2 Nov 1998

(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the solicitors for a quantum meruit rather than in restitution would stand.

Judges:

Lord Justice Simon Brown, Lord Justice Mantell

Citations:

Times 29-Jul-1999, [1998] EWCA Civ 1654

Statutes:

Solicitors Practice Rules 1990

Jurisdiction:

England and Wales

Citing:

Appeal fromMohammed 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. . .

Cited by:

Leave to AppealMohammed 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 as to illegality, but succeeded on a quantum . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 19 May 2022; Ref: scu.83793

Law Society v KPMG Peat Marwick and Others: CA 29 Jun 2000

The respondent accountants had certified accounts for a firm of solicitors whose dishonest defaults later lead to substantial claims on the compensation fund set up by the claimants.
Held: The Law Society who collected funds from the profession at large and would have to pay out compensation were clearly owed a duty of care by the respondents.

Citations:

Times 04-Jul-2000, Gazette 27-Jul-2000, [2000] 1 All ER 515, [2000] 1 WLR 1921, A3/2000/0175, [2000] EWCA Civ 5563

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal fromLaw Society v KPMG Peat Marwick and Others ChD 3-Nov-1999
An accountant, auditing a firm of solicitors, and providing a certificate to the Law Society knew that the Society and its compensation fund would rely upon that certificate and so owed it a duty of care. A negligently given certificate could lead . .

Cited by:

CitedLaw Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 19 May 2022; Ref: scu.82963

In Re Sternberg Reed Taylor and Gill (A Firm): CACD 26 Jul 1999

Negligence on the part of a solicitor was capable of falling within the range of ‘unnecessary or improper act or omission’ so as to leave him open to a wasted costs order. A clerk, having stood near the place where the jury assembled, discussed the case with the defendant. A re-trial was necessary, and could easily have been avoided.

Citations:

Times 26-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Crim 1870

Links:

Bailii

Statutes:

Costs in Criminal Cases (General) Regulations 1986 (1986 No 1335) 3(c)

Jurisdiction:

England and Wales

Criminal Practice, Legal Professions, Costs

Updated: 19 May 2022; Ref: scu.82203

Harley v McDonald; Glasgow Harley (A Firm) v McDonald: PC 10 Apr 2001

(New Zealand) A solicitor’s duty to the court was not breached merely because he had, on his client’s instructions, pursued a case which was hopeless. It was also inapposite to penalize him for work undertaken before the court had warned him of the view that the case was hopeless. The solicitor, as an officer of the court, has duties to achieve a minimum level of competence and not to abuse the court’s process. In its nature, the procedure of penalising a solicitor in costs, will be summary. The court should allow the solicitor proper opportunity to defend himself, and should restrain itself from investigating matters which were within judicial knowledge.

Citations:

Times 15-May-2001, [2001] UKPC 20, Nos 9 of 2000 and 50 of 2000, [2001] 2 WLR 1749, [2001] 2 AC 678, [2001] Lloyd’s Rep PN 584

Links:

Bailii, PC, PC

Citing:

CitedMyers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Commonwealth

Updated: 19 May 2022; Ref: scu.81242

Foxley v United Kingdom: ECHR 20 Jun 2000

A bankrupt was suspected of disposing of his assets to avoid a confiscation order. The trustee in bankruptcy obtained an order for the bankrupt’s post to be diverted to her whilst he was in prison. She opened all post and copied it before forwarding it to the bankrupt. This included correspondence with his legal advisers. The order and her practice infringed the bankrupt’s human rights insofar as no distinction was made with respect to correspondence protected by legal privilege, and insofar as the order continued in effect after the bankrupt’s discharge. ‘The Court can see no justification for this procedure and considers that the action taken was not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client. It notes in this connection that the Government have not sought to argue that the privileged channel of communication was being abused; nor have they invoked any other exceptional circumstances which would serve to justify the interference with reference to their margin of appreciation.’

Citations:

Times 04-Jul-2000, (2001) 31 EHRR 637, 33274/96, [2000] ECHR 223, [2000] ECHR 224

Links:

Worldlii, Bailii

Statutes:

Insolvency Act 1986 371, European Convention on Human Rights

Cited by:

CitedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
CitedBowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Insolvency, Legal Professions

Updated: 19 May 2022; Ref: scu.80653

Edmonds v Lawson: QBD 13 Oct 1999

A pupil barrister was engaged in a form of apprenticeship, which had sufficient characteristics of employment to make the pupil a worker within the Act, and so entitled to payment of the minimum wage. The contract was either of employment or for personal services and so was covered.

Citations:

Times 11-Oct-1999, Gazette 13-Oct-1999

Statutes:

National Minimum Wage Act 1998 1 (2) (a), 58

Cited by:

Appeal FromEdmonds v Lawson, Pardoe, and Del Fabbro CA 10-Mar-2000
A contract of apprenticeship is synallagmatic. The master undertakes to educate and train the apprentice (or pupil) in the practical and other skills needed to practise a skilled trade (or learned profession) and the apprentice (or pupil) binds . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 19 May 2022; Ref: scu.80252

Casado Coca v Spain: ECHR 24 Feb 1994

The right to freedom of expression is not personal to the individual and is capable of being enjoyed by corporate legal persons, and commercial advertising, such as that of the claimants, is protected by Article 10(1). However, the control of lawyers’ right to advertise their practices, was not a breach of the right of free expression.

Citations:

Times 01-Apr-1994, [1994] ECHR 8, 15450/89, (1994) 18 EHRR 1

Links:

Worldlii, Bailii

Statutes:

European Convention on Human Rights 10(1)

Jurisdiction:

Human Rights

Cited by:

CitedNorth Cyprus Tourism Centre Ltd and Another, Regina (on the Application Of) v Transport for London Admn 28-Jul-2005
The defendants had prevented the claimants from advertising their services in North Cyprus on their buses, and justified this saying that the Crown did not recognise the Turkish Republic of North Cyprus since it was the result of an unlawful . .
CitedCore Issues Trust v Transport for London Admn 22-Mar-2013
The claimant sought judicial review of the decision made by TfL not to allow an advertisement on behalf of the Trust to appear on the outside of its buses. It was to read: ‘NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!’. The decision was said to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights, Media

Updated: 19 May 2022; Ref: scu.78930

Browell and Others v Goodyear: ChD 24 Oct 2000

When a partnership of solicitors was dissolved, the main asset was the work in progress comprised in substantial personal injury litigation being conducted, in effect, on a conditional fee basis. The question arose of how it could be valued. The court discarded foreign judgments which gave nil value to such assets for taxation purposes, and also the ‘realisation’ basis sometimes used in Britain. Instead the court had to assess the proportion of work which might prove successful, and to establish what proportion of the work had already been concluded, making allowance for the need for simplicity of calculation, the necessary inexactitude, and giving the benefit of any doubt to those who might complete the work.

Citations:

Times 24-Oct-2000

Company, Legal Professions

Updated: 18 May 2022; Ref: scu.78685

British Waterways Board v Norman: QBD 11 Nov 1993

A solicitor cannot claim payment from the other party of costs he would not ask his own client to pay. An implied contingency agreement with his client could defeat a claim for payment of costs from the other party. There was never any intention on the part of the solicitors to create any liability for their own costs if the proceedings failed. It therefore followed that they sought to conduct the case on a contingency basis, such basis being contrary to public policy in any criminal trial such as this.

Citations:

Ind Summary 29-Nov-1993, Times 11-Nov-1993, [1993] 22 HLR 232

Statutes:

Environmental Protection Act 1990 79

Costs, Legal Professions, Criminal Practice, Housing

Updated: 18 May 2022; Ref: scu.78651

Berkshire and Oxfordshire Magistrates’ Courts v Gannon and Another: QBD 10 May 2000

The applicants had been employed on the administrative staff of a Magistrates’ Court, spending 25-40% of their working day performing duties delegated to them by the clerk to the justices. The Tribunal held that, as an ‘appreciable’ part of their duties was in assisting the JC, they came within the definition in regulation 3(1)(b).
Held: The case was remitted to the Tribunal. The Tribunal had misdirected itself in holding that, for the purposes of the regulation, assisting the JC need be no more than an ‘appreciable’ part of the employment. More was required. Provided a person’s duties at work were predominantly devoted to providing assistance to the holder of the office of justices’ clerk, that person would be entitled to compensation upon termination of office under the Regulations.
Carnwath J explained the meaing of regulation 3: ‘Is it sufficient that assisting the justices’ clerk should be ‘an appreciable (as opposed to insignificant or negligible’) feature of the employment, as the tribunal concluded? Or is Mr Lynch right in submitting that the employment must be wholly or predominately devoted to providing such assistance? . . In my view Mr Lynch is correct on this issue. The words of regulation 3(1) itself are ambiguous. I accept that a person, only part of whose duties consist of assisting the justices’ clerk, could still properly be said to be ’employing in assisting’ him. However, the context is of an employment which is comparable to that of the office of justices’ clerk. That is much more readily understandable in relation to someone whose main job is to assist the clerk, rather than someone who merely spends part of his time assisting the clerk’.
He concluded ‘It would be convenient if one could treat that dividing-line, between delegated and non-delegated functions, as corresponding precisely to the relevant distinction under regulation 3. However, that is not how the regulation is drafted. Nor does it appear, from the Tribunal’s finding, that there was in practice a clear dividing-line. Even the non-delegated functions seem to have been considerably more significant than those of ‘typists, secretaries or ushers.’ A conclusion that these duties, or some of them, also amounted to ‘assisting the clerk’, in the sense defined by the Tribunal, would not necessarily be unreasonable.’

Judges:

Carnwath J

Citations:

Times 10-May-2000, [2000] ICR 1003, [2000] EWHC Admin 326

Links:

Bailii

Statutes:

Justices of The Peace Act 1949 (Compensation) Regulations 1978 (1978 No 1682)

Cited by:

ApprovedSlee v Secretary of State for Justice (1) Admn 19-Nov-2007
The claimant sought compensation under the Regulations as a result of her dismissal on the re-organisation of the Magistrates Court at Wimbledon from her position as court clerk. The EAT had allowed her claim for unfair dismissal. Her position on . .
CitedSecretary of State for Justice v Slee CA 24-Jan-2011
The claimant had been found to have been unfailry dismissed by respondent, on the termination of her employment as an assistant Clerk to the Justices. The EAT had upheld her claim, but had at first rejected her claim for long-term and retirement . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 18 May 2022; Ref: scu.78358

Chief Justice of Trinidad and Tobago v The Law Association of Trinidad and Tobago: PC 16 Aug 2018

Trinidad and Tobago – The Law Association having a constitutional duty to conduct any enquiry necessary as regards the Chief Justice. It resolved to establish a committee to enquire whether such a complaint was required, allegations having been made. The appellant’s objection that it had no power to do so was rejected, and he now appealed.
‘A vital element in any modern democratic constitution is the independence of the judiciary from the other arms of government, the executive and the legislature. This is crucial to maintaining the rule of law: the judges must be free to interpret and apply the law, in accordance with their judicial oaths, not only in disputes between private persons but also in disputes between private persons and the state. The state, in the shape of the executive, is as much subject to the rule of law as are private persons. An important part of the judicial task in a constitutional democracy is not only to ensure that public authorities act within their powers but also to enforce the fundamental rights of individuals against the state. Judicial independence is secured in a number of ways, but principally by providing for security of tenure: in particular this requires that a judge may only be removed from office, or otherwise penalised, for inability or misbehaviour and not because the government does not like the decisions which he or she makes. It is also required that removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.’

Judges:

Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption

Citations:

[2018] UKPC 23

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Constitutional, Legal Professions

Updated: 18 May 2022; Ref: scu.621124

Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd: 1972

The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to sell the land or any part of it. Within that period the first defendants contracted to sell, and then conveyed, the land to the second defendants without any release from the option. In the course of the proceedings for damages for, among other things, breach of contract and conspiracy, the plaintiffs issued a summons for disclosure from the second defendants of instructions to counsel by the first defendants and the opinion of counsel, which had been sent by the first defendants to the second defendants.
Held: The second defendants’ claim for privilege should be upheld and the plaintiffs’ summons dismissed. It was clearly established that privilege of a predecessor in title enures for the benefit of his successor. The second defendants had received the documents at issue as successors in title.

Judges:

Goff J

Citations:

[1972] Ch 533, [1971] 3 All ER 1192, [1972] 2 WLR 91

Jurisdiction:

England and Wales

Citing:

CitedMinet v Morgan CA 1873
A connection with litigation is not a necessary condition for legal privilege to be attracted to a document.
The law on legal privilege had not at once reached a broad and reasonable footing, but reached it by successive steps. . .

Cited by:

CitedIn re Konigsberg (A Bankrupt) 1989
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 . .
CitedX v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
CitedShlosberg v Avonwick Holdings and Others ChD 7-Mar-2016
Application for order disallowing a firm from acting for the defendants. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 18 May 2022; Ref: scu.621168

Creditors of Wamphray v Lady Wamphray: 1675

An advocate was not bound to disclose ‘any private advice or secret of his calling or employment’

Citations:

(1675) Mor 347

Cited by:

CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Scotland, Legal Professions

Updated: 18 May 2022; Ref: scu.470881

Slade v Tucker: CA 1880

Sir George Jessel MR said that legal advice privilege is to be ‘confined to communications between a client and his legal adviser, that is, between solicitor and client or barrister and client.’

Judges:

Sir George Jessel MR

Citations:

(1880) 14 Ch D 824

Cited by:

CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 18 May 2022; Ref: scu.470877

Regina v Samuel: CA 1988

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’.

Judges:

Hodgson J

Citations:

[1988] QB 615, [1988] 2 WLR 920, (1987) Cr App R 232

Statutes:

Police and Criminal Evidence Act 1984 58(1)

Cited by:

CitedAmbrose v Harris, Procurator Fiscal, Oban, etc SC 6-Oct-2011
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
CitedBeeres v Crown Prosecution Service (West Midlands) Admn 13-Feb-2014
The defendant said that his confession should not have been admitted in evidence it having been given when he had not been advised of his rights whilst at the police station because of his inebriation.
Held: The appeal failed. A confession is, . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Police

Updated: 18 May 2022; Ref: scu.445392

Dennis v Codrington: 1579

A counsellor not to be examined of any matter, wherein he hath been of couunsel.- The plaintant seeks to have Master Oldsworth examined touching a matter in variance, wherein he hath been of counsel ; it is ordered he shall not be compelled by subpoena, or otherwise, to be examined upon any matter concerning the same, wherein he the said Mr. Oldsworth was of counsel, either by the indifferent choice of both parties, or with either of them by reason of any annuity or fee.

Citations:

[1579] EngR 37, (1579-80) Cary 100, (1579) 21 ER 53 (D)

Links:

Commonlii

Cited by:

CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 18 May 2022; Ref: scu.430919

Lewis v Samuel: 17 Apr 1846

Plaintiff, an attorney, undertook a prosecution for perjury on defendant’s behalf, and agreed not to charge him full costs, except money out of pocket. He disbursed 105 pounds towards carrying on the proceedings, but, by negligence, preferred a defective indictment, and, in consequence, the prosecution failed. Held that he could not recover against defendant for the disbursements. Defendant, in the course of the proceedings, advanced plaintiff 100 1. for carrying them on ; and he applied it accordingly. Held, that, in an action by plaintiff for professional charges and disbursements, defendant could not set off’ the 100 pounds. as money received by plaintiff to his use.

Citations:

[1846] EngR 543, (1846) 8 QB 685, (1846) 115 ER 1031

Links:

Commonlii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 18 May 2022; Ref: scu.302438

Ashmore and Others v Corporation of Lloyds: HL 13 May 1992

A Judge’s interlocutory order for the trial of a preliminary point could be set aside only if it was clearly wrong: ‘In my opinion, when a judge alive to the possible consequences decides that a particular course should be followed in the conduct of the trial in the interests of justice, his decision should be respected by the parties and upheld by an appellate court unless there are very good grounds for thinking that the judge was plainly wrong.’ and ‘Litigants are not entitled to the uncontrolled use of a trial Judge’s time. Other litigants await their turn. Litigants are only entitled to so much of the trial Judge’s time as is necessary for the proper determination of the relevant issues.’
There is an overriding duty on lawyers to assist in the prompt and economical disposal of litigation.
Lord Templeman referred to previous case where he had ‘warned against proceedings in which all or some of the litigants indulge in over-elaboration causing difficulties to judges at all levels in the achievement of a just result. He also said that the appellate court should be reluctant to entertain complaints about a judge who controls the conduct of proceedings and limits the time and scope of evidence and argument. So too, where a judge, for reasons which are not plainly wrong, makes an interlocutory decision or makes a decision in the course of a trial the decision should be respected by the parties and if not respected should be upheld by an appellate court unless the judge was plainly wrong . . An expectation that the trial would proceed to a conclusion upon the evidence [that the party wishing to call are sought] to be adduced is not a legitimate expectation. The only legitimate expectation of any plaintiff to receive justice. Justice can only be achieved by assisting the judge and accepting his rulings.’

Judges:

Lord Templeman, Lord Roskill

Citations:

Gazette 13-May-1992, [1992] 2 All ER 486, [1992] 1 WLR 446, [1992] 2 Lloyds Rep 1

Cited by:

CitedNoorani v Merseyside TEC Limited CA 19-Oct-1998
The claimant had claimed race discrimination. The tribunal declined to order the issue of witness summonses. The EAT overturned that decision on the basis that the tribunal had not recognised that it had a discretion to issue the summonses, and had . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 17 May 2022; Ref: scu.77897

Arthur J S Hall and Co (A Firm) v Simons etc: CA 14 Dec 1998

The court considered the limits on liability for professional negligence for lawyers in conduct associated with litigation, but outside the courtroom.
Held: Though the court must balance the need for protection against negligence by lawyers with the need to avoid re-litigation of issues settled by courts, case law dictates some exemptions, but these must be limited and any doubt resolved against the practitioner.

Judges:

Lord Bingham of Cornhill LCJ, Mottitt LJ, Waller LJ

Citations:

Times 18-Dec-1998, [1998] EWCA Civ 1943, [1999] 3 WLR 873, [1998] EWCA Civ 3539, [1999] 1 FLR 536, [1999] PNLR 374, [1999] 2 FCR 193, [1998] NPC 162, [1999] Fam Law 215, [1999] Lloyd’s Rep PN 47

Links:

Bailii, Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal fromArthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
CitedWorldwide Corporation Limited v Marconi Communications Ltd (Formerly Gpt Limited) and Gpt (Middle East) Limited CA 21-Jun-1999
Counsel, giving assurances in open court on behalf of his client, bound that client. This applied even though counsel might have been negligent, and / or might, in turn, be immune from suit. Courts must be able to rely, and act, upon assurances . .
CitedWorldwide Corporation Limited v Marconi Communications Limited (Formerly GPT Limited) and GPT (Middle East) Limited 22-Jun-1999
Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
Held: The claim had little prospect of success. Leave to appeal refused. . .
CitedXydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 17 May 2022; Ref: scu.77881

Collins v London General Omnibus Company: 1893

The court adopted a narrow definition of when documents would be protected by legal professional privilege because of anticipated litigation. Will J postulating circumstances being such that ‘no reasonable person could doubt that an action would follow’, and Charles J defining a case in which litigation was reasonably apprehended as being one ‘when there is a high probability, amounting to certainty, that an action will ensue’.

Judges:

Wills J, Charles J

Citations:

(1893) 68 LT NS 831

Jurisdiction:

England and Wales

Cited by:

CitedUnited States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.195747

Regina v Governor of Whitemoor Prison, Ex parte Main: QBD 1999

The court considered whether prison staff should be able to read letters between a prisoner and his legal advisers before proceedings were actually commenced.
Held: The policy represented the minimum intrusion into the rights of prisoners consistent with the need to maintain security, order and discipline in prisons. Kennedy LJ ‘In my judgment legal professional privilege does attach to correspondence with legal advisers which is stored by a prisoner in his cell, and accordingly such correspondence is to be protected from any unnecessary interference by prison staff. Even if the correspondence is only inspected to see that it is what it purports to be that is likely to impair the free flow of communication between a convicted or remand prisoner on the one hand and his legal adviser on the other, and therefore it constitutes an impairment of the privilege.’ Judge LJ ‘Prisoners whose cells are searched in their absence will find it difficult to believe that their correspondence has been searched but not read. The governor’s order will sometimes be disobeyed. Accordingly I am prepared to accept the potential ‘chilling effect’ of such searches.’

Judges:

Kennedy LJ, Judge LJ

Citations:

[1999] QB 349

Jurisdiction:

England and Wales

Citing:

See alsoRegina v Governor of HM Prison Whitemoor ex parte Main Admn 17-Feb-1997
. .

Cited by:

See AlsoRegina v Governor of HM Prison Whitemoor ex parte Main Admn 17-Feb-1997
. .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Lists of cited by and citing cases may be incomplete.

Prisons, Legal Professions

Updated: 16 May 2022; Ref: scu.190129

Balabel v Air India: CA 1988

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.’

Judges:

Taylor LJ, Parker LJ and Lord Donaldson MR

Citations:

[1988] Ch 317, [1988] ANZ Conv R 417, [1988] 2 All ER 246, [1988] 2 WLR 1036

Jurisdiction:

England and Wales

Citing:

CitedAnderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .

Cited by:

CitedUnited States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
CitedRegina on the Application of Davies (No 2) v HM Deputy Coroner for Birmingham CA 27-Feb-2004
The claimant appealed against a costs order. She had previously appealed against an order of the High Court on her application for judicial review of the inquest held by the respondent.
Held: The coroner, and others in a similar position . .
CitedUnited States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
CitedRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
CitedNederlandse Reassurantie Groep Holding NV v Bacon and Woodrow Holding 1995
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 . .
CitedCurtis v Curtis CA 8-Mar-2001
The mother sought leave to call in evidence in proceedings for contact, an affidavit sworn by the father’s previous solicitors when applying to be removed from the record, which related the contents of telephone calls from the father to their . .
CitedPrudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Others CA 13-Oct-2010
The court was asked whether advice given by an accountant could be protected against disclosure by legal professional privilege. The company had taken advice from its accountants, and objected to disclosure of that advice to the tax authorities . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 May 2022; Ref: scu.188692

Shuttleworth and Co v Commissioners of Customs and Excise: 1994

The transfer of funds by a solicitor was part of the overall conveyancing service provided by a solicitor to his client. Therefore, a telegraphic transfer fee could not for VAT purposes, be treated as a disbursement in the solicitor’s bill to his client.

Citations:

Lon/94/986A

VAT, Legal Professions

Updated: 16 May 2022; Ref: scu.187350

Langley Holdings v Seakens: QBD 19 Oct 2000

The claimant sought recovery from one of two partners in a solicitors’ firm of solicitors of sums paid to the firm and misappropriated by the partner, who had conspired with others to offer a fraudulent investment. The claimant admitted that the promised return was incredible. The funds were received on an undertaking that they would not be used absent documentation. That undertaking was broken. It was in a solicitor’s ordinary course of business to hold money for his client. Nevertheless the defendant contended that the ‘underlying transaction’ had been ‘extraordinary’ and ‘outlandish’ and no reasonable person could have acted in it; and that the claimant could have had no genuine belief.
Held: The claimant was so dazzled by the promised profits that they had not asked whether there was a genuine investment. The recipt of the funds could not have been in the ordinary course of the business of a solicitor, and it followed that the partner was not liable.

Citations:

Unreported, 19 October 2000

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Cited by:

CitedJ J Coughlan Ltd v Ruparelia and others CA 21-Jul-2003
The defendant firm of solicitors had acted in a matter involving a fraud. One partner was involved in the fraud. The claimants sought to recover from the partnership.
Held: ‘The issue is not how the transaction ought properly to be described, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 16 May 2022; Ref: scu.186089

In re Ronald A Prior and Co (Solicitors): 1996

Citations:

[1996] Cr App R 248

Cited by:

CitedWasted Costs Order (No 5 of 1997) CACD 2-Sep-1999
Witness orders for the production of documents in the speculative hope that they might contain matters of assistance should be discouraged, and particularly so in respect of documents held by social services departments. This should now be well . .
Lists of cited by and citing cases may be incomplete.

Crime, Legal Professions

Updated: 16 May 2022; Ref: scu.183205

Heslop v Metcalfe: 1837

The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, after embarking in a cause, he finds that he cannot get the necessary funds wherewith to carry it on. But, on the other hand, extreme hardship might arise to the client if – to take the case which is not uncommon in the smaller practice in the country – a solictor, who finds a poor man having a good claim, and having but a small sum of money at his command, may go until that fund is exhausted, and then, refusing to proceed further, may hang up the cause by withholding the papers in his hands. That would be great grievance and means of oppression to a poor client, who in the clearest right in th eworld, might still be without the means of employing another solicitor. The rule of the Court must be adapted in every case that may occur, and be calculated to protect suitors against such conduct.’ and ‘I then take the law as laid down by Lord Eldon, and, adapting that law, must holdthat Mr Blunt is not to be permitted to impose upon the Plaintiff the necessity of carrying on his cause in an expensive, inconvenient, and disadvantageous manner. I think the principle should be, that the solicitor claiming the lien, should have every security not inconsistent with the progress of the cause.’

Judges:

Lord Cottenham LC

Citations:

[1837] 3 My and Cr 183

Jurisdiction:

England and Wales

Cited by:

CitedIsmail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
ApprovedGamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 16 May 2022; Ref: scu.183177

Gamlen Chemical Co (UK) Ltd v Rochem Ltd: CA 4 Dec 1979

Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect subject to an undertaking to maintain its condition and to respect the solicitors’ lien. The first firm appealed.
Held: The practice embodied in the order was appropriate. Where a solicitor discharged himself, a mandatory order should be available. Legal professional privilege will not be upheld if the relevant document came into being as a step in a criminal or illegal proceeding.
Templeman LJ explained why the normal response of the court, when faced with a solicitor who has discharged himself in the course of litigation, even where the solicitor is entitled to discharge himself, is to order the solicitor to hand over the client’s papers to the client’s new solicitors, subject to an undertaking from the new solicitors to preserve the lien of the original solicitor. This course is usually adopted ‘in order to save the client’s litigation from catastrophe’.
Goff LJ stated: ‘the court must in every case, of course, be satisfied that what is prima facie proved really is dishonest, and not merely disreputable or a failure to maintain good ethical standards and must bear in mind that legal professional privilege is a very necessary thing and is not lightly to be overthrown, but on the other hand, the interests of victims of fraud must not be overlooked. Each case depends on its own facts.’

Judges:

Goff and Templeman LJJ

Citations:

[1980] 1 WLR 614, [1980] 1 All ER 1049, [1983] RPC 1

Jurisdiction:

England and Wales

Citing:

ApprovedHeslop v Metcalfe 1837
The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, . .
CitedHughes v Hughes 1958
Hodson LJ said: ‘There is no doubt that a solicitor who is discharged by his client during an action otherwise than for misconduct can retain any papers in the cause in his possession until the costs have been paid . . This rule applies, as the . .
CitedRobins v Goldingham 1872
Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs. . .
Appeal from (Dicta approved)Gamlen Chemical Co (UK) Ltd v Rochem Ltd 1983
Goulding J said: ‘For servants during their employment and in breach of their contractual duty of fidelity to their master to engage in a scheme, secretly using their master’s time and money, to take the master’s customers and employees and make . .

Cited by:

CitedIsmail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
CitedFrench v Carter Lemon Camerons Llp CA 3-Sep-2012
The appellant had instructed the defendant solicitors in litigation. On beginning to act in person she sought an order to require the solicitors to deliver the case papers to her. They asserted a lien on them until their account was paid. She now . .
CitedWalsh Automation (Europe) Ltd v Bridgeman and others QBD 4-Jul-2002
Appeal from refusal of order for disclosure of legal advice given to a party. It was alleged that the defendant’s suggested attempt at fraud by means of a document drawn up by the solicitors would be revealed by disclosure of the advice given. . .
CitedX v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Evidence

Updated: 16 May 2022; Ref: scu.182182

Bolton v Liverpool Corporation: HL 1833

The defendant sought to inspect the plaintiff’s instructions to his counsel, though not of the advice which counsel gave.
Held: The application was refused. Lord Brougham said: ‘It seems plain, that the course of justice must stop if such a right exists. No man will dare to consult a professional adviser with a view to his defence or to the enforcement of his rights.’

Judges:

Lord Brougham LC

Citations:

(1833) 1 My and K 88, [1833] EngR 409, (1833) 39 ER 614

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Appeal fromBolton v The Corporation of Liverpool 1833
. .
See AlsoBolton v Corporation of Liverpool 1833
A party has a right to the production of such deeds only as either sustain his own title exclusively, or sustain it jointly with that of his adversary. A party is not compellable to produce, for the purposes of an action or suit, cases laid before . .

Cited by:

CitedB and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
CitedPrudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 16 May 2022; Ref: scu.182241

Regina v Jones (Paull Garfield): CACD 8 Oct 2002

The Court of Appeal had ordered the defendant to be re-tried within two months. An initial application for directions was adjourned without the defendant being re-arraigned, and then was adjourned again to a date outside the two month limit. Defence solicitors, knowing the difficulty declined to express a view either way.
Held: The arraignment could take place exceptionally outside the two month limit. The duty under the act for the prosecution to act with ‘all due expedition’ was a more restricted requirement than the one to act with ‘due diligence’, and there was also a duty on the defence to ensure that effect was given to the order of the Court.

Judges:

Kay LJ, Wright, Henriques JJ

Citations:

Times 24-Oct-2002, Gazette 31-Oct-2002

Statutes:

Criminal Appeal Act 1968 8(1B)

Legal Professions, Criminal Practice

Updated: 16 May 2022; Ref: scu.177489

Goodall v Little: 11 Jan 1851

The answer, after denying the title of the Plaintiffs, set forth a schedule of documents in the possession of the Defendants, which it admitted related to the matters mentioned in the bill ; but it denied that, by those documents, the truth of such matters would appear to be otherwise than as stated in the answer ; and it submitted that the Defendants ought not to be ordered to produce the documents, and, in addition, that certain of the letters mentioned in the schedule ought not to be produced in this or any other suit, inasmuch as they were written either pending or in contemplation of the litigation in this suit, and with reference to the matters in this suit brought into controversy, and were written to one of the Defendants from his solicitor, or from an attorney who had been employed by him in a suit instituted by him in the Lord Mayor’s Court, to which the bill related, to the solicitors of that Defendant, or from one of the Defendants to another of them for the purpose of being communicated to the solicitor of the latter with a view to his defence in this litigation. Held, that such of the first class of letters as were written to the Defendants by their solicitors, in that character merely, were privileged, but that all the other documents and letters ought to be produced..

Citations:

[1851] EngR 102, (1850-1851) 1 Sim NS 155, (1851) 61 ER 60

Links:

Commonlii

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice

Updated: 15 May 2022; Ref: scu.296418

Regina v Lord Chancellor ex parte the Law Society (2): QBD 22 Jun 1993

The introduction of a Standard Fees Criminal Legal Aid regime did not require prior consultation with the Law Society. The rules had been imposed in accordance with the words of the enabling statute.

Citations:

Independent 22-Jun-1993, Times 25-Jun-1993

Statutes:

Legal Aid Act 1988 34

Judicial Review, Costs, Legal Aid, Legal Professions

Updated: 15 May 2022; Ref: scu.163155

Nationwide Building Society v Various Solicitors: ChD 20 Jan 1998

Legal professional privilege could be set aside at disclosure where the fraudulent intention of one lay client was thereby shown as against another lender. The right to assert legal professional privilege does not apply to documents which came into existence in furtherance of a criminal or fraudulent purpose, but to overcome the privilege, there must be some prima facie evidence that the allegations of fraudulent or criminal purpose have some foundation of fact. ‘Provided the solicitor’s advice and assistance was employed in furtherance of the iniquity the exception came into play in relation to confidential communications between the solicitor and client which would otherwise be protected by the client’s privilege. It mattered not whether the solicitor was engaged to advise in relation to the misrepresentation or whether he was aware that his involvement was in furthering the iniquity.’

Judges:

Blackburne J

Citations:

Times 05-Feb-1998, Gazette 11-Feb-1998, [1999] PNLR 52, [1998] TLR 59

Jurisdiction:

England and Wales

Cited by:

CitedArundel Corporation (an Overseas Company) v Mohammed Ramzan Khokher CA 9-Apr-2003
In the course of an application under the Landlord and Tenant Act, the landlord sought to adduce on appeal evidence that the tenant and his solicitors had sought to deceive the court.
Held: The application should not be heard in private since . .
CitedAbbey National Plc v Clive Travers and Co (a Firm) CA 18-May-1999
The defendants appealed an order for discovery saying it would infringe their duty of confidence to their clients. The firm had acted for the buyer, seller and lender. A fraud on the lender was alleged. The solicitors sought to rely upon the . .
CitedX v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
CitedBBGP Managing General Partner Ltd and Others v Babcock and Brown Global Partners ChD 20-Aug-2010
Norris J held:
‘Although the case law refers to crime or fraud or dishonesty (such as fraudulent breach of trust, fraudulent conspiracy, trickery or sham contrivances) it is plain that the term ‘fraud’ is used in a relatively wide sense: Eustice’s . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 15 May 2022; Ref: scu.84229

Aberdeen Solicitor’s Property Centre Ltd and Another v Director General of Fair Trading: RPC 20 Feb 1996

A restrictive practice on advertising imposed by the Law Society of Scotland related to legal practice and so was exempt from registration.

Citations:

Times 20-Feb-1996

Statutes:

Restrictive Trade Practices Act 1976 26

Commercial, Legal Professions

Updated: 15 May 2022; Ref: scu.77609

The Palermo: 1883

A copy of an original document which is not itself privileged is privileged only if (a) the copy came into existence for the purpose of litigation, and (b) the original document is not and has not at any time been in the control of the party claiming privilege.

Citations:

(1883) 9 PD 6

Jurisdiction:

England and Wales

Cited by:

CitedSumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 13 May 2022; Ref: scu.196686

Black and Decker Inc v Flymo: 1991

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.’

Judges:

Hoffmann J

Citations:

[1991] 1 WLR 753

Cited by:

CitedB and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions

Updated: 12 May 2022; Ref: scu.182249

Davies v Davies: CA 2000

The wife had objected to the instruction by her former husband of a solicitor who had been instructed by her some seven years previously. She withdrew her objection, but the court now considered an appeal as regards costs.
Held: The court considered the possible subconscious influence on a lawyer having acted before for a party.

Judges:

Sir Stephen Brown P, Robert Johnson J

Citations:

[2000] 1 FLR 39

Jurisdiction:

England and Wales

Citing:

ApprovedPrince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .

Cited by:

CitedZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 11 May 2022; Ref: scu.599588

Re T v A, (children, risk of disclosure): 2000

Citations:

[2000] 1 FLR 859

Jurisdiction:

England and Wales

Cited by:

CitedZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 11 May 2022; Ref: scu.599589

Connolly v Harrington (Liquidator of Chelmsford City Football Club (1980) Ltd: 17 May 2002

An application for the assessment of a solicitors bill may be made informally.

Citations:

Unreported, 17 May 2002

Jurisdiction:

England and Wales

Cited by:

CitedTruex v Toll ChD 6-Mar-2009
The bankrupt appealed against an order in bankruptcy made against her on application by her former solicitors in respect of their unpaid costs. The bankrupt said that since the bill was yet untaxed, it might be altered and could not base a statutory . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 11 May 2022; Ref: scu.317859

Dubai Aluminium Company Limited v Salaam and others: CA 7 Apr 2000

The liability of a firm for the wrongful acts of one partner is not limited to tortious acts creating liability in common law, but includes all wrongful acts or omissions, including a knowing assistance in a fraudulent scheme. A solicitor who prepares documents for use in a fraudulent scheme, and gives supporting advice, unbeknown to his partners, is acting outside the ordinary course of business, and his partners are not vicariously liable for his acts.

Judges:

Evans, Aldous LJJ, Turner J

Citations:

Times 21-Apr-2000, [2000] 3 WLR 910, [2000] EWCA Civ 118, [2000] 2 Lloyd’s Rep 168, [2001] QB 113, [2000] PNLR 578, [2000] Lloyd’s Rep PN 497

Links:

Bailii

Statutes:

Partnership Act 1890 10

Jurisdiction:

England and Wales

Citing:

Appeal fromDubai Aluminium Company Ltd v Salaam and Others QBD 17-Jul-1998
A partner is vicariously liable for the acts of his partner in equity as well as in tort. Where a partner acted as accessory to a breach of trust he acted as a constructive trustee. A settlement of and action on this basis was enforceable in a later . .
See AlsoDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .

Cited by:

Appeal fromDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Lists of cited by and citing cases may be incomplete.

Company, Legal Professions, Vicarious Liability

Updated: 11 May 2022; Ref: scu.147151

Hemmens v Wilson Browne (A Firm): ChD 30 Jun 1993

A solicitor was not liable in negligence, where his mistake might be yet be rectified; this was an inter vivos transaction and the parties could still resolve the position. Though a solicitor had a duty to the beneficiary of a settlement, the settlor could still perfect the deed.

Judges:

Judge Moseley QC

Citations:

Gazette 08-Dec-1993, Times 30-Jun-1993, [1993] 4 All ER 826

Cited by:

CitedHumblestone v Martin Tolhurst Partnership (A Firm) ChD 5-Feb-2004
The solicitors sent a will to the client for execution, but failed to notice on its return that it had not been properly executed, the signature not being that of the client.
Held: The solicitors were under a duty to ensure that the will would . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Updated: 10 May 2022; Ref: scu.81313

Copeland v Smith: CA 20 Oct 1999

Advocates appearing before tribunals should make themselves properly aware of current decisions reported in their field so that the court was properly able to decide the case before them. Such a failure is a discourtesy to the court.

Citations:

Times 20-Oct-1999, Gazette 08-Dec-1999

Jurisdiction:

England and Wales

Legal Professions

Updated: 10 May 2022; Ref: scu.79495

Chadwick v Bowman: CA 1886

The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against inspection were made to cover such a case as this. It does not appear to me that these documents really came into existence for the purposes of the rule upon which the defendant’s counsel relied.’

Judges:

Mathew J, Denman J

Citations:

(1886) 16 QBD 561

Jurisdiction:

England and Wales

Cited by:

ExplainedWatson v Cammell Laird and Co Ltd CA 1959
Referring to the case of Chadwick v. Bowman: ‘…. the essential fact was that certain letters which the defendant had received, and copies of letters which he had written, had been at some stage destroyed by the defendant, and in order to replace . .
CitedSumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
CitedDubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 09 May 2022; Ref: scu.196688

Watson v Cammell Laird and Co Ltd: CA 1959

Referring to the case of Chadwick v. Bowman: ‘…. the essential fact was that certain letters which the defendant had received, and copies of letters which he had written, had been at some stage destroyed by the defendant, and in order to replace them the defendant obtained from the third party, from and to whom they had been written, copies, which therefore would be available as secondary evidence of the original documents which he himself had lost or destroyed. The court said, accordingly, that these copies, the mere replacements of something which he would have had to produce himself, must be produced.’

Judges:

Chadwick v. Bowman

Citations:

[1959] 1 WLR 702

Jurisdiction:

England and Wales

Citing:

ExplainedChadwick v Bowman CA 1886
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against . .

Cited by:

CitedSumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions

Updated: 09 May 2022; Ref: scu.196687

C v C: 1997

The parties contested the costs of conveyancing work undertaken as a result of ancillary relief proceedings. It was assumed that the work was non-contentious.

Citations:

[1997] 2 FLR 22

Jurisdiction:

England and Wales

Cited by:

CitedBilkus v Stockler Brunton (A Firm) CA 16-Feb-2010
Solicitors appealed against the rejection of their claim for an uplift in their fees amounting to andpound;50,000, based on the value element in the transaction in the 1994 Order. The court had to decide whether the matter came under the rules as a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 07 May 2022; Ref: scu.401612

General Mediterranean Holdings SA v Patel and Another: QBD 19 Jul 1999

The new Civil Procedure Rules were ultra vires and invalid insofar as they purported to remove any right of a solicitor’s client to assert his right of confidence as against his solicitor. The solicitor was therefore unable in this case to defend himself against a wasted costs order, but the court could allow for the refusal of the client to waive his privilege.
Toulson J said: ‘Article 6 gives every person a right to a fair trial, but I do not accept that it follows as a general proposition that this gives a right to interfere with another person’s right to legal confidentiality. If that were generally so, the right to legal confidentiality recognised by the court would be useless, since its very purpose is to enable a person to communicate with his lawyer secure in the knowledge that such communications cannot be used without his consent to further another person’s cause. In the absence of a general right under Article 6 to make use of another person’s confidential communications with his lawyer, I do not see how solicitors have a particular right to do so under that Article for the purpose of defending a wasted costs application.’

Judges:

Toulson J

Citations:

Times 12-Aug-1999, Gazette 11-Aug-1999, [1999] EWHC 832 (Comm), [1999] Lloyds Rep PN 919, [1999] 2 Costs LR 10, [2000] 1 WLR 272, [1999] 3 All ER 673, [2000] UKHRR 273, [1999] PNLR 852, [2000] HRLR 54, [1999] CPLR 425

Links:

Bailii

Statutes:

Civil Procedure Act 1997, Civil Procedure Rules 1998 No 1312

Jurisdiction:

England and Wales

Cited by:

CitedMasri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Professional Negligence, Human Rights

Updated: 07 May 2022; Ref: scu.80789

Regina (Cooke) v Revenue and Customs Commissioners: QBD 30 Jan 2007

The claimant solicitor sought a judicial review of a requirement made by the revenue that he must produce the papers of his client taxpayer under the section.
Held: The effect of the section was to require a notice to be given by a commissioner and not by an inspector, and altered the applicable provisions according to who served the notice. The section left unsaid the extent to which the commissioners could delegate their functions, and any decision remained subject to the possibility of a judicial review. A public authority has a duty to provide full and fair disclosure and explanations.

Judges:

Munby J

Citations:

Times 12-Feb-2007

Statutes:

Taxes Management Act 1970 20

Jurisdiction:

England and Wales

Citing:

AppliedRegina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Taxes Management

Updated: 07 May 2022; Ref: scu.248919

in Re a solicitor, No 6 of 1993: CA 23 Jul 1993

‘The purpose of a condition on a practising certificate is not punitive, but is intended to ensure that a solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life at least until he has demonstrated over a period that he is not in need of any such supervision to protect the public’

Judges:

Sir Thomas Bingham MR

Citations:

Unreported, 23 July 1993

Jurisdiction:

England and Wales

Cited by:

CitedCamacho, Regina (on the Application of) v The Law Society Admn 12-Jul-2004
The Solicitors Disciplinary Tribunal had suspended the applicant, with recommendations as to conditions to be imposed by the Law Society if the suspension was later lifted. The solicitor appealed.
Held: The Tribunal itself had power to impose . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 06 May 2022; Ref: scu.216344

Regina v G and Another (PII: Counsel’s duty): CACD 27 May 2004

During the course of the trial, the prosecutor had inadvertently disclosed to the defence legal team material which had been subject to a public interest immunity certificate. The judge made an order under the 1987 Act that the defence team must not disclose the materials to their clients, nor use it for their defence.
Held: The jury having been discharged on the discovery, what then happened was a preparatory hearing, and there did exist a right of appeal. The judge had correctly seen the order as ancillary to the original PII certificate order. He had considered that the material would not impede the conduct of the defence. However, such an order would lead to several substantial practical difficulties and dangers for the defence lawyers. An asymmetric Chinese Wall between some defendants and their counsel and others would create an unfairness. This was reflected already in the documents submitted on the appeal. The judge could not conclude that the legal team could not properly continue to act. That was a decision for them, not him. If such orders were possible the special counsel procedures approved in R v H would not be required. Appeal allowed.
Rose LJ identified the inevitable damage to the relationship between the lawyer of revealing information to the lawyer on condition that it not be passed to the client: ‘. . . in addition to preventing frankness and fettering the free flow of information between lawyer and client, the order would be likely to nurture in the client a belief that his lawyers are putting other interests . . . above his own; and the client’s perception of the relationship is a matter of importance . . .’

Judges:

Rose LJ, Cresswell , Andrew Smith JJ

Citations:

[2004] 1 WLR 2932, Times 08-Jun-2004

Statutes:

Criminal Justice Act 1987 9(11)

Jurisdiction:

England and Wales

Citing:

CitedRegina v Davis; Regina v Rowe; Regina v Johnson CA 10-Mar-1993
Guidance was given on the procedures to be followed for applications for non-disclosure for public interest immunity. The court identified three types of case. In the first, and most frequent case the prosecution must notify the defence of the . .
CitedRegina v H; Regina v C HL 5-Feb-2004
Use of Special Counsel as Last Resort Only
The accused faced charges of conspiring to supply Class A drugs. The prosecution had sought public interest immunity certificates. Special counsel had been appointed by the court to represent the defendants’ interests at the applications.

Cited by:

CitedRegina v Davis (Iain); Regina v Ellis, Regina v Gregory, Regina v Simms, Regina v Martin CACD 19-May-2006
The several defendants complained at the use at their trials of evidence given anonymously. The perceived need for anonymity arose because, from intimidation, the witnesses would not be willing to give their evidence without it.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 06 May 2022; Ref: scu.199548

KU (A Child) v Liverpool City Council: CA 27 Apr 2005

(Practice Note) The solicitor appealed an order which made the success fee payable different at different stages of the court action.
Held: The court had no power to make such an order. To the extent that the CPR might suggest otherwise they were wrong.
‘a practice direction has no legislative force. Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.’

Judges:

Brooke VP CA, Rix, Dyson LJJ

Citations:

[2005] 1 WLR 2657, Times 16-May-2005, [2005] EWCA Civ 475, [2005] 4 Costs LR 600

Links:

Bailii

Statutes:

Civil Procedure Rules 44.8(2), Courts and Legal Services Act 1990 58, Conditional Fee Agreements Regulations 2000 (2000 No 602)

Jurisdiction:

England and Wales

Cited by:

CitedCoventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
CitedN v ACCG and Others SC 22-Mar-2017
The local authority and a young man’s parents disputed his continued care, he having substantial incapacities. The parents wanted assistance caring for him on visits home. The LA declined to fund that support. The LA now argued that the CoP had not . .
CitedIn re NY (A Child) (Reunite International and others intervening) SC 30-Oct-2019
The father had applied for a summary order requiring the return of the daughter to Israel. The Court was asked to consider whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 06 May 2022; Ref: scu.224477

Valente v The Queen: 19 Dec 1985

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.

Judges:

Dickson CJ and Beetz, Estey, McIntyre, Chouinard, Lamer and Le Dain JJ

Citations:

[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

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedMisick and Others v The Queen PC 25-Jun-2015
Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Natural Justice, Legal Professions

Updated: 04 May 2022; Ref: scu.573790

K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd: CA 1992

A third arbitrator appointed by the arbitrators already appointed, accepted office on the basis that the hearing would take place by a specified date and would last for a specified period. Three years later, the plaintiffs’ solicitors requested the arbitrators to fix a period for the hearing over twice as long and in two further years’ time. The third arbitrator replied that the tribunal might consider this but that the parties should consider the fees likely to be incurred and he set out a statement of the fees chargeable including a non-refundable commitment fee payable in advance of the hearing. The defendants’ arbitrator took no part in the ensuing discussion of fees. The parties did not accept the proposal but invited its withdrawal. The third arbitrator and the plaintiffs’ arbitrator offered their resignations. The plaintiffs’ solicitors made a proposal acceptable to the arbitrators but sought an assurance that the defendants’ solicitors had no objection to the plaintiffs making the payments proposed. The defendants’ solicitors maintained that the two arbitrators had no power to demand advance fees; the fees were excessive, and that it was inappropriate for one party to pay the fees demanded to the two arbitrators. They did not allege partiality. They later wrote that both arbitrators should continue on the terms as appointed but withdrawing the new fees demand. The plaintiffs sought declarations that the arbitrators were fit and proper persons to act and that their acceptance of the plaintiffs’ fee arrangements would not raise any imputations of bias. The defendants applied for an order that the two arbitrators be removed.
Held: For an arbitrator to insist upon a fee without the consent of all parties constitutes misconduct: ‘Any fee upon which (the arbitrators) wish to insist should be made known at the outset before acceptance of appointment.’
However, the express disavowal by the defendants of any imputation of actual bias and their request that the arbitrators continue to act, precluded the exercise by the court of its discretion to remove them but, that the conclusion of an agreement between the arbitrators and the plaintiffs on the basis of the plaintiffs’ revised proposal would be improper. The majority took the view that by reason of the change in circumstances the request for a commitment fee was justified, that a mere request by an arbitrator for a commitment fee did not amount to misconduct and that, in any event, even if the entry by the arbitrators into separate negotiations with the plaintiffs for their fees amounted to misconduct, the express disavowal of bias and request of the arbitrators to continue to act precluded their removal.

Judges:

Legatt LJ

Citations:

[1992] QB 863, [1991] 3 All ER 211, [1991] 3 WLR 1025

Jurisdiction:

England and Wales

Cited by:

CitedJivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Legal Professions

Updated: 04 May 2022; Ref: scu.442595

In the matter of a solicitor (Jiwaji): CA 2 Feb 2000

The applicant sought to have set aside an order that he be struck off the roll of solicitors.
Held: The appeal failed. ‘It is true that no loss was in the result caused to any client and that the solicitor is not accused of dishonesty. Nonetheless his conduct undermined the control which the Law Society seeks to exercise over the recording of financial transactions in solicitors’ offices, and in particular over the handling and disbursement of clients’ monies. The solicitor had a serious record of previous failures, which had culminated in the clearest possible warning.’

Judges:

Lord Bingham of Cornhill

Citations:

Unreported, 2 February 2000

Jurisdiction:

England and Wales

Cited by:

CitedSingleton v The Law Society QBD 11-Nov-2005
The claimant appealed his striking off the roll of solicitors. He said he had not been dishonest. He was said to have made entries to show receipts into client account to support payments out when such receipts had not occurred. He denied this was . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 01 May 2022; Ref: scu.241435

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

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.

Citations:

1988 ST 264

Jurisdiction:

Scotland

Cited by:

CitedThe Scottish Lion Insurance Company Ltd, Re Sanction of A Scheme of Arrangement SCS 8-Mar-2006
Sanction had been sought for a scheme of arrangement on the winding up of an insurance company. There were objections. The original scheme had been proposed under English law, and it would be inappropriate for a Scottish court to try to sanction . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 01 May 2022; Ref: scu.238925

Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions: 1988

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.’

Judges:

Glidewell LJ

Citations:

[1988] QB 532

Statutes:

Legal Aid Act 1974 23

Jurisdiction:

England and Wales

Citing:

CitedRegina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .

Cited by:

Overruled in partRegina v Central Criminal Court ex parte Francis and Francis HL 1989
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 . .
CitedHallinan, Blackburn-Gittings and Nott (A Firm), Regina (on the Application Of) v Crown Court at Middlesex Guildhall and Another Admn 15-Nov-2004
In a criminal investigation, the police came to suspect that a junior clerk in a barristers’ chambers was intending to give a false alibi. Though the solicitors were innocent of any wrongdoing, the police required their file. The solicitors claimed . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice

Updated: 30 April 2022; Ref: scu.220240

Regina v Ataou: CACD 1988

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.’

Judges:

Wolff LJ, Waterhouse and French JJ

Citations:

[1988] QB 798

Jurisdiction:

England and Wales

Citing:

OverruledRegina v Barron 1971
The judge at trial had refused to set aside a subpoena to produce documents which had been served on behalf of the accused in a criminal trial.
Held: Caulfield J said: ‘I think the correct principle is this, and I think it must be restricted . .

Cited by:

OverruledRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Criminal Practice

Updated: 29 April 2022; Ref: scu.182247

In Re Solicitors, Ex Parte Peasegood: QBD 6 May 1993

A request to the court for the removal of a solicitor from the Roll was to be made via Counsel, and not by a litigant in person.

Citations:

Times 06-May-1993, Independent 06-May-1993

Statutes:

Solicitors Act 1974 50 51

Jurisdiction:

England and Wales

Litigation Practice, Legal Professions

Updated: 29 April 2022; Ref: scu.82191

Mohammed 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.

Citations:

Times 02-Apr-1998, Gazette 29-Apr-1998

Statutes:

Solicitors Practice Rules 1990 (Law Society 1991)

Jurisdiction:

England and Wales

Citing:

CitedSwain 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. . .

Cited by:

Appeal fromMohammed v Alaga and Co (A Firm) CA 2-Nov-1998
(Application for Leave) An agreement between solicitors and non-solicitors for the payment of a fee for introductions was illegal and unenforceable. Where however the non-solicitor provided services as part of the arrangement, a claim against the . .
Appeal FromMohammed 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 as to illegality, but succeeded on a quantum . .
CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 29 April 2022; Ref: scu.83786

Smith v Linskills: CA 1996

The claimant, a convicted burglar took proceedings against his former solicitors. He alleged that the negligence of the solicitor caused his wrongful conviction.
Held: The case was dismissed. The claimant was seeking to re-litigate issues which had already been litigated in proceedings in the criminal court in which he had been a participant. The case of Hunter does not lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to be within it.
CS Sir Thomas Bingham MR identified: ‘the affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction. Such would, we think, be the case here if there were a subsisting Crown Court decision that Mr Smith was, beyond reasonable doubt, guilty of aggravated burglary and a subsisting civil court decision that if his defence been properly prepared he would and should have been acquitted. No reasonable observer could view this outcome with equanimity. ‘ and ‘It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted . . It is certainly true that in his speech in Hunter’s case . . Lord Diplock attached considerable significance to the ulterior purpose which lay behind the proceedings brought by the intending plaintiff in that case. We have no doubt at all but that the existence of such an ulterior motive provides a strong and additional ground for holding proceedings to be an abuse. The question is whether such an ulterior motive is a necessary ingredient of abuse.’

Judges:

Sir Thomas Bingham, MR

Citations:

Gazette 28-Feb-1996, Times 07-Feb-1996, [1996] 1 WLR 763, [1996] 2 All ER 353

Jurisdiction:

England and Wales

Citing:

CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
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. The plaintiffs had imprisoned having spent many . .

Cited by:

CitedArthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
AppliedRegina v Steidl and Baxendale-Walker 27-Jun-2002
(Southwark Crown Court) The case was a prosecution for serious fraud. In civil proceedings, despite evidence to suggest a powerful case for dishonesty, a High Court judge had concluded that the claimant had failed to establish that the defendant, . .
Applied0Regina v Stocker CCC 23-Nov-2004
(Central Criminal Court) The court was due to try a case alleging that the defendant had killed her child. In care proceedings Hedley J had concluded that a mother had killed her child, but he was positively satisfied that she lacked the intention . .
CitedRegina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Litigation Practice

Updated: 28 April 2022; Ref: scu.181090

Domb and Another v Isoz: CA 29 Nov 1979

In a chain of conveyancing transactions, a solicitor sent his contract and deposit to his vendor’s solicitor, asking him to hold it to his order pending exchange. On the next day, that vendor’s solicitors agreed to an exchange of contracts over the telephone on his own purchase, but his client then told him not to proceed. The solicitor did not deliver the contract on that purchase, and claimed that under the postal rule, exchange had not taken place. The purchaser appealed a finding that there was no contract.
Held: A contract had been created. The solicitor had his client’s authority to exchange in this manner, and the contract was made at the time of the agreement on the telephone. The contract could come into existence before the posting of the second part of the contract, which would be the normal rule for postal acceptance.
Buckley LJ: ‘the essential characteristic of exchange of contracts is that each party shall have such a document signed by the other party in his possession or control so that, at his own need, he can have the document available for his own use. Exchange of a written contract for sale is in my judgment effected so soon as each part of the contract, signed by the vendor or the purchaser as the case may be, is in the actual or constructive possession of the other party or of his solicitor. Such possession need not be actual or physical possession; possession by an agent of the party or of his solicitor, in such circumstances that the party or solicitor in question has control over the document and can at any time procure its actual physical possession will, in my opinion, suffice. In such a case the possession of the agent is the possession of the principal. A party’s solicitor employed to act in respect of such a contract has, subject to express instructions, implied authority to effect exchange of contracts and so to make the bargain binding upon his client. This he can, in my judgment, do by any method which is effectual to constitute exchange.’
BRIDGE LJ: ‘A solicitor acting for a vendor or a purchaser who holds his client’s signed part of the contract has his client’s ostensible authority to effect exchange of contracts.’
Templeman LJ: ‘In my judgment a client impliedly authorises, and ostensibly authorises, his solicitor to effect exchange of contracts in such manner and by such agents as the solicitor may think fit. The client confers power to exchange, but is not interested in the machinery or method of exchange, which is a matter for the solicitor and the general law.’

Judges:

Buckley, Bridge and Templeman LJJ

Citations:

[1980] 2 WLR 565, [1980] Ch 548, [1980] 1 All ER 942

Links:

lip

Jurisdiction:

England and Wales

Citing:

CitedEccles v Bryant and Pollock CA 1947
The Plaintiff contended that a letter written by the purchaser’s solicitor which effectively set out the terms of the agreement, enclosed the part of the contract signed by the purchaser, and asked in exchange for the counter-part signed by the . .
CitedJohnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract, Land, Agency

Updated: 28 April 2022; Ref: scu.178200

Regina v Law Society ex parte Singh and Choudry (A Firm): QBD 1 Apr 1994

The disciplinary jurisdiction of the Law Society is not dependent on prejudice having been shown to have affected any client. The jurisdiction is disciplinary in nature, its intention being to maintain standards in the profession.

Citations:

Gazette 03-Aug-1994, Times 01-Apr-1994, [1994] Admin LR 249

Jurisdiction:

England and Wales

Cited by:

CitedRegina on the Application of Thompson v The Law Society CA 20-Feb-2004
The claimant complained at the disciplinary procedures of the Law Society.
Held: A failure to hold a disciplinary hearing in public was not an infringement of the claimant’s human rights. The two questions of whether there had been a . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 28 April 2022; Ref: scu.87133

National Home Loans Corporation Plc v Giffen Couch and Archer (A Firm): QBD 31 Dec 1996

A solicitor acting for both a borrower and a lender has a duty to tell the lender of his other, lay client’s bad payment record.

Citations:

Times 31-Dec-1996, Gazette 15-Jan-1997

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 28 April 2022; Ref: scu.84182

Napier and Ettrick v R F Kershaw: CA 9 Sep 1992

Money held by solicitors for names was subject to subrogation for insurers.

Citations:

Gazette 09-Sep-1992

Jurisdiction:

England and Wales

Citing:

Appealed toLord Napier and Ettrick and Another v Hunter and Others; Same v R F Kershaw Ltd HL 3-Mar-1993
Certain insureds sought recovery of a sum which was greater than the sum which had been paid to them by their insurers. The insureds had claimed first on the policies of insurance. Their claims had been met. The insureds then pursued an action in . .

Cited by:

Appeal fromLord Napier and Ettrick and Another v Hunter and Others; Same v R F Kershaw Ltd HL 3-Mar-1993
Certain insureds sought recovery of a sum which was greater than the sum which had been paid to them by their insurers. The insureds had claimed first on the policies of insurance. Their claims had been met. The insureds then pursued an action in . .
Lists of cited by and citing cases may be incomplete.

Insurance, Legal Professions

Updated: 28 April 2022; Ref: scu.84168

Southwark and Vauxhall Water Company v Quick: CA 1878

The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s current engineer) was not so used. Inspections was sought of the documents.
Held: If a party seeks to inspect a document which comes into existence merely as the materials for the brief, or the equivalent, the document cannot be seen. It is privileged. If at the time the document is brought into existence its purpose is that it should be laid before the solicitor, if that purpose is true and clearly appears upon the affidavit, it is not taken out of the privilege merely because afterwards it was not laid before the solicitor. Cockburn CJ: ‘The relation between the client and his professional legal adviser is a confidential relation of such a nature that to my mind the maintenance of the privilege with regard to it is essential to the interests of justice and the well-being of society. Though it might occasionally happen that the removal of the privilege would assist in the elucidation of matters in dispute, I do not think that this occasional benefit justifies us in incurring the attendant risk’ Brett LJ: ‘. . it is clear that if a party seeks to inspect a document which comes into existence merely as the materials for the brief, or that which is equivalent to the brief, then the document cannot be seen, for it is privileged. It has been urged that the materials, or the information obtained for the brief, should have been obtained ‘at the instance’ or ‘at the request’ of the solicitor; but I think it is enough if they come into existence merely as the materials for the brief, and I think that phrase may be enlarged into ‘merely for the purpose of being laid before the solicitor for his advice or for his consideration”.

Judges:

Cockburn CJ and Brett LJ

Citations:

(1878) 3 QBD 315

Jurisdiction:

England and Wales

Cited by:

CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
CitedB and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 27 April 2022; Ref: scu.180867

Greenhough v Gaskell: CA 1833

The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of communications which he had received from his client. The Lord Chancellor held that the defendant could claim privilege, that it made no difference whether it was the client or the solicitor who was the defendant and that it did not matter that, at the time, there were no existing or contemplated proceedings. In relation to lawyers: ‘Here the question relates to the solicitor, who is called upon to produce the entries he had made in accounts, and letters received by him, and those written (chiefly to his town agent) by him, or by his direction, in his character or situation of confidential solicitor to the party; and I am of opinion that he cannot be compelled to disclose papers delivered, or communications made to him, or letters, or entries made by him in that capacity. To compel a party himself to answer upon oath, even as to his belief or his thoughts, is one thing; nay, to compel him to disclose what he has written or spoken to others, not being his professional advisers, is competent to the party seeking the discovery; for such communications are not necessary to the conduct of judicial business, and the defence or prosecution of men’s rights by the aid of skilful persons. To force from the party himself the production of communications made by him to professional men seems inconsistent with the possibility of an ignorant man safely resorting to professional advice, and can only be justified if the authority of decided cases warrants it. But no authority sanctions the much wider violation of professional confidence, and in circumstances wholly different, which would be involved in compelling counsel or attorneys or solicitors to disclose matters committed to them in their professional capacity, and which, but for their employment as professional men, they would not have become possessed of. As regards them, it does not appear that the protection is qualified by any reference to proceedings pending or in contemplation. If touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client, or on his account, and for his benefit in the transaction of his business, or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any Court of law or equity, either as party or as witness. If this protection were confined to cases where proceedings had commenced, the rule would exclude the most confidential, and it may be the most important of all communications – those made with a view of being prepared either for instituting or defending a suit, up to the instant that the process of the Court issued.’
If it were confined to proceedings begun or in contemplation, then every communication would be unprotected which a party makes with a view to his general defence against attacks which he apprehends, although at the time no one may have resolved to assail him. But were it allowed to extend over such communications, the protection would be insufficient, if it only included communications more or less connected with judicial proceedings; for a person oftentimes requires the aid of professional advice upon the subject of his rights and his liabilities, with no references to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry. ‘It would be most mischievous,’ said the learned Judges in the Common Pleas, ‘if it could be doubted whether or not an attorney, consulted upon a man’s title to an estate, was at liberty to divulge a flaw’ (2 Brod. and Bingh. 6). . . The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. . . . But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.’
However: ‘for a person at times requires the aid of professional advice upon the subject of his rights and liabilities, with no references to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry . . .The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attaches to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially medical advisers. But it is out of regard to the interests of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources’
and ‘the interests of justice, which cannot be upholden, and the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings.’

Judges:

Lord Brougham LC

Citations:

(1833) 1 My and K 98, [1833] EngR 105, (1833) Coop T Br 96, (1833) 47 ER 35

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
CitedThree Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
CitedThree Rivers District Council and others v Governor and Company of the Bank of England (No 6) HL 11-Nov-2004
The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .
CitedHerring v Clobery 1842
The court considered whether legal advice privilege should be confined to litigation: ‘But further, I think that restriction of the rule is not consistent with, and not founded on, any sound principle; for it may, and in a great variety of cases . .
CitedCarpmael v Powis 1846
The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
CitedRegina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedPrudential Plc and Another, Regina (on the Application of) v Special Commissioner of Income Tax and Another Admn 14-Oct-2009
The company had obtained legal advice but had taken it from their accountants. The Revenue sought its disclosure, and the company said that as legal advice it was protected by legal professional privilege.
Held: The material was not protected. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 27 April 2022; Ref: scu.180861

Wakenshaw, Regina (on The Application of) v Secretary of State for Justice: Admn 7 Aug 2018

Assertion that Parole Board lacked necessary independence to determine whether the claimant prisoner should be eligible for release after completion of indeterminate sentence of imprisonment.
Held: The court particularly considered the issue of tenure, where a member of the Board might be removed for failures of different kinds, but without the possibility of review, in the light of pressure applied politically for the removal of the Chair of the Parole Board. The court granted permission for the judicial review to go ahead with a declaration sought: ‘That the period of appointment (three or four years, renewable for three or four years) of Parole Board members coupled with the power of the Secretary of State to remove a member if he is satisfied that he or she has failed without reasonable excuse to discharge the functions of his or her office for a continuous period of at least three months, or is unable to discharge the functions of the office, without recourse to any procedure or machinery to determine the merit of a decision to remove him or her on one or other of these grounds, means that the provisions for tenure of Parole Board membership fail the test of objective independence.’

Judges:

Mostyn J

Citations:

[2018] EWHC 2089 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights

Jurisdiction:

England and Wales

Prisons, Human Rights, Legal Professions

Updated: 26 April 2022; Ref: scu.621165

Wards Solicitors v Hendawi: ChD 26 Jul 2018

Application by the defendant to set aside a judgment in default given in relation to a claim, in respect of which the claim form had been issued on 5 December 2006, for the repayment of monies paid by mistake by the claimant to the defendant.

Citations:

[2018] EWHC 1907 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 26 April 2022; Ref: scu.621079

Gilham v Ministry of Justice: EAT 31 Oct 2016

Jurisdictional Points: Worker, Employee or Neither – The Employment Judge made no error of law in concluding that District Judges are office-holders and do not also work under a contract of employment or for services.

Judges:

Simler DBE P J

Citations:

[2016] UKEAT 0087 – 16 – 3110, [2017] ICR 404, [2017] IRLR 23

Links:

Bailii

Statutes:

Employment Rights Act 1996 230(3), Public Interest Disclosure Act 1998

Jurisdiction:

England and Wales

Cited by:

At EATGilham v Ministry of Justice SC 16-Oct-2019
The Court was asked whether a district judge qualifies as a ‘worker’ for the purpose of the protection given to whistle-blowers under Part IVA of the 1996 Act, and if not then was the absence of protection an infringement of her human rights.
Appeal from (EAT)Gilham v Ministry of Justice CA 21-Dec-2017
Appeal by employment judge against dismissal of whistleblower’s claim.
Held: Dismissed. An employment judge is an office-holder, and neither office holder nor worker. . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 21 April 2022; Ref: scu.570731

Penn v Bristol and West Building Society and Others: ChD 19 Jun 1995

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.

Citations:

Gazette 13-Jul-1995, Times 19-Jun-1995, [1995] FLR 938

Jurisdiction:

England and Wales

Citing:

Appealed toPenn v Bristol and West Building Society and Others CA 24-Apr-1997
The solicitor innocently accepted instructions to sell a property, but was misled as to the identity of the wife – one of the joint owners. Unknown to him, however, Mr Penn had forged his wife’s signature on the contract documents. He was sued by . .

Cited by:

Appeal fromPenn v Bristol and West Building Society and Others CA 24-Apr-1997
The solicitor innocently accepted instructions to sell a property, but was misled as to the identity of the wife – one of the joint owners. Unknown to him, however, Mr Penn had forged his wife’s signature on the contract documents. He was sued by . .
CitedAl-Sabah v Ali and Others ChD 22-Jan-1999
The claimant alleged the fraudulent transfer of properties by use of a forged power of attorney.
Held: The power was fraudulent. Solicitors had acted under the instructions of the agent. The court referred to the Law Society’s practice . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 15 April 2022; Ref: scu.84654

Geoffrey Silver and Drake v Baines (trading as Wetherfield Baines and Baines) (a firm): CA 1971

The court’s summary jurisdiction over solicitors is extraordinary, and therefore should only be exercised sparingly (i) if justice requires this procedure to be adopted, as opposed to some other procedure.
There is a recognised jurisdiction to punish a solicitor for failure to comply with an undertaking given in his or her capacity as a solicitor.
Lord Denning MR said: ”This court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the court and are answerable to the court for anything that goes wrong in the execution of their office. Even if the solicitor has been guilty of no fault personally, but it is the fault of his clerk, he is accountable for it: see Myers v Elman [1939] 4 All ER 484, [1940] AC 282.
This jurisdiction extends so far that, if a solicitor gives an undertaking in his capacity as a solicitor, the court may order him straightaway to perform his undertaking. It need not be an undertaking to the court. Nor need it be given in connection with legal proceedings. It may be a simple undertaking to pay money, provided always that it is given ‘in his capacity as a solicitor’: see United Mining and Finance Corpn Ltd v Becher [1910] 2 KB 296 at 306, [1908-10] All ER Rep 876 at 881, per Hamilton J. If such an undertaking is given, the court may summarily make an order on the solicitor to fulfil his undertaking (see Re a Solicitor [1966] 3 All ER 52, [1966] 1 WLR 1604) and, if he then fails to do so, the court may commit him to prison. Alternatively, if it is an order to pay money, execution may be levied against his property. This summary jurisdiction means, however, that the solicitor is deprived of the advantages which ordinarily avail a defendant on a trial. There are no pleadings; no discovery; and no oral evidence save by leave. The jurisdiction should, therefore, only be exercised in a clear case’
Denning MR said: ‘This court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the court and are answerable to the court for anything that goes wrong in the execution of their office. Even if the solicitor has been guilty of no fault personally, but it is the fault of his clerk, he is accountable for it. This jurisdiction extends so far that, if a solicitor gives an undertaking in his capacity as a solicitor, the court may order him straightaway to perform his undertaking. It need not be an undertaking to the court. Nor need it be given in connection with legal proceedings . . This summary jurisdiction means, however, that the solicitor is deprived of the advantages which ordinarily avail a defendant on a trial. There are no pleadings; no discovery; and no oral evidence save by leave. The jurisdiction should, therefore, only be exercised in a clear case.’

Judges:

Megaw LJ, Lord Denning MR

Citations:

[1971] 1 QB 396, [1971] 1 All ER 473

Jurisdiction:

England and Wales

Citing:

CitedMyers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .

Cited by:

CitedAngel Solicitors v Jenkins O’Dowd and Barth ChD 19-Jan-2009
Actions were brought to enforce undertakings given by solicitors to redeem mortgages on the sale of properties, and as to redemption figures provided by lenders who then refused to release the properties. The solicitors had replied to standard form . .
CitedColl v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 12 April 2022; Ref: scu.526189

Robins v Goldingham: 1872

Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs.

Citations:

(1872) LR 13 Eq 440

Jurisdiction:

England and Wales

Cited by:

CitedIsmail and Another v Richards Butler (A Firm) QBD 23-Feb-1996
A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the . .
CitedGamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Lists of cited by and citing cases may be incomplete.

Equity, Legal Professions

Updated: 12 April 2022; Ref: scu.222602

Hospital Products Ltd v United States Surgical Corporation: 25 Oct 1984

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.’

Judges:

Mason J

Citations:

(1984) 156 CLR 41, (1984) 55 ALR 417, (1984) 58 ALJR 587, 4 IPR 291, [1984] HCA 64

Links:

Austlii

Jurisdiction:

England and Wales

Cited by:

ApprovedKelly v Cooper and Another PC 25-Nov-1992
There was a dispute between a client and an estate agent in Bermuda. The client sued the estate agent for damages for breach of duty in failing to disclose material information to him and for putting himself in a position where his duty and his . .
CitedHilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
CitedRatiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
CitedHalton International Inc (Holding) and Another v Guernroy Ltd ChD 9-Sep-2005
Parties had entered into a shareholders’ agreement as to voting arrengemets within a company. Thay disputed whether votes had been used in reach of that agreement, particularly as to the issue of new shares and their allotment, but the court now . .
Lists of cited by and citing cases may be incomplete.

International, Legal Professions

Updated: 12 April 2022; Ref: scu.222538

Bristol and West Building Society v Baden Barnes and Groves: QBD 13 Dec 1996

cw Proposed amendments to a plaintiff’s pleadings were insufficient to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or to introduce a new cause of action which was statute barred and did not derive from the same, or substantially the same, facts.

Citations:

Unreported, 13 December 1996

Jurisdiction:

England and Wales

Citing:

Appealed toBristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .

Cited by:

Appeal fromBristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Land, Limitation

Updated: 12 April 2022; Ref: scu.184541