Elosta v Commissioner of Police for The Metropolis and Others: Admn 6 Nov 2013

The court was asked whether somebody detained under section 7 of the 2000 Act was entitled to be accompanied by a solicitor during questioning. The claimant was stopped at the airport on his return from Saudi Arabia. Police refused to await the arrival of his solicitor before starting to question him. They proceeded and he was released.
Held: The claim succeeded. Such a person was entitled to consult a solicitor before being questioned and in private ‘in person, in writing or on the telephone’. The right was clear, and existed independently of the question of whether the detention took place at a police station.

Bean J
[2013] EWHC 3397 (Admin), [2014] 1 WLR 239, [2013] WLR(D) 422, [2014] Crim LR 378
Bailii, WLRD
Terrorism Act 2000 7
England and Wales

Police, Legal Professions

Updated: 25 November 2021; Ref: scu.517471

Regina v G and B: CACD 2004

Rose LJ said: ‘Both in principle and pragmatically, whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’.

Rose LJ
[2004] 2 Cr App R 37, [2004] EWCA 1368
England and Wales
Cited by:
CitedH, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 20 November 2021; Ref: scu.252539

Regina v Jones (Robert) No 2: 1972

The court was entitled to proceed to hear the case in the absence of the defendant where he had absconded. I was counsel’s prerogative not the judge’s, to decide whether he could continue to represent the defendant.

[1972] 1 WLR 887, [1972] 56 CAR 413
England and Wales
Cited by:
CitedDelroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 20 November 2021; Ref: scu.242117

Myers v Rothfield: CA 1938

The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such misconduct in allowing the inadequate affidavits of documents to be made. He ordered the solicitor to pay one-third of the plaintiff’s costs of the action and two-thirds of the costs of the application.
Held: (MacKinnon LJ dissenting) Assuming that the acts in question, if done by a solicitor personally, would constitute professional misconduct on his part, the solicitor was not liable as he had appointed a fully qualified clerk to prepare the defences and affidavits of documents, and the acts had been done not by the solicitor himself but by the clerk.

Greer and Slesser LJJ, MacKinnon LJ
[1939] 1 KB 109, [1938] 3 All ER 498
Cited by:
Appeal fromMyers 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 . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 November 2021; Ref: scu.279002

Henry, Regina (on The Application of) v The Bar Standards Board: Admn 28 Sep 2016

JR leave refusal – BSB Disciplinary Refusal

The claimant, was a solicitor who had himself been disciplined for misconduct, of disciplinary decisions following findings that his conduct had fallen short of that expected of an ordinary honest individual with his knowledge and experience and that he was guilty of a dishonest assistance in breach of trust. He had requested the defendant tio institute disciplinary proceedings against two barristers, but, having looked at it the Board declined to take it any further. He now made a renewed application for leave to bring judicial review of the decision.
Held: The PCC had adequately investigated the complaints and concluded that they should be dismissed. That was a reasonable conclusion properly open to the PCC. Whilst the complaint was not entirely without merit, applying Samia, it still lacked sufficient merit to warrant being taken further.

Whipple J
[2016] EWHC 2343 (Admin)
Bailii
England and Wales
Citing:
AppliedWasif v The Secretary of State for The Home Department CA 9-Feb-2016
Wide scope for refusal of JR leave
These two appeals have been listed together because they both raise an issue about the proper approach to be taken in considering whether to certify an application for permission to apply for judicial review as ‘totally without merit’.
Held: . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Judicial Review

Updated: 11 November 2021; Ref: scu.569626

Kearns and Others v The General Council of the Bar: CA 17 Mar 2003

The claimants had sought to recover from the General Council of the Bar damages for libel in a communication from the head of the Bar Council’s Professional Standards and Legal Services Department to all heads of chambers, their senior clerks and practice managers to the effect that the claimants were not solicitors and were thus not entitled to instruct counsel with the result that it would be improper for members of the Bar to accept work from them. The letter was clearly noth libellous and untrue, but also not malicious. The court was asked when is verification a relevant circumstance in determining whether or not a defamatory communication is protected by qualified privilege?
Held: On the defence of qualified privilege: ‘The argument, as it seems to me, has been much bedevilled by the use of the terms ‘common interest’ and ‘duty-interest’ for all the world as if these are clear-cut categories and any particular case is instantly recognisable as falling within one or other of them. It also seems to me surprising and unsatisfactory that privilege should be thought to attach more readily to communications made in the service of one’s own interests than in the discharge of a duty – as at first blush this distinction would suggest. To my mind an altogether more helpful categorisation is to be found by distinguishing between on the one hand cases where the communicator and the communicatee are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and on the other hand cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship . . Once the distinction is made in this way, moreover, it becomes to my mind understandable that the law should attach privilege more readily to communications within an existing relationship than to those between strangers. The latter present particular problems.’

Mr Justice Keene Lord Justice Mantell Lord Justice Simon Brown
[2003] EWCA Civ 331, [2003] 1 WLR 1357
Bailii
England and Wales
Cited by:
CitedDowntex v Flatley CA 2-Oct-2003
The claimants sought damages for defamation and breach of contract. The claimants had purchased a business from the defendant, which contract included a clause requiring the defendant to say nothing damaging about the business. The defendant . .
CitedHowe and Co v Burden QBD 11-Feb-2004
Defence of consent – no strike out. The precise ambit of the defence of consent in a defamation case is best established at trial on the basis of the tribunal’s findings of fact. . .
CitedMeade v Pugh and Another QBD 5-Mar-2004
The claimant was a social work student. He attended a work experience placement, and challenged the report given by the defendants on that placement, saying it was discriminatory and defamatory. He appealed a strike out of his claim.
Held: The . .
CitedSeray-Wurie v The Charity Commission of England and Wales QBD 23-Apr-2008
The defendant sought an order to strike out the claimant’s allegations of defamation and other torts. The defendants claimed qualified privilege in that the statements complained of were contained in a report prepared by it in fulfilment of its . .
CitedClift v Slough Borough Council and Another QBD 6-Jul-2009
clift_sloughQBD09
The claimant sought damages for defamation. The council had decided that she had threatened a member of staff and notified various people, and entered her name on a violent persons register. She alleged malice, the council pleaded justification and . .
CitedLewis v Commissioner of Police of The Metropolis and Others (Rev 1) QBD 31-Mar-2011
lewis_cpmQBD11
The defendant sought a ruling on the meaning of the words but using section 69(4) of the 1981 Act. The claimant solicitor was acting in complaints as to the unlawful interception of celebrity voicemails by agents of the press. There had been debate . .
CitedW v Westminster City Council and Others QBD 9-Dec-2004
The claimant sought to bring an action for defamation based upon communications made in a child protection conference. The reference was in a Report for Conference to be held pursuant to the duties imposed on local authorities by the Children Act . .
CitedClift v Slough Borough Council CA 21-Dec-2010
The court was asked how, if at all, the Human Rights Act 1998 has affected a local authority’s defence of qualified privilege in defamation cases. The claimant had been placed on the Council’s Violent Persons Register after becoming very upset and . .
CitedWood v Chief Constable West Midlands Police CA 8-Dec-2004
The claimant was a director of a limited company. A Detective Chief Inspector with responsibility for crime prevention was investigating a series of car thefts and arrested the claimant’s business partner and, before the accused had even stood his . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Defamation

Leading Case

Updated: 10 November 2021; Ref: scu.179914

In re S (A Barrister): 1970

(Inns of Court) The regulation of barristers has been delegated by the judges to the Inns of Court. Five judges sitting as Visitors of the Inns of Court stated that ‘the judges as visitors have always had supervisory powers and their decision, upon an appeal by a barrister or student to them, has always been the final determination of such matter’.
Paull J said: ‘all through the history of the Inns (of Court) . . a call to the bar does not mean a call to the bar of any court. It only means a call to the bar of the particular Inn.’ And further that since 1292 the power to ‘provide and ordain . . attorneys and lawyers . . was left to the discretion of the justices’ so that: ‘from that time onwards for many years not all those who had been called to the bar of their Inns were allowed to practise in the courts at Westminster. From time to time regulations were made by the judges prescribing the period of time which must elapse after call to the bar of an Inn before the right to audience in the courts was exercised. By the middle of the 17th century it was accepted by the judges that, provided the call had been published in the Inn and the oaths of allegiance and supremacy taken, no further qualification was required to entitle the person called to the bar of his Inn to appear in any of the King’s courts for any client who saw fit to retain his services . . It is clear that the judges never passed over the whole control to the Inns. They kept quite a tight rein on the internal affairs of the Inn, particularly in so far as such affairs related to those who might practise before them. This is of great importance because from time to time the word ‘delegation’ appears in reference to the powers of the Inns given to them by the judges. One of the problems is the precise meaning of that word ‘delegation’ in the context in which it has been used.’
Paull J then observed: ‘The latest example of the use of the word ‘delegation’ is in Attorney-General of Gambia v N’Jie . . where Lord Denning uses the words: ‘By the common law of England the judges have the right to determine who shall be admitted to practise as barristers and solicitors: and, as incidental thereto, the judges have the right to suspend or prohibit from practice. In England this power has for a very long time been delegated, so far as barristers are concerned, to the Inns of Court: and, for a much shorter time, so far as solicitors are concerned, to the Law Society.’
It will be noticed that Lord Denning uses the same word ‘delegated’ in regard to the rights of the judges over who should appear before them as advocates in the case of barristers and their rights in the case of solicitors. Clearly the word ‘delegate’ so used cannot have precisely the same meaning in each case, since the rights of solicitors are to some extent governed by Acts of Parliament and solicitors do not appear before High Court judges as advocates.
It seems clear that Lord Mansfield in his use of the word ‘delegate’ was not using that word in the narrow sense in which it is sometimes used today and which is the basis of the doctrine ‘delegatus non potest delegare’; neither was Lord Denning. Both were using it in the sense that, in regard to the Inns, the judges over a long period, from time to time, had concurred in the Inns performing the duty of selecting those persons who were fit and proper persons to be called to the bar and to be entitled to a right of audience in the courts and the duty of suspending or prohibiting such persons from practice. The exercise of these duties has been at all times, and remains, subject to the visitorial jurisdiction of the judges. Further, the judges in relation to their judicial duties as to who should have the right of audience have never divested themselves of those duties, nor could they ever do so.’

Paull, Lloyd-Jones, Stamp, James and Blain JJ
[1970] 1 QB 160
England and Wales
Cited by:
CitedMehey and Others, Regina (on The Application of) v Visitors To The Inns of Court and Others CA 16-Dec-2014
The court was asked whether disciplinary proceedings against a number of barristers were invalid on the ground that some of the individuals who heard those proceedings or appeals therefrom were disqualified from sitting.
Held: The appeals . .
CitedO’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Leading Case

Updated: 10 November 2021; Ref: scu.540219

ZS 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 to establish that some confidential material had been given by him in the course of any meeting. He chose to continue the protection of privilege in respect of some elements, as was his right, but had failed to estabish his case. On the balance of probabilities, no meeting had taken place at which confidential material had been diclosed. H’s application failed.
Williams J summarised the applicable principles: ‘(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.
(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.
(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.
(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.
(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.
(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.
(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context ‘real’ means it is not merely fanciful or theoretical, but it does not need to be substantial.
(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.
(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.
(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.
(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct; whether there are other firms who might now be able to act for the respondent; whether the application was made promptly; the additional expense and delay that might be occasioned to the respondent if they were obliged to instruct new solicitors; whether any such expense could appropriately be off-set by the applicant.’

Williams J
[2017] EWHC 2660 (Fam)
Bailii
England and Wales
Citing:
CitedMinter v Priest CA 1929
An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to . .
CitedMinter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
CitedFrancis Day and Hunter Ltd v Bron CA 1963
The test of substantial similarity in copyright infringement cases is an objective one. That assessment is for the court with such assistance from the evidence and parties as it can muster. To be an infringement there must be ‘some causal . .
CitedGreat Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
CitedPrince 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 . .
CitedDavies 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 . .
CitedRe T v A, (children, risk of disclosure) 2000
. .
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 . .
CitedFulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
CitedWest London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 22-Jul-2008
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An . .
CitedRe Z (restraining solicitors from acting) FD 21-Dec-2009
Application by a husband, the respondent in the wife’s divorce proceedings, by which he seeks an order that the wife’s solicitors be debarred from acting any further for her in the divorce or financial matters and that they do remove themselves from . .
CitedG v G FD 24-Apr-2015
(financial remedies, privilege, confidentiality) W wished to re-open finacial remedy prodeedings embodied in a court consent order. She wished to allege non-disclosure by H of two substantial family trusts. He said that she had known of what she . .

Lists of cited by and citing cases may be incomplete.

Family, Legal Professions

Updated: 10 November 2021; Ref: scu.599578

Brennan and others v Sunderland City Council Unison GMB: EAT 16 Dec 2008

No Waiver for disclosure of Advice

EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and therefore privilege was waived. The Tribunal rejected the application and the EAT held that they were right to do so.
Consideration of the operation of waiver principles.
Elias J P discussed the question fundamental to whether there had been a waiver: The fundamental question is whether, in the light of what has been disclosed and the context in which disclosure has occurred, it would be unfair to allow the party making disclosure not to reveal the whole of the relevant information because it would risk the court and the other party only having a partial and potentially misleading understanding of the material. The court must not allow cherry picking, but the question is: when has a cherry been relevantly placed before the court?
Typically, as we have seen, the cases attempt to determine the question whether waiver has occurred by focusing on two related matters. The first is the nature of what has been revealed; is it the substance, the gist, content or merely the effect of the advice? The second is the circumstances in which it is revealed; has it simply been referred to, used, deployed or relied upon in order to advance the parties’ case? As Waller LJ observed in the Dunlop Slazenger case [2003] EWCA Civ 901. The principles are not altogether easy to discern, partly perhaps because of the vagueness of the language adopted – for example, sometimes reliance and deployment are used as separate terms and sometimes they appear to mean much the same thing – and partly because the cases are necessarily fact sensitive . .
66. Having said that, we do accept that the authorities hold fast to the principle that legal advice privilege is an extremely important protection and that waiver is not easily established. In that context something more than the effect of the advice must be disclosed before any question of waiver can arise.
However, in our view, the answer to the question whether waiver has occurred or not depends upon considering together both what has been disclosed and the circumstances in which disclosure has occurred. As to the latter the authorities in England strongly support the view that a degree of reliance is required before waiver arises, but there may be issues as to the extent of the reliance . .’

Elias J P
[2008] UKEAT 0349 – 08 – 1612, [2009] ICR 479
Bailii
England and Wales
Citing:
CitedWilson v Northampton and Banbury Junction Railway Co 1872
Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
CitedUnison GMB v Brennan and others EAT 19-Mar-2008
EAT Jurisdictional Points
Sex discrimination
Can an employment tribunal make a declaration that the term of a collective agreement is void, pursuant to section 77 of the Sex Discrimination Act, at the . .
CitedAssicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
CitedGreat Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
CitedNea Karteria Maritime Co Ltd v Atlantic and Great Lakes Steamship Corporation (No 2) 11-Dec-1978
The court considered disclosure of a legally privileged note of an interview: ‘I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material . .
CitedDunlop Slazenger International Ltd v Joe Bloggs Sports Ltd CA 11-Jun-2003
Waller LJ said: ‘To answer the question whether waiver of parts of a privileged communication waives the complete information, it is that dictum of Mustill J., as he then was, which applies. A party is not entitled to cherry pick and a party to whom . .
CitedBennett v Chief Executive Officer of the Australian Customs Service 25-Aug-2004
Austlii (Federal Court of Australia) EVIDENCE – Privilege – Legal professional privilege – Waiver – Letter conveying substance and effect of legal advice to third party – Inconsistency between disclosure and . .
CitedExpandable Ltd and Another v Rubin CA 11-Feb-2008
The defendant’s witness statement referred to a letter written to him by the defendant’s solicitor. The claimant appealed refusal of an order for its disclosure.
Held: The appeal failed. The letter was protected by legal professional . .
CitedMann v Carnell 21-Dec-1999
Austlii (High Court of Australia) Practice and procedure – Preliminary discovery – Legal professional privilege – Loss of privilege – Waiver by disclosure to third party.
Australian Capital Territory – . .
CitedGE Capital Corporate Finance Group v Bankers Trust Co and Others CA 3-Aug-1994
Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to . .
CitedInfields Ltd v P Rosen and Son CA 1938
Sir Wilfred Greene MR said that reliance on a document was not of itself sufficient to displace legal professional privilege: ‘In my judgment, the same principle applies here. All that the deponent was doing was saying: ‘Well, I am asking the court . .
CitedGovernment Trading Corporation v Tate and Lyle Industries Ltd CA 24-Oct-1984
Reference was made to information derived from Iranian lawyers. The solicitor in an affirmation had set out his understanding of Iranian law on the incorporation of a Government Trading Corporation in Iran and stated that his information had been . .
CitedRegina v Secretary of State for Transport ex-parte Factortame and Others CA 1988
The Secretary of State was willing to make legal advice given to him available on the grounds that privilege had been waived, but not advice after a particular cut off date. The claimants were dubious as to whether the privilege had been properly . .
CitedUniversity of Southampton v Dr C K Kelly EAT 14-Nov-2005
EAT The respondent had stated in its response to the complaint of unfair dismissal that it had realised that it would be unlawful to continue to employ the claimant after having taken legal advice. The claimant . .

Cited by:
CitedRe D (a child) CA 14-Jun-2011
In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now . .
AppliedThe National Crime Agency v Perry and Others QBD 12-Nov-2014
nca_perryQBD201411
The agency had taken proceedings against the defendant to reciver what it said were theproceeds of crime. That claim was dicontinued. The defendant sought to recover his costs on an indemnity basis, and relying upon a witness statement from an . .
Appeal fromCouncil of The City of Sunderland v Brennan and Others CA 3-Apr-2012
Equal pay claim – Whether difference in pay due to material factor other than sex . .
See AlsoSunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
See AlsoSunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .

Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Litigation Practice

Leading Case

Updated: 09 November 2021; Ref: scu.278812

Reed v Marriott (Solicitors Regulation Authority): Admn 13 May 2009

The appellant solicitor had entered into an arrangement with a company to receive referrals of personal injury cases. She said that the agreements were deliberately devised to hide the fact that unlawful referral fees were to be paid, by requiring the subcontracting of associated services to a subsidiary of the insurance company at inflated fees levels. Litigation as to these agreements became known to the SRA who brought disciplinary proceedings, against which fine the solicitor now appealed. She said it had not amounted to a fee sharing arrangement.
Held: The appeal failed. The appellant’s case had been presented on a basis that the question related to the lifting or otherwise of the corporate veil. It was not. The question was whether the arrangements properly construed infringed the rules against paying rewards to introducers and against fee-sharing. Here the true person being reqrded was the parent insurance company

Sir Anthony May, Blake J
[2009] EWHC 1183 (Admin)
Bailii
Solicitors’ Introduction and Referral Code
England and Wales
Citing:
CitedSmith, Stone and Knight Limited v Birmingham 1939
Implied Agency between Parent and Subsidiary
An application was made to set aside a preliminary determination by an arbitrator. The parties disputed the compensation payable by the respondent for the acquisition of land owned by Smith Stone and held by Birmingham Waste as its tenant on a . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Leading Case

Updated: 09 November 2021; Ref: scu.346858

CIA Barca de Panama SA v George Wimpey and Co Ltd: CA 1980

Claim to Legal Professional Privilege Lost

Barca and Wimpey had been 50/50 joint venturers through the medium of a company called DLW which had provided services to oil companies in the Middle East, including the Aramco Group. Wimpey agreed to buy out Barca’s interest in DLW on terms which included detailed provision for the further conduct of claims against Aramco, including the provision as between Barca and Wimpey of mutual assistance, information, documents and evidence. Acting on DLW’s behalf, Wimpey settled a claim in litigation between DLW and Aramco, and Barca challenged the reasonableness of Wimpey’s settlement. In litigation between Barka and Wimpey, Wimpey claimed legal professional privilege as an answer to the production of documents about the negotiation of the settlement with Aramco.
Held: The claim for privilege was rejected. The terms of the buy-out and cooperation agreement between Barka and Wimpey created such a common interest between those parties in relation to the conduct of the DLW v Aramco proceedings that there could be no confidence or privilege between Wimpey and Barka in relation to the settlement negotiations.
Bridge LJ discussed the position of a solicitor and claims to legal privilege where he had multiple clients: ‘As regards the claim for legal professional privilege, it seems to me that the general principle underlying several authorities to which our attention has been called by Mr Lincoln, can be accurately stated in quite broad terms, and I would put it in this way. If A and B have a common interest in litigation against C and if at that point there is no dispute between A and B then if subsequently A and B fall out and litigate between themselves and the litigation against C is relevant to the disputes between A and B then in the litigation between A and B neither A nor B can claim legal professional privilege for documents which came into existence in relation to the earlier litigation against C.’
Stephenson LJ said: ‘So here, it seems to me, however you define the relationship which their joint interest creates, it is enough to entitle the plaintiffs . . whether as beneficiaries, cestui que trust, or as partners in a joint venture or as principals, to the same inspection of documents relating to the Aramco claims as the defendants themselves had.’

Bridge LJ
[1980] 1 Lloyds Rep 598
England and Wales
Cited by:
CitedPortsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
CitedWinters v Mishcon De Reya ChD 15-Oct-2008
The claimant sought an injunction to prevent the defendant firm of solicitors acting for his employers against him. He said that they possessed information confidential to him having acted for him in a similar matter previously. The solicitors . .
CitedHellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
CitedFord, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
CitedSingla v Stockler and Another ChD 10-May-2012
The claimant appealed against the striking out of his action for an injunction against the defendant solicitors to restrain them for action for a person, saying that whilst there had been no formal retainer, they had informally advised him. The . .
CitedJames-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.

Damages, Contract, Legal Professions

Leading Case

Updated: 09 November 2021; Ref: scu.186486

Wingate and Another v The Solicitors Regulation Authority: CA 7 Mar 2018

What is integrity for a solicitor?

The Court considered the meaning of ‘integrity’ as that word is used in the SRA’s Code of Conduct and Principles.
Held: Integrity indicated that something higher was expected of a solicitor than simple honesty. It was a useful shorthand for denoting adherence to the ethical standards of the profession, though an unrealistically high standard was not to be required.

Rupert Jackson, Sharp, Singh LJJ
[2018] EWCA Civ 366, [2018] WLR(D) 147
Bailii, WLRD
England and Wales

Legal Professions

Updated: 09 November 2021; Ref: scu.605790

Khodorkovskiy and Lebedev v Russia: ECHR 25 Jul 2013

ECHR Article 7-1
Nullum crimen sine lege
Interpretation of offence of tax evasion derived by reference to other areas of law: no violation
Article 6
Civil proceedings
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Alleged lack of impartiality of trial judge who had already taken procedural decisions adverse to defence and had sat in trial of co-accused: no violation
Article 6-3-b
Adequate facilities
Adequate time
Need for applicants to study large volume of evidence in difficult prison conditions, but supported by highly qualified legal team: no violation
Article 6-3-c
Defence through legal assistance
Systematic perusal by prison authorities and trial judge of communications between accused and their lawyers: violation
Article 6-3-d
Examination of witnesses
Refusal to allow defence to cross-examine expert witnesses called by the prosecution or to call their own expert evidence: violation
Article 8
Article 8-1
Respect for family life
Respect for private life
Imprisonment in penal colonies thousands of kilometres from prisoners’ homes: violation
Article 18
Restrictions for unauthorised purposes
Allegedly politically motivated criminal proceedings against applicants: violation
Article 34
Hinder the exercise of the right of petition
Disciplinary and other measures against the lawyers acting for applicants in case pending before European Court: failure to comply with Article 8
Facts – Before their arrest the applicants were senior managers and major shareholders of a large industrial group which included the Yukos oil company. They were among the richest men in Russia. Mr Khodorkovskiy, the first applicant, was also politically active: he allocated significant funds to support opposition parties and funded several development programmes and NGOs. In addition, Yukos pursued large business projects which went against the official petroleum policy.
In 2003 the applicants were arrested and detained on suspicion of the allegedly fraudulent privatisation of one of the companies in the group. Subsequently tax and enforcement proceedings were brought against Yukos oil company, which was put into liquidation. New charges were brought against the applicants relating to alleged tax evasion through the registration of trading companies, which in fact had no business activities, in a low-tax zone, and through allegedly false income tax returns. In 2005 the applicants were found guilty of most of the charges. They were sentenced to nine years’ imprisonment and ordered to pay the State the equivalent of over EUR 500,000,000 in respect of unpaid company taxes. Their prison sentences were reduced to eight years on appeal. Both applicants were sent to serve their sentences in remote colonies, thousands of kilometres from their Moscow homes.
In their applications to the European Court, the applicants complained of various breaches of the Convention, in particular of their right to a fair trial (Article 6 – 1) and of their right not to be tried of an offence that was not an offence when it was committed (Article 7).
Law – Article 6 – 1: Both applicants complained of several distinct breaches of this provision. The first group of their arguments concerned alleged bias on the part of the presiding judge. The second group to procedural unfairness, in particular: a lack of time and facilities to prepare the defence, an inability to enjoy effective legal assistance, and an inability to examine prosecution evidence or adduce evidence for the defence.
(a) Impartiality – The applicants claimed that procedural decisions taken by the judge during their trial were indicative of bias, that the judge had herself been under investigation during their trial and that she was biased because of her previous findings in the case of another top Yukos manager.
As to the first point, the Court had to have stronger evidence of personal bias than a series of procedural decisions unfavourable to the defence. There was nothing in the trial judge’s decisions to reveal any particular predisposition against the applicants. As to the second point, the allegation that the trial judge was herself under investigation was based on rumour, and could not found a claim of impartiality. As to the final point – the fact that the judge had already sat in a case concerning another senior Yukos manager – the Court had previously clarified that the mere fact that a judge had already tried a co-accused was not, in itself, sufficient to cast doubt on the judge’s impartiality. Criminal adjudication frequently involved judges presiding over various trials in which a number of co-accused stood charged and the work of criminal courts would be rendered impossible if, by that fact alone, a judge’s impartiality could be called into question. An examination was, however, needed to determine whether the earlier judgments contained findings that actually prejudged the question of the applicant’s guilt. The judge in the applicants’ case was a professional judge, a priori prepared to disengage herself from her previous experience in the other manager’s trial. The judgment in the manager’s case did not contain findings that prejudged the question of the applicants’ guilt in the subsequent proceedings and the judge was not bound by her previous findings, for example as regards the admissibility of evidence, either legally or otherwise.
Conclusion: no violation (unanimously).
(b) Fairness of the proceedings
(i) Article 6 – 1 in conjunction with Article 6 – 3 (b): Time and facilities for the preparation of the defence – The second applicant had had eight months and twenty days to study over 41,000 pages of his case-file, and the first applicant five months and eighteen days to study over 55,000 pages. The Court noted the complexity of the documents, the need to make notes, compare documents, and discuss the case-file with lawyers. It also took account of the breaks in the schedule of working with the case-file, and of the uncomfortable conditions in which the applicants had had to work (for example, they had been unable to make photocopies in prison or to keep copies of documents in their cells and there had been restrictions on their receiving copies of documents from their lawyers). However, the issue of the adequacy of time and facilities afforded to an accused had to be assessed in the light of the circumstances of each particular case. The applicants were not ordinary defendants: they had been assisted by a team of highly professional lawyers of great renown, all privately retained. Even if they were unable to study each and every document in the case file personally, that task could have been entrusted to their lawyers. Importantly, the applicants were not limited in the number and duration of their meetings with their lawyers. The lawyers were able to make photocopies; the applicants were allowed to take notes from the case-file and keep their notebooks with them. Indeed, the applicants, who both had university degrees, were senior executives of one of the largest oil companies in Russia and knew the business processes at the heart of the case arguably better than anybody else. Thus, although the defence had had to work in difficult conditions at the pre-trial stage, the time allocated to the defence for studying the case file was not such as to affect the essence of the right guaranteed by Article 6 — 1 and 3 (b).
The Court further examined the conditions in which the defence had had to work at the trial and during the appeal proceedings. In particular, at some point the judge had decided to intensify the course of the trial and hold hearings every day. However, it had not been impossible for the applicants to follow the proceedings and the defence had been able to ask for adjournments when necessary.
At the appeal stage the defence had had over three months to draft written pleadings and to prepare for oral argument. Although the defence had had to start preparing their appeal without having the entirety of the trial materials before them and although there had been doubts as to the accuracy of the trial record, the Court was not persuaded that any such inaccuracies had made the conviction unsafe. Furthermore, the defence was aware of the procedural decisions that had been taken during the trial and what materials had been added. They had audio recordings of the trial proceedings and could have relied on them in the preparation of their points of appeal. The difficulties experienced by the defence during the appeal proceedings had thus not affected the overall fairness of the trial.
Conclusion: no violation (unanimously).
(ii) Article 6 – 1 in conjunction with Article 6 – 3 (c): Lawyer-client confidentiality – The applicants had claimed that that their confidential contacts with their lawyers had been seriously hindered. The Court reiterated that any interference with privileged material and, a fortiori, the use of such material against the accused in the proceedings should be exceptional and justified by a pressing need and would always be subjected to the strictest scrutiny.
As to the applicants’ complaint that one of their lawyers had received summonses from the prosecution, the Court noted that the lawyer concerned had refused to testify and that his refusal had not led to any sanctions against him. Accordingly, in the particular circumstances of the present case, lawyer-client confidentiality had not been breached on account of that episode.
In contrast, by carrying out a search of that lawyer’s office and seizing his working files, the authorities had deliberately interfered with the secrecy of lawyer-client contacts. The Court saw no compelling reasons for that interference. The Government had not explained what sort of information the lawyer might have had, how important it was for the investigation, or whether it could have been obtained by other means. At the relevant time the lawyer was not under suspicion of any kind. Most significantly, the search of his office had not been accompanied by appropriate procedural safeguards, such as authorisation by a separate court warrant, as required by the law. The search and seizure were thus arbitrary.
Another point of concern was the prison administration’s practice of perusing all written documents exchanged between the applicants and their lawyers during the meetings in the remand prison. Such perusal had no firm basis in the domestic law, which did not specifically regulate such situations. Furthermore, notes, drafts, outlines, action plans and other like documents prepared by the lawyer for or during a meeting with his detained client were to all intents and purposes privileged material. Any exception from the general principle of confidentiality was only permissible if the authorities had reasonable cause to believe that professional privilege was being abused in that the contents of the document concerned might endanger prison security or the safety of others or was otherwise of a criminal nature. In the present case, however, the authorities had taken as their starting point the opposite presumption, namely that all written communications between a prisoner and his lawyer were suspect. Despite there being no ascertainable facts to show that either the applicants or their lawyers might abuse professional privilege, the measures complained of had lasted for over two years. In the circumstances the rule whereby defence working documents were subject to perusal and could be confiscated if not checked by the prison authorities beforehand was unjustified, as were the searches of the applicants’ lawyers.
Finally, as regards the conditions in which the applicants had been able to communicate with their lawyers in the courtroom the trial judge had requested the defence lawyers to show her all written documents they wished to exchange with the applicants in accordance with the prison authorities’ security arrangements. While checking drafts and notes prepared by the defence lawyers or the applicants the judge might have come across information or arguments which the defence would not wish to reveal and which could have affected her opinion about the factual and legal issues in the case. In the Court’s opinion, it would be contrary to the principle of adversarial proceedings if the judge’s decision was influenced by arguments and information which the parties did not present and did not discuss at an open trial. Furthermore, the oral consultations between the applicants and their lawyers could have been overheard by the prison escort officers. During the adjournments the lawyers had had to discuss the case with their clients in close vicinity of the prison guards. In sum, the secrecy of the applicants’ exchanges, both oral and written, with their lawyers had been seriously impaired during the hearings.
Conclusion: violation (unanimously).
(iii) Article 6 – 1 in conjunction with Article 6 – 3 (d):- Taking and examination of evidence – As regards the applicants’ complaints that evidence from two experts consulted by the prosecution had been admitted without the applicants being able to challenge it, the Court noted, firstly, that the fact that the prosecution had obtained an expert report without any involvement of the defence did not of itself raise any issue under the Convention, provided that the defence subsequently had an opportunity to examine and challenge both the report and the credibility of those who prepared it, through direct questioning before the trial court.
In response to the Government’s submission that the defence had not shown why it had been necessary to question the expert witnesses, the Court stated that, contrary to the situation with defence witnesses, an accused was not required to demonstrate the importance of a prosecution witness. If the prosecution decided to rely on a particular person’s testimony as being a relevant source of information and if the testimony was used by the trial court to support a guilty verdict, the presumption arose that the personal appearance and questioning of the person concerned were necessary, unless the testimony was manifestly irrelevant or redundant. The two experts had clearly been key witnesses since their conclusions went to the heart of some of the charges against the applicants. The defence had taken no part in the preparation of the experts’ report and had not been able to put questions to them at an earlier stage. In addition, the defence had explained to the district court why they needed to question the experts and there were no good reasons for preventing them from coming to the court. Even if there were no major inconsistencies in the report, questioning experts could reveal possible conflicts of interest, insufficiency of the materials at their disposal or flaws in the methods of examination.
The applicants had also complained of the trial court’s refusal to admit expert evidence (both written and oral) proposed by the defence for examination at the trial. The Court noted that the trial court had refused to admit certain expert evidence which it deemed it irrelevant or useless. In that connection, the Court reiterated that the requirement of a fair trial did not impose an obligation on trial courts to order an expert opinion or any other investigative measure merely because a party had sought it and, having examined the nature of the reports in question, the Court was prepared to accept that the primary reason for not admitting certain of them was their lack of relevance or usefulness which matters were within the trial court’s discretion to decide. However, two audit reports (by Ernst and Young and Price Waterhouse Coopers) were in fact rejected for reasons related not to their content but to their form and origins. Unlike the other expert evidence the defence had sought to adduce, these reports were non-legal and concerned essentially the same matters as the reports produced by the prosecution and so were relevant to the accusations against the applicants. By excluding that evidence, the trial court had put the defence in a disadvantageous position as the prosecution had been entitled to select experts, formulate questions and produce expert reports, while the defence had had no such right. Furthermore, in order effectively to challenge a report by an expert the defence had to have the same opportunity to introduce their own expert evidence. The mere right of the defence to ask the court to commission another expert examination did not suffice. In practice, however, the only option that had been available to the applicants under Russian law had been to obtain oral questioning of ‘specialists’ at the trial, but ‘specialists’ had a different procedural status to ‘experts’, as they had no access to primary materials in the case and the trial court refused to consider their written opinions. In the circumstances, the decision to exclude the two audit reports had created an imbalance between the defence and the prosecution in the area of collecting and adducing ‘expert evidence’, thus breaching the equality of arms between the parties.
Conclusion: violation (unanimously).
Article 7
(a) Alleged procedural obstacles to prosecution – The applicants had claimed that by virtue of a Constitutional Court ruling of 27 May 2003 they could not be held criminally liable for tax evasion before their tax liability had been established in separate proceedings. The Court was not persuaded that the applicants’ understanding of that ruling was correct. It noted, however, that in any event the alleged ‘procedural obstacles’ did not mean that the acts imputed to the applicants were not defined as ‘criminal offences’ when they were committed. There had therefore been no violation of Article 7 on that account.
(b) Novel interpretation of the concept of ‘tax evasion’ – The applicants had argued that they had suffered from a completely novel and unpredictable interpretation of the provisions (Articles 198 and 199 of the Criminal Code) under which they were convicted. The Court observed that while those provisions defined tax evasion in very general terms, by itself such a broad definition did not raise any issue under Article 7. Forms of economic activity were in constant development, and so were methods of tax evasion. In order to define whether particular behaviour amounted to tax evasion in the criminal-law sense the domestic courts could invoke legal concepts from other areas of law. The law in this area could be sufficiently flexible to adapt to new situations, provided it did not become unpredictable. Thus, although in the criminal-law sphere there was no case-law directly applicable to the transfer-pricing arrangements and allegedly sham transactions at the heart of the applicants’ case, the concept of sham transaction was known to Russian law and the courts had the power to apply the ‘substance-over-form’ rule and invalidate a transaction as sham under the Civil and Tax Codes. The Court reiterated that in this area it was not called upon to reassess the domestic courts’ findings, provided they were based on a reasonable assessment of the evidence. In the present case, despite certain flaws, the domestic proceedings could not be characterised as a flagrant denial of justice.
The Court next turned to the question whether the substantive findings of the domestic courts were arbitrary or manifestly unreasonable.
(i) Charges under Article 199 of the Criminal Code (trading companies’ operation in the low-tax zone and the technique of ‘transfer pricing’) – While acknowledging that legitimate methods of tax minimisation could exist, the Court noted that the scheme deployed by Yukos was not fully transparent and that some elements of the scheme that might have been crucial for determining the companies’ eligibility for tax cuts had been concealed from the authorities. For instance, the applicants had never informed the tax authorities of their true relation to the trading companies. The benefits of the trading companies had been returned to Yukos indirectly. All business activities which had generated profit were in fact carried out in Moscow, not in a low-tax zone. The trading companies, which existed only on paper, had no real assets or personnel. Tax minimisation was the sole reason for the creation of the trading companies in the low-tax zone. Such behaviour could not be compared to that of a bona fide taxpayer making a genuine mistake. Finally, it was difficult for the Court to imagine that the applicants, as senior executives and co-owners of Yukos, had not been aware of the scheme or that the trading companies’ fiscal reports did not reflect the true nature of their operations. Thus, the applicants’ acts could be reasonably interpreted as submitting false information to the tax authorities, thus constituting the actus reus of the offence of tax evasion.
(ii) Charges under Article 198 of the Criminal Code (personal income-tax evasion) – In so far as the personal income tax evasion was concerned, the applicants had argued that they had given consulting services to foreign firms and that the tax cuts they had received as ‘individual entrepreneurs’ were legitimate. However, the domestic courts had concluded that such service agreements were in fact de facto payments for the applicants’ work in Yukos and its affiliated structures that would normally have been taxable under the general taxation regime and that the applicants had knowingly misinformed the tax authorities about the true nature of their activities. Those conclusions were not unreasonable or arbitrary.
(c) Application of allegedly dormant criminal law – Lastly, the Court did not accept the applicants’ argument that the authorities’ failure to prosecute and/or convict other businessmen who had been using similar tax-minimisation techniques had made such techniques legitimate and excluded criminal liability. While in certain circumstances a long-lasting tolerance of certain conduct, otherwise punishable under the criminal law, could grow into de facto decriminalisation of such conduct, this was not the case here, primarily because the reasons for such tolerance were unclear. It was possible that the authorities had simply not had sufficient information or resources to prosecute the applicants and/or other businessmen for using such schemes. It required a massive criminal investigation to prove that documents submitted to the tax authorities did not reflect the true nature of business operations. Finally, there was no evidence that tax minimisation schemes used by other businessmen had been organised in exactly the same way as that employed by the applicants. The authorities’ attitude could not therefore be said to have amounted to a conscious tolerance of such practices.
In sum, Article 7 of the Convention was not incompatible with judicial law-making and did not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen. While the applicants may have fallen victim to a novel interpretation of the concept of tax evasion, it was based on a reasonable interpretation of the domestic law and consistent with the essence of the offence.
Conclusion: no violation (unanimously).
Article 8: The applicants had complained that their transfer to penal colonies situated thousands of kilometres from their homes had made it impossible for them to see their families. The Court accepted that the situation complained of constituted interference with the applicants’ private and family life and was prepared to accept that the interference was lawful and pursued the legitimate aims of preventing disorder and crime and of securing the rights and freedoms of others.
As to whether it was necessary in a democratic society, the Curt noted, firstly, that it was very likely that the rule set out in the Russian Code of Execution of Sentences, which convicts in areas where prisons were overpopulated to be sent to the next closest region (but not several thousand kilometres away), had not been followed in the applicants’ case. It was hardly conceivable that there were no free places for the applicants in any of the many colonies situated closer to Moscow. The Court stressed that the distribution of the prison population must not remain entirely at the discretion of the administrative bodies and that the interests of convicts in maintaining at least some family and social ties had to somehow be taken into account. In the absence of a clear and foreseeable method of distribution of convicts amongst penal colonies, the system had failed to provide a measure of legal protection against arbitrary interference by public authorities and had led to results that were incompatible with respect for the applicants’ private and family lives.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1: The first applicant had complained that, after convicting him of corporate-tax evasion, the trial court had made an award of damages which overlapped with the claims for back payment of taxes that had been brought against Yukos. The Court found, firstly, that the first applicant’s obligation to pay certain outstanding taxes could be considered an interference with his possessions falling within the scope of Article 1 of Protocol No. 1.
However, it was unnecessary for the Court to examine separately the first applicant’s claim that the State had been awarded the same amount of outstanding corporate taxes twice, as in any event, the interference did not have a lawful basis. The Court accepted that where a limited-liability company was used merely as a facade for fraudulent actions by its owners or managers, piercing the corporate veil may be an appropriate solution for defending the rights of its creditors, including the State. However, there had to be clear rules allowing the State to do this if the interference was not to be arbitrary. Neither the Russian Tax Code at the material time nor the Civil Code permitted the recovery of a company’s tax debts from its managers. Furthermore, the domestic courts had repeatedly interpreted the law as not allowing liability for unpaid company taxes to be shifted to company executives. Finally, the trial court’s findings regarding the civil claim were extremely short and contained no reference to applicable provisions of the domestic law or any comprehensible calculation of damages, as if it was an insignificant matter. In sum, neither the primary legislation then in force nor the case-law allowed for the imposition of civil liability for unpaid company taxes on the company’s executives. The award of damages in favour of the State had thus been arbitrary.
Conclusion: violation (unanimously).
Article 18 (alleged political motivation for prosecution): The Court reiterated that the whole structure of the Convention rested on the general assumption that public authorities in the member States acted in good faith. Though rebuttable in theory, that assumption was difficult to overcome in practice: an applicant alleging that his rights and freedoms were limited for an improper reason had to show convincingly that the real aim of the authorities was not the same as that proclaimed. Thus, the Court had to apply a very exacting standard of proof to such allegations.
That standard had not been met in the applicants’ case. While the circumstances surrounding it could be interpreted as supporting the applicants’ claim of improper motives, there was no direct proof of such motives. The Court was prepared to admit that some political groups or government officials had had their own reasons for pushing for the applicants’ prosecution. However, that was insufficient to conclude that the applicants would not have been convicted otherwise. In the final reckoning, none of the accusations against them even remotely concerned their political activities. Elements of ‘improper motivation’ which may have existed in the instant case did not make the applicants’ prosecution illegitimate from beginning to end: the fact remained that the accusations against the applicants of common criminal offences, such as tax evasion and fraud, were serious, that the case against them had a ‘healthy core’, and that even if there was a mixed intent behind their prosecution, this did not grant them immunity from answering the accusations.
Conclusion: no violation (unanimously).
Article 34: The first applicant had further complained that, in order to prevent him from complaining to the European Court, the authorities had harassed his lawyers.
In the Court’s opinion, there was a significant difference between the first applicant’s allegations under Article 18 and those under Article 34. In so far as his prosecution and trial were concerned, the aims of the authorities for bringing the first applicant to trial and convicting him were evident and did not require further explanation. By contrast, the aim of the disciplinary and other measures directed against his lawyers was far from evident. The Court had specifically invited the Government to explain the reasons for the disbarment proceedings, extraordinary tax audit and denial of visas to the first applicant’s foreign lawyers, but the Government had remained silent on those points. In such circumstances it was natural to assume that the measures directed against the first applicant’s lawyers were linked to his case before the Court. In sum, the measures complained of had been directed primarily, even if not exclusively, at intimidating the lawyers working on the first applicant’s case before the Court. Although it was difficult to measure the effect of those measures on his ability to prepare and argue his case, it was not negligible.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 3 of the Convention on account of the fact that the second applicant appeared at his trial in a metal cage and no violation of that provision in respect of the conditions of his detention in the remand prison; a violation of Article 5 – 3 of the Convention in respect of the length of the second applicant’s pre-trial detention and a violation of Article 5 – 4 on account of delays in the review of his detention.
Article 41: EUR 10,000 to the first applicant in respect of non-pecuniary damage. The second applicant’s pecuniary claims were rejected in full.
(See also Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011, Information Note 141; and OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, 20 September 2011, Information Note 144)

11082/06 13772/05 – Chamber Judgment, [2013] ECHR 747, 11082/06 13772/05 – Legal Summary, [2013] ECHR 774
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Legal Professions, Crime, Prisons

Leading Case

Updated: 09 November 2021; Ref: scu.515133

Bolton v The Law Society: CA 8 Dec 1993

The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that the solicitor was honest and had not stolen client money ‘in a premeditated fashion’. The Tribunal took the view that ordinarily the conduct would merit striking off but, in light of the facts of the case, it made a more lenient order. The Divisional Court heard fresh evidence of good character and took the view that the suspension was disproportionate, imposing a fine in substitution.
Held: The Disciplinary Tribunal’s decision was re-instated. The court had given insufficient reason for disturbing it. A solicitor who was in breach of the Law Society’s rules should expect severe sanctions. The rules served not just to discipline solicitors, but also to protect the public. The reputation of a profession is more important than the fortunes of any individual mamber. Membership of a profession brings benefits, but also costs.
Sir Thomas Bingham MR said: ‘It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness.’ and ‘Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic.’
As a principle it requires a very strong case to justify interference by the CA in a penalty imposed by the Tribunal, since its members are best qualified to weigh the seriousness of the professional misconduct before them.
. . Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors’ Disciplinary Tribunal. Lapses from the required high standard may of course take different forms and be of varying degrees. The most serious involves proven dishonesty . . If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends on trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off of suspend will often involve a fine and difficult exercise of judgment . . . on all the facts of the case. Only in a very unusual and venial case of this kind will the Tribunal be likely to regard as appropriate any order less severe than one of suspension. It is important that there should be full understanding of the reasons why the Tribunal makes orders which might otherwise seem harsh. There is in some of these orders a punitive element; a penalty may be visited on a solicitor who has fallen below the standard required of his profession in order to punish him for what he has done and to deter any other solicitor tempted to behave in the same way. Those are traditional objects of punishment. But often the order is not punitive in intention ‘
and ‘In most cases the order of the Tribunal will be primarily directed to one or other or both of two purposes. One is to be sure the offender does not have the opportunity to repeat the offence. This purpose is achieved for a limited period by an order of suspension; plainly it is hoped that experience of suspension will make the offender meticulous in his future compliance with the required standard. The purpose is achieved for a longer period, and quite possibly indefinitely, by an order for striking off. The second purpose is the most fundamental of all: to maintain the reputation of the solicitor’s profession as one in which every member, of whatever standard, may be trusted to the end of the earth. To maintain the reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied readmission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending reinvestment in another house, he is ordinarily entitled to expect the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession and the public as a whole is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires.’

Sir Thomas Bingham MR, Rose, Waite LJJ
Times 08-Dec-1993, [1994] 1 WLR 512, [1993] EWCA Civ 32, [1994] 2 All ER 486, [1994] COD 295
Bailii
England and Wales
Citing:
CitedMcCoan v General Medical Council PC 1964
The Board advised: ‘Their Lordships are of opinion that Lord Parker CJ may have gone too far in In re a Solicitor [1960] 2 QB 212 when he said that the appellate court would never differ from sentence in cases of professional misconduct, but their . .

Cited by:
CitedIn the Matter of a Solicitor and In the Matter of Solicitors Act 1974 Admn 15-Dec-1997
The appellant solicitor had been found to have appropriated client funds to himself. He appealed an order striking his name from the Roll of solicitors. He had repaid the sums, and said that he had paid them to satisfy a blackmailer.
Held: An . .
CitedDr Gosai v The General Medical Council PC 10-Apr-2003
PC (The Professional Conduct Committee of the GMC) The doctor challenged the decision of the committee to invoke its power to restrain him from making further applications to be restored to the register.
CitedDarby v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The solicitor appealed findings of misconduct. He had acted for a builder who complained about breaches of confidentiality and a failure to provide written information on costs.
Held: The appeal was by way of a rehearing (Preiss), but should . .
CitedCouncil for the Regulation of Healthcare Professionals v General Medical Council and Dr Solanke Admn 30-Apr-2004
The council appealed against what it said was a lenient sentence imposed on a doctor for malpractice.
Held: It was relevant to take account of the way criminal courts dealt with appeals against lenient sentences. The test in relation to an . .
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 . .
CitedBaxendale-Walker v The Law Society Admn 30-Mar-2006
The solicitor appealed being struck off. He had given a character reference in circumstances where he did not have justification for the assessment.
Held: ‘The appellant knew that Barclays Bank trusted him to provide a truthful reference. . .
ApprovedGupta v The General Medical Council PC 18-Dec-2001
(The Health Committee of the GMC) A doctor had been found guilty of serious professional misconduct by the Professional Conduct Committee of the General Medical Council. She appealed on the basis that they had not given reasons for the factual basis . .
CitedBaxendale-Walker v Law Society CA 15-Mar-2007
The solicitor appealed a finding that he had given a reference which he knew to be inappropriate, and his consequential striking off. The tribunal had found his evidence manifestly untrue.
Held: There were no grounds for disturbing the . .
CitedJideofo v The Law Society; Evans v The Solicitors Regulation Authority 31-Jul-2007
(Master of the Rolls) Each applicant challenged decisions not to allow them to become student members of the Law Society.
Held: The test for character and suitability was a necessarily high one; was one which was not concerned with punishment, . .
CitedAli and Another, Re Solicitors No 21 and 22 of 2007 CA 29-Apr-2008
The claimants challenged revocation of their student membership of the Law Society. The revocation had been made on the basis that they had declared work to be their own unaided work when they were said to have colluded on an assignment.
Held: . .
CitedMubarak v General Medical Council Admn 20-Nov-2008
The doctor appealed against a finding against him of professional misconduct in the form of a sexualised examination of a female patient.
Held: The reasons given were adequate, and the response of erasure from the register was the only one . .
CitedLaw Society v Salsbury CA 25-Nov-2008
The Society appealed against an order quashing the striking-off of the solicitor.
Held: Bolton was still the leading case though the solicitor must be given an opportunity for a fair trial. Though it was not necessary to show a very strong . .
CitedCoke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC 19-Jan-2011
The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application . .
CitedSolicitors Regulation Authority v Dennison Admn 22-Feb-2011
The Authority appealed against the sentence imposed on the respondent by the Soicitoirs Discipinary Tribunal. He had been found to have taken undisclosed referral fees in personal injury litigation giving rise to conflicts of interest and to have . .
CitedHazelhurst and Others v Solicitors Regulation Authority Admn 11-Mar-2011
The claimants appealed against disciplinary orders. A member of staff had stolen substantial sums from client account. They had admitted breaches of the Accounts and Practice rules, but personally made good all losses. They said that the Solicitors . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Leading Case

Updated: 02 November 2021; Ref: scu.78479

Saif Ali v Sydney Mitchell and Co (a Firm): HL 1978

Extent of Counsel’s Immunity in Negligence

The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to such pre-trial work as was intimately connected with the conduct of the case in Court as distinct from more remote legal services such as advice (including advice not to go to Court). Barristers have a special status, just as a trial has a special character: some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer loss. The immunity of barristers from suit could be justified on two other grounds. The analogy of the general immunity from civil liability which attaches to all persons participating in proceedings before a court. Second was the public interest in not permitting decisions to be challenged by collateral proceedings.
Lord Diplock said that a barrister is not liable for an error of judgment ‘unless the error was such as no reasonably well-informed and competent member of that profession could have made.’
He considered the barrister’s overriding duty to the court: ‘The fact that application of the rules that a barrister must observe may in particular cases call for the exercise of finely balanced judgments upon matters about which different members of the profession might take different views, does not in my view provide sufficient reason for granting absolute immunity from liability at common law. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon. The salvor and the surgeon, like the barrister, may be called upon to make immediate decisions which, if in the result they turn out to have been wrong, may have disastrous consequences. Yet neither salvors nor surgeons are immune from liability for negligent conduct of a salvage or surgical operation; nor does it seem that the absence of absolute immunity from negligence has disabled members of professions other than the law from giving their best services to those to whom they are rendered.’
Lord Wilberforce said: ‘Some immunity is necessary in the public interest, even if, in some rare cases, an individual may suffer.’ and ‘In principle, those who undertake to give skilled advice are under a duty to use reasonable care and skill. The immunity as regards litigation is an exception from this and applies only in the area to which it extends. Outside that area, the normal rule must apply.’ and ‘Much if not most of a barrister’s work involves the exercise of judgment – it is in the realm of art not science. Indeed the solicitor normally goes to counsel [for advice] precisely at the point where, as between possible courses, a choice can only be made on the basis of a judgment which is fallible and may turn out to be wrong. Thus in the nature of things, an action against a barrister who acts honestly and carefully is unlikely to succeed.’
Lord Salmon: ‘Lawyers are often faced with finely balanced problems. Diametrically opposed views may [be] and not infrequently are taken by barristers and indeed by judges, each of whom has exercised reasonable, and sometimes far more than reasonable, care and competence. The fact that one of them turns out to be wrong certainly does not mean that he had been negligent.’ However ‘it can only be the rarest of cases that the law confers any immunity upon a barrister against a claim for negligence in respect of any work he has done out of court.’ and ‘The normal rule applied by the law is that if anyone holding himself out as possessing reasonable competence in his vocation undertakes to advise or settle a document, he owes a duty to advise or settle the document with reasonable competence and care.’

Lord Diplock. Lord Salmon, Lord Wilberforce, Lord Keith of Kinkel
[1980] AC 198, [1978] 3 All ER 1033, [1978] 3 WLR 849, [1978] UKHL 6
Bailii
England and Wales
Citing:
ConsideredRondel v Worsley HL 1967
Need for Advocate’s Immunity from Negligence
The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of . .

Cited by:
CitedAtwell v Perr and Co and Another ChD 27-Jul-1998
Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit. . .
CitedMoy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
CitedKelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
CitedThe Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006
The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
CitedHicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007
The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action . .
CitedAbrahams v Commissioner of the Police for the Metropolis CA 8-Dec-2000
The claimant had been arrested for swearing at a police officer. After her arrest, the claimant made admissions to secure a caution, rather than risk prosecution. She later sought to begin a civil action for damages against the police in the course . .
CitedAwoyomi v Radford and Another QBD 12-Jul-2007
The claimant sought damages from the defendant barristers who had represented her in criminal proceedings. They had not passed on to her the statement made by the judge in chambers that if she pleaded guilty he would not impose a sentence of . .
CitedWelsh v Chief Constable of Merseyside Police 1993
On conviction for one offence, the plaintiff asked for two other offences to be taken into consideration. He was bailed pending sentence. He was then arrested for the other offences and wrongfully held in custody. The Crown Prosecution Service had . .
CitedWilliams v Thompson Leatherdale (A Firm) and Another QBD 10-Nov-2008
The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedMcFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
CitedPritchard Joyce and Hinds (A Firm) v Batcup and Another CA 5-May-2009
Standard expected of negligence claim on counsel
The claimant solicitors sought contributory damages from counsel for failing to advise them of the applicable limitation period in an action they were conducting against other solicitors in negligence. Counsel now appealed saying that the judged had . .
CitedJones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
CitedLumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
CitedSingh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Leading Case

Updated: 02 November 2021; Ref: scu.181061

Zoya Ltd v Sheikh Nasir Ahmed (T/A Property Mart) and Others: ChD 7 Oct 2016

No warranty of authority on claimas to authority

Complaint was made that proceedings had been made by the claimant company when the solicitors acted on the instructions of somebody describing himself wrongly as a director of the company.
Held: The defendant’s request for costs against the solicitors failed. There could be no warranty of authority where the litigation was itself about the very issue alleged to have been warranted. The defendant had not relied on the warranty claimed.

William Trower QC
[2016] EWHC 2249 (Ch), [2016] WLR(D) 527
Bailii, WLRD
England and Wales
Citing:
AppliedAidiniantz v The Sherlock Holmes International Society Ltd ChD 15-Jun-2016
Solicitor does not warrant his client’s case
The company had appealed from an order for its winding up. The solicitors had acted on the instructions of a director, whose authority was now challenged.
Held: The claim for costs against the solicitors failed. They had been properly retained . .

Lists of cited by and citing cases may be incomplete.

Company, Legal Professions

Updated: 02 November 2021; Ref: scu.570349

Torresi v Consiglio dell’Ordine degli Avvocati di Macerata,: ECJ 17 Jul 2014

ECJ Reference for a preliminary ruling – Freedom of movement for persons – Access to the profession of lawyer – Possibility of refusing registration in the Bar Council register to nationals of a Member State who have obtained their professional legal qualification in another Member State – Abuse of rights

V. Skouris, P
C-58/13, [2014] EUECJ C-58/13
Bailii
European

Legal Professions

Updated: 01 November 2021; Ref: scu.534456

Locabail (UK) Ltd, Regina v Bayfield Properties Ltd: CA 17 Nov 1999

Adverse Comments by Judge Need not be Show of Bias

In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party of witness to be unreliable, would not without more found a sustainable objection’ and ‘it would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation on the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extracurricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate in a case before him; or membership of the same Inn, circuit, local Law Society or chambers’.

Lord Bingham CJ, Lord Woolf MR, Sir William Blackburne VC
[2000] 1 QB 451, [2000] IRLR 96, [2000] 1 All ER 64, [1999] EWCA Civ 3004, [2000] HRLR 290, [2000] 2 WLR 870, 7 BHRC 583, [2000] UKHRR 300
Bailii
European Convention on Human Rights,
England and Wales
Citing:
CitedDimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
DoubtedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedRegina v Rand 1866
r_rand1866
A judge with an interest in a case, or is a party to it, will be debarred from hearing it.
Blackburn J said: ‘There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting . .
CitedRegina v Camborne Justices ex parte Pearce QBD 1954
The applicant had been convicted by the Justices on charges of offences under the Food and Drugs Act 1938 which had been brought under the authority of the Health Committee of the Cornwall County Council. The Clerk to the Justices was a councillor . .
See AlsoLocabail (UK) Ltd v Bayfield Properties Ltd and Others (No 3) ChD 29-Feb-2000
It can be proper to award costs against a third party to an action where his behaviour had fallen short of strictly maintaining the action. Here a husband had funded his wife’s defence knowing that she would be unable to support any order for costs . .
Appeal fromLocabail (UK) Ltd v Bayfield Properties Ltd and Another; Locabail (UK) Ltd and Another v Waldorf Investment Corporation and others (No 2) ChD 18-May-1999
A solicitor sitting as a judge was not obliged to disqualify himself even though his firm might not have been able to act for one of the parties to the case, unless a reasonable third party might properly think that he could not be impartial. . .
CitedRegina v Inner West London Coroner Ex Parte Dallaglio, and Ex Parte Lockwood Croft CA 16-Jun-1994
A coroner’s comment that the deceased’s relative was ‘unhinged’ displayed a bias which was irreparable. ‘The description ‘apparent bias’ traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is . .
CitedRegina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
CitedClenae Pty Ltd and Others v Australia and New Zealand Banking Group Ltd 9-Apr-1999
(Supreme Court of Victoria) The court considered the issue of bias in a judge where he held shares in a company in the trial before him.
Held: The outcome of the litigation could not have realistically affected his judgment. He held a small . .
CitedPowell v Chief Constable of North Wales Constabulary CA 20-Aug-1999
Application for permission to appeal by the defendant. The defendant had asserted a public interest immunity in refusing to disclose evidence of a witness since it would lead to the revelation of the identity of an informer.
Held: Leave was . .
CitedLaw v Chartered Institute of Patent Agents 1919
Eve J discussed the test for bias in the members of a council making a decision: ‘If he has a bias which renders him otherwise than an impartial judge he is disqualified from performing his duty. Nay, more (so jealous is the policy of our law of the . .
CitedRex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
CitedVakauta v Kelly 1989
(High Court of Australia) The majority held that the first instance judge fell on the wrong side of ‘an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could . .

Cited by:
CitedLodwick v London Borough of Southwark CA 18-Mar-2004
The claimant alleged bias on the part of the employment appeal tribunal chairman hearing his appeal. The chairman refused to stand down, saying that he was only one of three tribunal members with an equal vote. The chairman had four year’s . .
CitedDavidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
CitedAMEC Capital Projects Ltd v Whitefriars City Estates Ltd CA 28-Oct-2004
Alleged bias and procedural unfairness by an adjudicator appointed to determine a dispute in relation to a construction contract.
Held: The principles of the common law rules of natural justice and procedural fairness were two-fold. A . .
CitedBirminham City Council and Another v Yardley CA 9-Dec-2004
The litigant was informed before the case that the judge was from the same chambers as counsel for the opposing side.
Held: Such a litigant if he wanted to complain of bias must do so immediately. The judgment had been delivered only in draft . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
See AlsoLocabail (UK) Ltd v Bayfield Properties Ltd and Others (No 3) ChD 29-Feb-2000
It can be proper to award costs against a third party to an action where his behaviour had fallen short of strictly maintaining the action. Here a husband had funded his wife’s defence knowing that she would be unable to support any order for costs . .
CitedIn Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
CitedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
CitedAWG Group Ltd and Another v Morrison and Another ChD 1-Dec-2005
Application was made for the judge to recuse himself from a forthcoming trial when he indicated that an intended witness was known to him personally.
Held: The test to be applied was to include: ‘all circumstances which have a bearing on the . .
CitedMorrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
CitedPort Regis School Ltd, Regina (on the Application of) v Gillingham and Shaftesbury Agricultural Society Admn 5-Apr-2006
Complaint was made that the decision of a planning committee had been biased because of the presence on the committee of two freemasons, and where the interests of another Lodge were affected.
Held: The freemasonry interests had been declared. . .
CitedLondon Borough of Southwark v Dennett CA 7-Nov-2007
The defendant tenant had been delayed for over five years by the claimant in buying his council house. He stopped paying rent in protest, and the council brought possession proceedings. He then paid his rent and continued in his counterclaim to . .
CitedArmchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedRoberts, Regina (on the Application of) v The Parole Board Admn 7-Nov-2008
The prisoner was sentenced to life imprisonment for the murder of three police officers in 1966. He served a longer time than the recommended minimum and had been transferred to an open prison anticipating release on licence. He now complained of . .
CitedGarrett v Halton Borough Council CA 16-Mar-2007
The defendants argued that the conditional fee agreement in use by the claimant’s solicitors was void and so in breach of the rules.
Held: In assessing whether there was any ‘interest’ for the purposes of the Regulation, the court looked to . .
CitedTankard v John Fredricks Plastics Ltd; Jones v Attrill etc CA 11-Dec-2008
The defendants sought to argue that the conditional fee arrangement used by the claimant’s solicitors had been void under the 2000 regulations. They claimed that the solicitors had failed to disclose an interest in the policies sold.
Held: No . .
CitedVanttinen-Newton v The GEO Group UK Ltd EAT 23-Jul-2009
EAT UNFAIR DISMISSAL
The Claimant was head chaplain at an immigration removal centre. He was dismissed for giving an unauthorised interview broadcast on a local radio religious broadcast and because ‘there . .
CitedRegina v KS CACD 17-Nov-2009
The jury had been discharged by the judge after finding jury tampering, and he decided to continue alone. The jury had not known of the earlier convictions of others involved in the alleged conspiracy, but the judge did and he had made reference to . .
CitedMireskandari v Associated Newspapers Ltd QBD 4-May-2010
The claimant sued in defamation, but had failed to make disclosure of documents as ordered. He asked for the ‘unless’ order to be set aside, and the action re-instated saying that he had not had notice of the application for it. He also argued that . .
CitedMMI Research Ltd v Cellxion Ltd and Others ChD 24-Sep-2007
The claimant had accidentally disclosed a confidential document it should not have done. The defendant argued that there had been a waiver of privilege.
Held: Applying Al Fayed, it could not in these circumstances be said that the mistake was . .
CitedOshungbure and Another, Regina v CACD 10-Mar-2005
The defendant appealed against a confiscation order, saying that the judge having previously expressed strong contrary views of the defendant, should have recused himself from the application, because of the appearance of bias. The judge had . .
CitedOni v NHS Leicester City EAT 12-Sep-2012
Oni_LeicesterEAT2012
EAT PRACTICE AND PROCEDURE – Costs
The Employment Tribunal should have recused itself from hearing an application for costs, given opinions which it expressed when giving reasons for deciding the case . .
CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
CitedOtkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
CitedRoberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .
CitedHayden v Associated Newspapers Ltd QBD 11-Mar-2020
The claimant alleged defamation by the defendant, and the court now considered the meanings of the words complained of. Another person had been held by police for seven hours after identifying the claimant as a transgendered man.
Held: The . .
CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .
CitedThe Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Natural Justice, Legal Professions

Leading Case

Updated: 01 November 2021; Ref: scu.136005

Beech v Freeson: QBD 1972

The defendant, a Member of Parliament, wrote a letter to the Law Society with a copy to the Lord Chancellor, saying that he had been specifically requested by a constituent to refer the plaintiffs’ solicitors’ firm to the Law Society for investigation. He set out the constituent’s complaints and stated that, contrary to his usual practice he had complied with the request because he had received complaints from other constituents in the past concerning the plaintiffs’ firm. He defended the defamation action, claiming qualified privilege.
Held: Qualified privilege may arise in the making of complaints about public officials or persons with public duties to the relevant authorities.
Geoffrey Lane J said: ‘Finally, have the plaintiffs proved that the defendant was actuated by express malice? Malice includes any spite or ill-will directed from the defendant at the plaintiffs. It also includes any indirect motive. That is to say, any intention on the part of the defendant to use the occasion, not merely for the purpose for which it is a subject of qualified privilege, but for some extraneous purpose of his own not connected with privilege’
. . And ‘it seems contrary to principle that the existence of qualified privilege should depend on the mistaken belief of the defendant’.

Lane J
[1972] 1 QB 14
England and Wales
Citing:
CitedNevill v Fine Arts and General Insurance Co Ltd CA 1895
Lopes LJ said: ‘The effect of the occasion being privileged is to render it incumbent upon the plaintiff to prove malice, that is, to shew some indirect motive not connected with the privilege, so as to take the statement made by the defendant out . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional, Legal Professions

Leading Case

Updated: 01 November 2021; Ref: scu.539180

Meerabux v The Attorney General of Belize: PC 23 Mar 2005

(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been decided in private.
Held: It was not suggested that the chairman had any pecuniary interest. A judge of the Supreme court had to be qualified as a barrister, and therefore be a member of the Bar Council in order to sit. Those framing the constitution must have anticipated this apparent conflict, and a chairman should therefore not be automatically disqualified. Not every proceeding must be held in public. The BAC was not a judicial body. The rules of the BAC were designed to ensure fairness, and they were not impugned by the proceedings, nor their privacy.

Lord Hoffmann, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Carswell
[2005] UKPC 12, Times 20-Apr-2005, [2005] 2 WLR 1307, [2005] 2 AC 513
Bailii, PC
Belize Constitution 98(4)
Commonwealth
Citing:
CitedRegina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedDimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
CitedIn Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
CitedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedLawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
CitedLeeson v Council of Medical Education and Registration 1889
Mere membership of an association by which proceedings are brought does not disqualify a judge from hearing the case, but active involvement in the institution of the particular proceedings does. Here, mere membership of the Medical Defence Union . .
CitedAllinson v General Council of Medical Education and Registration 1894
The mere ex officio membership of the committee of the Medical Defence Union was held to be insufficient to disqualify the member from sitting on the disciplinary panel. . .
CitedPellegrin v France ECHR 8-Dec-1999
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedStewart v Secretary of State for Scotland (Scotland) HL 22-Jan-1998
The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not . .
CitedStewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedKaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Natural Justice

Updated: 01 November 2021; Ref: scu.223880

Pepper (UK) Ltd (T/A Engage Credit) v Fox (P/A Barry Fox, Solicitors): ChNI 14 Jan 2016

Application by Pepper (UK) Ltd t/a Engage Credit against Emma Jane Fox practising as Barry Fox, Solicitors for the delivery up of all papers, documents and title deeds in the possession and custody of the Solicitors and belonging to the plaintiff relating to mortgage business in respect of a mortgage and premises in County Tyrone. The solicitors said that certain documents related to advice given to the mortgagor’s wife and were confidential to her. The lender said that having acted for them in the matter, all documents were to be disclosed.

Horner J
[2016] NICh 1
Bailii
Citing:
CitedLeicester County Council v Michael Faraday and Partners CA 1941
The Court rejected a claim for production of all documents, books, maps and plans in possession of rating valuers who were employed by the County Council to give advice and held that the relationship of the County Council and the valuers was that of . .
CitedChantrey Martin v Martin CA 1953
The professional working papers of a firm of accountants were held not to be the property of the client, but letters and other papers created by accountants as agent for client were the client’s property: ‘Working accounts and other papers which . .
CitedMortgage Express Ltd v Bowerman and Partners (A Firm) CA 1-Aug-1995
A solicitor acting for both a lender and a borrower was under a duty to disclose relevant information to the lender client. An incident of their duty to exercise reasonable care and skill, solicitors are obliged to advise their lender client in . .
CitedNationwide Building Society v Various Solicitors ChD 20-Jul-1999
The case draws a distinction in group and consolidated actions between costs incurred on the general points which have been common to the parties and which brought the actions together and costs incurred in dealing with matters specific to the . .
CitedThe Mortgage Business Plc and Bank of Scotland Plc (T/A Birmingham Midshires) v Thomas Taggart and Sons ChNI 30-Apr-2014
. .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Legal Professions

Updated: 01 November 2021; Ref: scu.564915

Hazelhurst and Others v Solicitors Regulation Authority: Admn 11 Mar 2011

The claimants appealed against disciplinary orders. A member of staff had stolen substantial sums from client account. They had admitted breaches of the Accounts and Practice rules, but personally made good all losses. They said that the Solicitors Discliplinary Tribunal had failed to give adequate reasons for its decisions.
Held: The appeal succeeded: ‘the SDT failed to give any reasons for its apparent refusal to take into account any of the mitigating factors it referred to in its judgment and accordingly allow the first ground of appeal. As the matters relied upon by the appellants in this ground of appeal go to the core of their case, of itself, it provides a sufficient reason for this court to revisit the decision of the SDT.’
The court considered the appropriate penalty and said: ‘The responsibility of the appellants for the breach and the need to maintain public confidence in the profession require the imposition of a sanction. Determination of the appropriate sanction requires account to be taken of the appellants’ conduct. Conduct which positively reflects upon the appellants’ character can be viewed by the public as evidence of their own trustworthiness. I regard their conduct as identified in paragraph 43 above as such evidence. Each appellant has made his own financial reparation; as a result no client has suffered. This latter fact is relevant to the question of whether a financial penalty is appropriate.’

Nicola Davies DBE J
[2011] EWHC 462 (Admin)
Bailii
Solicitors Act 1974
England and Wales
Citing:
CitedBolton v The Law Society CA 8-Dec-1993
The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that . .
CitedEnglish v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
CitedMacleod v The Royal College of Veterinary Surgeons (the Disciplinary Committee of the Rcvs) PC 24-Jul-2006
Held: The brevity of the disciplinary committee’s consideration of the issues relating to sanction, as contained in its determination, permitted the court to examine afresh the appropriateness of the penalty imposed. . .

Cited by:
CitedBass and Another v Solicitors Regulation Authority Admn 18-Jul-2012
The appellants challenged the decision of the Solicitors Disciplinary Tribunal finding them in breach of the 1998 Rules in that they had failed to prevent a former partner making unauthorised, if small, withdrawals of residual balances from client . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 01 November 2021; Ref: scu.430526

White v Withers Llp and Dearle: CA 27 Oct 2009

The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the solicitors for wrongful interference with property by ‘possessing, taking or intercepting the claimant’s correspondence and documents including personal family letters, private and confidential letters concerning business opportunities and documents containing financial information.’ Withers relied on their advice having been given in compliance with Hildebrand.
Held: Leave to appeal was granted, and the claim re-instated. The rule in Hildebrand covered issues as to the use of such material within family proceedings, and not wider issues of property rights: ‘The Matrimonial Causes Act 1973 can be invoked to justify admitting the evidence contained in the documents: but one cannot construe the Act as authorising the commission of the torts of trespass or conversion.’ The defendants had taken into possesion and retained original and private documents which had no relevance in the proceedings. The propriety of the solicitor’s conduct was at issue, and could not be swept under the carpet.
The court examined the history and limits of self-help remedies in matters of tort
Ward LJ explained the rule in Hildebrand: ‘It may be appropriate to summarise the Hildebrand rules as they apply in the Family Division as follows. The family courts will not penalise the taking, copying and immediate return of documents but do not sanction the use of any force to obtain the documents, or the interception of documents or the retention of documents nor I would add, though it is not a feature of this case, the removal of any hard disk recording documents electronically. The evidence contained in the documents, even those wrongfully taken will be admitted in evidence because there is an overarching duty on the parties to give full and frank disclosure. The wrongful taking of documents may lead to findings of litigation misconduct or orders for costs.’

Ward, Sedley, Wilson LJJ
[2009] EWCA Civ 1122, [2010] Fam Law 26, [2009] 3 FCR 435 [2009] 3 FCR 435
Bailii
Torts (Interference with Goods) Act 1977
England and Wales
Citing:
CitedHildebrand v Hildebrand 1992
The parties in ancillary relief proceedings sought orders for discovery. H had been to the wife’s flat surreptitiously on five occasions, and taken photocopies of so many documents obtained by him in the course of those visits (but returned after . .
CitedWhite v Withers Llp and Another QBD 19-Nov-2008
The claimant sought damages. The defendant firm of solicitors had represented the claimant’s wife in matrimonial procedings, and had used in evidence documents which the claimant said had been taken from him and were confidential.
Held: The . .
CitedWard v Macauley And Another 25-Nov-1791
A having let his house ready furnished to B. cannot maintain trespass against the sheriff for taking the furniture under an execution against B.; though notice were given that the goods belonged to A. The plaintiff was the landlord of a house, which . .
CitedT v T (Interception of Documents) FD 5-Aug-1994
W feared that the H would seek to understate the true extent of his resources to the court and so she engaged in a number of activities, including opening and taking letters addressed to him and breaking into his office, with the intention of . .
CitedL v L and Hughes Fowler Carruthers QBD 1-Feb-2007
The parties were engaged in ancillary relief proceedings. The Husband complained that the wife had sought to use unlawfully obtained information, and in these proceedings sought delivery up of the material from the wife and her solicitors. He said . .
CitedFouldes v Willoughby 1841
The ferryman who turned the plaintiff’s horses off the Birkenhead to Liverpool ferry was guilty of conversion if he intended to exercise dominion over them, but not otherwise. Scratching the panel of a horse carriage would be a trespass, but it . .
CitedKuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
CitedMarfani and Co Ltd v Midland Bank Ltd CA 1968
A rogue opened a new bank account under a false name with the help of an incorrect reference from a valued customer.
Held: When an account is fraudulently opened with the bank in the name of another person by someone pretending to be that . .
CitedSouthwark London Borough Council v Williams CA 1971
No Defence of Homelessness to Squatters
The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedJones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
CitedMonsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .
CitedCollins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
CitedWilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
CitedBrandes Goldschmidt and Co Ltd v Western Transport Ltd CA 1981
Brandon LJ said: ‘Damages in tort are awarded by way of monetary compensation for the loss or losses a plaintiff has actually sustained.’ . .
CitedDow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
CitedJ v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .

Cited by:
CitedTchenguiz and Others v Imerman CA 29-Jul-2010
Anticipating a refusal by H to disclose assets in ancillary relief proceedings, W’s brothers wrongfully accessed H’s computers to gather information. The court was asked whether the rule in Hildebrand remained correct. W appealed against an order . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other, Intellectual Property, Family

Updated: 01 November 2021; Ref: scu.377238

Myers 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 Court of Appeal’s decision was reversed. The plaintiff was not asking the court to exercise its disciplinary jurisdiction over officers of the court but, rather, its jurisdiction to order a legal practitioner to pay costs by reason of some misconduct, default or negligence in the course of proceedings, a jurisdiction which could be exercised where the solicitor was merely negligent, so that the solicitor could not ‘shelter himself behind a clerk, for whose actions within the scope of his authority he is liable’
A solicitor’s duty advising his client on discovery is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. He has overall responsibility for the process and should not leave it all to his client. The House considered and set out the court’s powers to disallow an award of costs, or to award them to be paid by the solicitor personally: ‘The court’s jurisdiction to make a wasted costs order against a solicitor is founded on breach of the duty owed by the solicitor to the court to perform his duty as an officer of the court in promoting within his own sphere the cause of justice.’
and ‘The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger C.B. in Stephens v. Hill. (1) The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.’
Viscount Maugham said: ‘My Lords, as I understand the judgment of Greer and Slesser L.JJ., those learned judges were of opinion that the jurisdiction of the Court to order a solicitor to pay the cost of proceedings is a punitive power resting on the personal misconduct of the solicitor and precisely similar to the power of striking a solicitor off the rolls or suspending him from practice . . The jurisdiction to strike off the rolls or to suspend a solicitor seems to me to be of a very different character. Apart from the statutory grounds it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: in Re a Solicitor. Ex parte The Law Society (1912) 1 K.B. 302. Mere negligence even of a serious character, will not suffice.’ and ‘These cases did not depend on disgraceful or dishonourable conduct by the solicitor, but on mere negligence of a serious character, the result of which was to occasion useless costs to the other parties . . I think the authorities show that the jurisdiction may be exercised where the solicitor is merely negligent.’
Lord Wright said: ‘A solicitor was long ago held to be an officer of the Court on the Roll of which he was entered and as such to be subject to the discipline of that Court. The Court might strike him off or suspend him . . But alongside the jurisdiction to strike off the Roll or to suspend, there existed in the Court the jurisdiction to punish a solicitor or attorney by ordering him to pay costs, sometimes the costs of his own client, sometimes those of the opposite party, sometimes, it may be, of both. The ground of such an order was that the solicitor had been guilty of professional misconduct (as it is generally called) not, however, of so serious a character as to justify striking him off the Roll or suspending him.’
‘The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally as was said by Abinger C.B. in Stevens v. Hill [(1842) 10 M.and W. 28]. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term ‘professional misconduct’ has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action Thus, it may, in proper cases, take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive, but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.’
Lord Wright went on to say that the jurisdiction applied for the costs of either party, and was as to behaviour which was professional misconduct falling short of what might lead to a striking off, and: ‘The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v Hill (1842) 10 M and W 28. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an Affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve a personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty too. The summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence or an action for breach of warranty of authority brought by the person named as Defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party to the action.’
and ‘The summary jurisdiction thus involved a discretion both as to procedure and as to substantive relief ‘
Lord Atkin said: ‘From time immemorial judges have exercised over solicitors . . a disciplinary jurisdiction in cases of misconduct . . If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case . . What is the duty of the solicitor? He is at the early stage of the proceedings engaged in putting before the court on the oath of his client information which may afford evidence at the trial. Obviously he must explain to his client what is the meaning of relevance: and equally obviously he must not necessarily be satisfied by the statement of his client that he has no documents or no more than he chooses to disclose. If he has reasonable ground for supposing that there are others, he must investigate the matter; but he need not go beyond taking reasonable steps to ascertain the truth.’
As to the awarding of costs against a solicitor, he considered this to be a disciplinary jurisdiction arising by the solicitor’s failure in its duty to the court itself, and not a form of summary jurisdiction in contract or tort in awarding compensation. As to the standard of misconduct: ‘by misconduct is meant something which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute; for example wilfully misleading the Court in the conduct of a case.’

Viscount Maugham, Lord Wright and Lord Porter
[1940] AC 282, [1939] 4 All ER 484, (1939) 56 TLR 177, (1939) 162 LT 113, (1939) 109 LJKB 105
England and Wales
Citing:
Appeal fromMyers v Rothfield CA 1938
The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such . .

Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedHedrich and Another v Standard Bank London Ltd and Another CA 30-Jul-2008
Wall LJ said: ‘A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should carry a warning that litigation can cost you. For litigation is an inherently risky business: there are no certain . .
CitedNelson v Nelson CA 6-Dec-1996
A solicitor appealed against an order requiring him to contribute to the costs of Mareva injunction applied for on behalf of his bankrupt client.
Held: Solicitors were not liable in costs personally for starting proceedings on behalf of a . .
CitedUlster Bank Ltd v Fisher and Fisher ChNI 21-Dec-1998
. .
CitedMedcalf v Mardell, Weatherill and Another HL 27-Jun-2002
The appellants were barristers against whom wasted costs orders had been made. They appealed. They had made allegations of fraud in pleadings, but without being able to provide evidence to support the allegation. This was itself a breach of the Bar . .
CitedDempsey v Johnstone CA 30-Jul-2003
The solicitors appealed against a wasted costs order. . .
CitedHarley 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 . .
CitedAl-Kandari v J R Brown and Co CA 1988
A solicitor had undertaken to look after certain passports, but failed to do so. The husband had twice previously kidnapped his children whose custody was an issue before the court. Once the husband regained the passports, he again fled with the . .
CitedTaylor and Taylor v Ribby Hall Leisure Limited and North West Leisure Holdings Limited CA 6-Aug-1997
In supervisory proceedings against lawyers, claims of abuse of process are to be pursued at the substantive hearing and not by way of pre-emptive applications. Delay in bringing an application to enforce a solicitor’s undertaking can be relevant to . .
CitedWagstaff v Colls and Another CA 2-Apr-2003
The action had been stayed by an order on agreed terms. The claimant sought a wasted costs order against the defendants’ solicitors on the ground that they had witheld certain facts during the litigation. The defendants argued that they should first . .
CitedSprecher Grier Halberstam Llp and Another v Walsh CA 3-Dec-2008
Ward LJ said: ‘a man cannot be deceived if he knows the truth’ . .
CitedIn re P (a Barrister) (Wasted Costs Order) CACD 23-Jul-2001
The procedure for making a wasted costs order was primarily compensatory, for costs wasted, rather than punitive for malpractice. The procedure is summary, and more in line with applications for costs made under the Civil Procedure Rules rule 44.3, . .
CitedPhillips, Harland (Suing As Administrators of the Estate of Christo Michailidis), Papadimitriou v Symes (A Bankrupt) Robin Symes Limited (In Administrative Receivership) Jean-Louis Domercq ChD 20-Oct-2004
Dr Zamar had given expert evidence in the principal proceedings. It was now said that that evidence had not been given in the proper way, and a remedy was now sought. . .
CitedAxa Sun Life Services Plc v Cannon and Another QBD 30-Oct-2007
. .
CitedMitchells Solicitors v Funkwerk Information Technologies York Ltd EAT 8-Apr-2008
EAT PRACTICE AND PROCEDURE: Costs
After the Claimant’s discrimination claim failed the Respondents sought an order for costs against her or a wasted costs order against her solicitors for pursuing a hopeless . .
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 . .
CitedGeoffrey 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 . .
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, Costs

Leading Case

Updated: 01 November 2021; Ref: scu.279003

Rondel v Worsley: HL 1967

Need for Advocate’s Immunity from Negligence

The appellant had obtained the services of the respondent barrister to defend him on a dock brief, and alleged that the respondent had been negligent in the conduct of his defence.
Held: The House considered the immunity from suit of barristers acting in court. An advocate should remain immune from negligence in respect of his actions in court.
Lord Morris of Borth y Gest said that the immunity extended to the ‘conduct and management of a case in court’ by the advocate. The existence of liability in negligence, and indeed the very possibility of making assertions of liability against a barrister, might tend to undermine the willingness of barristers to carry out their duties to the court. An advocate should not be under pressure unwarrantably to subordinate his duty to the court to his duty to the client. The court re-inforced the undesirability of relitigating issues already decided. Also the ‘cab rank’ rule, imposed upon barristers, an obligation to accept instructions from anyone who wishes to engage their services in an area of the law in which they practised.
Lord Reid applied the immunity to the ‘conduct of litigation’ and being ‘engaged in litigation’. These phrases embodied the work covered in drawing pleadings or conducting subsequent stages in the case, and it would also apply to some cases where litigation was ‘impending’ but not to advisory work ‘where that consideration did not apply’.
Lord Reid continued: ‘Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce. And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him . . So the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable. I would not expect any counsel to be influenced by the possibility of an action being raised against him to such an extent that he would knowingly depart from his duty to the court or to his profession. …

Lord Reid, Lord Morris of Borth-y-Gest, Lord Upjohn, Lord Pearson
[1969] 1 AC 191, [1967] UKHL 5, [1967] 3 All ER 993 HL(E), [1967] 3 WLR 1666
Bailii
England and Wales
Cited by:
CitedAtwell v Perr and Co and Another ChD 27-Jul-1998
Counsel advising during conduct of case has immunity but a wrongful advice on appeal was outside his immunity. Work done before a hearing constituting the formulation of case was within the immunity from suit. . .
OverruledArthur 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 . .
ConsideredSaif Ali v Sydney Mitchell and Co (a Firm) HL 1978
Extent of Counsel’s Immunity in Negligence
The House considered the extent of a barrister’s immunity from action in negligence, and particularly whether it covered pre-trial acts or omissions in connection with civil proceedings.
Held: A barrister’s immunity from suit extended only to . .
CitedDutton v Bognor Regis Urban District Council CA 1972
The court considered the liability in negligence of a Council whose inspector had approved a building which later proved defective.
Held: The Council had control of the work and with such control came a responsibility to take care in . .
CitedHill v Chief Constable of West Yorkshire HL 28-Apr-1987
No General ty of Care Owed by Police
The mother of a victim of the Yorkshire Ripper claimed in negligence against the police alleging that they had failed to satisfy their duty to exercise all reasonable care and skill to apprehend the perpetrator of the murders and to protect members . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
CitedKelley v Corston CA 20-Aug-1997
The plaintiff employed the defendant barrister to pursue her claim for ancillary relief in divorce. She sought to recover damages for his alleged negligence.
Held: A barrister’s immunity from suit for negligence in advocacy extends to . .
CitedVan Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
CitedVan Colle v Hertfordshire Police QBD 10-Mar-2006
The claimants claimed for the estate of their murdered son. He had been waiting to give evidence in a criminal trial, and had asked the police for support having received threats. Other witnesses had also suffered intimidation including acts of . .
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
CitedJones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
CitedLumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
CitedMichael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
CitedSingh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
AppliedRees v Sinclair 1974
(New Zealand Court of Appeal) The court discussed the indemnity given to witnesses: ‘But I cannot narrow the protection to what is done in court: it must be wider than that and include some pre-trial work. Each piece of before-trial work should, . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions

Leading Case

Updated: 31 October 2021; Ref: scu.181060

AIB Group (UK) Plc v Mark Redler and Co Solicitors: SC 5 Nov 2014

Bank not to recover more than its losses

The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to be secured by a first charge over the borrowers’ property. The solicitors had acted for both the bank and the borrowers. The bank appealed against rejection of its claim to be entitled to recover the entire sum it had paid, asserting a breach of trust, notwithstanding that its actual losses were rather less.
Held: The bank’s appeal failed. It was entitled to recompense only for the actual loss suffered. Payment of the amount claimed would be penal and retrograde.
Lord Toulson said: ‘The purpose of a restitutionary order is to replace a loss to the trust fund which the trustee has brought about. To say that there has been a loss to the trust fund in the present case of pounds 2.5m by reason of the solicitors’ conduct, when most of that sum would have been lost if the solicitors had applied the trust fund in the way that the bank had instructed them to do, is to adopt an artificial and unrealistic view of the facts.’
and: ‘in circumstances such as those in Target Holdings the extent of equitable compensation should be the same as if damages for breach of contract were sought at common law. That is not because there should be a departure in such a case from the basic equitable principles applicable to a breach of trust, whether by a solicitor or anyone else . . Rather, the fact that the trust was part of the machinery for the performance of a contract is relevant as a fact in looking at what loss the bank suffered by reason of the breach of trust, because it would be artificial and unreal to look at the trust in isolation from the obligations for which it was brought into being. I do not believe that this requires any departure from proper principles.’
Lord Reed concluded: ‘Some of the typical obligations of the trustee of a fund are strict: for example, the duty to distribute the fund in accordance with the purposes of the trust. Others are obligations of reasonable care: for example, the duty to exercise reasonable care and skill in the management of the fund. Since these equitable obligations relate to a fund held for trust purposes, the trustee’s liability for a breach of trust will, again putting the matter broadly, depend upon its effect upon the fund: the measure of compensation will generally be based upon the diminution in the value of the fund caused by the trustee’s default.’
and: ‘The result of the appeal was undoubtedly correct. The mortgage advance had been paid out prematurely and to the wrong person, with the consequence that at that point the trustee did not have the charges which he ought to have had. That deficiency was however remedied when the charges were obtained some weeks later. The assets under the control of the trustee were then exactly what they ought to have been. There was nothing missing from the trust fund, and therefore no basis for a claim for restoration. For the same reason, there was no basis for a claim to compensation by the mortgagee.’

Lord Neuberger, Lady Hale, Lord Wilson, Lord Reed, Lord Toulson
[2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, UKSC 2013/0052, [2015] AC 1503
Bailii, WLRD, Bailii Summary, SC, SC Summary
Judicature Act 1873
England and Wales
Citing:
At ChDAIB Group (UK) Plc v Mark Redler and Co (A Firm) ChD 23-Jan-2012
The claimant bank sought damages from the defendant solicitors, saying that they had paid on mortgage advance moneys but failed to deliver as promised and required, a first mortgage over the property purchased. The solicitors had failed to discharge . .
CitedTarget Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
At CAAIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
CitedCaffrey v Darby 1801
A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind . .
CitedNocton v Lord Ashburton HL 1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
CitedCanson Enterprises Ltd v Boughton and Co 21-Nov-1991
Canlii Supreme Court of Canada – Canada – Damages — Breach of fiduciary duty — Solicitor preparing conveyance not advising purchasers of secret profit made on a flip — On agreed facts, purchasers fully . .
CitedLibertarian Investments Ltd v Hall 6-Nov-2013
(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he . .
CitedBartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) ChD 1980
A claim was made against a trustee for compensation for losses incurred during the administration of the trust.
Held: For a court to order an account by a trustee on the basis of wilful default, and make the defendant liable not only for . .
CitedAgricultural Land Management Ltd v Jackson (No 2) 2-May-2014
(Supreme Court of Western Australia) Equity – Fiduciary duties – Whether mere existence of conflict is actionable – Whether a breach of conflict rule requires a fiduciary actually to act in a position of conflict and pursue or prefer a personal . .
CitedMothew (T/a Stapley and Co) v Bristol and West Building Society CA 24-Jul-1996
The solicitor, acting in a land purchase transaction for his lay client and the plaintiff, had unwittingly misled the claimant by telling the claimant that the purchasers were providing the balance of the purchase price themselves without recourse . .
CitedEx parte Adamson; In re Collie CA 1878
The Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for ‘an equitable debt, or liability in the nature of a debt’. . .
CitedLivingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
CitedMagnus v Queensland National Bank 1888
A custodial bank was liable to restore trust funds merely because it dissipated the trust funds in a manner which was not authorised. Lord Halsbury LC said: ‘we are not at liberty to speculate whether the same result might not have followed whether . .
CitedBank of New Zealand v New Zealand Guardian Trust Co Ltd 1999
New Zealand Court of Appeal – Gault J said: ‘Recent cases show a trend in favour of analysis by reference to the scope of the duty, and enquire as to the risks against which there was a duty to protect the plaintiff. In South Australia Asset . .
CitedKelly v Cooper and Cooper Trading As Cooper Associates (A Firm) Co PC 19-Oct-1992
Bermuda – The fiduciary obligations imposed on an agent will depend on the express and implied terms of the contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in . .
CitedHodgkinson v Simms 30-Sep-1994
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .
CitedCadbury Schweppes v FBI Foods 28-Jan-1999
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
CitedFHR European Ventures Llp and Others v Cedar Capital Partners Llc SC 16-Jul-2014
Approprietary remedy against Fraudulent Agent
The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .
CitedKM v HM 29-Oct-1992
Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability . .
CitedBreen v Williams 6-Sep-1996
High Court of Australia – Medicine – Doctor/patient relationship – Medical records – Patient’s right to access – Contractual right – Doctor’s duty to act in patient’s ‘best interests’ with utmost good faith and loyalty – Patient’s proprietary right . .
CitedMaguire v Makaronis 25-Jun-1997
High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of . .
CitedYouyang Pty Ltd v Minter Ellison Morris Fletcher 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
CitedPilmer v Duke Group Ltd 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
CitedAmaltal Corpn Ltd v Maruha Corpn 20-Feb-2007
Supreme Court of New Zealand – Blanchard J said that even in a commercial relationship, there might be aspects which engaged fiduciary obligations: ‘That is because in the nature of that particular aspect of the relationship one party is entitled to . .
CitedPremium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
CitedAkai Holdings Ltd v Kasikornbank PCL 8-Nov-2010
Court of Final Appeal – Hong Kong – Lord Neuberger of Abbotsbury NPJ said: ‘the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated)’ and . .

Cited by:
CitedPurrunsing v A’Court and Co (A Firm) and Another ChD 14-Apr-2016
The claimant had paid money for a property, but the seller was a fraudster and no money or title was recovered. The claimant sued both his conveyancers and the solicitors who had acted for the fraudster, in each case innocently. The defendants each . .

Lists of cited by and citing cases may be incomplete.

Equity, Damages, Legal Professions

Leading Case

Updated: 31 October 2021; Ref: scu.538296

Hopkins v Mackenzie: CA 27 Oct 1994

A loss arising from a solicitor’s failure to pursue a case arose only when the claim was struck out, not earlier when compromised, and even though value already diminished. Accordingly the limitation period began to run from that time.
Hobhouse LJ
Times 03-Nov-1994, Independent 27-Oct-1994, Gazette 07-Dec-1994, [1995] PIQR 43
Limitation Act 1980
England and Wales
Cited by:
DisapprovedKhan v R M Falvey and Co (a Firm) CA 22-Mar-2002
The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
CitedIqbal v Legal Services Commission CA 10-May-2005
The claimant had been a partner in a firm of solicitors. They came to be suspected by the respondent of overclaiming legal aid payments and sums were withheld. For this and other reasons the practice folded, and the claimant became insolvent. He . .
CitedVision Golf Ltd v Weightmans (A Firm) ChD 26-Jul-2005
A lease had been forfeited. The defendant firm of solicitors had negligently failed to apply for relief. They argued that that failure had in fact caused no loss to the claimants, since they would have lost the lease anyway.
Held: The ‘but . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.81467

Carlton v Theodore Goddard and Co: ChD 1973

A solicitor sought to rely on a letter from his client as justifying the presentation of a new and larger bill.
Held: ‘there is the question whether the plaintiff ever required the defendants to deliver to him in lieu of the gross sum bill ‘a bill containing detailed items.’ I cannot see that he has. To require a bill to be taxed is plainly not per se a requirement that a detailed bill should be delivered; for as provisos (b) and (c) to section 64 itself make plain, a lump sum bill may be taxed.’ The court must be concerned with the substance of the request.
Megarry J
[1973] 1 WLR 623
Solicitors Act 1957 64
England and Wales
Cited by:
CitedPenningtons (a Firm) v Brown CA 30-Apr-1998
The claim concerned the plaintiffs claim for costs having represented the defendant successfully. They delivered a bill which detailed disbursements, and gave a 14 line narrative, but no other detail. The defendant requested more detail, being . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.182996

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

The solicitor appealed an order which made the success fee payable different at diferent 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.
Brooke VP CA, Rix, Dyson LJJ
[2005] 1 WLR 2657, Times 16-May-2005, [2005] EWCA Civ 475, [2005] 4 Costs LR 600
Bailii
Civil Procedure Rules 44.8(2), Courts and Legal Services Act 1990 58, Conditional Fee Agreements Regulations 2000 (2000 No 602)
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.224477

Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd: ComC 23 Apr 2008

Beatson J
[2008] EWHC 843 (Comm), [2008] Lloyd’s Rep IR 643
Bailii
England and Wales
Cited by:
Appeal fromTemple Legal Protection Ltd v QBE Insurance (Europe) Ltd CA 6-Apr-2009
‘In the present case the binder gives Temple certain valuable rights, including a right in Section 27.1 to ‘retain’ commission out of premiums, but they do not include any rights of a security or proprietary nature to which the authority can be . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.267064

Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd: SC 18 Apr 2018

The court was asked as to use of the solicitor’s equitable lien, whereby equity provided security for the recovery by solicitors of their agreed charges for the successful conduct of litigation, out of the fruits of that litigation. It is a judge-made remedy, motivated not by any fondness for solicitors as fellow lawyers or even as officers of the court, but rather because it promotes access to justice. Specifically it enables solicitors to offer litigation services on credit to clients who, although they have a meritorious case, lack the financial resources to pay up front for its pursuit. It is called a solicitor’s lien because solicitors used to have a virtual monopoly on the pursuit of litigation in the higher courts. The solicitors had taken on personal injury claimants on a conditional fee basis. The appellant insurance company had settled the claims directly with the clients, depriving the solicitors of their costs.
Held: Appeal dismissed (though on differing grounds)
‘ the equity depends upon the solicitor having a claim for his charges against the client, that there must be something in the nature of a fund against which equity can recognise that his claim extends (which is usually a debt owed by the defendant to the solicitor’s client which owes its existence, at least in part, to the solicitor’s services to the client) and that for equity to intervene there must be something sufficiently affecting the conscience of the payer, either in the form of collusion to cheat the solicitor or notice (or, I would add knowledge) of the solicitor’s claim against, or interest in, the fund.’
Lady Hale, President, Lord Kerr, Lord Wilson, Lord Sumption, Lord Briggs
[2018] UKSC 21, [2018] RTR 22, [2018] 2 Costs LR 347, [2018] PNLR 24, [2018] 3 All ER 273, [2018] 1 WLR 2052, [2018] WLR(D) 241
Bailii, Bailii Summary, WLRD, Supreme Court, SC Summary, SC Summary Video, SC 2018 0205 am video, SC 2018 0205 pm video, SC 20180202 am Video, SC 2018 02 06 pm video
England and Wales
Citing:
Appeal fromGavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd CA 2-Dec-2015
Appeal by Edmondson against an Order dismissing Edmondson’s claim against Haven in respect of Haven’s conduct in settling on an inclusive basis personal injury claims directly with six clients of Edmondson with whom Edmondson had concluded . .
CitedWelsh v Hole 6-Nov-1779
The plaintiff obtained judgment for pounds 20 and costs in a civil claim for assault, but then compromised the claim for a direct payment by the defendant of pounds 10. There was no collusion to defeat the solicitor’s right to payment of his bill. . .
CitedRead v Dupper 13-Jun-1795
The defendant’s solicitor paid the plaintiff direct, after notice of the plaintiff’s solicitor’s interest, and had to pay again. Lord Kenyon began:
‘The principle by which this application is to be decided was settled long ago, namely that the . .
CitedOrmerod v Tate 13-May-1801
An attorney has a lien upon a sum awarded in favour of his client, as well as if recovered by judgment: and if after notice to the defendant the latter pay it over to the plaintiff, the plaintiff’s attorney may compel a repayment of it to himself, . .
CitedEx Parte Bryant 12-Aug-1815
Person arrested on his return from proving a debt at Guildhall, discharged with costs of application.
Though an order be made on a petition in bankruptcy, directing costs to be paid to the Petitioner personally, this does not take away the . .
ApprovedKhans Solicitor (A Firm) v Chifuntwe and Another CA 8-May-2013
C instructed the claimants to bring proceedings. They compromised those proceedings, the defendant agreeing to pay C’s costs. A bill was submitted but before it was paid C withdrew his instructions from his solicitors and accepted the defendant’s . .
CitedIn re the Estate of Fuld, decd (No. 4) 1968
The solicitor sought to exercise a lien for his costs over money paid direct to his client.
Held: The solicitor’s right exists over both the amount of a judgment in favour of the client, and the amount of an order for costs in favour of the . .
CitedGould v Davis 1831
. .
CitedIn Re Moss 2-Jun-1866
Lord Romilly MR said: ‘I think it of great importance to preserve the lien of solicitors. That is the real security for solicitors engaged in business. It is also beneficial to the suitors. It would frequently happen, but for the lien which . .
CitedBarker v St Quintin, Esq 22-Jan-1844
A solicitor’s the equitable lien operates by way of security or charge.
Baron Parke said: ‘The lien which an attorney is said to have on a judgment (which is, perhaps, an incorrect expression) is merely a claim to the equitable interference of . .

These lists may be incomplete.
Updated: 18 July 2021; Ref: scu.608733

Agouman v Leigh Day (A Firm): QBD 16 Jun 2016

The defendant firm of solicitors had acted for the claimant and 30000 others in a claim for personal injuries from the leaking of a tanker. The claim was settled but before damages could be paid, another group obtained orders against the sums received. The result was that the claimant received nothing. She now claimed in professional negligence.
Andrew Smith J
[2016] EWHC 1324 (QB)
Bailii
England and Wales

Updated: 14 July 2021; Ref: scu.565796

English and American Insurance Co Ltd and Others v Herbert Smith: ChD 1987

Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse.
Browne-Wilkinson VC J
(1987) NLJ 148, Times 22-Jan-1987, [1988] FSR 232
England and Wales
Citing:
CitedLord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
CitedGoddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Cited by:
CitedDerby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
CitedStiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.193603

Sampson v John Boddy Timber Ltd: CA 17 May 1995

A barrister should not liable for wasted costs when he pursues arguable point for his client. Unless a party makes plain its intention that a settlement offer is made on an open basis, it remains covered by the cloak of the without prejudice rule
Sir Thomas Bingham MR
Independent 17-May-1995, (1995) CAT 552
England and Wales
Cited by:
CitedBrown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.88994

Cox v Bankside Members Agency Ltd and Others: CA 16 May 1995

Successful Lloyds names were entitled to enforce their claims in the normal time sequence. The transfer of the rights of the insured against the insurer under section 1(1) the 1930 Act takes place on the event of insolvency, even if the insured’s liability to the third party has not yet been established. In handling claims, instructing solicitors and so forth, the insurers act as agents for the company and are entitled to reimbursement for their expenses.
Lord Justice Saville said: ‘Under the Act the rights of the insured against the insurer are transferred to the third party on (in the case of an insured company) the making of a winding up order etc.: see s.1(b) of the Act. It follows from this that a statutory transfer can take place before the obligation of the insurer to pay arises i.e. before the liability of the insured has been established. In such an event, since it is clear from the authorities that the third party is to be put in no better position than the insured, the third party does not obtain the right to immediate payment until the liability of the insured is established. .
That right [the right of the third party to immediate payment by the insurers] only arises when, in each case, the claim is established, just as that right, while owned by the insured, would also arise only when the particular claim in question was established. It is only when that right arises that the insurers come under the correlative obligation to make payment. To my mind it follows that as each claim is established (whether before or after the statutory assignment), the right to payment arises and thus the amount of available insurance is in effect diminished, so that when it is exhausted later established claims have no right to an indemnity. . .’
Lord Justice Saville
Independent 09-Jun-1995, Times 16-May-1995, [1995] 2 Lloyd’s Rep 437
Third Parties (Rights Against Insurers) Act 1930 1(1)(b)
England and Wales
Citing:
Appeal fromCox v Bankside Members Agency Ltd and Others QBD 27-Jan-1995
Some agents had policies against which there were likely to be various calls, either because several claims were being pursued against the same agents by different Lloyd’s Names, or because the policies were group policies covering several agents . .

Cited by:
CitedAXA Reinsurance (UK) Plc v Field HL 12-Sep-1996
The terms originating ’cause’ and ‘event’ are to be differently construed, one means a continuing situation and the other refers to a discrete event.
Under the ‘LMX Spiral’ Lloyds’ syndicates wrote substantial excess of loss business.The cross . .
CitedLloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Dicta adoptedFirst National Tricity Finance Ltd v OT Computers Ltd; In re OT Computers Ltd (in administration) CA 25-May-2004
The company had gone into liquidation. They had sold consumer policies as extended warranties on behalf of the claimant. The company had insured its own joint liability under the contracts, and the claimant sought information from the company’s . .
CitedFreakley and Curzon Insurance Ltd v Centre Reinsurance International Company and Another; similar CA 11-Feb-2005
Claims were made for personal injury caused by asbestos. The re-insurers sought declaratory relief against the head insurers, and the administrators of the insolvent company. The administrators sought declarations in turn. Curzon insured the company . .
CitedFreakley and others v Centre Reinsurance International Company and others HL 11-Oct-2006
When it became clear that the company would be financially overwhelmed by asbestos related claims, a voluntary scheme of arrangement was proposed under s425. The House was now asked whether the right to re-imbursement of the company’s lawyers after . .
CitedTeal Assurance Company Ltd v WR Berkley Insurance (Europe) Ltd SC 31-Jul-2013
An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .

These lists may be incomplete.
Updated: 07 June 2021; Ref: scu.79585

Lawal v Northern Spirit Limited: HL 19 Jun 2003

Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased. The rules recognised the need to separate counsel’s practice from the area in which he sat. The threshold is only a real possibility of unconscious bias. One starts by identifying the circumstances which are said to give rise to bias. Would a fair minded and informed observer, having considered the given facts, conclude that there was a real possibility that the tribunal was biased. Mr Lawal has succeeded on the issue of principle raised by the Recorder objection.
Lord Steyn said: ‘Public perception of the possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson (2000) 201 CLR 488, 509, para 53, by Kirby J when he stated that ‘a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.’
L Bingham of Cornhill, L. Millett, L. Nicholls of Birkenhead, L. Rodger of Earlsferry, L. Steyn
Gazette 17-Jul-2003, [2003] UKHL 35, [2003] ICR 856, [2004] 1 All ER 187
House of Lords, Bailii
England and Wales
Citing:
Appeal fromAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
ApprovedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedBelilos v Switzerland ECHR 29-Apr-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (validity of declaration); Violation of Art. 6-1; Costs and expenses award – domestic proceedings; Costs and expenses award – . .
CitedTaylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
CitedWettstein v Switzerland ECHR 21-Dec-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Pecuniary damage – claim rejected; Costs and expenses partial award – Convention proceedings; Costs and expenses partial award – national . .
CitedJohnson v Johnson 7-Sep-2000
(High Court of Australia) When looking to test whether a member of the public would perceive bias in a court, it is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. One is entitled to conclude . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Feb-1999
The appellant wished to pursue an appeal against the striking out of his claim, and objected that contrary to the Rules, a member of the board who had heard the pre-hearing review had also sat on the full hearing.
Held: The appeal should be . .
See AlsoLawal v Northern Spirit Ltd EAT 6-Oct-1999
The applicant objected that one of the lay members of the Appeal Tribunal had, on other occasions, sat with a recorder who, as counsel, was appearing for a party in that appeal.
Held: There was no real possibility of bias from this scenario. . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2001
. .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
EAT Procedural Issues – Employment Appeal Tribunal. . .
See AlsoLawal v Northern Spirit Ltd CA 15-Jan-2002
Application for leave to appeal . .
See AlsoLawal v Northern Spirit Ltd EAT 15-Jan-2002
. .
CitedLawal v Northern Spirit Ltd CA 30-Oct-2002
. .

Cited by:
Appealed toAA Lawal v Northern Spirit Limited CA 9-Aug-2002
The appellant had had his case considered by the Employment Appeal Tribunal. He complained that his opponent had been represented in court by an advocate who himself sat part time in the EAT, and that this would lead to undue weight and respect . .
CitedPD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
CitedRegina on the Application of Mahfouz v The Professional Conduct Committee of the General Medical Council CA 5-Mar-2004
The doctor requested members of the disciplinary tribunal to recuse themselves when, after the first day of the hearing they saw prejudicial material in newspapers which material was not in evidence. They had further declined to allow an adjournment . .
See AlsoLawal v Northern Spirit Ltd CA 19-Feb-2004
. .
CitedFeld, Lord Mayor and Citizens of the City of Westminster v London Borough of Barnet, Lord Mayor and Citizens of the City of Westminster CA 18-Oct-2004
The applicants sought housing as homeless people. After the refusal of their applications, they sought a review, and in due course a second review. That second review was conducted by the same officer who had conducted the first. The appellant . .
CitedAl-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
CitedMeerabux v The Attorney General of Belize PC 23-Mar-2005
(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been . .
CitedScrivens v Ethical Standards Officer Admn 11-Apr-2005
The councillor appealed an adjudication that he had failed adequately to declare an interest at a meeting of the council. The officer thought the duty to withdraw was entirely objective, the applicant that it was a matter for his honest judgment. At . .
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedMorrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
CitedPort Regis School Ltd, Regina (on the Application of) v Gillingham and Shaftesbury Agricultural Society Admn 5-Apr-2006
Complaint was made that the decision of a planning committee had been biased because of the presence on the committee of two freemasons, and where the interests of another Lodge were affected.
Held: The freemasonry interests had been declared. . .
CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
CitedA, Regina (on the Application of) v London Borough of Croydon SC 26-Nov-2009
The applicants sought asylum, and, saying that they were children under eighteen, sought also the assistance of the local authority. Social workers judged them to be over eighteen and assistance was declined.
Held: The claimants’ appeals . .
CitedMousa, Regina (on The Application of) v Secretary of State for Defence and Another CA 22-Nov-2011
mousa_ssdCA2011
The claimant sought a public inquiry into allegations of systematic ill treatment by UK soldiers in Iraq. He now appealed against refusal of an inquiry, the court having found it permissible for the Secretary of Styate to await the outcome of . .
CitedJL, Regina (On the Application of) v Secretary Of State for Justice Admn 7-Oct-2009
. .
CitedO’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
CitedAmeyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.183695

Giles v The Law Society: CA 20 Oct 1995

A notice of the Law Society’s suspicion of dishonesty founding an intervention in a solicitor’s practice, did not need to particularise the acts suspected. Sedley LJ said: ‘it is by common consent a matter for the court’s judgment [on an application under paragraph 6(4) of schedule 1] (I prefer not to use the word discretion in this context) whether it should direct withdrawal – a judgment which may be significantly, though not conclusively, affected by the Law Society’s own view of the facts, since the view taken by the professional body charged with the regulation of solicitors’ practices is in itself a relevant evidential factor to which the judge not only can but must have regard.’
Sedley LJ
Gazette 25-Oct-1995, Times 20-Oct-1995, [1995] 8 Admn LR 105
Solicitors Act 1974 Sch I Part II para 6
England and Wales
Cited by:
CitedHolder v Law Society CA 24-Jan-2003
The Society had intervened in the applicant’s legal practice. He complained that the intervention was disproportionate, and by removing his right to enjoyment of his possession, infringed his human rights. The Society appealed the finding that an . .
CitedSritharan v Law Society CA 27-Apr-2005
The Law Society had intervened in the applicant’s legal practice as a solicitor, and his practising certificate had been automatically suspended. He applied to the court to remove the suspension.
Held: The powers exercised were statutory. The . .
CitedSheikh v The Law Society ChD 1-Jul-2005
The claimant challenged the intervention by the Law Society in her solicitors practice.
Held: Though there were some breaches of the solicitors’ accounts rules there was insufficient basis for the Society to have behaved in the way it had and . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.80823

In Re Freudiana Holdings Ltd: CA 4 Dec 1995

A judge can discharge his own wasted costs order when issues came to required the re-litigation of the case.
Times 04-Dec-1995
England and Wales
Cited by:
CitedFitzhugh Gates (A Firm) v Claudia Louise Elaine Borden Sherman CA 1-Jul-2003
The firm of solicitors challenged a wasted costs order. The order had been made on the basis that they had persisted with a case which the court had told them was misconceived, and had acted despite a conflict of interest. The order had been made . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.81892

Halifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another: CA 1 Dec 1995

The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s agent.
Morritt LJ discussed section 199: ‘Counsel for the wife submitted that it did not apply as the knowledge came to the knowledge of the solicitors for the lender as such when they were instructed to act on behalf of the lender on 19 June 1990. In the case of the wife it was submitted that the solicitors were not instructed by her as ‘agents to know.’
I do not accept either of these submissions. In my view the section has to be applied in accordance with its terms to the facts of this case. There is no doubt that the information as to the true purpose of the remortgage loan imparted by the husband came to the knowledge of the solicitors on 12 June 1990 as the solicitors for the husband and wife alone for they were not instructed to act for the lenders until 19 June at the earliest. That knowledge once acquired remained with the solicitors and cannot be treated as coming to them again when they were instructed on behalf of the lenders. As counsel for the wife accepted, their knowledge cannot be treated as divided or disposed of and reacquired in that way. The conclusion seems to me to be inescapable, namely that knowledge of the relevant matters facts or things did not come to the solicitors as the solicitors for the lenders. Accordingly it did not come to them ‘as such.’ It was not disputed that the lender is a purchaser within the definition contained in section 205(1)(xxi) of the Law of Property Act 1925. Consequently section 199(1)(ii)…b) precludes the solicitors’ knowledge of the relevant matters or facts being imputed to the lender.’
Morritt LJ
Times 01-Dec-1995, Gazette 11-Jan-1996, [1996] Ch 207
Law of Property Act 1925 199
England and Wales
Citing:
Appeal fromHalifax Mortgage Services Ltd (Formerly BNP Mortgages Ltd) v Stepsky and Another ChD 27-Jun-1995
The knowledge of a solicitor, acting for both the borrower and the lender, of the lay clients intentions as regards the future use of the loan, is not to be imputed to the lender, even though the solicitor acts for both parties, and is the lender’s . .

Cited by:
CitedScotlife Home Loans (No 2) Limited v Melinek and Melinek CA 9-Sep-1997
The second defendant sought leave to appeal against a possession order obtained by the claimant. The loan obtained had been misapplied by the first defendant, her husband. She had been advised in the transaction by his partner in their solicitors’ . .
CitedHardy and others v Fowle and Another ChD 26-Oct-2007
Mortgagees claimed possession of the land. The occupiers claimed a right of occupation under a lease. The mortgagees argued that the lease had been surrendered.
Held: The lease had been surrendered by a deed. The defects in notice alleged did . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.81151

Bakhitar v Keosghgerian and Others: QBD 3 Dec 2003

Employer liable for employee with criminal record

An employee of a firm of solicitors took pawned jewellery to show to a third party possible purchaser. The jewels were misappropriated.
Held: The person involved, who was known to have a criminal record for fraud was for all relevant purposes the firm’s employee, and they had vicarious liability for his behaviour.
Overend J
[2003] EWHC 3084 (QB)
Partnership Act 1890 5
England and Wales
Citing:
CitedDubai 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 . .
CitedCochlan v Ruberella Limited CA 21-Jul-2003
The issue arose as to the liability of a firm for the acts of a partner who had made statements to the claimant regarding the rate of return on a proposed investment amounting to some 6,000 per cent per annum.
Held: The following propositions . .
CitedArmagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.193837

Esterhuizen and Another v Allied Dunbar Assurance Plc: QBD 10 Jun 1998

A non-professional will writing agency should be subject to the same standards of professional negligence in drawing up wills as a recognised lawyer. This is necessary to protect members of the public using will writing services. ‘the process of signature and attestation is not completely straightforward and disaster may ensue if it is not correctly done. Any testator is entitled to expect reasonable assistance without having to ask exprssly for it. It is in my judgment not enough just to leave written instructions with the testator. In ordinary circumstances just to leave written instructions and to do no more will not only be contrary to good practice but also in my view negligent.’
Gazette 15-Jul-1998, Times 10-Jun-1998
England and Wales
Citing:
CitedWhite and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.80378

Purvis, Regina (on The Application of) v Legal Service Commission: Admn 22 Feb 2013

The court was asked as to the need for the claimant when lodging a cimpkaint against a solicitor, to complete a second form: ‘the fact that we are all assembled here today, shows what an appalling waste of time and public funds can occur when obduracy on the part of a citizen collides with an entrenched bureaucratic position on the part of the State. ‘
Holman J
[2013] EWHC 613 (Admin)
Bailii

Updated: 19 May 2021; Ref: scu.491895

Kenneth L Kellar Carib West Limited v Stanley A Williams: PC 24 Jun 2004

(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as the degree of success in the case, and the respondent argued that this showed the existence of a conditional fee element.
Held: The letter relied upon did not establish what was suggested, and nor could the fact that the remuneration rate had not been formally agreed in advance. It was not unlawful as a conditional fee arrangement. The case was remitted for taxation to proceed.
The Privy Council expressed the view that ‘it may now be time to reconsider the accepted prohibition in the light of modern practising conditions.’
Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote, Lord Carswell, Dame Sian Elias
[2004] UKPC 30, [2005] 4 Costs LR 559, (2004) 148 SJLB 821
Bailii, PC, PC
England and Wales
Citing:
CitedWay v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
CitedThai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
CitedHazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .
See alsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedGeraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .

Cited by:
See AlsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedSibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
CitedPatel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.198381

Chohan v Times Newspapers Limited; Singh and Choudry (a Firm) and Choudry: CA 4 Dec 1998

[1998] EWCA Civ 1916
England and Wales
Cited by:
See AlsoChohan v Times Newspapers Ltd CA 25-Feb-1999
. .
See AlsoTimes Newspapers Ltd v Chohan CA 22-Jun-2001
The limitation period on collection of an award of costs, must run from the date of the costs certificate. It was only at that point when it became enforceable. It would be an abuse to bring an action for enforce the costs award before that date. . .

These lists may be incomplete.
Updated: 14 May 2021; Ref: scu.145395

O’Connor v Bar Standards Board: SC 6 Dec 2017

The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time having begun on the initial ruling against her.
Held: The appeal succeeded. The Appellant’s challenge was to the disciplinary proceedings against her, not to an alleged state of affairs in which BME lawyers were more likely to be the subject of such proceedings. Therefore, the bringing and pursuit of the disciplinary proceedings must be the focus of the investigation in terms of section 7(5)(a) of the 1998 Act. That section must not be read narrowly and must be allowed to provide an affective and workable remedy, particularly where what was complained of was a course of conduct. Here, there had been a single and continuing action. It had not been Parliament’s intention to have limitation calculated individually from each element of the process. The period ran from when the process ceased, not from when it began, and in this case it was from the time when the Visitors eventually allowed her appeal.
Lady Hale, President, Lord Kerr, Lord Wilson, Lady Black, Lord Lloyd-Jones
[2017] UKSC 78, [2018] 2 All ER 779, [2017] WLR(D) 813, [2017] 1 WLR 4833, [2018] HRLR 2, UKSC 2016/0174
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Videos Summary, SC 2017 Oct 04 am Video, SC 2017 Oct 04 pm Video
European Convention on Human Rights 14
England and Wales
Citing:
At QBDO’Connor v Bar Standards Board QBD 18-Dec-2014
Appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs. The claimant said that the procedures adopted by the Board in disciplinary . .
Appeal fromO’Connor v Bar Standards Board CA 25-Jul-2016
The appellant said that the Board had infringed her human rights in its approach to disciplinary proceedings brought against her. She had been cleared and now sought a remedy. The Board successfully argued that her claims were out of time.
CitedDH v Czech Repiublic ECHR 13-Nov-2007
(Grand Chamber) The applicants complained that their children had been moved to special schools which did not reflect their needs from ordinary schools without them being consulted.
Held: The Court noted that, at the relevant time, the . .
CitedRehman v The Bar Standards Board Admn 29-Jul-2016
The barrister appealed against two findingd of the Disciplinary Tribunal of the Council of the Inns of Court. . .
CitedLincoln v Daniels CA 1961
The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
Held: Initial communications sent to the secretary of the Bar Council . .
CitedIn re S (A Barrister) 1970
(Inns of Court) The regulation of barristers has been delegated by the judges to the Inns of Court. Five judges sitting as Visitors of the Inns of Court stated that ‘the judges as visitors have always had supervisory powers and their decision, upon . .
CitedDelcourt v Belgium ECHR 17-Jan-1970
The applicant had failed in appeals against conviction and sentence for offences of fraud and forgery before the Belgian Cour de Cassation. He complained that he had not enjoyed the right to a fair trial recognised by Article 6(1) of the Convention . .
CitedSampanis and Others v Greece ECHR 8-Aug-2011
Resolution as to execution of judgment . .
CitedOrsus And Others v Croatia ECHR 16-Mar-2010
(Grand Chamber) Fifteen Croatians of Roma origin complained that they were victims of racial discrimination in that they were segregated into Roma-only classes and consequently suffered educational, psychological and emotional damage.
Held: . .
CitedEckle v Germany ECHR 15-Jul-1982
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively.
Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The ‘reasonable time’ in criminal matters, . .
CitedRegina v Visitors to the Inns of Court ex parte Calder CA 1993
Two barristers had been struck off for disciplinary offences. Their appeals were heard by three High Court judges sitting as Visitors, who dismissed the appeals. The barristers now sought judicial review of that decision.
Held: Justices . .
CitedSomerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.599756

O’Connor v Bar Standards Board: CA 25 Jul 2016

The appellant said that the Board had infringed her human rights in its approach to disciplinary proceedings brought against her. She had been cleared and now sought a remedy. The Board successfully argued that her claims were out of time.
Held: the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the Appellant proved and so had expired before she had issued her claim. She now appealed against that decision.
Held: The appeal failed. The one year time limit under section 7(5)(a) of the 1998 Act had started to run when the Disciplinary Tribunal had found the charges against the claimant proved and so had expired before she had issued her claim. The Court of Appeal refused a renewed application for permission to appeal on the ground that the limitation period should have been extended pursuant to section 7(5)(b) of the 1998 Act.
Lord Dyson MR, Elias, Sharp LJJ
[2016] EWCA Civ 775, [2016] WLR(D) 421, [2016] 1 WLR 4085
Bailii, WLRD
European Convention on Human Rights 14, Human Rights Act 1998 7(5)(a)
England and Wales
Citing:
At first instanceO’Connor v Bar Standards Board QBD 18-Dec-2014
Appeal against an order of Deputy Master Eyre by which he struck out the appellant’s statements of case and dismissed the action with judgment for the defendant with costs. The claimant said that the procedures adopted by the Board in disciplinary . .

Cited by:
Appeal fromO’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.567507

Regina v Visitors to the Inns of Court ex parte Calder: CA 1993

Two barristers had been struck off for disciplinary offences. Their appeals were heard by three High Court judges sitting as Visitors, who dismissed the appeals. The barristers now sought judicial review of that decision.
Held: Justices sitting as visitors were not sitting as judges as such, but in a domestic forum, and their decisions were not subject to judicial review under section 16 of the 1873 Act.
Nevertheless the Visitors may themselves have misunderstood their role, limiting themselves to a review rather than hearing an appeal, and the decsion was quashed and remitted to the Divisional Court.
Sir Donald Nicholls VC said: ‘There remains Miss Calder’s fourth ground of appeal: that the visitors misunderstood their role. She contends that the visitors were sitting as an appellate tribunal, not (as they seemed to have thought) as a reviewing tribunal, and hence they failed fully and properly to carry out their duties as visitors. As to this, first, I can see no reason to doubt that an appeal to the judges as visitors is precisely that: an appeal. It is so described in the authorities. In Lincoln v Daniels [1962] 1 Q.B. 237, 256, Devlin L.J. referred to it as ‘a re-hearing on appeal.’ Thus the visitors will look afresh at the matters in dispute and form their own views. The procedure followed in the conduct of such an appeal is a matter for the visitors. The current visitors’ rules provide that fresh evidence will be admissible only in exceptional circumstances. In the absence of fresh evidence the appeal will be comparable to an appeal in the Civil Division of the Court of Appeal. Regarding sentence, it will be for the visitors to exercise their own discretion and judgment.
Second, I am in no doubt that if visitors conduct, not an appeal of this nature, but a review of the disciplinary tribunal’s findings and decisions comparable to that undertaken by the court by way of judicial review of decisions of inferior courts or tribunals, then the visitors’ decision is amenable to judicial review. . ‘
Stuart-Smith LJ said: ‘I come then to the final ground of appeal, namely, that the visitors misdirected themselves as to the nature of their jurisdiction in that they treated the matters as one of review rather than appeal by way of re-hearing on merits. It was not contested before us that the proper approach was that of an appellate court re-hearing the case on its merits, such as is the position of the Court of Appeal on appeal in a civil case from the decision of a judge alone. Although the point has never fallen to be decided, I agree that this is the correct approach. All the cases dealing with a judges’ jurisdiction as visitors referred to it as an appeal to the visitors. There is no warrant for thinking that they limited themselves to the circumstances in which the prerogative writs of prohibition, mandamus or certiorari would lie, that being the foundation of the judicial review jurisdiction. The language of the Hearings before the Visitors Rules 1991 is appropriate for an appeal and not a review only. Thus the Appellant is referred to as such and not an Applicant: Rule 2(2). The grounds of appeal are against the finding and the petition should refer to the evidence relied upon: rules 5 and 7(2)(e). The visitors may either allow the appeal or order a re-hearing: rule 11(3). They are not limited to quashing the order. Like any other appellate court, the visitors do not as a rule hear evidence from witnesses unless they give leave under rule 10(6) and (7). Accordingly they should adopt the same approach to findings of fact made by the tribunals as the Court of Appeal do in findings of the trial judge: see Yuill v Yuill [1945] P.15; Watts or Thomas v Thomas[1947] A.C. 485 and Powell Streatham Manor Nursing Home [1935] A.C. 243.’
Sir Donald Nicholls VC, Stuart-Smith LJ
[1994] QB 1, [1993] 3 WLR 287
Supreme Court of Judicature Act 1873 16
England and Wales
Citing:
CitedRegina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .

Cited by:
CitedMcCarthy v Visitors To The Inns of Court and Another Admn 25-Oct-2013
The claimant barrister sought judicial review of his disbarrment. The Board of Visitors had found that he had dishonestly fabricated documents relating to correspondence with a client. He now said that the proceedings had been unfair, in that an . .
CitedMcCarthy, Regina (on The Application of) v The Visitors To The Inns of Court and Another CA 20-Jan-2015
mccarthy_visitorsCA201501
The court was asked whether the decision of the Visitors to the Inns of Court dismissing Mr McCarthy’s appeal from the Bar Disciplinary Tribunal should be quashed with a view to the underlying matter being remitted to the Tribunal. The Tribunal . .
CitedO’Connor v Bar Standards Board SC 6-Dec-2017
The claimant barrister complained of the manner of conduct of the disciplinary proceedings brought against her. She had been cleared of any breach of the Bar Code of Conduct, but her claim was then ruled out of time under section 7(5)(a), time . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.542700

EMW Law Llp v Halborg: ChD 14 Oct 2016

The claimant solicitors had been instructed under a conditional fee agreement, to act in litigation for the defendant solicitor, himself acting for his parents and a company owned by him. Though the case was one the defendant in the case refused to pay the legal bill, but then, the claimant said, paid those costs across to the now defendant.
Master Clark
[2016] EWHC 2526 (Ch)
Bailii
England and Wales
Citing:
See AlsoEMW Law Llp v Halborg ChD 22-May-2015
. .

These lists may be incomplete.
Updated: 08 May 2021; Ref: scu.570339

Hejduskova (Formerly Searle) v Raskin: CA 28 Nov 1997

The claimant sought leave to appeal against the strike out of his claim against the respondent solicitor alleging disability discrimination. The solicitor had acted against him for his wife, and, becoming concerned as to his mental health had challenged his capacity to continue proceedings, and invited the involvement of the Official Solicitor. The judge had found that the claimant had not established that he was disabled, and that the reference to the OS had been proper.
Held: ‘whether a person is disabled within the Act is different from the question whether he is sufficiently disabled so as to be unfit to conduct the proceedings and to need a guardian ad litem.’ However even assuming that the claimant was disabled within the Act, nothing done by the defendant fell within the range of provision of services. Leave to appeal was refused.
[1997] EWCA Civ 2856
England and Wales

Updated: 26 April 2021; Ref: scu.143255

Swindle, Fillmore, Cox, Rowett v Harrison and Harrison: CA 25 Mar 1997

Negligence short of fraud gave no right to damages for non-disclosure.
Evans LJ
Times 17-Apr-1997, [1997] PNLR 641, [1997] EWCA Civ 1339, [1997] 4 All ER 705
Bailii
England and Wales
Cited by:
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 . .

These lists may be incomplete.
Updated: 21 April 2021; Ref: scu.141735

Laker Airways Inc v FLS Aerospace Ltd: ComC 20 Apr 1999

The court was asked: ‘whether a barrister who has been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers has been instructed in the arbitration by the appointing party’. The arbitrator had offered to recuse himself if both parties requested, but not only at the request of one. The claimant said that the members of chambers shared office space and administration, and that there was no formal system to protect confidential materials.
Rix J
[1999] EWHC B3 (Comm), [2000] 1 WLR 113
Bailii
Arbitration Act 1996 24(1)(a)
Cited by:
CitedO’Leary International Ltd v North Wales Police Admn 31-May-2012
oleary_nwpAdmn2012
The company employed drivers to cross the UK. They were stopped and did not have the requisite drivers records. Instead they produced certificates as to having had rest days. These proved false, and the drivers said that the had been produced for . .

These lists may be incomplete.
Updated: 20 April 2021; Ref: scu.464592

First National Commercial Bank Plc v Loxleys (a Firm): CA 6 Nov 1996

The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to Enquiries before Contract were to be examined carefully to see if they constituted an unfair term. The claim was not unarguable, and should proceed. Whether the solicitor owed a duty of care could not be decided without assessing the validity of the disclaimer. ‘neither the duty of care issue nor the disclaimer issue is suitable to be determined under Order 14A.’
Lord Justice Nourse, Lord Justice Waller, Sir John May
Gazette 20-Nov-1996, Times 14-Nov-1996, [1996] EWCA Civ 886
Unfair Contract Terms Act 1977
England and Wales
Citing:
CitedGran Gelato Ltd v Richcliff (Group) Ltd ChD 1992
The claimant wished to purchase an underlease from the first defendant. The claimant’s solicitors inquired of the second defendants, a firm of solicitors acting for the first defendant, whether any provisions in the headlease might affect the length . .
CitedKemp Properties (UK) Ltd v Dentsply Research and Development Corporation 1989
The court considered a Solicitor’s possible personal liability for misrepresentation made in replies given to enquiries before contract on acting on the sale of land. . .
CitedWilson v Bloomfield 1979
Negligence of solicitor in answering replies to preliminary enquiries on a sale of land. . .
CitedSmith v Eric S Bush, a firm etc HL 20-Apr-1989
In Smith, the lender instructed a valuer who knew that the buyer and mortgagee were likely to rely on his valuation alone. The valuer said his terms excluded responsibility. The mortgagor had paid an inspection fee to the building society and . .
CitedHedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedMcCullagh v Lane Fox and Partners Ltd CA 19-Dec-1995
There was no duty in negligent mis-statement from a vendor’s estate agent to a purchaser for that purchaser’s financial loss after proceeding without first obtaining a survey relying upon the agent.
Hobhouse LJ said: ‘On the Sunday, Mr. Scott . .
CitedWilliam Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .

These lists may be incomplete.
Updated: 15 April 2021; Ref: scu.140753

Regina v Legal Aid Board ex parte Gilchrist: CA 8 Mar 1994

A Solicitor giving advice as a Duty Solicitor via a telephone re-routing service was acting in his own right and within the regulations.
Times 08-Mar-1994
England and Wales
Citing:
Appeal fromRegina v Legal Aid Board ex parte Gilchrist QBD 9-Jun-1993
A scheme to use company references for Police Station Own Solicitor duty solicitor work was lawful. . .

Cited by:
Appealed toRegina v Legal Aid Board ex parte Gilchrist QBD 9-Jun-1993
A scheme to use company references for Police Station Own Solicitor duty solicitor work was lawful. . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.87155

Regina v Lord Chancellor ex parte Law Society: CA 11 Aug 1993

Lord Chancellor is free to impose a fee scheme if it accords with the words of the Act. The standard fees regulations for magistrates Courts works are within the Lord Chancellor’s powers.
Times 11-Aug-1993, Independent 24-Sep-1993
Legal Aid Act 1988 34
England and Wales
Citing:
Appeal fromRegina v Lord Chancellor ex parte the Law Society (1) QBD 4-May-1993
The introduction of a Standard Criminal Legal Aid fees regime was within the Lord Chancellor’s proper range of discretion, even without consultation with the Law Society.
The meaning of ‘carried entering UK’ can include clothing being worn, but . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.87216

Fozal v Gofur: CA 9 Jul 1993

An order for wasted costs against counsel could only be allowed with respect to acts done after 1 October 1991, with the new rules.
Times 09-Jul-1993, Ind Summary 26-Jul-1993, [1993] CA Transcript 680
Courts and Legal Services Act 1990$ 4
England and Wales
Cited by:
CitedRidehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .

These lists may be incomplete.
Updated: 09 April 2021; Ref: scu.80655

Brown and Another v Bennett and Others (No 2): ChD 16 Nov 2001

The power to make a wasted costs order did not apply only against advocates in court, and not only against the applicant’s own representatives. The test was as to the causing of additional costs. In this case several barristers had been involved at different stages. The defendants asserted that they should have appreciated that there was no prospect of success in an allegation of fraud. A decision to plead fraud, within the terms of the barristers’ code of conduct, was a matter of professional judgement. An order should be made only if the view reached by counsel that he could plead dishonesty was unreasonable or reckless. In this case also the claimants insisted on retaining their legal privilege, and accordingly the barristers were unable properly to defend their decisions.
Justice Neuberger
Times 21-Nov-2001, Gazette 10-Jan-2002
Supreme Court Act 1981 51
England and Wales
Citing:
CitedAllied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .

Cited by:
DistinguishedByrne v Sefton Health Authority CA 22-Nov-2001
There was no power to make an order for wasted costs against a solicitor who had not been acting in a matter when proceedings were issued. Delays eventually led to the dismissal of a medical negligence case for limitation. The defendant authority . .

These lists may be incomplete.
Updated: 08 April 2021; Ref: scu.166845

Regina v McFarlane: CACD 23 Feb 1999

A solicitor may properly delay taking instructions from his criminal client until he has seen the details of the prosecution case, but must take care not to become embroiled in attempt to procrastinate the choice of defence, and must not mislead counsel.
Times 24-Mar-1999, [1999] EWCA Crim 496
Bailii
England and Wales

Updated: 08 April 2021; Ref: scu.85397

In Re Mintz (Wasted Costs Order): CACD 16 Jul 1999

A judge should before making a wasted costs order consult the written texts on the subject now available and which set out the elements he should allow for. Here counsel was at fault, but rather than delaying the start of a trial by a day, the judge could have allowed the case to start with arrangements being made in that day to cure the defect.
Times 16-Jul-1999
England and Wales

Updated: 08 April 2021; Ref: scu.82067

In Re A Solicitors (Wasted Costs Order) (No 1 of 1994): CACD 27 Jun 1995

A witness answering and resisting a summons is a sufficient party for ‘wasted costs’ order purposes.
Times 27-Jun-1995, Gazette 19-Jul-1995
Courts and Legal Services Act 1990 111, Costs in Criminal Cases (General) (Amendment) Regulations 1991 (1991 No 789)
England and Wales

Updated: 26 March 2021; Ref: scu.81682

Regina v Law Society ex parte Ingman Foods Oy Ab: Admn 17 Jan 1997

The claimant sought compensation from the respondent for the actions of his solicitor. The Society resisted saying that the claimant was himself largely responsible for his losses.
[1997] EWHC Admin 26, [1997] 2 All ER 666
Bailii
England and Wales
Cited by:
CitedThe Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .

These lists may be incomplete.
Updated: 17 March 2021; Ref: scu.136971

Mortgage Express v Sawali: ChD 22 Nov 2010

The claimant sought delivery up of files of the defendants’ predecessor solicitors practice relating to its matters and now in their possession. The defendant said it would be wrong to hand over entire files where the firm had also acted for lay clients in the same matter.
Simoin Brown QC J
[2010] EWHC 3054 (Ch), [2010] NPC 114, [2011] 7 EG 98, [2011] PNLR 11, [2010] EWHC B23 (Ch)
Bailii
England and Wales
Cited by:
Mai JudgmentMortgage Express v Sawali SCCO 22-Nov-2010
. .

These lists may be incomplete.
Updated: 12 March 2021; Ref: scu.440434

In Re Wiseman Lee (Solicitors) (Wasted Costs Order) (No 5 of 2000): CACD 5 Apr 2001

Where a court proposed a wasted costs order it was obliged by the regulations to hear the party against whom the order was sought. An order was made allowing the solicitors to make representations before a date, but the final order was made without having heard any representations, and the engrossed order made no reference to the steps taken, and was defective.
Times 05-Apr-2001
Prosecution of Offences Act 1985 19A
England and Wales

Updated: 08 March 2021; Ref: scu.82300

Ebert v Kamara C-359/09: ECJ 3 Feb 2011

ECJ (Freedom of Establishment) Lawyers – Directive 89/48/EEC – Recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration – Directive 98/5/EC – Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained – Use of the professional title of the host Member State – Conditions – Registration with the Bar Association of the host Member State.
[2011] EUECJ C-359/09
Bailii
Directive 89/48/EEC
European

Updated: 04 March 2021; Ref: scu.428492

Harry Lee Wee v The Law Society of Singapore: PC 3 Dec 1984

(Singapore) The principles of autrefois acquit applied to professional disciplinary proceedings. Lord Bridge said: ‘No one would dispute that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory code by which any profession is governed.’
Lord Bridge
[1984] UKPC 50, [1985] 1 WLR 362, [1984] UKPC 50
Bailii, Bailii
Cited by:
CitedCoke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC 19-Jan-2011
The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application . .

These lists may be incomplete.
Updated: 03 March 2021; Ref: scu.428061

Commission v Belgium C-47/08: ECJ 14 Sep 2010

ECJ (Freedom Of Establishment) Actions for failure to fulfil obligations – Freedom of establishment – Direct discrimination on grounds of nationality – Profession of notary – Nationality condition – Article 43 EC and the first paragraph of Article 45 EC – Activities connected with the exercise of official authority – Scope of the freedom of establishment – Principle of proportionality – European citizenship -Directive 2005/36 EC.
[2010] EUECJ C-47/08 – O, [2011] EUECJ C-47/08
Bailii, Bailii
European

Updated: 28 February 2021; Ref: scu.424159