Tag: Legal Professions

Sibley and Co v Reachbyte Ltd and Another: ChD 4 Nov 2008

Solicitors appealed against a costs order made refusing them payment of all of Leading and Junior counsel’s fees.
Held: The leading counsel involved had not provided anything like a detailed account of the time he had spent on what was a complicated case. Counsel had approached the case avidly, and the solicitors had failed to restrain him. The respondents had been right in challenging the fees. The appeal was dismissed.

Judges:

Peter Smith J

Citations:

[2008] EWHC 2665 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – EPI Environmental Technologies Inc and Another v Symphony Plastic Technologies Plc and Another ChD 21-Dec-2004
The claimant had developed an additive which would assist in making plastic bags bio-degradable. They alleged that, in breach of confidentiality agreements, the defendants had copied the product. The defendants said the confidentiality agreement was . .
Mentioned – Environmental Technologies Inc (EPI) and Another v Symphony Plastic Technologies Plc and Another CA 26-Jan-2006
Alleged breach of trade secrets. . .
Cited – Eagil Trust Co Ltd v Pigott-Brown CA 1985
There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. When dealing with an application in chambers to strike out for want of prosecution a judge should give his reasons in . .
Cited – Attorney General of Zambia v Meer Care and Desai (A Firm) and others CA 31-Jul-2008
The defendants appealed against two orders made in proceedings by the new government of Zambia alleging various tortious conspiracies by defendants with members of the former government.
Held: Appeals by the remaining two partners in the firm . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Cited – Biogen Plc v Medeva Plc HL 31-Oct-1996
The claim patented sought to protect a genetic molecule rather than a whole mouse namely that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. A recombinant method of making the . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Griffiths v Evans CA 1953
The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
Held: Where there is a dispute between a . .
Cited – Gray and Another v Buss Merton (a firm) 1999
Rougier J said: ‘It must, surely, be up to the solicitor to take the appropriate steps to clarify precisely the extent of his retainer, and this, sadly, Mr Lightfoot failed to do when, in my judgment, the circumstances demanded that he should. This . .
Cited – Nicholas Drukker and Co v Pridie Brewster and Co QBD 12-Dec-2005
The Master did not have jurisdiction under section 70 of the Solicitors Act to hear wholesale allegations of professional negligence and wide ranging criticisms of a solicitor’s conduct which affected not just the individual items in the bill of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 19 July 2022; Ref: scu.277397

Dadourian Group International Inc and others v Simms and others: ChD 25 Jul 2008

Applications arising from disclosure of documents

Judges:

Patten J

Citations:

[2008] EWHC 1784 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Appeal from – Dadourian Group International Inc and others v Simms and others CA 13-Mar-2009
Arden LJ summarised the approach to be taken by a court faced with an allegation of fraud: ‘Their Lordships affirmed the decision in Re H and provided an explanation of what Lord Nicholls’ judgment meant. Baroness Hale (with whom the other Law Lords . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other

Updated: 18 July 2022; Ref: scu.271298

Irwin Mitchell v Revenue and Customs Prosecutions Office and Allad: CACD 30 Jul 2008

The solicitors had been paid funds on account of their fees in defending the client. By the time a freezing order was made under the 2002 Act in respect of his assets, the firm’s fees exceeded the amount held. The court was asked what was to happen to the funds. The solicitors had not yet delivered an account. The court had said it had no jurisdiction to alter the order to allow the fees to be used in this way. The solicitors said that the client no longer had any beneficial interest in the money.
Held: The solicitors were free to deliver an account and to apply the fees in payment of it.
Toulson LJ said: ‘the andpound;5000 was paid and received for a single identified purpose, namely payment of Irwin Mitchell’s fees as and when they had earned them. If they had used the fund for any other purpose, without Mr Allad’s informed consent, they would have committed a breach of trust. And until they had earned that level of fees, they were bound to hold the money on Mr Allad’s behalf. Once they had earned that amount in fees, the value of Mr Allad’s interest in the fund was reduced to nil. In order to protect a client from a solicitor transferring funds from the solicitor’s client account to office account in payment of his fees when such fees have not been properly incurred, the Solicitors Account Rules prescribe the steps which the solicitor must take. Those provisions govern the means of exercise of the solicitors’ contractual right to payment from the fund, which arose from the agreement and the work done. The bill, if properly served, reflects the solicitors’ entitlement to payment by virtue of the work done. Once they were entitled to payment of that sum, Mr Allad’s ‘interest’ in the relevant account became literally nominal; that is to say, the account bore his name, but he no longer had any interest of substance in it. It is important to distinguish between substance and form.’
The RCPO’s argument as to how a firm might aid and abet a criminal were not to the point. The sum requested and prospective bill were proper.

Judges:

Toulson LJ, Jack J

Citations:

[2008] EWCA Crim 1741, [2009] 3 All ER 530, [2009] 1 Cr App R 284, [2009] 1 WLR 1079

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002 40 41, Solicitors Account Rules 1998 19(2)

Jurisdiction:

England and Wales

Citing:

Cited – Loescher v Dean ChD 1950
The plaintiff sought specific performance, and obtained an order that the defendant vendor should convey the property to him on the payment for it. The plaintiff paid the sum to the defendant’s solicitors, who paid it into their client account. The . .
Cited – The Serious Fraud Office v Lexi Holdings Plc CACD 10-Jul-2008
Application was made for the variation of a restraint order made under the 2002 Act to enable payment to be made to a judgment creditor in advance of any confiscation order being made, or indeed before any criminal charges had even been preferred. . .
Cited – HM Customs and Excise v Barclays Bank Plc HL 21-Jun-2006
The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
Cited – Re K (Restraint Order) 1990
An order under the Act prohibited K from disposing of his assets, including a deposit account with the bank. K had an overdraft facility secured against the deposit account. The bank sought to set off the overdraft against the sums held on deposit. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 18 July 2022; Ref: scu.271268

Conister Trust Ltd v John Hardman and Co: CA 21 Jul 2008

The court was asked whether an agreement by the defendant solicitors under a personal injury litigation funding scheme, to discharge a client’s ‘remaining liability’ under a loan agreement applies on its true construction where the loan agreement is unenforceable by virtue of the Consumer Credit Act 1974.
Held: In the context of the panel solicitor’s agreement in question, ‘remaining liability’ imported something which was enforceable. The creditor had no right of recovery against the solicitors.

Judges:

Lawrence Collins LJ

Citations:

[2008] EWCA Civ 841, [2009] CCLR 4

Links:

Bailii

Statutes:

Consumer Credit Act 1974

Jurisdiction:

England and Wales

Cited by:

Cited – McGuffick v The Royal Bank of Scotland Plc ComC 6-Oct-2009
Requirements for Enforcing Consumer Loan Agreement
The claimant challenged the validity of a loan agreement with his bank as a regulated consumer credit agreement. After default, the lender failed to satisfy a request for a copy of the agreement under section 77. The bank said that though it could . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Consumer

Updated: 17 July 2022; Ref: scu.270892

Gray v Bristol Magistrates Court: Admn 7 May 2008

The defendant was accused of a minor assault. He complained first about orders made by the district judge, but now complained that he was a barrister who had been instructed by the firm of solicitors which had been the subject of a complaint by the defendant, and that the judge had a conflict of interest. The judge had refused to recuse himself.
Held: Permission to apply for a review was refused. The facts alleged did not even raise any issue of apparent bias.

Judges:

Ouseley J, Underhill J

Citations:

[2008] EWHC 1153 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Cambridge Justices ex parte Yardline Limited and Bird 1990
Complaint was made when one of the magistrates sitting in a case was a partner in a law firm which regularly represented one of the parties. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions

Updated: 15 July 2022; Ref: scu.268716

In Re A Solicitor: QBD 13 May 1992

In disciplinary proceedings before the Solicitors Disciplinary Tribunal, allegations must be proved to the criminal standard, and certainly so where the allegations are serious and may result in suspension or disqualification. Hearsay evidence should not be admitted. ‘It seems to us, if we may respectfully say so, that it is not altogether helpful if the burden of proof is left somewhere undefined between the criminal and the civil standard. We conclude that at least in cases such as the present, where what is alleged is tantamount to a criminal offence, the tribunal should apply the criminal standard of proof, that is to say proof to the point where they feel sure that the charges are proved or, to put it another way, proof beyond reasonable doubt. This would seem to accord with decisions in several of the Provinces of Canada.’ Lord Llane referred to the provision in the Bar’s Code of Conduct requiring the tribunal to apply the criminal standard of proof and observed: ‘it would be anomalous if the two branches of the profession were to apply different standards in their disciplinary proceedings’.

Judges:

Lord Lane CJ

Citations:

Gazette 13-May-1992, [1993] QB 69

Jurisdiction:

England and Wales

Citing:

Approved – Bhandari v Advocates Committee PC 1956
Complaints of professional misconduct against a member of a legal profession are to be proved to the criminal standard. Lord Tucker said: ‘With regard to the onus of proof the Court of Appeal [for East Africa] said: ‘We agree that in every . .

Cited by:

Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – Campbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
Cited – Harris v The Solicitors Regulation Authority Admn 28-Jun-2011
The solicitor appealed against findings and orders regarding allegations of having failed to disclose to clients referral fees paid by him to third parties, and of having given misleading fees information.
Held: The appellant had admitted . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 12 July 2022; Ref: scu.81678

In Re A Solicitor: ChD 14 Jul 1999

The regulatory function of the Law Society in intervening in a legal practice was not merely protective, and a solicitor facing accusations of past dishonesty could not expect to be relieved of the consequences merely because he had completed the transactions at issue without loss. The intervention could proceed.

Citations:

Gazette 14-Jul-1999

Statutes:

Solicitors Act 1974 35

Jurisdiction:

England and Wales

Legal Professions

Updated: 12 July 2022; Ref: scu.81679

Fosberry and Another v Revenue and Customs: ChD 22 May 2007

The claimant appealed against an order setting at nil his costs after the court found that his agreement with his solicitors as to payment infringed the relative regulations.

Judges:

Blackburne J

Citations:

[2007] EWHC 1512 (Ch)

Links:

Bailii

Statutes:

Conditional Fee Agreement Regulations of 2000

Jurisdiction:

England and Wales

Citing:

Appeal from – Fosberry and Another v Revenue and Customs VDT 28-Jul-2005
COSTS – Indemnity basis – Commissioners accepted that taxpayers’ appeal succeeded – Commissioners offered to pay taxpayers’ costs – Taxpayers applied for indemnity costs on grounds that Commissioners had changed their reasons for original decision . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 11 July 2022; Ref: scu.254482

Madurasinghe v Penguin Electronics (A Firm): CA 13 Jan 1993

A taxation review is a rehearing by the circuit judge, exercising his own discretion. It is not the exercise of an appellate jurisdiction.

Citations:

Gazette 13-Jan-1993, [1993] 1 WLR 989

Statutes:

County Court Rules 1981 38(24)(6), Solicitors Act 1974 74

Jurisdiction:

England and Wales

Costs, Legal Professions, Litigation Practice

Updated: 10 July 2022; Ref: scu.83292

Shuttari v Solicitors’ Indemnity Fund: CA 21 Mar 2007

The solicitor sought to appeal an arbitration award refusing her indemnity by the Fund aganst the consequences of her partner’s dishonesty. She now sought to appeal against a refusal of the judge to allow her application to set aside the arbitration award. She said that the Law Society’s own disciplinary proceedings were inconsistent. She now said that she had not freely agreed to the terms of the SIF, since she had been obliged to insure through them.
Held: Permission was refused since she had no prospects of success, and the application was also out of time with no proper reason given for extending time.

Citations:

[2007] EWCA Civ 244

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 10 July 2022; Ref: scu.250451

David Truex, Solicitor (A Firm) v Kitchen: CA 3 Nov 2006

Application for leave to appeal – granted.

Judges:

Hallett LJ

Citations:

[2006] EWCA Civ 1592

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Leave – David Truex, Solicitor (A Firm) v Kitchin CA 4-Jul-2007
The claimant solicitors sought payment of their fees. The defendant claimed they had been negligent in not advising her that she might be entitled to legal aid. The firm had pointed out to her that they did not undertake legal aid work, and that she . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Contract

Updated: 09 July 2022; Ref: scu.249082

Re G, S and M (Wasted Costs): FD 20 Sep 1999

The court discussed the duty of counsel and their instructing solicitors in proceedings under the Children Act 1989 to ensure that expert witnesses are kept up to date with events in the case; and, in particular, that before expert witnesses are called to give oral evidence, they have been sent and have read all relevant documents, particularly those which have emerged since their reports were written.

Judges:

Wall J

Citations:

[1999] EWHC Fam 828, [2000] 1 FLR 52, [1999] 4 All ER 371, [1999] 3 FCR 303, [2000] Fam 104, [2000] 2 WLR 1007, [2000] Fam Law 24

Links:

Bailii

Statutes:

Children Act 1989

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice, Children

Updated: 09 July 2022; Ref: scu.263378

Rogers v Merthyr Tydfil County Borough Council: CA 31 Jul 2006

The Court considered the validity of after the event legal expenses insurance and conditional fee agreements schemes, and in particular whether an ATE premium was recoverable by a successful claimant. The damages had been agreed in the sum of pounds 3,105 plus interest. The case went to trial and the claimant won. The deputy district judge assessed the costs in the sum of pounds 16,821. This included an ATE premium of pounds 5,103.
Held: The premium was recoverable as a proportionate expense if it was necessarily incurred, even if the amount was large in comparison with the amount of damages reasonably claimed. In support of justifying the premium charged, the court envisaged a note from the solicitor explaining how a particular ATE product came to be chosen and whether it was block rated or individually rated.
Brooke LJ said: ‘In this case it might be thought that all the considerations urged on the court by Mr Bartlett which favour the course taken by Mr Cater, the appellant’s solicitor, might go to demonstrate the reasonableness of his bill of costs – specifically, the ATE insurance staged premium – but not its proportionality: precisely because they have nothing to do with the quantum of the claim. But we do not think that is right. If the court concludes that it was necessary to incur the staged premium, then as this court’s judgment in [Lownds] shows, it should be adjudged a proportionate expense. Necessity here is, we think, not some absolute litmus test. It may be demonstrated by the application of strategic considerations which travel beyond the dictates of the particular case. Thus it may include, as we are persuaded it does, the unavoidable characteristics of the market in insurance of this kind. It does so because this very market is integral to the means of providing access to justice in civil disputes in what may be called the post-legal aid world.
It is important to recognise that this conclusion runs with, not across, the grain of the procedural reforms expressed in the CPR. The very recognition that justice requires a use of resources that is proportionate to what is at stake implies the rightness of a strategic approach. There can be no touchstone of a proportionate use of resources so understood, without an eye to the context in which any such resources are expended. Once it is concluded that the ATE staged premium here was necessarily incurred, principle and pragmatism together compel the conclusion that it was a proportionate expense. We turn therefore to the question whether the ATE staged premium was necessarily incurred.’

Judges:

Brooke VP CA, Laws, Smith LJJ

Citations:

[2006] EWCA Civ 1134, [2007] 1 WLR 808, [2006] Lloyd’s Rep IR 759, [2007] 1 All ER 354, [2007] 1 Costs LR 77

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Tankard 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 . .
Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 14-Nov-2007
The parties disputed the success of a sale by a mortgagee in possession of various properties. The parties disputed the apportionment of costs.
Held: The appeal failed. Where there is no express agreement concerning the division of costs, a . .
Cited – Kris Motor Spares Ltd v Fox Williams Llp QBD 12-May-2010
The claimant sought to challenge the After the Event Insurance (ATE) bought by its solicitors late in the day in their claim, before then withdrawing the conditional fee agreement. The premium was over andpound;90,000.
Held: The appeal failed. . .
Cited – Coventry 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 . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 07 July 2022; Ref: scu.244103

Gaynor v Central West London Buses Ltd: CA 28 Jul 2006

The solicitors appealed a finding that a conditional fee agreement with their client was unenforceable as against their client for failing to meet the requirements of the 1990 Act, which in turn deprived them of a right to claim the costs from the defendant. It was said that the client care letter did not show an unconditional intention to enter into a conditional fee agreement for services provided before the agreement.
Held: The solicitor’s appeal failed. The purpose of s58 was the protection of clients. ‘the work done before a decision is made not to pursue the claim pursuant to the last paragraph on the page is not the provision of litigation services. In my judgment, ‘contemplated proceedings’ are proceedings of which it can be said that there is at least a real likelihood that they will be issued. Until the potential defendant disputes the claim, it is not possible to say that proceedings are contemplated. Advising a client as to whether he or she has a good prima facie case and writing a letter of claim are not enough to amount to litigation services. ‘

Judges:

Dyson LJ

Citations:

[2006] EWCA Civ 1120, Times 25-Aug-2006

Links:

Bailii

Statutes:

Courts and Legal Services Act 1990, Access to Justice Act 1999

Jurisdiction:

England and Wales

Citing:

Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 07 July 2022; Ref: scu.243994

Zambia v Meer Care and Desai (A Firm) and others: CA 7 Mar 2006

The appellant sought a stay of the action brought against them. The cliamants sought the return of goernment funds said to have been misappropriated.

Judges:

Sir Anthony Clarke MR, May, Jacob LJJ

Citations:

[2006] EWCA Civ 390

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Zambia, Attorney General of Zambia for and on Behalf of v Meer Care and Desai (A Firm) and others ChD 7-Oct-2005
Reasons for dismissal of stay for certain defendants. . .

Cited by:

See Also – Zambia, Attorney General v Meer Care and Desai (A Firm) and others ChD 22-May-2006
. .
See Also – Zambia v Meer Care and Desai (A Firm) and others ChD 4-May-2007
. .
See Also – Zambia v Meer Care and Desai (A Firm) and others ChD 4-May-2007
. .
See Also – Zambia v Meer Care and Desai (A Firm) and others (No. 2) ChD 29-Jun-2007
. .
See Also – Zambia v Meer Care and others (1415) CA 17-Dec-2007
. .
See Also – Zambia v Meer Care and others (1414) CA 17-Dec-2007
Two applications for permission to appeal . .
See Also – Zambia v Meer Care and Desai (A Firm) and others CA 9-Jul-2008
The claimant sought to allege fraud by its former president, and began proceedings to recover payments it said were fraudulent, including against a defendant Taylor in Switzerland, who now said that no letter before action or other explanation . .
See Also – Attorney General of Zambia v Meer Care and Desai (A Firm) and others CA 31-Jul-2008
The defendants appealed against two orders made in proceedings by the new government of Zambia alleging various tortious conspiracies by defendants with members of the former government.
Held: Appeals by the remaining two partners in the firm . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Legal Professions

Updated: 06 July 2022; Ref: scu.241602

Constantinides v The Law Society: Admn 7 Apr 2006

The appplicant appealed against a decision to strike him from the roll of solicitors for dishonesty which he denied. He had drawn documents under which his client invested substantial sums abroad, and lost. She had claimed in negligence. The respondent intervened in his practice. He was found to have condoned fraud if not anything worse. He complained that the tribunal had wrongly admitted the judgment of Peter Smith J in the civil action which he said was unduly prejudicial.
Held: Provided it was treated with rigour, there could be no objection to the tribunal reading the judgment. Though the tribunal heard it nearly in full, it had not relied on non-relevant parts. The respondent had failed to disclose his own interests in the transaction, and had acted with a conflict of interests. The tribunal’s conclusions on dishonesty were justified.
Lord Justice Moses said: ‘We should stress that we do not consider that the allegations of dishonesty were clearly and properly made in the Rule 4 statement. The Rule 4 statement, after alleging conduct unbefitting a solicitor, should have identified that conduct and stated with precision in relation to each aspect of the allegedly guilty conduct the respects in which it was said to be dishonest. It should have alleged that when the appellant acted, despite the conflict of interest, that that conduct was dishonest by the ordinary standards of honest behaviour and that he knew that he was transgressing the ordinary standards of honest behaviour.’

Judges:

Moses LJ

Citations:

[2006] EWHC 725 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .

Cited by:

Applied – Thaker v Solicitors Regulation Authority Admn 22-Mar-2011
The solicitor appealed against an order striking him off the Roll of Solicitors. He had been a defendant in civil proceedings accused of assisting the former president of Zambia to dispose of very substantial stolen sums. He was said to have allowed . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 July 2022; Ref: scu.240436

Irwin Mitchell (a Firm) v Revenue and Customs Prosecutions Office and Another: CACD 30 Jul 2008

The solicitors had held andpound;5,000 on account of their fees for representing the defendant when he later became subject to a criminal restraint order. They wrote to the respondents saying that they intended to transfer the fees to satisfy their interim account. The respondents refused. The judge had refused to vary the order.
Held: The Revenue had accepted that they would not become entitled to the funds, but still refused to allow its transfer. No contempt of the restraint order would be created by the transfer of the funds. No variation of the order was required to allow the solicitors in this case to transfer the funds.

Judges:

Lord Justice Toulson, Mr Justice Jack and Judge Mettyear

Citations:

Times 27-Aug-2008

Statutes:

Proceeds of Crime Act 2002

Jurisdiction:

England and Wales

Criminal Practice, Legal Professions

Updated: 04 July 2022; Ref: scu.279811

1 Pump Court Chambers v Horton: EAT 2 Dec 2003

The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not that of a member of that chambers so as to attract protection within the Act.
EAT Disability Discrimination – Disability.

Judges:

The Honourable Mr Justice Burton (P)

Citations:

UKEAT/775/03, Times 14-Apr-2004, [2003] UKEAT 0775 – 03 – 0212

Links:

Bailii, EAT

Statutes:

Disability Discrimination Act 1995 13(4)

Jurisdiction:

England and Wales

Citing:

Cited – General Medical Council v H Cox EAT 22-Mar-2002
Miss Cox claimed that the Council had not made a proper adjustment so as to allow her to work for them despite her disability. The Council asserted as a preliminary point that they were not a trade organisation within the sections, and so were not . .
Cited – Jones v Secretary of State for Social Services; Jones v Hudson HL 1972
Unsatisfactory decisions of the highest court could cause uncertainty because lower courts tend to distinguish them on inadequate grounds.
One possible source of law is ‘informed professional opinion’. The word ‘final’ can denote different . .
Cited – Tower Boot Company Limited v Jones CA 11-Dec-1996
An employer’s liability for racial abuse by its employees is wider than its liability under the rules of vicarious liability. The statute created new obligations. Sex and race discrimination legislation seeks to eradicate the ‘very great evil’ of . .
Cited – Goodwin v Patent Office EAT 3-Feb-1999
Tribunals looking at Disability Discrimination should check the four factors in the Act without losing the overall picture. Assistance was available from the WHO Classification of Diseases. Being able to carry out a task did not mean ability was not . .
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Cited – Aziz v Trinity Street Taxis Ltd CA 26-Feb-1988
An Asian member of the respondent association of taxi cab operators secretly recorded conversations with other members to gather evidence for a claim under the Act. He was expelled from the association for this conduct. He alleged race . .
Cited – General Medical Council v H Cox EAT 22-Mar-2002
Miss Cox claimed that the Council had not made a proper adjustment so as to allow her to work for them despite her disability. The Council asserted as a preliminary point that they were not a trade organisation within the sections, and so were not . .
Appealed to – Higham of 1 Pump Court Chambers v Horton CA 15-Jul-2004
The claimant said he had suffered disability discrimination at the hands of the defendant, a barristers set. He had been accepted as a pupil, but then applied for a deferral which was refused. It was agreed that the set of chambers was a trade . .

Cited by:

Appeal from – Higham of 1 Pump Court Chambers v Horton CA 15-Jul-2004
The claimant said he had suffered disability discrimination at the hands of the defendant, a barristers set. He had been accepted as a pupil, but then applied for a deferral which was refused. It was agreed that the set of chambers was a trade . .
Lists of cited by and citing cases may be incomplete.

Discrimination, Legal Professions, Employment

Updated: 04 July 2022; Ref: scu.194198

Kitchen v Burwell Reed and Kinghorn Ltd: QBD 3 Aug 2005

The court considered the effect of collective conditional fee agreements. The defendant appealed against the decision of the Costs Judge whereby he held that the Claimant was entitled to claim a success fee and that there had been no breach of the indemnity principle.
Held: The appeal failed.
Gray J said: ‘clause 5.8 of the CCFA is to be interpreted as meaning that in the first instance the solicitors will call upon the Union rather than the member to pay their costs. I do not construe clause 5.8 as excluding altogether the liability of the member to pay the solicitors’ costs. The inclusion of the word ‘directly’ presupposes some other, indirect route by which the member may be liable to pay costs, for example if the Union were to withdraw support by annulling legal assistance. I accept that the parties cannot have intended by clause 5.8 that a Defendant would be able to litigate a claim by a Union member without any risk of having to pay that member’s costs. Mr McLaren concedes that this would be a consequence that the draftsman did not intend.’
He considere dthat there was a policy that the courts: ‘if they properly can, to avoid a construction of an agreement which will involve a breach of the indemnity principle because of the unfairness consequent upon such a conclusion’.

Judges:

Gray J

Citations:

[2005] EWHC 1771 (QB), [2006] 1 Costs LR 82

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Radford 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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 03 July 2022; Ref: scu.229289

Rose v Dodd: CA 27 Jul 2005

The Law Society had intervened in the claimant’s employer’s solicitors practice. The claimant appealed refusal of an award of a redundancy payment.
Held: The intervention did not necessarily bring to an end the employer’s business, and therefore there was no necessary redundancy situation implied only because of the intervention. The contracts of employment were not frustrated by a temporary interruption in the supply of services by the employer.

Judges:

Lord Phillips of Worth Matravers MR, Waller LJ, Mummery LJ

Citations:

[2005] EWCA Civ 957, Times 16-Aug-2005

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Citing:

Appeal from – Rose v Dodd EAT 30-Nov-2004
. .
Cited – Brace v Calder 1895
The dissolution of the employing partnership brings a contract of employment to an end.
Rigby LJ said: ‘a contract to serve four employers cannot, without express language, be construed as being a contract to serve two of them . . the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment

Updated: 01 July 2022; Ref: scu.229028

Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm): CA 13 Nov 1996

Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract between the two principals which contemplates two possible alternative future events and by which the parties agree to pay a sum of money to a stakeholder to abide the happening of one or other of them . . The second contract is the tripartite contract which results from the deposit of the money with the stakeholder on terms that he is to keep it until one or other of the relevant events happens and then pay it to one or other the parties accordingly. The stakeholder is a party to the second contract but not the first. His rights and obligations are not normally expressly spelled out. They are implicit in the transaction itself, and must be discovered not by implying terms, but by analysing the relationship of the parties which arises from the deposit of the money.
The following propositions emerge from the authorities:
(1) The relationship between the stakeholder and the depositors is contractual, not fiduciary. The money is not trust money; the stakeholder is not a trustee or agent; he is a principal who owes contractual obligations to the depositors: Potters v Loppert [1973] Ch. 399, 406; Hastingwood Ltd v Saunders Bearman [1991] Ch. 114, 123. The underlying relationship is that of debtor and creditor, and is closely analogous to the relationship between a banker and his customer.
(2) Until the specified event occurs, the stakeholder is entitled to retain the interest on the money. This is usually as his reward for holding the money: see Harington v Hoggart (1830), I BandAd 577. The right may be excluded by special arrangement, and was excluded in the present case.
(3) Until the event happens the stakeholder holds the money to the order of both depositors and is bound to pay it (strictly speaking an equivalent sum) to them or as they may jointly direct: Rockeagle v Alsop Wilkinson [1992] Ch. 47.
(4) Subject to the above, the stakeholder is bound to await the happening of the event and then to pay the money to one or other of the parties according to the event. The money is payable to the party entitled on demand, and if the stakeholder fails to pay in accordance with a proper demand he is liable for interest from the date of the demand: Lee v Munn [1817] EngR 769; (1817) 8 Taunt. 45; Gaby v Driver (1828) 2 YandJ 549.
(5) If the occurrence of the event is disputed, the stakeholder cannot safely pay either party, for if he mistakenly pays the party not entitled the payment will not discharge his liability to the other. In these circumstances he may (i) interplead and pay the money into Court; (ii) retain the money pending the resolution of the dispute; or (iii) take the risk of paying one party. The choice is entirely his.
(6) If he takes the second course, he may notify the parties that he is content to abide the outcome of the dispute. There is then no need to join him in any proceedings which are taken to resolve it. If he is not joined, the Court cannot order the money to be paid to the successful party. All it can do is to declare that the successful party is entitled to give a good receipt for the money: see Smith v Hamilton [1951] Ch. 175.
(7) If the stakeholder is not content to abide the outcome of the proceedings, he may be joined in order to bind him. This was done in the present case, albeit on the application of the stakeholder.’

Judges:

Millett LJ

Citations:

[1996] EWCA Civ 942

Jurisdiction:

England and Wales

Citing:

Cited – Rockeagle Ltd v Alsop Wilkinson CA 1991
The position of a stakeholder and the two potential claimants to a stake is the subject of a tripartite contract. The relationship between the stakeholder and the two potential claimants is contractual, not fiduciary. The money is not trust money. . .
Cited – Potters v Loppert ChD 1973
The court was asked as to the liability of an estate agent to account for interest earned upon a pre-contract deposit paid to him expressly as a stakeholder. No contract was made.
Held: A stakeholder is not a trustee or agent; he is a . .

Cited by:

Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
See Also – Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm) CA 23-Apr-1997
. .
See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.140809

Manzanilla Limited v Corton Property and Investments Limited John Maciver (Southport) Limited Rootbrights Limited Halliwell Landau (a Firm): CA 23 Apr 1997

Citations:

[1997] EWCA Civ 1492

Jurisdiction:

England and Wales

Citing:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John MacIver (Southport) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 13-Nov-1996
Millett LJ set out the principles applicable to a deposit paid on a land transaction being held by a stakeholder: ”Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract . .

Cited by:

See Also – Manzanilla Limited v Corton Property and Investments Limited; John Mciver (Southampton) Limited; Rootbrights Limited and Halliwell Landau (a Firm) CA 7-Jul-1997
After settlement between parties of a wasted costs application, a note may be put to the judge where this was needed in order to clear the reputation of lawyer involved. . .
Lists of cited by and citing cases may be incomplete.

Contract, Legal Professions

Updated: 18 June 2022; Ref: scu.141888

Barclays Bank Plc v Khaira and Another: ChD 6 May 1992

A Bank owed no duty of care to explain the effect of a charge despite the chargee having an account with them. However, if a bank, or its solicitors, elect to give an explanation of documents then it has a duty to explain them accurately

Judges:

Deputy Judge Morison QC

Citations:

Gazette 06-May-1992, [1992] 1 WLR 623

Jurisdiction:

England and Wales

Banking, Legal Professions

Updated: 14 June 2022; Ref: scu.78208

Camacho, Regina (on the Application of) v The Law Society: Admn 12 Jul 2004

The Solicitors Disciplinary Tribunal had suspended the applicant, with recommendations as to conditions to be imposed by the Law Society if the suspension was later lifted. The solicitor appealed.
Held: The Tribunal itself had power to impose such conditions, and if it thought them appropriate then it should make its own orders accordingly, and not delegate this to the Law Society later.

Judges:

Thomas LJ, Silber J, Goldring J

Citations:

[2004] EWHC 1674 (Admin), Times 05-Oct-2004, [2004] 1 WLR 3037

Links:

Bailii

Statutes:

Solicitors Act 1974

Jurisdiction:

England and Wales

Citing:

Cited – in Re a solicitor, No 6 of 1993 CA 23-Jul-1993
‘The purpose of a condition on a practising certificate is not punitive, but is intended to ensure that a solicitor who has run into trouble in a professional capacity is subject to a degree of oversight in the conduct of his professional life at . .

Cited by:

Cited – Taylor v The Law Society CA 1-Nov-2005
‘the SDT should not give orders or directions to the Law Society. It should decide what, if any, conditions should be imposed and if it decides that conditions should be imposed it should impose them pursuant to its wide powers ‘to make such order . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 11 June 2022; Ref: scu.198859

USP Strategies Plc and Another v London General Holdings Ltd and others: ChD 1 Mar 2004

In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the documents retained the characteristic which gave it protection from disclosure.

Judges:

Mann J

Citations:

[2004] EWHC 373 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – City of Gotha v Sotheby’s and Another CA 19-Jun-1997
An abandonment of privilege within discovery proceedings did not imply general waiver of same privilege; limited to instant proceedings. . .
Cited – Black v Sumitomo Corporation CA 3-Dec-2001
The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 10 June 2022; Ref: scu.194434

Marsh v Sofaer and Another: ChD 3 Dec 2003

The claimant had instructed the defendant firm of solicitors in civil proceedings. At a later time, she was prosecuted convicted and sentenced for criminal acts. She claimed that the defendant solicitor who had come to believe that she did not have mental capacity, should have passed on that view to the other firm, which may have affected the outcome of her criminal trial.
Held: The claim failed. The solicitor had no duty to inform the other solcitor of his view. The second solicitor could be assumed toi be able to make such an assessment himself, and it would have been a breach of his duty of confidence to the claimant.

Judges:

Sir Andrew Morritt, VC

Citations:

Times 10-Dec-2003, [2003] EWHC 3334 (Ch), [2007] Lloyd’s Rep PN 10

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Marsh v Sofaer and Another ChD 25-May-2006
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 08 June 2022; Ref: scu.188701

Dickinson v Rushmer: SCCO 21 Dec 2001

CourtService After strenuously contested proceedings in the County Court for an account the claimant recovered some andpound;18,000, and subsequently submitted a bill for andpound;86,000 odd. The indemnity principle was raised before a Deputy Costs Judge who then asked to see the client care letter, the bill of costs sent to the client and the calculations of payments made thereunder, but refused to show these documents to the paying party, holding that he was satisfied that there had been no breach of the indemnity principle after considering the documents, and then proceeded with the assessment, which resulted in some, but only modest, reductions in the figure claimed. The defendant appealed, contending that he should have been permitted to see the documents shown to the Costs Judge.
In this case, in contrast with the case of South Coast Shipping (No.15 of 2001), the learned Judge felt able to decide the issue purely on careful analysis of the English authorities, without reference to the European legislation or authorities, though they were cited to him.
The gist of the Judge’s decision allowing the appeal is in paragraph 33 of his judgment, which reads:
‘In my view, the procedure adopted by the costs judge was unfair. I can in any event see no good reason why the client care letter and the payment calculations could not have been disclosed to the defendant, since I have not been persuaded that they were privileged. But if anything in them might have been regarded as privileged, one course which might at least have been considered was the redaction from them of the privileged parts, a course which could or might also have been considered in relation to Wakefields’ bills. Ultimately, however, this was a simple situation in which the claimant chose to prove his version of a disputed issue of fact by reference to certain documents. In my view, the basic principle is that, if he wanted to do so, fairness required him also to disclose the documents to the defendant.’
The learned Judge earlier held that in his opinion the bill to the client was, on the basis of the judgment of Sir G J Turner V-C in Chant v Brown [1852] 9 HARE 790, privileged from production.

Judges:

Mr Justice Rimer sitting with Assessors

Citations:

[2002] 1 Costs LR 98, [2001] EW Costs 17, [2001] EWHC 9018 (Costs)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dickinson (T/a John Dickinson Equipment Finance) v Rushmer (T/a F J Associates) CA 14-Feb-2000
. .

Cited by:

Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions

Updated: 08 June 2022; Ref: scu.185957

Sweetman v Nathan and others: CA 25 Jul 2003

The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: Although the claimant’s fraud on the bank was a ‘but for’ cause of his loss, the claim in negligence should not be struck out on the basis that, given the fraud finding, the claimant had no prospect of success in any action against his solicitor for negligent conveyancing. The key factors were that: (1) the claim against the solicitor for negligence was conceptually entirely separate from the fraud upon which both of them had been engaged: there was force in the analogy with a case I had posited at paragraph 42 of the judgment; and (2) the negligence action could be pleaded and proved without reliance upon any part of the fraud assumed to have been committed on the bank.

Judges:

Lord Justice Schiemann Lord Justice Waller Lord Justice Dyson

Citations:

[2003] EWCA Civ 1115, Times 01-Sep-2003, [2004] PNLR 89

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Standard Chartered Bank v Pakistan National Shipping Corporation and Others (No 3) ComC 27-May-1998
A company making a false statement on a bill of lading would be held liable for the tort of deceit when it knew that the bill must be relied upon by bankers and others making arrangements on its contents. A claimant ‘cannot recover for a loss . .
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Specialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
Cited – Cottingham v Earl of Shrewsbury 1843
‘If a plaintiff can not get at his right without trying and deciding a case between Co-defendants the Court will try and decide that case, and the Co-defendants will be bound. But, if the relief given to the Plaintiff does not require or involve a . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Munni Bibi v Tirloki Nath PC 1900
(Year unknown) A res judicata estoppel will normally have effect between a plaintiff and defendant, but can also have effect between defendants. ‘In such a case three conditions are requisite: (1) There must be a conflict of interest between the . .
Cited – Saunders v Edwards CA 24-Mar-1986
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation, Seaways Maritime Ltd, SGS United Kingdom Ltd, Oakprime International Ltd, Arvind Mehra (No 2) CA 27-Jul-2000
Where a deceit was established leading to an award of damages, that award of damages was not capable of being reduced under the 1949 Act through a contribution to the loss occasioned by the claimant’s own behaviour, where that behaviour did not fall . .

Cited by:

Cited – St Paul Travelers Insurance Co Ltd v Okporuah and others ChD 10-Aug-2006
The first defendant had acquired several properties, and was due to make repayments greatly in excess of his income. A further defendant, his brother, was a solicitor who was known to have been involved in mortgage fraud and was suspected of having . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 08 June 2022; Ref: scu.185878

Gray v Avadis: QBD 30 Jul 2003

The claimant had made complaints against the defendant solicitor to the Office for the Supervision of Solicitors. In answer the defendant made assertions about the claimant’s mental health, and she now sought to bring action iin defamation on those statements. The defendant said the statements were protected by absolute privilege.
Held: Given the status and nature of the Office it had the characteristics of a tribunal to which the principle in Trapp should be extended. The response had absolute privilege and the claim was bound to fail.

Judges:

The Honourable Mr Justice Tugendhat

Citations:

[2003] EWHC 1830 (QB), Times 19-Aug-2003

Links:

Bailii

Statutes:

Solicitors Act 1974 34A

Jurisdiction:

England and Wales

Citing:

Cited – Addis v Crocker CA 1961
The proceedings of the Solicitors Disciplinary Tribunal attract absolute privilege even though they sat in private. . .
Cited – Trapp v Mackie HL 1979
Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – A v The United Kingdom ECHR 17-Dec-2002
The applicant complained that the absence of legal aid to allow a challenge what had been said about her in Parliament by way of defamation, violated her right of access to court.
Held: The right to absolute parliamentary privilege was within . .
Cited – Mahon, Kent v Dr Rahn, Biedermann, Haab-Biedermann, Rahn, and Bodmer (a Partnership) (No 2) CA 8-Jun-2000
The defendant’s lawyers wrote to a financial services regulatory body investigating the possible fraudulent conduct of the plaintiff’s stockbroking firm. The letter was passed to the Serious Fraud Office who later brought criminal proceedings . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Defamation

Updated: 07 June 2022; Ref: scu.185246

Wagstaff 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 apply for a lift of the stay.
Held: An application of a wasted costs order was only tangential to the main proceedings, and it was not necessary first to apply to lift the stay. The action was not dead as if it had been dismissed. The actions required under the Tomlin order had been concluded, and a wasted costs application had nothing to with the defendants and would not affect them adversely. There was no need to lift the stay, just as there would be no need for permission to pursue such an applcation after a final order in any proceedings.

Judges:

Ward, Buxton, Arden LJJ

Citations:

Times 17-Apr-2003, [2003] EWCA Civ 469, [2003] 4 Costs LR 535, [2003] CP Rep 50, [2003] PNLR 29

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rofa Sport Management AG v DHL International (UK) Ltd CA 1989
After an action had been stayed, it remained technically in being. It cannot proceed or resume without a court order, but it cannot properly be regarded as dead, in the same way as it might had it been dismissed or discontinued by order. . .
Cited – Ridehalgh 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 . .
Cited – 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 . .
See Also – Wagstaff v Colls SCCO 2-Apr-2003
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 07 June 2022; Ref: scu.181180

Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5): CA 3 Apr 2003

Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the solicitor where proceedings were not contemplated, but did not attach to supporting documents. Privilege stemmed from the confidential relationship of client and solicitor and attached only to communications between the client and solicitor. The shift in focus from the dominant purpose of the document to the dominent purpose of the retainer was doubted. Documents prepared for the enquiry rather than as part seeking legal advice were not privileged.

Judges:

Lord Justice Sedley The Master Of The Rolls Lord Justice Longmore

Citations:

[2003] EWCA Civ 474, Times 19-Apr-2003, Gazette 12-Jun-2003, [2003] 3 WLR 667, [2003] QB 1556, [2003] CPLR 349, [2003] All ER (D) 59

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Greenhough v Gaskell CA 1833
The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
Cited – In Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
Cited – Southwark and Vauxhall Water Company v Quick CA 1878
The water company sued its former engineer. Anticipating the action, documents were prepared for the company’s solicitor’s advice, though one (a shorthand transcript of a conversation between a chimney sweep employed by the company and the company’s . .
Cited – Ventouris v Mountain CA 1991
It is in the interests of the state which provides the court system and its judges at taxpayers’ expense that legal advisers should be able to encourage strong cases and discourage weak cases. ‘It is the protection of confidential communications . .
Cited – Re Highgrade Traders Ltd CA 1984
The court rejected a claim for legal advice privilege in relation to reports commissioned by an insurance company after a suspected arson. The documents were reports prepared by third parties rather than employees of the company. After considering a . .
Cited – Price Waterhouse v BCCI Holdings (Luxembourg) SA CA 1992
A claim for legal advice privilege was rejected for reports written by accountants both when the accountants were independent and when they reconstituted themselves as a committee of the client. However, legal advice privilege attaches to all . .
Cited – Hellenic 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 . .

Cited by:

Cited – Hollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
Cited – United States of America v Philip Morris Inc and others QBD 10-Dec-2003
Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 6) CA 1-Mar-2004
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a . .
Cited – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – USP Strategies Plc and Another v London General Holdings Ltd and others ChD 1-Mar-2004
In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the . .
Cited – Ford, 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 . .
Cited – Astex Therapeutics Ltd v Astrazeneca Ab ChD 8-Nov-2016
The parties had agreed to work tgether in the development of new drugs, but came to dispute whether certain projects were subject to the agreement. The claimant sought details of the defendant’s internal documents justifying that conclusion. The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 07 June 2022; Ref: scu.180588

Carr v Bower Cotton: CA 18 Dec 2002

The claimant had been victim to a substantial fraud. The defendant solicitors had been an innocent tool of the fraud. The claimant sought damages alleging professional negligece.

Judges:

Lord Justice Chadwick Lord Justice Ward Lady Justice Arden

Citations:

[2002] EWCA Civ 1788

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence

Updated: 07 June 2022; Ref: scu.178816

Boodram v The State: PC 10 Apr 2001

(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to assess what could be done to redress any prejudice or potential prejudice to the defendant. He also failed to pursue an allegation that the defendant had signed her confession only after being raped in the cells by a police sergeant. The appellant was accused of having murdered her husband by poisoning.
Held: Where a defence case had clearly been conducted in an incompetent manner, to an extent that the defendant could not be said to have had a fair trial, then it was appropriate to set aside the conviction which followed. An appellate court should approach complaints about counsel’s incompetence and its effects on a trial, with a healthy scepticism, but where the failure was fundamental, a court should only with great care find that the jury would have reached the same decision even with competent counsel.

Judges:

Citations: Times 15-May-2001, No 65 of 2000, [2001] UKPC 18, [2002] 1 Cr App R 103

Links:

Bailii, PC, PC

Citing:

Cited – Flowers v The Queen PC 30-Oct-2000
(Jamaica) Where a defendant claimed that his constitutional right to a trial within a reasonable time had been infringed, it was correct for the appellate courts to take account of the fact that it remained clear that the defendant was guilty of a . .
Cited – Reid v The Queen PC 1980
It is not in the interests of justice for the prosecution to be given a second chance to make good deficiencies in its case. The Board gave guidance on the considerations relevant to ordering a new trial: ‘… the interest of justice that is served . .
Cited – Charles, Steve Carter and Leroy Carter v The State PC 26-May-1999
(Trinidad and Tobago) A third trial for murder, with a capital sentence to follow, after a long delay, and when one verdict had been set aside, and a second jury undecided, became an abuse of process. This is usually a judge’s discretion and should . .
Cited – Lawrence Pat Sankar v State of Trinidad and Tobago PC 16-Dec-1994
(Trinidad and Tobago) An advocate’s failure to advise his client on the need for him to give evidence, and the consequences of his not doing so may be enough to justify an appeal against conviction. . .
Cited – Regina v Clinton CACD 1993
Where counsel’s conduct is called in question, the general principle requires the court to focus on the impact of the faulty conduct on the trial and result. . .

Cited by:

Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Commonwealth

Updated: 06 June 2022; Ref: scu.174516

White v Office for the Supervision of Solicitors and others: Admn 17 Dec 2001

The claimant solicitor sought a judicial review, on the grounds of procedural unfairness, of the decisions of the respondent in upholding complaints against him. The procedure involved several stages, an investigatory stage, an adjudication, an appeal, and a further appeal to the Tribunal. The solicitor complained that the adjudicator had failed to follow up certain enquiries.
Held: It was for the solicitor to present his evidence. The solicitor had been told that the adjudicator would not examine original documents unless requested to. The solicitors were entitled to a fair hearing, but this need not always be an oral hearing. Lightman J criticised the absence of any document setting out properly the complaints scheme for third parties: ‘These proceedings have revealed that there is no single document setting out the procedure to be followed on the investigation and determination of such complaints against solicitors. There are merely a series of information sheets supplied by the Law Society to the parties at the various stages of the proceedings. The parties (and most particularly solicitors) are accordingly unable to find any statement in a single document of the procedures or any guidance in this regard in any authoritative Law Society publication or in any text book (e.g. Cordery on Solicitors). This lacuna is most unfortunate . . ‘

Judges:

Lightman J

Citations:

[2001] EWHC Admin 1149

Links:

Bailii

Statutes:

Solicitors Act 1974 37A

Cited by:

Cited – Napier and Another v Pressdram Ltd CA 19-May-2009
The claimant solicitors appealed against the refusal to grant them an injunction to prevent the publication of the outcome of a complaint against them to the Law society, and of the Ombudsman’s report. They said that the material remained . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 June 2022; Ref: scu.168010

China National Petroleum Corporation and others v Fenwick Elliott, Techint International Construction Company: ChD 31 Jan 2002

In the course of a dispute, the claimants concluded that the respondents had acquired documents of a confidential nature, and sought restoration and disclosure of the source. The solicitors for the respondents suggested that the claimants were in breach of disclosure orders, and that the materials were not privileged, and would be subject to disclosure in any event. It was then alleged that the respondent firm had acted improperly in seeking privileged information from employees of the claimants. It was argued that the sources of the information should be disclosed, but the respondents argued that this might put them at personal risk. In this case there was no evidence of privilege inhering, and no specific allegations, and the respondents claim of privilege attaching to his interviews of witnesses succeeded. The claim had no prospect of success and was struck out.

Judges:

The Vice-Chancellor

Citations:

[2002] EWHC 60 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Ashworth Security Hospital v MGN Ltd CA 18-Dec-2000
The court can order the identity of a wrongdoer to be revealed where the person against whom the order was sought had become involved in his tortious acts. This might apply even where the acts were unlawful, but fell short of being tortious. There . .
Lists of cited by and citing cases may be incomplete.

Construction, Intellectual Property, Information, Legal Professions

Updated: 05 June 2022; Ref: scu.167535

Miller v Allied Sainif (UK) Ltd: ChD 31 Oct 2000

In a simple case it was appropriate for a solicitor to apply by post for an order to declare that he had ceased to represent a party. This was a reasonable way of minimising costs for all parties, but the solicitor must be ready to consider whether attendance might be required.

Citations:

Times 31-Oct-2000

Jurisdiction:

England and Wales

Litigation Practice, Legal Professions

Updated: 05 June 2022; Ref: scu.83723

Regina v Law Society, ex parte Mortgage Corporation: QBD 30 Nov 2000

The corporations sought compensation where a solicitor had been dishonest. They had lent to the solicitor, a sole practitioner, and asked him to act for them in that transaction. They were found to have failed to take care in its decisions. The practitioner had a clear conflict of interest and the applicants conduct was imprudent. The decision of the compensation committee might have given in greater detail, but the reasoning was clear and could not be said to be irrational.

Citations:

Gazette 30-Nov-2000

Jurisdiction:

England and Wales

Legal Professions

Updated: 05 June 2022; Ref: scu.88527

Sarwar v Alam: CA 19 Sep 2001

Litigation had followed an accident. The claimant, a passenger, sought and won damages for personal injuries. He had taken out legal expenses insurance, and at dispute was the recovery of the cost of that insurance. He had been unaware of having the insurance and had also paid out for after the event insurance. He sought to recover the costs of the legal expenses insurance. A challenge of a judge’s award in costs only proceedings should only rarely succeed. In such questions, the danger of conflicts of interest between the various insurance companies is real, and had been provided for in the regulations. Solicitors should inspect the client’s various policies to clarify what legal expenses insurance was available. The need to provide free choice of solicitors did not override common provisions for small cases referring such matters to insurance panel solicitors. In a case where a passenger sued his driver, it was not appropriate for his choice of solicitor to be determined by the defendant’s insurers, and after the event legal expenses insurance was a proper and reasonable expense and should be recoverable.

Judges:

Judge Halbert, District Judge Wallace

Citations:

Times 11-Oct-2001, [2001] EWCA Civ 1401, [2002] RTR 12, [2001] 4 All ER 541, [2002] 1 WLR 125, [2002] 1 Costs LR 37, [2002] Lloyd’ Rep IR 126, [2002] PIQR P15

Links:

Bailii

Statutes:

Insurance Companies (Legal Expenses Insurance) Regulations 1990, Conditional Fee Agreements Regulations 2000, Civil Procedure Rules 44.12A

Jurisdiction:

England and Wales

Citing:

Cited – Callery v Gray (No 2) CA 31-Jul-2001
A plaintiff could recover the costs of insuring himself against the risk of having to pay the other sides costs, and finding his own costs irrecoverable (after the event or ATE insurance). The earlier case had decided that such premiums may be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages, Costs, Legal Professions, Insurance

Updated: 04 June 2022; Ref: scu.166184

Nationwide Building Society v Lewis and Another: ChD 16 Jun 1997

A solicitor’s firm is responsible for advice given by an employee signing correspondence in the firm’s name and where it seems apparent that a partner was acting.

Citations:

Times 16-Jun-1997

Jurisdiction:

England and Wales

Citing:

Appealed to – Nationwide Building Society v Lewis and Another CA 24-Feb-1998
Employee solicitor held out as partner was not liable in negligence where he was neither involved in the advice nor holding out relied upon . .

Cited by:

Appeal from – Nationwide Building Society v Lewis and Another CA 24-Feb-1998
Employee solicitor held out as partner was not liable in negligence where he was neither involved in the advice nor holding out relied upon . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 04 June 2022; Ref: scu.84226

In Petition To the Nobile Officium By Gordon Coutts Thomson and Maria Teresa Thomson: SCS 9 Jun 1999

First Division, Inner House. The petitioner solicitors had been dsiciplined by the Law Society of Scotland. Their appeal had been successful, but the court indicated that since it appeared that not all allegations of dishonesty had been withdrawn, the matter should be remitted. The petitioners now pointed out that all such claims had in act been withdrawn and now requested that the opinion be withdrawn or corrected.
Held: History could not be rewritten: ‘None the less, as the petitioners point out, the opinion of the court has been published on the Internet and elsewhere. If the Law Society’s position is actually that the Fiscal at the original hearing withdrew the allegations of personal dishonesty and that the Society do not allege personal dishonesty, then it is proper that this state of affairs should be given equivalent publicity. In the course of the short hearing we accordingly asked Mr. Macdonald to clarify the position of the Law Society. He readily did so. Based on what he told us, for the avoidance of doubt, we record that the Law Society of Scotland agree that the findings of the Discipline Tribunal issued on 8 June 1995, so far as inferring personal dishonesty on the part of the petitioners, did not reflect the pleas tendered by the petitioners and accepted by the Fiscal and those findings should therefore not have been made by the Tribunal.’

Judges:

Lord President

Citations:

[1999] ScotCS 140

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Gordon Coutts Thomson and Another v Council of Law Society of Scotland SCS 12-Mar-1999
The petitioner solicitors appealed against a decision striking them off for dishonesty. They said that the allegations of dishonesty had been withdrawn.
Held: The appeals succeeded, but since not all the allegations had been withdrawn the case . .

Cited by:

See Also – Thomson and Another v Sheriff Ross and Others SCS 25-Oct-2000
The pursuers and reclaimers seek damages against the defenders on the ground that they have suffered loss, injury and damage by reason of the libellous and defamatory statements of the defenders and respondents. At the time that the statements were . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 04 June 2022; Ref: scu.163572

Reiseburo Broede v Sandker: ECJ 12 Dec 1996

ECJ (Judgment) 1 Freedom to provide services – Restrictions – Whether permissible – Conditions
(EC Treaty, Art. 59)
2 Freedom to provide services – Judicial recovery of debts – Restrictions – Obligation to use the services of a lawyer – Justification on grounds of the general interest – Protection of recipients of services and proper administration of justice – Permissible
(EC Treaty, Art. 59)
3 A national rule preventing nationals of other Member States from engaging in the provision of services does not fall outside the prohibition laid down by Article 59 of the Treaty unless four conditions are fulfilled, namely that it must be applied in a non-discriminatory manner, must be justified by imperative requirements in the general interest, must be suitable for securing the attainment of the objective which it pursues and must not go beyond what is necessary in order to attain it, and restrictions justified by overriding reasons in the general interest are permissible only if that interest is not already safeguarded by the rules to which the provider of the service is subject in the Member State where he is established.
4 Article 59 of the Treaty does not preclude a national rule which prohibits an undertaking established in another Member State from securing judicial recovery of debts owed to others on the ground that the exercise of that activity in a professional capacity is reserved to the legal profession. Such a prohibition is not discriminatory, since it applies without distinction to national providers of services and to those of other Member States, is intended to protect recipients of services against the harm which they could suffer as a result of using the services of persons not possessing the necessary professional or personal qualifications and to safeguard the proper administration of justice, is capable of achieving that objective on account of the guarantee of competence attaching to the services of a lawyer, and cannot be described as disproportionate, even if it is not applied in other Member States, since it is for the Member States to decide the extent to which activities are to be reserved to the legal profession.
‘the application of professional rules to lawyers, in particular those relating to organization, qualifications, professional ethics, supervision and liability, ensures that the ultimate consumers of legal services and the sound administration of justice are provided with the necessary guarantees in relation to integrity and experience’.

Judges:

J.C. Moitinho de Almeida, P

Citations:

C-3/95, [1996] ECR I-6511, [1997] 1 CMLR 224, [1996] EUECJ C-3/95

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Lists of cited by and citing cases may be incomplete.

European, Legal Professions

Updated: 03 June 2022; Ref: scu.161490

Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano: ECJ 30 Nov 1995

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

Citations:

Times 13-Dec-1995, C-55/94, [1995] ECR 1-4165, [1995] EUECJ C-55/94

Links:

Bailii

Statutes:

EC Treaty 43, Council Directive 77/249/EEC

Jurisdiction:

European

Citing:

Cited – Ordre des avocats au Barreau de Paris v Onno Klopp ECJ 12-Jul-1984
Europa In laying down that freedom of establishment shall be attained at the end of the transitional period, article 52 imposes an obligation to attain a precise result the fulfilment of which must be made easier . .
Cited – Groupement National des Negociants en Pommes de Terre de Belgique Belgapom) v ITM Belgium SA and Vocarex SA ECJ 11-Aug-1995
European Community quantitative restrictions on import not relevant to every states legislation. Measures applying equally to all traders within a member state were not discriminatory.
Trade between Member States is not likely to be impeded, . .
Cited – Jean Reyners v Belgian State ECJ 21-Jun-1974
Europa The rule on equal treatment with nationals is one of the fundamental legal provisions of the community. As a reference to a set of legislative provisions effectively applied by the country of establishment . .
Cited – Jean Thieffry v Conseil de l’ordre des avocats a la cour de Paris ECJ 28-Apr-1977
Europa Freedom of establishment, subject to observance of professional rules justified by the general good, is one of the objectives of the treaty. In so far as community law makes no special provision, these . .
Cited – Kraus v Land Baden-Wurttemberg ECJ 31-Mar-1993
Diplomas acquired in one member state require may authorisation for use in another state. . .
Cited – Vlassopoulou v Ministerium fur Justiz, Bundes- u Europaangelegenheiten Baden-Wurttemberg ECJ 7-May-1991
The authorities of a Member State when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a . .

Cited by:

Cited – Regina on Application of Dinev and Others v Westminster City Council Admn 24-Oct-2000
Street artists had operated in Leicester Square for many years without either licenses or being prosecuted. The respondent introduced a scheme to regulate them, and the applicants sought to challenge it by way of judicial review, alleging a failure . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, European

Updated: 03 June 2022; Ref: scu.161295

Penna v Law Society: ChD 29 Jun 1999

The regulatory function of the Law Society in intervening in a legal practice was not merely protective, and a solicitor facing accusations of past dishonesty could not expect to be relieved of the consequences merely because he had completed the transactions at issue without loss. The intervention could proceed.

Citations:

Times 29-Jun-1999

Statutes:

Solicitors Act 1974 35

Jurisdiction:

England and Wales

Legal Professions

Updated: 02 June 2022; Ref: scu.84655

Mothew (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 to further borrowing when he knew that they were using an overdraft to obtain further funding. The plaintiff claimed in breach of trust.
Held: A claim for damages for a solicitor’s failure to disclose the existence of a 2nd mortgage must show that damage flowed from the failure alleged.
Millett LJ said: ‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.’
He is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary: ‘A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty; he puts himself in a position where his duty to one principal may conflict with his duty to another . . This is sometimes described as ‘the double employment rule.” and
‘Finally, the fiduciary must take care not to find himself in a position where there is an actual conflict of duty so that he cannot fulfil his obligations to one principal without failing in his obligations to the other . . If he does, he may have no alternative but to cease to act for at least one and preferably both. The fact that he cannot fulfil his obligations to one principal without being in breach of his obligations to the other will not absolve him from liability.’
As to breach of the duty: ‘Breach of fiduciary obligation, therefore, connotes disloyalty or infidelity. Mere incompetence is not enough. A servant who loyally does his incompetent best for his master is not unfaithful and is not guilty of a breach of fiduciary duty.’
If the trustee has benefited from the breach, the court will order him to account for it on the application of the beneficiary. Millett LJ described such relief as ‘primarily restitutionary or restorative rather than compensatory’.

Judges:

Millett LJ

Citations:

Times 02-Aug-1996, [1996] EWCA Civ 533, [1998] Ch 1, [1997] 2 WLR 436, [1996] 4 All ER 698

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Birmingham Midshires Building Society v Infields (A Firm) TCC 20-May-1999
The defendant solicitors had acted for the lenders and borrower in a mortgage transaction. The claimant sought repayment of the entire loan, alleging breach of fiduciary duty, in having preferred the interests of one client over those of another. . .
Cited – Arklow Investments Ltd and Another v Maclean and Others PC 1-Dec-1999
PC (New Zealand) Land was offered for sale. A potential buyer, the appellant was approached by a merchant bank with a proposal for finance. When he sought finance elsewhere, a company associated with the bank . .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003
The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
Held: The answer was a mixture of fact and law. A breach of . .
Cited – Marks and Spencer plc v Freshfields Bruckhaus Deringer (A Firm) ChD 2-Jun-2004
The claimant sought an injunction preventing the respondent form of solicitors acting for a client in a bid for the claimant, saying that the firm was continuing to act for it, and that a conflict of interest arose.
Held: Though the . .
Cited – Marks and Spencer Group Plc and Another v Freshfields Bruckhaus Deringer CA 3-Jun-2004
The defendant firm of solicitors sought leave to appeal against an injunction requiring them not to act for a client in making a bid to take over the business of the claimant, a former client of the firm.
Held: Leave was refused. The appeal . .
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Cited – Barnes and Another v Black Horse Ltd QBD 31-May-2011
The claimants sought repayment by the bank of sums paid to them for Payment Protection Insurance policies sold to them in connection with loans made by the bank. The Bank now resisted an application for leave to amend the particulars of the . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Portman Building Society v Hamlyn Taylor Neck (a Firm) CA 22-Apr-1998
The mortgage advance had been against an express requirement that the client use the property as his private residence. After the client defaulted, the appellant lender discovered that the solicitors acting for themselves and the lay client had . .
Cited – Mortgage Express v Abensons Solicitors (A Firm) ChD 20-Apr-2012
The claimant lender sought damages against the defendant solicitors alleging negligence and breach of fiduciary duty by them in acting for them on mortgage advances. The defendants now argued that the allowance of an amendment to add the allegation . .
Cited – Leeds and Holbeck Building Society v Arthur and Cole ChD 2001
A claim for breach of fiduciary duty by a solicitor as against his lender client, required that it be found that the solicitor ‘did not disclose matters which he admittedly ought to have done to the claimant, intentionally and consciously, knowing . .
Cited – FHR 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 . .
Cited – 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 . .
Cited – Halton 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 . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Legal Professions, Equity, Agency

Updated: 29 May 2022; Ref: scu.140400