Tag: Legal Professions

Regina v Nangle: CACD 23 Nov 2000

The test of whether the defence conducted on behalf of the defendant, was so incompetent that his trial could not be described as fair, may now, because of the Human Rights Convention be less than the ‘flagrant incompetence’ formerly required. If the incompetence did reach such a level as to have denied him a fair trial, then his right might have been reached. The case before the court involving various allegations was not such as to make the trial not fair, and in this case there was no need to decide in detail what that standard might be.
The provisions of the Human Rights Act may have made inappropriate the old standard for judging the need for a retrial in a criminal matter where incompetence was alleged against counsel, but the case before the court involving various allegations was not such as to make the trial not fair, and in this case there was no need to decide in detail what that standard might be.

Citations:

Times 09-Jan-2001, Gazette 23-Nov-2000

Legal Professions, Criminal Practice, Human Rights

Updated: 09 April 2022; Ref: scu.87411

Regina v Cornwall County Council, Ex P L: QBD 25 Nov 1999

A local authority did not have the right to exclude solicitor representatives from child protection case conferences, and must provide minutes of any part of a meeting from which the parent is excluded. To do so would be to fail to follow the guidelines set out by the Secretary of State, which the authority was bound to follow.

Citations:

Times 25-Nov-1999, Gazette 25-Nov-1999, Gazette 17-Dec-1999

Statutes:

Children Act 1989 37, Local Authority Social Services Act 1970 7(1)

Local Government, Legal Professions, Children

Updated: 09 April 2022; Ref: scu.85201

Regina v Council for Licensed Conveyancers Ex Parte Watson: QBD 16 Jun 2000

The dismissal of an action for negligence against a licensed conveyancer for failing to disclose to the client the existence of a right of way, did not prevent his professional body disciplining him out of the same facts and awarding compensation. The test of negligence is not the same as the test of whether he had provided an inadequate professional service.

Citations:

Times 16-Jun-2000

Statutes:

Courts and Legal Services Act 1990 Sch 8

Professional Negligence, Legal Professions

Updated: 09 April 2022; Ref: scu.85203

Regina v Council for Licensed Conveyancers Ex Parte West: QBD 15 Jun 2000

The applicant sought to prevent disciplinary proceedings against himself on the grounds of the delay of the Council. The rules of procedure required the council to progress as soon as possible, but there had been a delay of 20 months. The council deciding to proceed had acknowledged the mandatory nature of the rule, but the case needed careful consideration and there were wider issues. The issue of the access to the files had not been decisive.

Citations:

Gazette 15-Jun-2000

Statutes:

Licensed Conveyancers Discipline and Appeals Committee (Procedure) Rules Approval Order 1987

Legal Professions

Updated: 09 April 2022; Ref: scu.85204

Practice Direction (Family Proceedings: Case Management): FD 31 Jan 1995

The President of the Family Division handed down a Practice Direction on the need to avoiding delay and waste of costs in family proceedings. The courts would be free to take greater control of cases. A party who fails to conduct a matter economically could be subject to a wasted costs order. The court would exercise more readily the powers to limit pleadings, discovery, the length of submissions and cross examinations and otherwise. Unless directed a party’s written statement should stand instead of oral evidence, and oral evidence should be restricted to material matters of fact, save for experts. Parties had a duty to the court to give full and frank disclosure in ancillary relief and children matters. The court set down standards for bundles to be used save in the simplest cases, including their supply to the court. Cases expected to last five days or more should have pre-trial reviews at which the intended advocates and judge should attend. Parties should supply to the court a list of the central documents in cases where there was no core bundle. The direction applied in the Family Division and was intended to mirror similar directions in other divisions.

Judges:

Sir Stephen Brown P

Citations:

Times 08-Feb-1995

Family, Legal Professions

Updated: 09 April 2022; Ref: scu.84885

Mortgage Express Ltd v S Newman and Co and Others: ChD 10 Nov 1999

The defendant firm of solicitors were held liable to a lender. They claimed indemnity from the Solicitors Indemnity Fund but this was refused on the basis that the solicitor had acted dishonestly acting in a back to back sale at 165,000 less than the asking price. The solicitor claimed that the duty to the lender was restricted to the duty to obtain good title with vacant possession. Though wrong, the solicitors behaviour was not dishonest, and an indemnity was granted.

Citations:

Gazette 10-Nov-1999

Jurisdiction:

England and Wales

Legal Professions

Updated: 09 April 2022; Ref: scu.83875

Miller v Council of the Law Society of Scotland: OHCS 22 Mar 2000

A person appointed by the court to act as reporter to the court exercised a statutory function. He had trained and qualified as a solicitor, but then had his name removed from the roll. He used his legal skills in his practice and it was asserted that he was acting as a solicitor. Although there are elements of practice, the matter was not decided by what he did whilst carrying out his job, but his status. Reporters did not necessarily have legal qualifications and there was no necessary inference that he was so acting.

Citations:

Times 22-Mar-2000

Statutes:

Solicitors (Scotland) Act 1980

Legal Professions, Scotland

Updated: 09 April 2022; Ref: scu.83724

Lord Napier and Ettrick and Another v Hunter and Others; Same v R F Kershaw Ltd: HL 3 Mar 1993

Certain insureds sought recovery of a sum which was greater than the sum which had been paid to them by their insurers. The insureds had claimed first on the policies of insurance. Their claims had been met. The insureds then pursued an action in negligence against a third party.
Held: On payment by the insurers under the policies of insurance, the doctrine of subrogation had conferred on those insurers an equitable proprietary right in the form of a lien over the settlement monies obtained from the third party. The insurers were entitled to an injunction to restrain distribution of that fund until the amount paid by the insurers had been repaid to them.
Stop loss insurers can prevent payment out before a payment by subrogation. An insured may also agree to carry an excess or franchise, in which case it will have to bear that amount before looking to its insurer, and will as a self-insurer rank last in any recoveries made by way of subrogation from any third party.
Lord Templeman said: ‘It may be that the common law invented and implied in contracts of insurance, a promise by the insured person to take proceedings to reduce his loss, a promise by the insured person to account to the insurer for monies recovered from a third party in respect of the insured loss, and a promise by the insured person to allow the insurer to exercise in the name of the insured person, rights of actions vested in the insured person against third parties for the recovery of the insured loss if the insured person refused or neglects to enforce those rights of action. … In my opinion, promises implied in a contract of insurance with regard to rights of action vested in the insured person for the recovery of an insured loss from a third party responsible for the loss, confer on the insurer an equitable interest in those rights of action to the extent necessary to recoup the insurer who has indemnified the insured person against the insured loss.’
Lord Browne-Wilkinson said: ‘In my judgment therefore an insurer who has paid over the insurance monies does have a proprietary interest in monies subsequently recovered by an assured from a third party wrongdoer. Although many of the authorities refer to that right as arising under a trust, in my judgment the imposition of a trust is neither necessary nor desirable: to impose fiduciary liabilities on the assured is commercial undesirable and unnecessary to protect the insurers interests. In my judgment, the correct analysis is as follows. The contract of insurance contains an implied term that the assured will pay to the insurer out of the monies received in reduction of the loss, the amount to which the insurer is entitled by way of subrogation. That contractual obligation is specifically enforceable in equity against the defined fund (i.e. the damages) in just the same way as are other contracts to assign or charge specific property . . Since equity regards as done that which ought to be done under a contract, this specifically enforceable right gives rise to an immediate proprietary interest in the monies recovered from the third party. In my judgment, this proprietary interest is adequately satisfied in the circumstances of subrogation under an insurance contract by granting the insurers a lien over the monies recovered by the assured from the third party. This lien will be enforceable against the funds so long as it is traceable and has not been acquired by a bona fide purchase of a value without notice. In addition to the equitable lien, the insurer will have a personal right of action of action at law to recover the amount received by the assured as monies had and received to the use of the insurer.’

Judges:

Lord Templeman, Lord Goff, Lord Browne-Wilkinson

Citations:

Gazette 03-Mar-1993, [1993] AC 713, [1993] 2 WLR 42, [1993] 1 Lloyds Rep 197, [1993] 1 All ER 385

Statutes:

Marine Insurance Act 1906

Jurisdiction:

England and Wales

Citing:

Appeal from – Napier and Ettrick v R F Kershaw CA 9-Sep-1992
Money held by solicitors for names was subject to subrogation for insurers. . .

Cited by:

Appealed to – Napier and Ettrick v R F Kershaw CA 9-Sep-1992
Money held by solicitors for names was subject to subrogation for insurers. . .
Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Legal Professions

Updated: 09 April 2022; Ref: scu.83210

Laker Airways Inc v FLS Aerospace Ltd and Another: ComC 21 May 1999

A barrister, appointed to act in an arbitration, was not to be prevented from acting, because another barrister in the same set acted for one of the parties. The conditions for removal of an arbitrator was as to the objective presence of bias.

Judges:

Rix J

Citations:

Times 21-May-1999, [2000] 1 WLR 113, [1999] 2 Lloyd’s Rep 45, [1999] CLC 1124, Independent 24-May-1999

Statutes:

Arbitration Act 1996 24(1)(a)

Cited by:

Mentioned – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Arbitration

Updated: 09 April 2022; Ref: scu.82900

Law Society v Gilbert: QBD 12 Jan 2001

The applicant had been disciplined by the Law Society, but was later convicted of theft in respect of the same factual circumstances.
Held: It was not an abuse of process for the Law Society to take further proceedings based upon that later conviction. The first decision had not anticipated the conviction, and to have delayed would have prejudiced the duty of the Society to protect the public. The fact of the conviction was of itself a sufficient new fact to justify being struck off.

Citations:

Times 12-Jan-2001

Legal Professions

Updated: 09 April 2022; Ref: scu.82962

KPMG Peat Marwick McLintock v The HLT Group: QBD 18 Mar 1994

The plaintiffs claimed for professional fees, and the defendants counter-claimed alleging negligence. The plaintiffs obtained summary judgment under Order 14 with an order for costs on the standard basis, to be taxed if not agreed. The plaintiffs had instructed solicitors in the City of London to represent them in the litigation and there was an issue as to the amount charged by those solicitors for the work which they had undertaken. The taxing officer had disregarded a survey published by the London Solicitors’ Litigation Association showing the broad average direct hourly cost for City solicitors. He had applied lower rates to taxation of the claimant’s costs on the basis that the survey rates were substantially higher than the rates which he had been in the habit of permitting on taxation.
Held: A survey of solicitors’ charge rates was admissible on taxation of costs. The taxing master should have allowed the actual rates claimed which were, in fact, marginally lower than the survey rates.
Auld J said: ‘The taxing officer’s task, as Robert Goff J put it in R v Wilkinson [1980] 1 All ER 597 at 604, [1980] 1 WLR 396 at 404, is to determine ‘the broad average direct costs of work done’ by a partner and assistant solicitor ‘ in the relevant area at the relevant time’ . . In my view, Master Ellis was wrong to regard as unreasonable, ‘the broad average direct costs’ of City of London solicitors for such a case. His approach was contrary to authority . . If, as I find, it was reasonable for the plaintiffs to have instructed Travers Smith Braithwaite in the litigation, then the firm’s costs on taxation should be taxed by reference to the broad average direct costs for such a firm in that area. The fact that the plaintiffs could have obtained the same services at a much lower price than that average elsewhere is irrelevant (cf R v Dudley Magistrates’ Court, ex p Power City Stores Ltd) . . The taxing officer, when drawing on his own experience, must thus have regard to the general levels of costs actually incurred in the relevant area at the relevant time, not merely those which he has customarily allowed in similar cases. The latter, whilst a useful guide to consistency in the short term, will not reflect the actual general levels of costs unless constantly measured against the reality of what was happening outside the taxing officer’s room during the relevant period . . The process of taxation must reflect, not set, the reasonableness of costs incurred in litigation.’

Judges:

Auld J

Citations:

Independent 18-Mar-1994, [1995] 2 All ER 180

Citing:

Cited – Smith v Buller 1875
The plaintiff in a patent case had failed, and now objected to the amount of costs claimed by the defendant.
Held: Sir R Malins V-C said: ‘It is of great importance to litigants who are unsuccessful that they should not be oppressed by having . .
Approved – In Re a Company (No 004081 of 1989) 1995
Lindsay J considered the calculation of costs of solicitors: ‘if . . the proper guide is that of the average solicitor employed by the average firm in the area concerned, then the Central London Law Societies’ survey, whilst not necessarily a . .

Cited by:

Cited – The Law Society of England and Wales, Regina (on The Application of) v The Lord Chancellor Admn 15-Jun-2010
Costs restriction not made under Act
The respondent had introduced rules which restricted the levels of costs which might be awarded from central funds to a successful defendant in a criminal trial who had take private representation. The amendment was made under powers in the 1985 . .
Cited – Royal Devon and Exeter NHS Foundation Trust v Acres QBD 22-Mar-2013
The defendant challenged the use by the claimant of solicitors from Central London in her claim for personal injury. She was a radiographer, and her work involved exposure to dangerous materials, though in this case it arose from use of machinery . .
Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions, Evidence

Updated: 09 April 2022; Ref: scu.82833

Kershaw v Whelan: QBD 20 Dec 1995

A claimant making a claim against his solicitor was deemed to have waived legal privilege for all relevant documents.

Citations:

Times 20-Dec-1995

Cited by:

See Also – Kershaw v Whelan (No 2) QBD 10-Feb-1997
A parallel or alternative claim in equity is not defeated by limitation in another. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 09 April 2022; Ref: scu.82752

Jones and Another v Secretary of State for Wales and Another: QBD 3 Dec 1996

Specialist provincial solicitors’ firm’s hourly cost rates were not limited by local average rates.

Citations:

Times 03-Dec-1996, [1997] 1 Costs LR 34

Cited by:

Cited – Jemma Trust Company Ltd v Peter D’Arcy Liptrott Jo SCCO 12-Sep-2002
The applicant challenged a solicitor’s bill for the work in handling an estate. Two preliminary issues arose, as to the hourly rates applicable, and whether a value element should be charged. The court’s task is to assess a sum which is fair and . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 09 April 2022; Ref: scu.82590

Joyce v Kammac (1988) Ltd: QBD 16 Oct 1995

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

Citations:

Gazette 18-Oct-1995, Times 16-Oct-1995

Legal Professions, Costs

Updated: 09 April 2022; Ref: scu.82635

Johnson v Bingley and Others: QBD 28 Feb 1995

A breach by a solicitor of the Law Society’s ‘Guide to Professional Conduct’ was not ipso facto negligence. The guide set out what was proper and accepted practice. It was hot however mandatoty to follow it, and the existence of negligence was to be determined in accordance with the principles set out following Donoghue v Stevenson.

Judges:

B A Hytner QC

Citations:

Times 28-Feb-1995

Legal Professions, Professional Negligence

Updated: 08 April 2022; Ref: scu.82549

Ismail and Another v Richards Butler (A Firm): QBD 23 Feb 1996

A solicitor’s lien on papers can be set aside by the court to allow litigation to proceed, where there was a continuing retainer, and the lien was with regard to concluded matters. However, the release of the papers would reduce the value of the lien, and it may also be appropriate to require the client to provide some security for the costs. The power to order payment into court did not replace the equitable right of relief against the solicitors’ lien.

Citations:

Gazette 06-Mar-1996, Times 23-Feb-1996

Statutes:

Rules of the Supreme Court Ord 29 r 6

Citing:

Cited – Robins v Goldingham 1872
Where a solicitor discharges himself in the course of an action, he should be subject to an order for the transfer of the papers subject to an order respecting his lien for any unpaid costs. . .
Cited – Gamlen Chemical Co (UK) Ltd v Rochem Ltd CA 4-Dec-1979
Solicitors accepted instructions against a promise of sums on account of costs. After non-payment they began to apply to be removed from the record. The new solicitors sought transfer of the solicitors file, and obtained an order to that effect . .
Cited – A v B 1984
Solicitors acting for a ship owner incurred costs which remained unpaid by the client, and the solicitors arrested that client’s ship as security. The litigation was continuing. The solicitors took themselves off the court record and obtained . .
Cited – Heslop v Metcalfe 1837
The court referred to the practice that where a solicitor removed himself from a case, an order should be made for the transfer of his file of papers: ‘Undoubtedly, that doctrine may expose a solicitor to a very great inconvenience and hardship, if, . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs, Litigation Practice

Updated: 08 April 2022; Ref: scu.82437

In Re L (Minors) (Care Proceedings: Cohabiting Solicitors): FD 27 Jul 2000

Where two solicitors who cohabited appeared on either side of a case, it was appropriate, if objection was taken, for either or both to withdraw. The cohabitation could give rise to a perception of bias. The power to remove an advocate is inherent and statutory. The freedom to choose one’s advocate is fundamental, and must be limited only with great care. An injection was unnecessary, and the court can remove the name from the court record. No formal or general rule can be set as to the circumstances in which such decisions may need to be made.

Citations:

Times 27-Jul-2000, Gazette 19-Oct-2000

Legal Professions, Family

Updated: 08 April 2022; Ref: scu.81988

In Re Harry Jagdev and Co (Wasted Costs Order) (No 2 of 1999): CA 12 Aug 1999

A wasted costs order must specify the amount payable when it is made. It is not open to a judge to go back later and amend the order to correct the defect, and particularly not to do so by awarding a sum greater than the amount claimed. In this case in any event, the award had been at best borderline, the costs incurred had contributed to the swifter disposal of the case.

Citations:

Gazette 02-Sep-1999, Times 12-Aug-1999

Statutes:

Prosecution of Offences Act 1985 19A, Costs in Criminal Cases (General) Regulations 1986 (1986 No 1335)

Jurisdiction:

England and Wales

Costs, Legal Professions, Criminal Practice

Updated: 08 April 2022; Ref: scu.81933

In Re Hickman and Rose (Solicitors) (Wasted Costs Order) (No 10 of 1999): CACD 19 Apr 2000

After a trial was aborted, the solicitors, acting on counsel’s advice made an application for bail under the rules applying to the custody time limits. An unreported case had already decided the point, namely that once the jury had ben sworn, the limits ceased to apply. Though counsel, once told of the decision sought to withdraw the application, the solicitors were ordered to pay the costs of the application personally.
Held: The order was set aside. It could not be said that the solicitors had acted improperly unreasonably or negligently. On such appeals it is important for those applying to make available transcripts of the events at the lower court.

Judges:

Lord Justice Clarke Mr Justice Kay And The Recorder Of Bristol His Honour Judge Dyer

Citations:

Times 03-May-2000

Statutes:

Prosecution of Offences Act 1985 19A

Jurisdiction:

England and Wales

Citing:

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 – In the Matter of an Application for a Writ of Habeas Corpus Subjiciendum and In the Matter of Bozkurt Admn 3-Oct-1997
Custody time limits cease to apply once a jury has been sworn. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 08 April 2022; Ref: scu.81934

In Re A (Children) (Contact: Expert Evidence): FD 27 Feb 2001

In heavily contested contact proceedings, the father had surreptitiously videoed an episode of contact, and his solicitors had sought an opinion from a psychologist, and provided anonymised information in support of the father’s application.
Held: The court must always be asked for permission to obtain expert reports, and the court should direct what assistance it needed. The solicitor should pay the wasted costs, and the father should pay the costs of the contact centre whose integrity he had attacked.

Citations:

Times 27-Feb-2001, Gazette 20-Apr-2001

Statutes:

Family Proceedings Rules 1991 (SI 1991/1247) 4.18 4.23

Legal Professions, Children

Updated: 08 April 2022; Ref: scu.81624

In Re A Barrister (Wasted Costs Order) (No 9 of 1990): CACD 18 Apr 2000

Practitioners must make themselves aware of reported practice directions in the court before which they appeared. Defending counsel, having been misled as to his client’s conviction history made an agreement with the prosecution about character evidence. That arrangement unravelled, leading to the abandonment of the trial, and a wasted costs order. In this case that was unfair. The defence team had requested lists of previous convictions and they had not been provided, and the prosecution had also contributed to counsel’s error.

Citations:

Times 18-Apr-2000, Gazette 29-Jun-2000

Legal Professions, Criminal Practice

Updated: 08 April 2022; Ref: scu.81638

Frazer Harris v Scholfield Roberts and Hill (A Firm): FD 4 Nov 1998

Barristers and solicitors have the same immunity from suit in respect of advocacy, but a solicitor may still be liable after settlement at door of court where the substantial fault lay in matters preceding that hearing and preparation of the case.

Citations:

Gazette 04-Nov-1998, [1998] 2 FLR 679

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 08 April 2022; Ref: scu.80673

Erridge v Coole and Haddock: ChD 6 Jul 2000

A solicitor had advised one party to a joint venture transaction. His advice was incorrect. He witnessed the signature of another partner who was not separately represented. Although the solicitor’s advice was negligent, and he should have regarded himself as the solicitor for that party as regards parts of the agreement impacting upon him personally, the party would have proceeded anyway, and could show no loss personal to him.

Citations:

Gazette 06-Jul-2000

Jurisdiction:

England and Wales

Professional Negligence, Legal Professions

Updated: 08 April 2022; Ref: scu.80361

Essex County Council v Regina (Legal Professional Privilege): FD 23 Jul 1993

The court’s duty to a child’s welfare can override issues of legal professional privilege if necessary. Parties and their legal professional representatives appearing in a court on a Children’s Act matter had a positive duty to disclose material documents, including experts’ reports and even where otherwise protected by privilege. If not the court’s assessment of the risks facing a child may be distorted.

Judges:

Thorpe J

Citations:

Ind Summary 16-Aug-1993, Times 18-Aug-1993

Statutes:

Children Act 1989

Children, Family, Legal Professions

Updated: 08 April 2022; Ref: scu.80368

Cottingham and Another v Attey Bower and Jones (A Firm): ChD 19 Apr 2000

A solicitor acted on a purchase in 1993. He asked for but did not receive copies of building regulations consents from 1985. He went ahead anyway.
Held: He had been negligent. He had been under a duty to continue the investigation, and to advise his clients that the replies relating to these consents appeared to be misleading. Some consents had been refused, and there remained a small risk of proceedings by the local authority for an injunction under section 36 (6) of the Building Act 1984, even though time limits had expired for other enforcement purposes. A solicitor is generally under a duty to provide specific information or advice, and not to advise on the wisdom of transactions in general. The fact that the claimant would not have purchased the property but for his negligence did not mean that the defendant was liable for every consequences which would not have happened but for the negligence. The loss for which he is responsible will normally be limited to the consequences of the specific information being inaccurate. Damages were awarded on the basis of the cost of rectifying the defect.

Judges:

Rimmer J

Citations:

Times 19-Apr-2000, Gazette 11-May-2000, [2000] EGCS 48, [2000] Lloyds Rep PN 591

Statutes:

Building Act 1984 36(1) 36(2)

Jurisdiction:

England and Wales

Land, Professional Negligence, Legal Professions

Updated: 08 April 2022; Ref: scu.79527

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 providing for the assessment of the performance of criminal advocates in England and Wales by judges. They now appealed against rejection of their argument that the decision was contrary to the 2009 Regulations.
Held: The appeal failed. The Quality Assurance Scheme for Advocates for criminal practitioners both complied with the reuirements imposed by European law, and was both proportionate and lawful.
The origin of the scheme had been concern at the law standards of some advocates, and a requirement for accreditation though judicial assessment was rational.
Lord Reed and Lord Toulson: ‘Proportionality as a general principle of EU law involves a consideration of two questions: first, whether the measure in question is suitable or appropriate to achieve the objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method. There is some debate as to whether there is a third question, sometimes referred to as proportionality stricto sensu: namely, whether the burden imposed by the measure is disproportionate to the benefits secured. In practice, the court usually omits this question from its formulation of the proportionality principle. Where the question has been argued, however, the court has often included it in its formulation and addressed it separately, as in R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C-331/88) [1990] ECR I-4023.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Reed, Lord Toulson

Citations:

[2015] UKSC 40, [2015] Crim LR 894, [2015] WLR(D) 270, [2015] 3 CMLR 42, [2015] HRLR 12, [2015] 3 WLR 121, [2016] 1 All ER 391, UKSC 2014/0081, [2016] AC 697

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Video, WLRD

Statutes:

Legal Services Act 2007, Provision of Services Regulations 2009, Council Directive 2006/123/EC, EU Charter of Fundamental Rights 52(1)

Jurisdiction:

England and Wales

Citing:

See Also – Lumsdon and Others v Legal Services Board Admn 30-Oct-2013
The claimants, practising barristers and members of the Criminal Bar Association sought a declaration that the Quality Assurance Scheme for Advocates approved by the defendant was unlawful. . .
At First Instance – Lumsdon and Others, Regina (on The Application of) v Legal Services Board Admn 20-Jan-2014
Four barristers challenged, by a judicial review, a decision by which the LSB approved an application proposed by the BSB jointly with two other approved regulators, the SRA and IPS, to introduce the Quality Assurance Scheme for Advocates . .
Appeal from – Lumsdon and Others, Regina (on The Application of) v Legal Services Board and Others CA 7-Oct-2014
The claimants sought to challenge the respondent’s decision to introduce the Quality Assurance Scheme for Advocates.
Held: Arden LJ and Lord Neuberger of Abbotsbury MR analysed the cases as yielding a ‘manifestly inappropriate’ test. They then . .
Cited – Rex v Pritchard 21-Mar-1836
A person, deaf and dumb, was to be tried for a capital felony the Judge ordered a Jury to be impanneled, to try whether he was mute by the visitation of God, the jury found that he was so. The jury were then sworn to try whether he was able to . .
Cited – Regina v Minister of Agriculture, Fisheries and Food and Secretary of State For Health, ex Parte Fedesa and Others ECJ 13-Nov-1990
ECJ 1. Community law – Principles – Legal certainty – Protection of legitimate expectations – Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity . .
Cited – 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 . .
Cited – Regina v Secretary of State for Health ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd ECJ 10-Dec-2002
The respondent sought to transpose the Directive into UK law. The Applicant objected saying that the Directive was invalid.
Held: The Directive had been made under Article 95 EC, concerning the internal market. Insofar as the Directive . .
Cited – British Sugar v Intervention Board for Agricultural Produce ECJ 19-Feb-2004
CJ Agriculture – Common organisation of the markets – Sugar – Regulation (EEC) No 2670/81 – Proof of export – Regulation (EEC) No 3719/88 – Correction of an export licence – Obvious inaccuracy – Principle of . .
Cited – Regina, ex parte International Air Transport Association, European Low Fares Airline Association v Department for Transport ECJ 10-Jan-2006
ECJ Carriage by air – Regulation (EC) No 261/2004 – Articles 5, 6 and 7 -Compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights – Validity – . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Revenue and Customs v Aimia Coalition Loyalty UK Ltd SC 20-Jun-2013
Decisions about the application of the VAT system are highly dependent upon the factual situations involved. The case-law of the Court of Justice indicates that, when determining the relevant supply in which a taxable person engages, regard must be . .
Cited – Jippes and others v Minister van Landbouw, Natuurbeheer en Visserij ECJ 12-Jul-2001
(Judgment) Community law did not recognise the rights of animals as fundamental. The applicant owned animals, which fell to be destroyed as part of a preventive cull to protect against the spread of foot and mouth disease. The animals would not be . .
Cited – 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 – . .
Cited – Alliance For Natural Health and Another, Regina (On The Application of) v Secretary Of State For Health and Anor (Approximation Of Laws) ECJ 12-Jul-2005
ECJ Approximation of laws – Food supplements – Directive 2002/46/EC – Prohibition on trade in products not complying with the directive – Validity – Legal basis – Article 95 EC – Articles 28 EC and 30 EC – . .
Cited – 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:

Cited – Nouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
Cited – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Cited – Secretary of State for Work and Pensions v Gubeladze SC 19-Jun-2019
The claimant had come from Latvia to the UK in 2008, but not registered under the Worker Registration Scheme until 2010. She now sought state pension credit. The SS appealed from a judgment that it was to calculate her entitlement to include her . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, European, Human Rights

Updated: 06 April 2022; Ref: scu.549436

Solicitors Regulation Authority v Farrimond: Admn 21 Feb 2018

The solicitor had pleaded guilty to attempted murder. The SRA now appealed against the sanction of indefinite suspension of his practising certificate, saying that his name should have been struck from the roll.
Held: The appeal succeeded.

Judges:

Sir Brian Leveson P QBD, Garnham J

Citations:

[2018] EWHC 321 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 05 April 2022; Ref: scu.605611

Budana v The Leeds Teaching Hospitals NHS Trust and Another: CA 5 Dec 2017

The court considered the effectiveness of a transfer of a conditional fee agreement by a client to another firm of solicitors.

Judges:

Gloster VP CA, Davis, Beatson LJJ

Citations:

[2017] EWCA Civ 1980, [2017] WLR(D) 834

Links:

Bailii, WLRD

Statutes:

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Jurisdiction:

England and Wales

Legal Professions

Updated: 02 April 2022; Ref: scu.601136

Barkauskas v Regina: CACD 8 Aug 2017

After a bitter and protracted trial, the defendants appealed against conviction, and defence counsel made complaints about the judge’s conduct, and the judge about their conduct. The convictions related to serious allegations of conspiracy to steal motor vehicles, and the defence had complained about the use of closed materials protecting the identity of experts working covertly within the motor industry tracing stolen materals and vehicles. No special counsel had been allowed to examine the evidence.
Held: The Appeals failed.

Citations:

[2017] EWCA Crim 1210

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice, Legal Professions

Updated: 28 March 2022; Ref: scu.591702

Stevensdrake Ltd (T/A Stevensdrake Solicitors) v Hunt: CA 31 Jul 2017

SL appeals against a judgment dismissing SL’s claim against SH for its fees under a CFA dated 10 April 2008 for legal services provided in relation to the liquidation of Sunbow Limited, of which SH was the liquidator.

Judges:

Briggs, Hamblen LJJ

Citations:

[2017] EWCA Civ 1173

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 28 March 2022; Ref: scu.591687

Main and Othersv (Giambrone and Law (A Firm) and Others: CA 31 Jul 2017

Appeal by lawyers practising in England and Italy against a judgment holding them liable to compensate clients who lost money in a disastrous ‘holiday homes’ venture. The principal issues in this appeal are whether the claimants are entitled to equitable compensation for their lost deposits and whether the losses suffered are within the scope of the lawyers’ duties.

Judges:

Jackson, Underhill, Moylan LJJ

Citations:

[2017] EWCA Civ 1193

Links:

Bailii

Jurisdiction:

England and Wales

Equity, Legal Professions

Updated: 28 March 2022; Ref: scu.591679

Pavlov And Famira v Ausschuss der Wien Rechtsanwaltskamme (External Relations): ECJ 7 Jul 2011

ECJ External relations – Association agreements – National legislation excluding, before the accession of the Republic of Bulgaria to the European Union, Bulgarian nationals from inclusion on the list of trainee lawyers – Compatibility of that legislation with the prohibition of all discrimination based on nationality, as regards working conditions, in the EC-Bulgaria Association Agreement

Citations:

[2011] EUECJ C-101/10

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Pavlov And Famira v Ausschuss der Wien Rechtsanwaltskamme (External Relations) ECJ 17-Mar-2011
ECJ External relations – Association Agreement – Direct effect – National legislation excluding, before the accession of the Republic of Bulgaria to the European Union, nationals of Bulgaria’s entry on the roll . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions

Updated: 28 March 2022; Ref: scu.591249

Halborg v EMW Law Llp: CA 23 Jun 2017

The Court was asked whether a Limited Liability Partnership (‘LLP’) of solicitors, which is a party to litigation and acts as its own legal representative in the proceedings, is a litigant in person within CPR 46 and so can only recover the level of costs allowed to litigants in person under CPR 46.5(2) and PD46 para. 3.4.

Judges:

Sir Terence Etherton, MR, Beatson, Underhill LJJ

Citations:

[2017] EWCA Civ 793

Links:

Bailii

Statutes:

Civil Procedure Rules 46.5

Jurisdiction:

England and Wales

Costs, Legal Professions

Updated: 27 March 2022; Ref: scu.588322

Lexlaw Ltd v Zuberi: ChD 9 Jun 2017

The claimant firm of solicitors sought payment of its charges. The defendant former client now challenged the enforceability of a Damages Based Agreement with them.
Held: The application should be allowed to proceed as a preliminary point.

Judges:

Clark M

Citations:

[2017] EWHC 1350 (Ch)

Links:

Bailii

Statutes:

Courts and Legal Services Act 1990 58AA(2) 58AA(4)

Jurisdiction:

England and Wales

Legal Professions, Contract

Updated: 27 March 2022; Ref: scu.588213

Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd: QBD 8 May 2017

The claimant asserted that documents generated during investigations by lawyers acting for the defendants were not protected by legal professional privilege.

Judges:

Andrews DBE J

Citations:

[2017] EWHC 1017 (QB)

Links:

Bailii

Statutes:

Criminal Justice Act 1987 2(3)

Jurisdiction:

England and Wales

Criminal Evidence, Legal Professions

Updated: 26 March 2022; Ref: scu.584208

Solicitors Regulation Authority v Wingate and Another: Admn 7 Feb 2017

Orders following principal judgment

Judges:

Holman J

Citations:

[2017] EWHC 505 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Solicitors Regulation Authority v Wingate and Another Admn 21-Dec-2016
The SRA alleged that the Solicitors Disciplinary Tribunal had erred in not finding proven some of the serious allegations against the defendant solicitors proven.
Held: Some of the appeals succeeded. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Litigation Practice

Updated: 24 March 2022; Ref: scu.581092

Piringer: ECJ 9 Mar 2017

ECJ (Judgment) Reference for a preliminary ruling – Freedom of lawyers to provide services – Possibility for Member States to reserve to prescribed categories of lawyers the drafting of formal documents for creating or transferring interests in land – Legislation of a Member State requiring that the authenticity of the signature on a request for entry in the land register be certified by a notary

Citations:

ECLI:EU:C:2017:196, [2017] EUECJ C-342/15

Links:

Bailii

Jurisdiction:

European

Legal Professions

Updated: 23 March 2022; Ref: scu.580715

Adams v London Improved Motor Coach Builders Ltd: CA 1921

The plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff’s union who had retained the solicitors in the case, and it was the union to which the solicitors looked for payment of their costs.
Held: The argument was rejected. Bankes LJ said: ‘When once it is established that the solicitors were acting for the plaintiff with his knowledge and assent, it seems to me that he became liable to the solicitors for costs, and that liability would not be excluded merely because the union also undertook to pay the costs. It is necessary to go a step further and prove that there was a bargain, either between the union and the solicitors, or between the plaintiff and the solicitors, that under no circumstances was the plaintiff to be liable for costs.’
Atkin LJ said: ‘I think that it is highly probably, though the matter has not been discussed, that the solicitors have a personal right against the trade union to receive a proper remuneration for their services. It has not been discussed, and we do not know the precise terms of the relation between the trade union and the solicitors, but I assume there exists such an obligation. Nevertheless there is nothing inconsistent in that obligation co-existing with an obligation on the part of the plaintiff to remunerate the solicitors. Naturally, as a matter of business, the solicitors would, I have no doubt, apply in the first instance to the trade union, as being the persons ultimately liable to pay the costs as between all arties – that is to say, the persons who would have to indemnify the plaintiff against the costs. But that does not exclude the liability of the member, and it seems to me not in the least to affect the position that the client may be liable, although there may be a third person to indemnify the client.’

Judges:

Bankes LJ, Atkin LJ

Citations:

[1921] 1 KB 495

Jurisdiction:

England and Wales

Cited by:

Cited – Bee v Jenson ComC 21-Dec-2006
The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the . .
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 – 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: 23 March 2022; Ref: scu.247997

Dunford and Elliott v Johnson and Firth Brown: CA 1977

A report which had been prepared confidentially was disclosed to 43 per cent of shareholders of a company (the institutional shareholders), but not the others, who then complained to the court.
Held: The others were entitled to the information: ‘This widespread use of the information drives a hole into the blanket of confidence; especially when that information is being used – or, shall I say misused – for the benefit some potential shareholders, and not for the benefit of the others. So much so that it would not be reasonable that the stipulation for confidence should be enforced.’

Judges:

Lord Denning MR

Citations:

[1977] 1 Lloyd’s Rep. 505

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Company

Updated: 23 March 2022; Ref: scu.200341

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

No Waiver for disclosure of Advice

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

Judges:

Elias J P

Citations:

[2008] UKEAT 0349 – 08 – 1612, [2009] ICR 479

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Cited – Re D (a child) CA 14-Jun-2011
In the course of care proceedings, the mother had revised her version of events, and then explained why. The father sought disclosure of the attendance notes of her solicitor, saying that she had waived any privilege in the advice given. She now . .
Applied – The National Crime Agency v Perry and Others QBD 12-Nov-2014
The agency had taken proceedings against the defendant to reciver what it said were theproceeds of crime. That claim was dicontinued. The defendant sought to recover his costs on an indemnity basis, and relying upon a witness statement from an . .
Appeal from – Council of The City of Sunderland v Brennan and Others CA 3-Apr-2012
Equal pay claim – Whether difference in pay due to material factor other than sex . .
See Also – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
See Also – Sunderland City Council v Brennan and Others EAT 2-May-2012
EAT PRACTICE AND PROCEDURE – Contribution
PRACTICE AND PROCEDURE – Disclosure
(1) An employment tribunal has no jurisdiction to determine claims for contribution under the Civil Liability . .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.

Employment, Legal Professions, Litigation Practice

Leading Case

Updated: 23 March 2022; Ref: scu.278812

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 have before it all the evidence it required to fulfil its task. Unless it was clear that the majority of questions asked could be resisted on the grounds of legal professional privilege, the rquest should be complied with.

Judges:

Mr Justice Brooke Lord Justice Chadwick Lord Justice Scott Baker

Citations:

[2004] EWCA (Civ) 330, Times 16-Apr-2004, [2004] 1 CLC 811

Links:

Bailii

Statutes:

Evidence (Proceedings in other Jurisdictions) Act 1975

Jurisdiction:

England and Wales

Citing:

Cited – Genira Trade and Finance Inc v CS First Boston and Standard Bank (London) Limited CA 21-Nov-2001
The court considered the circumstances under which it could be called upon to assist a foreign court.
Held: It is the duty and pleasure of the court to give all such assistance as it can to the requesting court within the limits imposed by the . .
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 – Three Rivers District Council v Bank of England (No 5) ComC 4-Nov-2003
The defendant bank sought protection from disclosure of advice it had received from its solicitors.
Held: To the extent that the communications were for the purpose of seeking advice as to its legal rights and obligations, the communications . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Appeal from – 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 – Waugh v British Railways Board HL 12-Jul-1979
No Litigation Privilege without Dominant Purpose
An internal report had been prepared by two of the Board’s officers two days after a collision involving the death of a locomotive driver, whose widow brought the action and now sought its production.
Held: The court considered litigation . .
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 – Regina v Derby Magistrates Court Ex Parte B HL 19-Oct-1995
No Breach of Solicitor Client Confidence Allowed
B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
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 – Anderson v Bank of British Columbia CA 1876
Litigation was threatened against an English bank concerning the conduct of an account kept at the branch of the bank in Oregon. The English bank’s London manager thought it necessary to ascertain the full facts and cabled the branch manager in . .
Cited – Wheeler v Le Marchant CA 1881
Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
Cited – Collins v London General Omnibus Company 1893
The court adopted a narrow definition of when documents would be protected by legal professional privilege because of anticipated litigation. Will J postulating circumstances being such that ‘no reasonable person could doubt that an action would . .
Cited – Jarman v Lambert and Cooke Contractors Ltd CA 1951
The words ‘pending’ or ‘anticipated’ in the subsection were the words habitually used in connection with legal professional privilege, and ‘The privilege only obtains if litigation is ‘pending or anticipated’, and in that connection it is well . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .

Cited by:

Cited – Starbev GP Ltd v Interbrew Central European Holding Bv ComC 18-Dec-2013
Challenge to assertion of litigation privilege.
Hamblen J said:
’11. The legal requirements of a claim to litigation privilege may be summarised as follows:
(1) The burden of proof is on the party claiming privilege to establish it . .
Cited – Kyla Shipping Co Ltd and Another v Freight Trading Ltd and Others ComC 22-Feb-2022
Litigation Privilege
Defendants challenged the claimants assertion of litigation privilege and contended for a waiver of any privilege which entitles them to disclosure of additional materials referred to in a witness statement.
Held: ‘I dismiss the waiver of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Evidence

Updated: 23 March 2022; Ref: scu.194836

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

Bank not to recover more than its losses

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

Judges:

Lord Neuberger, Lady Hale, Lord Wilson, Lord Reed, Lord Toulson

Citations:

[2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, UKSC 2013/0052, [2015] AC 1503

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary

Statutes:

Judicature Act 1873

Jurisdiction:

England and Wales

Citing:

At ChD – AIB Group (UK) Plc v Mark Redler and Co (A Firm) ChD 23-Jan-2012
The claimant bank sought damages from the defendant solicitors, saying that they had paid on mortgage advance moneys but failed to deliver as promised and required, a first mortgage over the property purchased. The solicitors had failed to discharge . .
Cited – Target Holdings Ltd v Redferns (A Firm) and Another HL 21-Jul-1995
The defendant solicitors had acted for a purchaser, Crowngate, which had agreed to buy a property from a company called Mirage for andpound;775,000. Crowngate had arranged however that the property would first be passed through a chain of two . .
At CA – AIB Group (UK) Plc v Mark Redler and Co Solicitors CA 8-Feb-2013
The defendant firm of solicitors had acted for the claimants under instructions to secure a first charge over the secured property. They failed to secure the discharge of the existing first charge, causing losses. AIB asserted breach of trust.
Cited – Caffrey v Darby 1801
A fiduciary has a strict duty to account; equity imposes stringent liability on a fiduciary as a deterrent – pour encourager les autres. Lord Eldon LC said: ‘It would be very dangerous, though no fraud could be imputed to the trustees, and no kind . .
Cited – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
Cited – Canson Enterprises Ltd v Boughton and Co 21-Nov-1991
Canlii Supreme Court of Canada – Canada – Damages — Breach of fiduciary duty — Solicitor preparing conveyance not advising purchasers of secret profit made on a flip — On agreed facts, purchasers fully . .
Cited – Libertarian Investments Ltd v Hall 6-Nov-2013
(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he . .
Cited – Bartlett v Barclays Bank Trust Co Ltd (Nos 1 and 2) ChD 1980
A claim was made against a trustee for compensation for losses incurred during the administration of the trust.
Held: For a court to order an account by a trustee on the basis of wilful default, and make the defendant liable not only for . .
Cited – Agricultural Land Management Ltd v Jackson (No 2) 2-May-2014
(Supreme Court of Western Australia) Equity – Fiduciary duties – Whether mere existence of conflict is actionable – Whether a breach of conflict rule requires a fiduciary actually to act in a position of conflict and pursue or prefer a personal . .
Cited – 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 . .
Cited – Ex parte Adamson; In re Collie CA 1878
The Court of Chancery never entertained a suit for damages occasioned by fraudulent conduct or for breach of trust, and that the suit was always for ‘an equitable debt, or liability in the nature of a debt’. . .
Cited – Livingstone v Rawyards Coal Co HL 13-Feb-1880
Damages or removal of coal under land
User damages were awarded for the unauthorised removal of coal from beneath the appellant’s land, even though the site was too small for the appellant to have mined the coal himself. The appellant was also awarded damages for the damage done to the . .
Cited – Magnus v Queensland National Bank 1888
A custodial bank was liable to restore trust funds merely because it dissipated the trust funds in a manner which was not authorised. Lord Halsbury LC said: ‘we are not at liberty to speculate whether the same result might not have followed whether . .
Cited – Bank of New Zealand v New Zealand Guardian Trust Co Ltd 1999
New Zealand Court of Appeal – Gault J said: ‘Recent cases show a trend in favour of analysis by reference to the scope of the duty, and enquire as to the risks against which there was a duty to protect the plaintiff. In South Australia Asset . .
Cited – Kelly v Cooper and Cooper Trading As Cooper Associates (A Firm) Co PC 19-Oct-1992
Bermuda – The fiduciary obligations imposed on an agent will depend on the express and implied terms of the contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in . .
Cited – Hodgkinson v Simms 30-Sep-1994
Supreme Court of Canada – Fiduciary duty — Non-disclosure — Damages — Financial adviser — Client insisting that adviser not be involved in promoting — Adviser not disclosing involvement in projects — Client investing in projects suggested by . .
Cited – Cadbury Schweppes v FBI Foods 28-Jan-1999
Supreme Court of Canada – Commercial law – Confidential information – Breach of confidence – -Remedies – Manufacturer using confidential information obtained under licensing agreement to manufacture competing product – Whether permanent injunction . .
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 – KM v HM 29-Oct-1992
Supreme Court of Canada – Limitation of actions – Torts – Assault and battery – Incest – Woman bringing action against father for damages for incest – Whether or not action limited by Limitations Act – Application of the reasonable discoverability . .
Cited – Breen v Williams 6-Sep-1996
High Court of Australia – Medicine – Doctor/patient relationship – Medical records – Patient’s right to access – Contractual right – Doctor’s duty to act in patient’s ‘best interests’ with utmost good faith and loyalty – Patient’s proprietary right . .
Cited – Maguire v Makaronis 25-Jun-1997
High Court of Australia – Equity – Fiduciary duties – Solicitor and client relationship – Mortgage by clients in favour of solicitors – Ascertainment of particular fiduciary duties.
Equity – Equitable remedies – Rescission – Relevance of . .
Cited – Youyang Pty Ltd v Minter Ellison Morris Fletcher 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
Cited – Pilmer v Duke Group Ltd 3-Apr-2003
High Court of Australia – Trusts – Express trust – Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of express trust – Liability of firm as . .
Cited – Amaltal Corpn Ltd v Maruha Corpn 20-Feb-2007
Supreme Court of New Zealand – Blanchard J said that even in a commercial relationship, there might be aspects which engaged fiduciary obligations: ‘That is because in the nature of that particular aspect of the relationship one party is entitled to . .
Cited – Premium Real Estate Ltd v Stevens 6-Mar-2009
Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law . .
Cited – Akai Holdings Ltd v Kasikornbank PCL 8-Nov-2010
Court of Final Appeal – Hong Kong – Lord Neuberger of Abbotsbury NPJ said: ‘the notion that equitable compensation is assessed on a somewhat different basis from common law damages is clearly right (albeit that the difference can be overstated)’ and . .

Cited by:

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

Equity, Damages, Legal Professions

Leading Case

Updated: 11 February 2022; Ref: scu.538296

Fox Hayes v Financial Services Authority: UTTC 13 May 2010

PENALTY – Authorised Person – Partnership – Decision Notice imposing penalty issued after termination of Partnership – whether regulatory authority has power to impose penalty on dissolved partnership – whether partners are personally liable – who rank as partners in dissolved partnership – FSMA 2000 32(1), 40(1(c) and 206(1)

Citations:

[2010] UKUT B14 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 04 February 2022; Ref: scu.577939

Pemberton Greenish Llp v Henry: QBD 16 Feb 2017

The claimant solicitors firm, at the behest of its insurrs sought to recover losses from a former consultant solicitor whose actions had given rise to the original claim against the firm. She had taken on clients who had perpetrated an identity fraud on her and the firm and the original claimant lender.
Held: Though the defendant had made mistakes, these did not amount to dishonesty, and the claim against her failed.

Judges:

Jeremy Baker J

Citations:

[2017] EWHC 246 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions

Updated: 31 January 2022; Ref: scu.575247

Commission v Hungary – C-392/15: ECJ 1 Feb 2017

ECJ (Judgment) Failure of a Member State to fulfil obligations – Article 49 TFEU – Freedom of establishment – Notaries – Nationality requirement – Article 51 TFEU – Connection with the exercise of official authority

Citations:

ECLI:EU:C:2017:73, [2017] EUECJ C-392/15

Links:

Bailii

Jurisdiction:

European

Legal Professions

Updated: 29 January 2022; Ref: scu.573826

VA (Solicitor’s Non-Compliance: Counsel’s Duties : Sri Lanka): UTIAC 5 Jan 2017

UTIAC (i) Counsel’s duty is owed to the client. It does not extend to defending non-compliant instructing solicitors.
(ii) It is for non-compliant instructing solicitors to defend themselves by proactively arranging their attendance before the tribunal in appropriate circumstances.

Citations:

[2017] UKUT 12 (IAC)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Legal Professions

Updated: 28 January 2022; Ref: scu.573293

Barrow v Attorney General of Saint Lucia: PC 19 Dec 2016

Saint Lucia – The appellant was a Justice of Appeal of the Eastern Caribbean Supreme Court. It is agreed between the parties (as set out in the agreed statement of facts and issues (‘the SFI’)) that the appeal concerns the interpretation of the relevant pension legislation of Saint Lucia, in order to determine whether or not the appellant was entitled to a pension upon his retirement after serving for three years and five months as a Justice of Appeal of the Eastern Caribbean Supreme Court (‘the ECSC’). The appellant’s case is that he did not need to have actually served for ten years, or any other qualifying period, in order to qualify for a reduced pension. The respondent’s case, which succeeded in the High Court and the Court of Appeal, is that the appellant needed to have served ten years in order to qualify for a pension.

Judges:

Lady Hale, Lord Kerr, Lord Clarke.Lord Carnwath. Lord Hughes

Citations:

[2016] UKPC 38

Links:

Bailii, Bailii Summary

Jurisdiction:

Commonwealth

Legal Professions, Employment

Updated: 28 January 2022; Ref: scu.573098

Maharaj v Prime Minister and Others: PC 19 Dec 2016

Trinidad and Tobago – appeal against the decision of the Court of Appeal of Trinidad and Tobago not to award to the claimant damages in a claim made by him against the Prime Minister and the Cabinet. That claim was made because the Cabinet had decided that Mr Maharaj should not be reappointed as a member of the Industrial Court.
Held:The applicant satisfied the general conditions for an award of damages, and the case was rmitted for the necessary calculations.

Judges:

Lady Hale, Lord Kerr, Lord Reed, Lord Carnwath, Lord Hughes

Citations:

[2016] UKPC 37

Links:

Bailii

Jurisdiction:

Commonwealth

Legal Professions, Employment

Updated: 28 January 2022; Ref: scu.573099

Eurosaneamientos and Others v ArcelorMittal Zaragoza SAand Others: ECJ 8 Dec 2016

ECJ (Judgment) Reference for a preliminary ruling – Services provided by Procuradores de los Tribunales – Tariff – Jurisdictions – Derogation impossible

ECLI:EU:C:2016:932, [2016] EUECJ C-532/15
Bailii
European

Human Rights, Legal Professions

Updated: 27 January 2022; Ref: scu.572320

Avonwick Holdings Ltd and Another v Shlosberg: CA 18 Nov 2016

Appeal from order directing firm of solicitors to cease acting for a bankrupt’s trustees on the basis that the solicitors had had access to substantial volumes of privileged materials when previously acting for the bankrupt.

Sir Terence Etherton MR, Gloster, Sharp LJJ
[2016] EWCA Civ 1138
Bailii
England and Wales

Insolvency, Legal Professions

Updated: 25 January 2022; Ref: scu.571418

Impact Funding Solutions Ltd v AIG Europe Insurance Ltd: SC 26 Oct 2016

Solicitors had arranged loans to cover for clients the disbursements to be made for litigation. The solicitors had then acted so as to breach the agreements, and upon being called on themselves to repay, the solicitors went into liquidation. The court was now asked whether their professinal insurers were liable to the cients, when the insurance contracts excluded ‘trading liabilities’.
Held: The insurers’ appeal succeeded.

Lord Mance , Lord Sumption , Lord Carnwath , Lord Toulson , Lord Hodge JJSC
[2016] UKSC 57, [2016] 3 WLR 1422, [2016] WLR(D) 558
Bailii, WLRD
England and Wales

Insurance, Legal Professions

Updated: 25 January 2022; Ref: scu.570981

Isteed v London Borough of Redbridge: EAT 21 Jul 2016

Practice and Procedure: Costs – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
On appeal against a wasted costs order made against the opposing party’s solicitor, the appeal was allowed.
It was common ground that the Employment Judge made no positive findings on causation and gave no reasons for considering such an order ‘right’. The jurisdiction to make a wasted costs order extends only to impugned conduct that has caused a waste of costs and only to the extent of such wasted costs, demonstration of a causal link being essential. These findings were not implicit in the particular circumstances. The Employment Judge erred in failing adequately to deal with causation and the justice of such an order.
Separately, there was procedural unfairness. Given the fluid and changing nature of the application, the paying solicitors did not have proper or adequate notice of its basis that would enable them to respond. By the time of the final hearing of the application (which had taken four days separately listed), the comments and conduct of the Employment Judge led to the appearance of bias, and the Employment Judge should have recused himself.

Simler DBE P J
[2016] UKEAT 0442 – 14 – 2107
Bailii
England and Wales

Employment, Costs, Legal Professions

Updated: 24 January 2022; Ref: scu.570383

Mortgage Agency Services Number One Ltd (T/A Britannia Commercial Lending) v Cripps Harries Llp: ChD 12 Oct 2016

Action in which a lender sought damages for fraud, conspiracy and (originally) inducing breach of contract against a borrower’s solicitors, the defendants, on the basis that two employees of the defendant firm deliberately misled the claimant in a manner which led to its lending to a property owner and developer. There has been a serious shortfall in recovery in respect of the loan and the lender seeks to recover its losses accordingly.

Mann J
[2016] EWHC 2483 (Ch)
Bailii
England and Wales

Torts – Other, Legal Professions

Updated: 24 January 2022; Ref: scu.570344

Brown and Another v Bennett and Others (No 3): ChD 17 Dec 2001

When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in counsel’s brief, even though that might be an incidental consequence.

Mr Justice Neuberger
Times 04-Jan-2002, Gazette 21-Feb-2002
England and Wales
Citing:
Cited – Lyell v Kennedy (No 3) CA 8-Apr-1884
The plaintiff claimed to be entitled to land as purchaser from the heir-at-law of an intestate, who had died many years earlier. The land was in the possession of the defendant, and the central issue in the action was whether the defendant’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 – Regina v Board of Inland Revenue, ex parte Goldberg 1989
Photocopies of documents were sent to leading counsel. The Inland Revenue sought their production under s20.
Held: The copies had been produced for purposes attracting legal professional privilege, and were not discoverable to the Revenue even . .
Cited – Dubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 20 January 2022; Ref: scu.167321

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 re-hearing; the question was whether the rulings had been shown to be wrong in their construction of Conditional Fee Agreements.
Held: The court should properly take into account the full range of materials setting out the arrangements between the solicitor and the client.
Held: The appeal failed. ‘The risk assessment does serve the purpose of explaining the solicitors’ reasons for setting the success fee at the chosen level. But it is also a contemporaneous statement by the solicitors to their clients, identifying their understanding of the clients’ aim, the issues with which they would be dealing, the nature of the risks they were taking on in doing so, and what would amount to success. It is therefore objective evidence as to the scope of the work for which the parties intended to contract. It supports the narrow interpretation of the words ‘your claims . . ‘ which the Costs Judge adopted.’
Warby J said: ‘the effect of a costs order is to create a liability to pay, subject to assessment, those costs which a party has paid or is liable to pay at the time the order is made. The liability to pay costs crystallises at that point and, although its quantum will remain to be worked out, that process must be governed by the liabilities of the receiving party as they stand at that time. To allow enforcement of a retrospective agreement which increases those liabilities would be to alter retrospectively the effect of the court’s order.’

Warby J
[2016] EWHC 1600 (QB)
Bailii
England and Wales
Citing:
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
See Also – Radford and Another v Frade and Others QBD 28-Jul-2014
. .
Cited – Jones v Wrexham Borough Council CA 19-Dec-2007
The claimant appealed against a decision that the conditional fee agreement with her solicitors had been unenforceable because the solicitors had not disclosed to her a conflicting interest in recommending insurers. The issue was whether the CFA was . .
Cited – Adams v London Improved Motor Coach Builders Ltd CA 1921
The plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff’s union who had retained the solicitors in the case, and it was the union to which the solicitors looked . .
Cited – Way v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
Cited – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
Cited – Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd HL 1970
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract . .
Cited – Lewis v Averay (No 2) CA 1973
The defendant had been unable to obtain legal aid, and resorted to the Automobile Association which indemnified him for his costs of his successful appeal. The respondent was legally aided on the appeal and the appellant sought an order for his . .
Cited – Swainland Builders Ltd v Freehold Properties Ltd CA 2002
Swainland Builders Ltd owned the freehold of a block of flats. It had granted 99-year leases at ground rents of all the flats except numbers 11 and 18. It had intended to sell the block subject to the retention of flats 11 and 18 which it initially . .
Cited – Thornley v Lang CA 29-Oct-2003
The claimant had pursued the case under a collective conditional fee agreement, organised by her trade union. The defendant challenged an order for payment of the costs, arguing that under the indemnity principle, the claimant would be under no duty . .
Cited – 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 . .
Cited – Oyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
Cited – Davies v Taylor (No 2) HL 2-Jan-1974
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, . .
Cited – Oyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
Cited – Birmingham City Council v Forde QBD 13-Jan-2009
Christopher Clarke J upheld the validity of a retrospective CFA entered into between solicitor and client on the eve of a settlement, in the knowledge that the existing arrangement might be vulnerable to challenge. The paying party alleged undue . .
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .

Lists of cited by and citing cases may be incomplete.

Costs, Legal Professions.

Updated: 19 January 2022; Ref: scu.566789