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Cases - barristers and solicitors
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Abse v Smith [1986] CA

Bache v Essex CC (2000) CA

Boardman v Phipps [1967] HL

Clarkson v Gilbert [2000] Copeland v Smith [2000] CA

D v S [1997] CA

Donovan v Gwentoys [1990] HL

Edmonds v Lawson. (2000) (CA)

Foster v Alfred Truman (a firm) (2003) QBD

Hall v Siminos [2000] HL

Hesford v Bar Council (1999) Jonathan Parker J

McKenzie v McKenzie [1970] CA

Moy v Pettmann Smith (A Firm) & Anor (2005) HL

R v Bow County Court ex p Pelling [1999] CA

Re a Solicitor [1974] CA

Rondel v Worsley [1957] HL

Ross v Caunters [1979] Megarry VC

Rougemont v Pilbrow (1999) CA

Saif Ali v Sydney Mitchell [1978] HL

Sally Clark Times, May 25, 2001

Thai Trading v Taylor (1998) CA

Wallersteiner v Moir (No.2) [1975] CA

White v Jones [1995] HL

Wintle v Nye [1959] HL

Abse v Smith [1986] CA

 

[Solicitors – barristers – rights of audience]
Judge Leonard refused to allow an apology to read in court by a solicitor, because he was not a barrister or a litigant in person, and was not an emergency.

 

Held: The trial judge was correct, ruling upheld.

Bache v Essex CC (2000) CA

[Legal Profession – rights of audience – Employment Tribunals a statutory exception]
C appeared before an employment tribunal represented by a lay person. The representative persisted in raising irrelevant matters so the tribunal directed C to represent herself.

 

Held: There is a statutory right for a party to be represented in an employment tribunal by a person (qualified or lay) of his or her choice. The tribunal can insist on proper behaviour, but cannot restrict the exercise of this right.

Boardman v Phipps [1967] HL

[Solicitors – relationship with clients is fiduciary]
D the solicitor to trustees who held a block of shares in a company. To improve the company's financial position, D bought further shares which produced a profit for the beneficiaries of the trust.

 

Held: D held his shares on a constructive trust, since the information and the opportunity to purchase them had come to D by virtue of his position.

D had acted entirely in good faith, and the beneficiaries had not suffered any loss by his action, equity insists that those who make use of a fiduciary position to make a profit should be liable to account for that profit.
 

Clarkson v Gilbert [2000] CA

 

[Rights of audience – non lawyers – husband for wife - strict rules  in family proceedings should not apply to a close relatives]
C a founder member of psychotherapists training and accreditation organisation was suspended by the organisation. C alleged conspiracy and inducement to breach contracts

The husband of the C wished to represent his wife. He had completed academic and vocational training for the bar but had not been called, and so had no rights of audience. Lord Woolf distinguished this case on its facts from the Dr Pelling saga (see D v S), where Dr Pelling regularly represented men who wanted access to their children. By regularly so acting Dr Pelling bypassed the legislative framework.

The husband argued that there were two grounds why he should be granted rights of audience: first, the claimant's ill health (an angina attack); and secondly, her lack of means.

"Now that legal aid is not available as readily as it was in the past means that there are going to be situations where litigants are forced to bring proceedings in person when they will need assistance. However, if they are litigants in person they must, in my judgment, establish why they need some other person who is not qualified to appear as an advocate on their behalf. In the ordinary way it will be for them to satisfy the court that that is appropriate. If somebody's health does not, or may not, enable them to conduct proceedings themselves, and if they lack means, those are the sort of circumstances that can justify a court saying that they should have somebody who can act as an advocate on their behalf.

I regard it as the obligation of someone who wishes to have an unqualified advocate to appear for them, to make out a case for this to be done...In the normal way it should be for the claimant to do that...So the court saw (C) (Professor Clarkson) in a private room when she was able, in the presence of counsel and solicitors for the defendants, and in the presence of her husband, to explain to us personally her reasons for wanting to have the assistance of her husband. She having done that, my conclusion here is that this appeal should be allowed.

I am satisfied that there would be a danger of Professor Clarkson being deprived of her right to have the case conducted before the courts in a way which would enable her claims to be investigated if she did not have the assistance of her husband as an advocate…On that basis I would allow the appeal.
"

Copeland v Smith [2000] CA

 

[Barristers – professional code – action by Bar Council]
C claimed compensation following a road accident. In a preliminary hearing the issue of whether his claim was out of time was discussed. Neither barrister drew the judge's decision to a decision of the Court of Appeal that would have settled the matter conclusively. The case had appeared in the Weekly Law Reports four months before the hearing.

 

Held: The barristers did not discharge their duty properly to the court in that they appeared to be unaware of the existence of that authority.

It is the duty of an advocate to draw the judge's attention to authorities which are in point, even if they are adverse to that advocate's case.

D v S [1997] CA

 

[Barristers, solicitors - Lay Representatives – rights of audience]
D had been excluded from the home he shared with his partner and children. He asked to be represented by Dr Pelling, a leading member of Families Need Fathers a pressure group. Dr Pelling was not legally qualified but had considerable experience of this area of law and charged about one-tenth as much as a solicitor.

 

Held: Refusing to exercise its discretion to grant Dr Pelling a right of audience the court could see considerable arguments to the effect that the law as it now existed was inappropriate and should be relaxed, but the spirit of the Act was clearly against any general relaxation at present.

 

D lost (see R v Bow County Court ex parte Pelling)

Donovan v Gwentoys [1990] HL

 

[Solicitors – duty to their clients]
D solicitors failed to act quickly enough for C who had a negligence claim, and she failed to recover damages.

 

Held: The other party would be in difficulty if asked to respond to a six year old claim which they had no chance to investigate

Action was therefore struck out, but C might have a claim in negligence against her solicitor for failing to act within the limitation period.

Edmonds v Lawson. (2000) (CA)

 

[Legal Personnel – Barristers - Minimum wage; Pupillage]
D, the head of a barristers' chambers, "employed" a pupil barrister. D argued that C's acceptance of an unpaid pupillage was not a binding apprenticeship and that C was therefore not a worker entitled to the national minimum wage. D said the arrangement was educational in nature, not commercial, and that it was not enforceable due to a lack of consideration.

 

Held: C was not an apprentice nor a "worker" within the meaning of the National Minimum Wage Act 1998, because there had been no expectation upon her to do any work for D or do anything other than further her own training. But a binding contract did exist.

 

D won.

Foster v Alfred Truman (a firm)  (2003) QBD

[Legal personnel - solicitors and barristers - solicitor can rely on advice of QC unless it is obviously wrong]
D a high street solicitor acted for Mrs Foster who was suing a former firm of solicitors, the action failed because D failed to realise it was time barred.

 

Held: A high street solicitors’ duty of care did not require them to examine documents which had been available to leading counsel (QC) in order to ascertain the reliability of counsel’s opinion, and they were entitled to rely on that advice without taking such steps.

Where such advice was incorrect a cause of action did not lie against the solicitor.

Much would depend on the complexity of the matter in hand, the more complex the matter, the greater reliability could be placed on the advice received. It was important that solicitors were able to make use of a specialist bar, and in doing so the public interest was served.

Hall v Simons [2000] HL

 

[Barristers – immunity against being sued in negligence lost]
This case was part of three conjoined appeals heard at the same time because they involved the same point of law, namely immunity from suit by solicitors and barristers.

The case involved negligent advice.

 

Held: Rondel v Worsley had not been wrongly decided in its time, but the world was different then. The courts now can strike out claims which have no real chance of success.

 

This is also the case where an action appears to be an abuse of the legal process. This includes which attempt to re litigate the first case.

Lawyers not the only professionals who have to balance their duty to an individual client and a code of ethics.

 

It is essential to the proper administration of justice that barristers should be prepared to defend even the most unsavoury characters, who might well wish their lawyers to use all possible means, ethical or not, to secure their acquittal. These characters may wish to sue if they are acquitted on appeal.

 

Immunity from suit removed

Comment: The apparent position of advocates has been altered by Moy v Pettmann Smith

Hesford v Bar Council (1999) TLR Jonathan Parker J

 

[Barristers – professional code – action by Bar Council - conflict between barrister’s professional and parliamentary duties]
D a barrister returned a brief so he could attend and vote in the House of Commons, this breached the Bar's professional code.

 

Held: Affirming the decision but substituting a reprimand for the "wholly disproportionate" three-month suspension originally imposed.

McKenzie v McKenzie [1970] CA

 

[Barristers, solicitors - Lay Representatives – rights of audience]
A husband represented himself in a divorce case. His former solicitors sent a young Australian barrister not qualified to practise in
England to sit beside him and offer advice.

The judge told the barrister he must not take part in the case, so the barrister left the court. The husband lost so he appealed.

 

Held: Quoting from Lord Tenterden CJ 150 years earlier, said that any person, whether a professional man or not, may attend court as a friend, may take notes, and may quietly offer suggestions and give advice.

 

Appeal allowed

Moy v Pettmann Smith (A Firm) & Anor (2005) HL

Barristers -  immunity from suit of negligence

[Barristers – loss of immunity against being sued in negligence weakened] 

A barrister did not advise her client of specific risks regarding the settlement of a personal injury claim at the door of the court.  The client received substantially less damages as a result because of a procedural decision by the judge.

The barrister judged the chances to be 50/50, but she did not give that advice, nor other advice she could have given.  She simply told him that in her judgment he would “beat the payment into court” that is get more compensation than was offered, though she also told him that he could take the offer and avoid the risks.

 

Held: The barrister was not negligent.

The principle that an advocate is liable to his client for professional negligence in Arthur JS Hall v Simons [2002] HL should not stifle the manner in which they conduct litigation and advise their clients.

 

This might lead to defensive advocacy, where barristers would hedge their opinions with qualifications and be reluctant to give clients the advice which they require in their best interests.

 

Whilst a doctor's patient has a right to be appropriately warned of risks, a barrister's client only has a right to "clear and readily understood advice", not the reasoning behind it.

 

Lady Hale said that the courts "have not yet developed a clear set of principles governing the terms in which an advocate's advice should be given".

 

Barrister won

R v Bow County Court ex p Pelling [1999] CA

 

[Barristers, solicitors - Lay Representatives – rights of audience]
F applied for a court order in respect of his children and wished to be accompanied at a hearing in chambers by Dr Pelling acting as a McKenzie friend, but Dr Pelling was refused access. Dr Pelling's application for judicial review was dismissed, and his appeal failed.

 

Held: In proceedings open to the public, whether in court or in chambers, a litigant in person should be allowed the assistance of a McKenzie friend unless the judge is satisfied that fairness and the interests of justice do not require it.

The same is true in principle in private proceedings, but here the nature of the proceedings might make such assistance undesirable. For example, a particular friend might seek to adopt an adversarial approach inappropriate in family proceedings, and a person like Dr Pelling frequently acted as a McKenzie friend might be tempted to conduct the case himself rather than remain in the role of an assistant.

 

Dr Pelling excluded

Re a Solicitor [1974] CA

 

[Solicitors – supervision by Law Society – duty to clients]
Two solicitors accepted substantial legacies under wills they had drafted without first ensuring that their clients received independent advice.

 

Held: It is not enough, merely to advise the client to obtain such advice: a solicitor in this position must insist that the client is independently advised and must decline to act if the client refuses.

 

Solicitors struck off by the Disciplinary Committee of the Law Society.

Rondel v Worsley [1967] HL

 

[Barristers – immunity to suit]
C caused grievous bodily harm and at court gave a "dock brief" to a barrister D. C was convicted, but complained that D had not asked all the questions he had suggested, and had not challenged the prosecution's statement that the injuries were inflicted with a knife.

 

Held: C's civil action for negligence could not be sustained: a barrister's immunity was justified by public policy.

 

C lost

Comment: This case now overruled by Hall v Simons.

Ross v Caunters [1979] ChDiv Megarry VC

 

[Solicitors – duty to their clients]
D a solicitor prepared a will for a client and sent it to him for signature. D failed to warn the client that his signature should not be witnessed by the spouse of a beneficiary, and subsequently did not notice that this had actually happened.

 

Held: D liable to pay damages to the disappointed beneficiary.

Rougemont v Pilbrow (1999) CA

 

[Solicitors – relationship with legal executives]
D a client of C a firm of solicitors asked for an appointment but was seen by a woman who was neither a solicitor nor a qualified legal executive. D was not aware of this. D subsequently refused to pay C's bill.

 

Held: The advice D received had been up to the standard expected of a competent solicitor, but this was not enough. D had contracted for legal services provided by a solicitor which he did not receive, therefore C had failed to perform their contract.

 

D won

Saif Ali v Sydney Mitchell [1978] HL

 

[Barristers – immunity to suit – now overruled]
D a barrister gave negligent advice to C concerning as to who should be joined as defendant in a civil action.

 

Held: The immunity conferred by Rondel v Worsley extends to pre-trial work if and only if it is so intimately connected with the conduct of the case in court as to amount to a preliminary decision about it.

 

C won

Sally Clark The Times, 25th May 2001

 

[Solicitors – regulation by Law Society]
A solicitor convicted of murdering her two sons, was suspended indefinitely by the Solicitors' Disciplinary Tribunal after hearing her appeal on video from prison. It is believed to be the first time the tribunal had not struck off a solicitor for such a serious offence.

 

Subsequently Ms Clark was cleared of both murders by the Court of Appeal.

 

Thai Trading v Taylor (1998) CA

 

[Legal Aid – lawfulness of CFA’s]
C supplied a carved bed. D paid the deposit but no more, claiming the bed was unsatisfactory. C sued for the balance due. D counterclaimed for the return of her deposit. D was represented by a solicitor - her husband - on a "no win no fee" basis, and won. C appealed against the order for costs.

 

Held: Affirming the order, and distinguishing Wallersteiner v Moir there can be no objection to an arrangement whereby a solicitor agrees to forego his costs if he loses, as long as he does not seek to recover more than his ordinary profit costs and disbursements if he wins.

Wallersteiner v Moir (No.2) [1975] CA

 

[Lawyers earnings - position of CFA’s]
D defended a complex case for over 10 years. C had been refused legal aid because he stood to gain very little from the action, and had little money.

He sought s contingency fee arrangement with his lawyers.

 

Held; An arrangement whereby the lawyer is paid more for winning than for losing, is illegal as contrary to public policy. C's problems could be met by giving him an indemnity against the company for any costs not ultimately met by D.

 

White v Jones [1995] HL

 

[Solicitors – duty to their clients]
D a solicitor was asked to prepare a will, but negligently failed to do so before the testator died. Two claimants who should have received legacies under the will sued D in negligence.

 

Held: Had the error been discovered before the testator's death it could easily have been put right and (whether it was or not) no action would lie, but here there was no one else able to take action.

 

D lost

Wintle v Nye [1959] HL

 

[Solicitors – relationship with clients]
D a solicitor received more than £100,000 under a complex will he had prepared for an elderly lady.

 

Held: While there was no law preventing such a thing, it created a grave suspicion. D was under an exceptionally heavy burden of proof - which he had not met - to show that he had not unduly influenced the testatrix.

 

The will was set aside.

 

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