Law of Ethics Notes 2012-2013

ETHICS, RIGHTS & OBLIGATIONS OF THE LEGAL PROFESSION 2012-2013
COUNCIL OF LEGAL EDUCATION

NORMAN MANLEY LAW SCHOOL
COURSE:
ETHICS, RIGHTS AND
OBLIGATIONS OF THE
LEGAL PROFESSION
(LECTURE NOTES)
ACADEMIC YEAR :
2012/2013
DISCLAIMER: These notes have been edited, modified and formatted from the original
work of Yvette Brown et al and I am indebted to them for their assiduousness.
COURSE DIRECTOR:
Dr. SHAZEEDA ALI
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COURSE OUTLINE:
GENERAL INTRODUCTION
General Points
1. Ethics and morality are not synonymous
2. Ethics are principles e.g. duty of confidentiality, legal professional privilege, conflict
of interest.
3. Conflict of Interest - Attorney representing 2 clients who have opposing interests.
How can you represent one without compromising the interest of the other?
4. Rights – an interest protected by law. Rights of the lawyer comes from Legal
Profession Act, Canons, client instructions.
5. Rights of attorney derived from the retainer. Those rights include
fees/remuneration. Right to fees, right to be compensated for work done.
6. With every right comes responsibility – benefit
7. What is an obligation ? - duty to client, to court. Something that one must do based
on the law or the agreement between yourself and your client.
8. Standards are set from retainer i.e. contract between attorney and client.
9. Possibilities of contractual suits to be brought against attorney for breach of
contract, can be sued for negligence.
10. Legal Profession Act
 Canons/ codes of professional ethics. (terminology varies according to
jurisdiction) These are based on the legal profession act. Also common
law. Read cases.
 Professional Regulatory Body – General Legal Council in Jamaica. They
get their guidance from the canons of professional ethics. They can
impose reprimand, disbar, suspension, etc.
WORKSHEET 1:
FUNDAMENTAL PRINCIPLES AND HISTORICAL BACKGROUND
(not examinable)
1. The profession ought to be seen as a noble one.

2. Should a lawyer be concerned with truth and justice.
3. There is a duty to clients and to the profession.
4. Duty of lawyer not to misquote the law and not to raise clients expectations.
5. The profession punishes members who breach duties.
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6. USA survey – public perception of lawyers 3/5% says lawyers greedy, 1/5% says
lawyers honest and caring, ethical, compassionate.
7. USA survey – public perception 3/4% says USA has too many lawyers.
8. Limited advertising permitted in some jurisdictions and in other jurisdictions no
advertising permitted.
9. Solicitor/ Barrister dichotomy.
10. Wooding Commission (1960’s)
- Looked into future
- Created indigenous profession
- Establishment of UWI Law faculty
- Council of Legal Education
- Creation of Law schools
- Fusion of legal profession, now attorney at law
11. Establishment of CCJ : two jurisdictions i) appellate (right of audience for regional
lawyers), ii) original
Court facilitates growth and jobs for Caribbean lawyers and specialist lawyers from the
region and the commonwealth.
GENERAL NOTES
The Legal Profession Act Jamaica governs and regulates law and practice in respect
of the legal profession in Jamaica.
The ethical standards of the legal profession are regulated by a Canon of Ethics
under the Legal Profession Act.
Note also that there are common law principles enunciated in the case law.
Meaning of words and phrases: Attorney-at-law includes – attorney, barrister,

solicitor, counsel, advocate and registered associate.
HISTORICAL BACKGROUND
Historical background - there was no organised system of legal education in the
Caribbean prior to 1970.
Barristers
a. In order to be admitted to practise as a barrister locally one was required to
attend one of four Inns of Courts established by the British Council of Legal
Education. Although the Inns provided professional training, academic
qualifications were not a pre-requisite for entering the Inns of Court.
b. Indeed up to the late 1960s the policy of the Inns was to admit as students all
persons of good character and of educational attainments who in the opinion
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of the British Council of Legal Education made it likely that with proper
training they could become competent barristers.
c. In this regard, to be called to the Bar required the keeping of a certain
number of dinners in Hall in each term (there were four terms a year); and
the passing of the Bar examinations set by the Council of Legal Education.
Solicitors
a. Unlike barristers, persons who wished to qualify as solicitors could qualify by
sitting the examinations set by the Incorporated Law Society of England in
their home territory. The local training was very similar to that available in
England; a period of articling with a practicing solicitor of at least five years
standing and the sitting of preliminary, intermediate and final exams.
b. There were exemptions and reduced articles for graduates in law from UK
universities. In addition, bona fide clerks who had completed ten years in the
office of a legal practitioner were granted similar exemptions.
c. There were however two major drawbacks to qualifying locally i) the
examinations were English exams; thus the student articled clerks
proficiency in local practice was to a large extent untested; and ii) success
was largely dependent on the quality of the firm to which the student was
attached and the willingness of the more experienced solicitors to guide
young trainees.
d. These constraints or drawbacks were reflected in the shortage of solicitors in
most of the territories and the high failure rate for those persons attempting
the final solicitor’s exams locally.
Hugh Wooding Committee

It was against this background, that in 1963, the Wooding Committee had as its
mandate:
To consider and make recommendations to the Council as part of its service to the
West Indian Community and in light of its responsibilities for satisfying the
intellectual and professional needs of the West Indies of legal practitioners- with a
view to ensuring their admission to practise and right of audience before the Courts
of the West Indies.
Other factors which acted as a catalyst for the establishment of an indigenous

system of legal education included, the decision in 1967, by the British Council of
Legal Education:
i) to raise the entry requirements for overseas students to two passes
at GCE A Level at Grade C or its equivalent, where previously no
academic qualifications were required;
ii) cease to provide any training for Part 1 of the Bar Exams.
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Establishment of the Council of Legal Education in the West Indies

a) Establish a Faculty of Law to serve the region and to be sited at Cave Hill
Campus, Barbados.
b) Establish two professional law schools, Hugh Wooding Law School
(Trinidad), Norman Manley Law School (Jamaica). In 1998 Eugene Dupoch
(Bahamas) was established.
Implementation of Recommendations
a) In 1969 the Council of the University of the West Indies agreed to the
introduction of an indigenous system of legal education in keeping with the
recommendations made by the Wooding Committee.
b) Council of Legal Education established 1971.
FUSION
Wooding Committee considered whether the profession should be fused. The
Committee noted the following points in support of fusion.
i. qualification requirement for both branches of law were substantially the
same.
ii. There was great deal in common between what a barrister did in everyday
professional life and what a solicitor did in jurisdictions where there was no
fusion.
iii. Both branches of the law, in the course of their respective qualifying
examinations, did many subjects in common, i.e. constitutional law, law of
contract, law of tort, criminal law, land law, company law and family law.
iv. The comparatively low cost involved in training a merged profession as
opposed to funding the cost for two separate training regimes.
The Legal Profession Act in Jamaica fused both branches of the legal profession
CASES
AG of Gambia v N’jie [1961] 2 All ER 504
In June, 1958, in the course of giving judgment in a civil suit in the Gambia, the chief
justice of the Gambia criticised severely certain conduct of the respondent, a member of
the English Bar who was admitted to practise as a barrister and solicitor of the Supreme
Court of the Gambia. As a result, the appellant, the Attorney General of the Gambia,
served a notice of motion on the respondent asking for an inquiry to be made by the chief
justice into allegations of professional misconduct against the respondent and for his
name to be struck off the roll of court. The motion came on for hearing before the chief
justice, but, at the request of counsel representing the respondent, he agreed to
recommend that someone other than himself should be appointed as a deputy judge and
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to exercise all the powers vested in the chief justice. The governor appointed a deputy
judge of the Gambia and the hearing of the inquiry was fixed, with the apparent
concurrence of the respondent. The respondent later sought by various means to get the
hearing adjourned, but his objections were overruled and the inquiry was held in his
absence by the deputy judge, who found eight out of the nine allegations against the
respondent established and ordered that his name be struck off the roll. By s 4 of the
Gambia Supreme Court Ordinance, the Supreme Court of the Gambia, is to “consist of and
shall be held by and before a judge to be appointed by the governor”. By s 7a it is lawful
for the governor to appoint a deputy judge to represent the judge of the Supreme Court
“in the exercise of his judicial powers” and such judge is to “exercise all the judicial
powers of the judge of the Supreme Court”. On appeal by the respondent to the West
African Court of Appeal, that court set aside the order of the deputy judge on the ground
that he had jurisdiction to represent the chief justice only “in the exercise of his judicial
powers” and that the power to strike a legal practitioner off the roll was not a judicial
power. By s 5 of the West African (Appeal to Privy Council) Order in Council, 1949b,
applications to the West African Court of Appeal for leave to appeal are to be made by
motion or petition within twenty-one days from the date of the judgment to be appealed
from, and the applicant is to give the opposite party notice of his intended application.
The appellant sought leave to appeal to Her Majesty in Council, but the West African
Court of Appeal refused leave on the ground that notice had not been given to the
respondent within the twenty-one days. Her Majesty in Council later granted leave to
appeal, on petition by the appellant under s 31 of the West African (Appeal to Privy
Council) Order in Council, 1949c, whereby nothing is to interfere with the right of Her
Majesty in Council on the petition of “any person aggrieved” by any judgment of the court
to admit his appeal there from. Liberty was expressly reserved to the respondent to raise
on the appeal the preliminary point that no appeal lay at the instance of the appellant, on
the ground that he had no locus standi because he was not a “person aggrieved.”
Held – (i) the appellant was a “person aggrieved” for those were words of wide import
and included a person who had a genuine grievance in that an order had been made
which prejudicially affected his interest; in the present case, the appellant represented
the Crown as the guardian of the public interest and he had a sufficient interest, when a
court reversed (on a ground touching the public interest) a decision that a barrister or
solicitor had been guilty of professional misconduct (as distinct from a decision of
acquittal), to constitute him a person aggrieved within s 31 of the Order in Council of
1949 (see p 511, letters a to d, post). Dictum of James LJ, in Re Sidebotham, Ex p
Sidebotham ((1880), 14 ChD at p 465) explained. (ii) although judges exercising
jurisdiction to suspend a legal practitioner from practising or to strike his name off a
court roll do not sit as a court of law but are acting as a disciplinary authority, yet in the
context of s 7 of the Gambia Supreme Court Ordinance the judge exercised judicial
powers when he was exercising disciplinary powers that were properly appurtenant to
the office of judge (see p 509, letter e, and p 510, letter c, post); accordingly, the deputy
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judge had power to make the order striking the respondent's name off the roll of court.
(iii) on the true construction of s 5 of the West African (Appeal to Privy Council) Order in
Council, 1949, its requirements were that the notice of the motion or petition must be
lodged with the court within twenty-one days from the date of the judgement appealed
from, and that a copy must be served on the opposite party as soon as possible and in any
case a reasonable time before the date of the hearing. Appeals allowed.
Lopes v Adams et al (1965) 9 WIR 183

The two defendants were the plaintiff's counsel and solicitor respectively in an
opposition action brought by the plaintiff which was dismissed. The plaintiff then gave
the first-named defendant instructions to prosecute an appeal on his behalf and paid him
a sum of money, part of which was intended to cover disbursements that might have been
incurred incidental to the appeal. The notice of appeal was not filed within the prescribed
time. Subsequently, several abortive attempts were made to obtain leave to appeal out of
time, resulting in the plaintiff being mulcted in costs. Upon the plaintiff bringing an action
against the defendants for negligence.
Held: (i) that the acceptance of fees (including disbursements) by a barrister in a matter
where he is required by law to be instructed by a solicitor does not constitute practising
as a solicitor; (ii) that a barrister who is instructed by a solicitor may not be sued unless
he acted dishonestly in the conduct of his client's case. Per Curiam: “It is highly desirable
… for legal practitioners to keep their respective establishments separate and apart and
distinct from each other; although I can see no valid objection to their sharing separate
accommodation under the same roof, they should not employ common clerks, for the
reason that a barrister remains a barrister and should have his own staff, even though he
is permitted to practise as a solicitor. He cannot enter into a partnership with anyone, not
even a solicitor.'
Re Sinanan (1964) 7 WIR 93

The Attorney-General moved the court for an order that ABS, a barristerat-law, be struck
off the roll of barristers entitled to practise in Trinidad and Tobago on the ground that he
was totally unfit to continue to do so by reason of his conviction of the offence of
fraudulent conversion. It was objected that the judges of the Supreme Court had no
jurisdiction to prohibit or suspend a barrister from practice or, if they ever had, that they
had denuded themselves of the right to exercise it. Held: (i) the judges of the Supreme
Court have long been entitled and empowered to admit barristers to practise in Trinidad
and Tobago and incidental thereto to suspend or prohibit them from so practising. R v
Gray's Inn ((1780) 1 Doug KB 353, 99 ER 227, 3 Digest (Repl) 351 3) applied; A-G of the
Gambia v N'jie ([1961] 2 All ER 504, [1961] AC 617, [1961] 2 WLR 845, 105 Sol Jo 421,
PC, 43 Digest (Repl) 430, 4552) explained and applied; (ii) the fact that the judges of the
Supreme Court had never themselves sought, or been invited in the past to exercise, any
disciplinary power over barristers, did not denude them of the right and power so to do;
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(iii) the barrister should be prohibited from practising in Trinidad and Tobago and his
name struck off the roll of barristers of the Supreme Court. Order accordingly. Per
Curiam: “Now that the disciplinary jurisdiction of the judges of the Supreme Court has
been definitively established, we think it appropriate that the procedure for invoking that
jurisdiction should be clearly prescribed. Our preference would be for legislation to be
enacted such as has for the last seventy years been in force with respect to solicitors, the
precise terms of any such enactment to be finally determined however only after due
consulation with representatives of the Bar. But in the meantime we think that rules of
court should be promulgated which will provide for any complaint against a barrister to
be addressed to and investigated by a committee to be appointed from the Bar by the
Chief Justice with the concurrence of the judges to the end that the jurisdiction may not
be invoked unless and until the committee considers that a case has been made out such
as may warrant some disciplinary sanction”.
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WORKSHEET 2:
ATTORNEY/CLIENT RELATIONSHIP (PART ONE)
FORMALITIES OF THE RETAINER
The Attorney Client relationship is a contract. In addition, the attorney owes a duty of care
to the client.
General rule: no general retainer

*Saffron Walden Second Benefit Society v Rayner (1880) 14 Ch.D.406
 . a separate retainer for each matter
The Plaintiffs took a mortgage of a reversionary share in a testator's estate, and gave
notice of the incumbrance to a firm of solicitors who were acting for the trustees and
executors in a Chancery suit to which the testator had been a party, and were employed
by them in all matters relating to the testator's estate in which professional assistance
was required. The solicitors wrote accepting the notice on behalf of the trustees. A
member of the firm deposed that at the close of a meeting held at his office two months
afterwards, with reference to the winding-up of the Chancery suit, and lasting above
three hours, the notice was read to the trustees. Two of the trustees positively denied
this, and the third denied all recollection of it. There was no further proof of their
having received notice of it until after notices of other incumbrances had been duly
given to them:—
Held, by the Court of Appeal, reversing the decision of Bacon , V.C., that notice to the
solicitors was not good notice to the trustees.
Held, further, that evidence of parol notice having been given to the trustees in the
course of conversation at the end of a meeting called upon other business, could not
be relied upon as fixing the trustees with notice in opposition to their denial of
having received it.
Held, that the solicitors in accepting service of the notice on behalf of the trustees
were not guilty of a misrepresentation of fact for which they could be made liable,
but were acting under an opinion common to both parties, but which was erroneous
in point of law, that their employment as solicitors enabled them effectually to
accept service of the notice.
James LJ
“I have had occasion several times to express my opinion about the fallacy of supposing
that there is such a thing as the office of solicitor, that is to say, that a man has got a
solicitor not as a person whom he is employing to do some particular business for him,
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either conveyancing, scrivening, or conducting an action, but as an official solicitor,

and that because the solicitor has been in the habit of acting for him, or been employed
to do something for him, that solicitor is his agent to bind him by anything he says, or
to bind him by receiving notices or information. There is no such officer known to the
law. A man has no more a solicitor in that sense than he has an accountant, or a baker,
or butcher. A person is a man's accountant, or baker, or butcher, when the man
chooses to employ him or deal with him, and the solicitor is his solicitor when he
chooses to employ him and in the matter in which he is so employed. Beyond that the
solicitorship does not extend, and a man is not an agent for the purpose of receiving
notice of an incumbrance created by a cestui que trust because he was the solicitor
employed to invest the moneys, or even because afterwards he, for convenience,
received from the mortgagor the interest and handed it by direction of the trustees to
the different persons entitled to receive it.”
Groom v Crocker [1939] 1 KB 194

 Attorney is said to owe a simultaneous duty in contract and tort.
Groom v Crocker [1939] 1 KB 194:

On 11 August 1934, a motor car driven by respondent, in which his brother was a
passenger, collided with a lorry belonging to T Brothers, whose driver was solely to blame.
The brother brought an action against T Brothers and respondent alleging negligence
against both defendants. Respondent was insured against third-party risks with the F
Society, condition 2 of the policy being that the F Society, if it so desired, was to have
absolute conduct and control of any proceedings brought against the assured. Respondent
handed the writ and statement of claim in the brother’s action to the agent of the F Society
to deal with. T Brothers were insured with the M Company, and that company and the F
Society agreed that their total liability in the brother’s action and in another action (with
which respondent was in no way concerned) should be borne by them in equal shares. To
carry out that agreement appellants (who were the F Society’s solicitors) on the
instructions of the F Society delivered a defence on behalf of respondent admitting
negligence. They enclosed the defence in a letter to the brother’s solicitors stating that
respondent admitted negligence. Both appellants and the F Society knew that respondent
had not been guilty of negligence. Respondent was not informed of the delivery of the
defence and did not learn of it until after judgment had been given against him in the
brother’s action. Judgment was given against respondent in the brother’s action for £1,132
12s 10d, which was paid by the F Society.
Respondent brought the present action against appellants claiming damages for breach of
duty as his solicitors, alternatively in contract and in tort and damages for libel. It was not
disputed that the relationship of appellants to respondent was that of solicitor and client.
The jury awarded to respondent £1,000 damages for breach of duty and £1,000 damages
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for libel. Hawke J, then gave judgment for respondent for the two sums of £1,000 and the
£1,132 12s 10d awarded against respondent in the brother’s action:
Held (1) the F Society were not entitled under the policy to require respondent to admit
negligence; (2) appellants in admitting negligence by respondent acted in breach of their
contractual duty to him as his solicitors; (3) as the F Society had paid the £1,132 12s 10d
awarded against respondent in the brother’s action, respondent had suffered no loss on
that account by reason of appellants’ breach of their contractual duty, and the £1,132 12s
10d was not recoverable by respondent; (4) the mutual rights and duties of a solicitor and
his client are regulated by the contract of employment, and appellants were not liable to
respondent in tort; (5) as the cause of action was in contract no damages could be
recovered by respondent on account of injury to his reputation or feelings, and as no
special damage had been proved, the £1,000 damages awarded by the jury for breach of
duty must be reduced to 40s; (6) there was evidence to support the finding of the jury that
appellants’ letter admitting negligence was written with malice or indirect motive, and the
£1,000 damages awarded for the libel were not excessive; (7) (by Scott LJ) the occasion on
which the letter admitting negligence was written was not privileged.
*Midland Bank Trust Co. Ltd. V Hett, Stubbs & Kemp [1978] 3 All ER 571
 Essentially held that there was no rule which should confine the lawyer’s duty to his
client to a retainer.
W owned a farm which he let to his son G. In 1961 W agreed to give G an option to purchase
in the freehold reversion of the farm at a stated price at any time during the next 10 years.
W and G went together to the firm of solicitors who had acted for them both for many years
and there saw A, the senior partner, who drew up a formal agreement dated 24 March
1961 embody ing the terms of the option which W signed. A kept the option in custody for
G and opened a file on it but failed to register it as an estate contract under Land Charges
Act 1925. In June 1967 G consulted the solicitors about the possibility of exercising the
option and the solicitors instructed counsel to advise when G should exercise it. However
no check was made to see whether the option had been registered. On 17 August 1967 W
conveyed the farm to his wife. In October 1967 G attempted to exercise the option and
found out for the first time that the option had never been registered and that the farm had
in the meantime been sold. After bringing an action which later proved unsuccessful
against W’s wife for specific performance, G issued a writ on 21 July 1972 against the
solicitors for damages for breach of their professional duties. Before the action G died and
plaintiffs took over the action as his executors. The solicitors contended that their failure to
register the option within a reasonable time of 24 March 1961 was a breach of contract
only and any action against them in respect of events occurring prior to the
commencement of the limitation period on 21 July 1966 was barred by Limitation Act
1939. It was contended by plaintiffs (1) that the solicitors were employed on a general
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retainer by G and therefore, when they were consulted by G in June 1967, they were under
a duty to consider whether the option had been registered, (2) that the solicitors were
liable in tort and the cause of action in tort was not complete until the damage was
sustained in August 1967, ie within the limitation period, and (3) that, if the solicitors were
liable only in contract, nevertheless their breach of contract was the non-performance of
their obligation to register the option before the third party acquired an interest in the land
in August 1967, ie within the limitation period:
Held (1) the solicitors were not liable under the general retainer since the extent of a
solicitor’s duties to his client depended on the terms and limits of his retainer. There was
no such thing as a ‘general retainer’ of a solicitor in the sense of a solicitor being under a
duty to consider all aspects of his client’s interests generally when consulted by the client
about a particular aspect of a problem. Therefore when in June 1967 the solicitors had been
consulted about the exercise of the option they were not under a duty to consider at the
same time its registration and enforceability. Thus nothing had occurred within the
limitation period to impose on the solicitors a fresh duty of care to G; (2) the solicitors were
however liable to plaintiffs in tort because under the general law the relationship of
solicitor and client gave rise to a duty on a solicitor to exercise that care and skill on which
he knew that his client would rely, and to a duty not to injure his client by failing to do that
which he had undertaken to do and which, at the solicitor’s invitation, the client had relied
on him to do. Furthermore, there was no rule of law which confined a solicitor’s duty to his
client under his retainer to a contractual duty alone; nor was there any rule of law which
precluded a claim in tort for breach of a duty to use reasonable care and skill if there was a
parallel contractual duty of care. The solicitors, in failing to register the option, had
admittedly been in breach of their duty to exercise reasonable care and skill, and plaintiffs
had a cause of action in tort against them in respect of their breach of duty to G, the cause of
action having arisen when the damage occurred on 17 August 1967. Accordingly plaintiffs’
claim in tort was not barred by the 1939 Act and therefore succeeded; (3) furthermore,
even if the duty owed by the solicitors to G was only contractual in nature, because the
solicitors had never treated themselves as functi officio in relation to the option, that duty
was a continuing duty to register the option before a third party acquired an interest in the
land, ie it continued until 17 August 1967 when it became impossible to perform. It was at
that date that the contract was broken and, accordingly, plaintiffs’ claim in contract was
also not barred by the 1939 Act and therefore succeeded.
Per curiam: the principle enunciated in Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465 of tortious negligence arising out of a special relationship is a general
principle and is not confined in its operation to voluntary or non-contractual relationships.
The enquiry on which the court should embark when deciding whether or not the principle
applies is ‘what is the relationship between plaintiff and defendant?’ and not ‘how did the
relationship (if any) arise’? Nor is the operation of the principle confined to cases where
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the service undertaken takes the form of a representation or statement of fact or opinion,
or of advice. Logically it applies where the service involves some other positive action such
as the giving of a notice, and once the duty is established it cannot matter whether the
breach takes the form of malfeasance or nonfeasance.
*Hedley Byrne & Co. Ltd. v Heller & Partners Ltd [1963] 2 All ER 575: deals with
negligent misstatement. To hold the attorney liable is basically a principle established in
Hedley Byrne.
Hedley Byrne & Co. Ltd. v Heller & Partners Ltd [1963] 2 All ER 575
If, in the ordinary course of business or professional affairs, a person seeks
information or advice from another, who is not under contractual or fiduciary
obligation to give the information or advice, in circumstances in which a
reasonable man so asked would know that he was being trusted, or that his skill or
judgment was being relied on, and the person asked chooses to give the
information or advice without clearly so qualifying his answer as to show that he
does not accept responsibility, then the person replying accepts a legal duty to
exercise such care as the circumstances require in making his reply; and for a
failure to exercise that care an action for negligence will lie if damage results .
A bank inquired by telephone of the respondent merchant bankers concerning the
financial position of a customer for whom the respondents were bankers. The
bank said that they wanted to know in confidence and without responsibility on
the part of the respondents, the respectability and standing of E Ltd and whether E
Ltd would be good for an advertising contract for £8,000 to £9,000. Some months
later the bank wrote to the respondents asking in confidence the respondents'
opinion of the respectability and standing of E Ltd by stating whether the
respondents considered E Ltd trustworthy, in the way of business, to the extent of
£100,000 per annum. The respondents' replies to the effect that E Ltd was
respectably constituted and considered good for its normal business engagements
were communicated to the bank's customers, the appellants. Relying on these
replies the appellants, who were advertising agents, placed orders for advertising
time and space for E Ltd on which orders the appellants assumed personal
responsibility for payment to the television and newspaper companies concerned.
E Ltd went into liquidation and the appellants lost over £17,000 on the advertising
contracts. The appellants sued the respondents for the amount of the loss, alleging
that the respondents' replies to the bank's inquiries were given negligently, in the
sense of misjudgment, by making a statement which gave a false impression as to
E Ltd's credit. Negligence was found at the trial and contested on appeal; the
appeal was determined, however, on the assumption that there had been
negligence, but without deciding whether there had or had not been negligence.
Held – Although in the present case, but for the respondents' disclaimer, the
circumstances might have given rise to a duty of care on their part, yet their
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disclaimer of responsibility for their replies on the occasion of the first inquiry
was adequate to exclude the assumption by them of a legal duty of care, with the
consequence that they were not liable in negligence. Robinson v National Bank of
Scotland (1916 SC (HL) 154) applied. Semble (per Lord Reid, Lord Morris Of
Borth-Y-Gest and Lord Hodson) in the absence of special circumstances requiring
particular search and consideration on the part of a bank giving to another bank a
reference concerning a customer's credit-worthiness there is no legal duty on the
replying bank beyond that of giving an honest answer. Decision of the Court of
Appeal ([1961] 3 All ER 891) affirmed, but not on the same ground.
It may be convenient to summarise here the characteristics principally

distinguishing this case from other actions for negligence, namely, that it was an
action for negligence in word, not deed, causing financial loss, not physical
damage, and to mention, by way of distinction, some other causes of action (apart
from defamation) on which liability in damages for misstatement may be founded,
viz, breach of contract or fiduciary relation and fraud. The present decision shows
that a duty to exercise proper care may arise either out of special relationship of a
general character, eg, the relation of solicitor and client or of banker and customer,
or out of a particular relationship created ad hoc.
The retainer in the contract specifies the nature of the services provided by the attorney
and the cost for such services. The obligations that are derived from the retainer and
imposed on the attorney:
1. Express terms - those expressly agreed upon when the retainer was constituted
or subsequently varied by mutual consent, in other words, express terms.
2. Implied terms – those which the law will imply in the particular circumstances.
3. Those expressly imposed by law as being applicable to a particular retainer.
In terms of formalities, a retainer is a contract; it could be in writing or oral. Generally

speaking there is no requirement for a retainer to be in writing, for example in Jamaica,
section 21 of the Legal Profession Act does not require that it be in writing. However, it
is prudent and recommended to do so.
If the retainer is not in writing and there is a conflict between attorney and client, the court
will favour the client based on the contra preferentem rule .
Definition of Contra Preferentem Rule : Contra Proferentem is a Latin term which

means “against the offeror.” It refers to a standard in contract law which states that
if a clause in a contract appears to be ambiguous, it should be interpreted against
the interests of the person who insisted that the clause be included. This usually
comes up when a contract is challenged in court. If the court reviews a contract and
Page 14 of 211
finds that a clause is ambiguous or could have more than one meaning, it determines
which party wanted that clause included and interprets in favor of the other party.
However the contra proferentem doctrine has no application when both parties are
involved in the wording and the inclusion of the ambiguous clause in the contract.
Contra Proferentem Doctrine is also known as Ambiguity doctrine.
See the case of Griffiths v Evans [1953] 2 All ER 1364.
*Griffiths v Evans [1953] 2 All ER 1364

On 3 February 1947, a workman, in the course of his employment, suffered injuries
to his foot and leg caused by the breaking of the wire rope of a lift. Thereafter, his
employers made him weekly payments of compensation under the Workmen's
Compensation Acts, 1925 to 1943. In or about March or April, 1947, the workman
consulted a solicitor professionally to advise him in respect of the accident. The
solicitor took the view that he was being asked only to advise as to the amount of
the compensation under the Workmen's Compensation Acts, 1925 to 1943, and he
subsequently claimed compensation on the basis of the partial incapacity of the
workman and entered into negotiations for a lump sum payment in settlement. The
workman was dissatisfied with the result of the negotiations, and consulted other
solicitors. The workman now claimed that the solicitor was negligent in not
advising him as to his rights at common law.
Held – Denning LJ dissentiente). It could not be said that the solicitor, being asked
to advise specifically on compensation under the statutes, was negligent in not
advising as to common law rights.
Per Denning LJ: a claim to compensation under the Workmen's Compensation Acts,
1925 to 1943, made by a solicitor on behalf of a workman constitutes an election
by the workman under s 29(1) of the Act of 1925 so as to preclude a claim at
common law, even though the solicitor has not informed the workman of his
possible alternative remedy at common law.
The documents which attorneys usually present to their client for signature for retainer is
sometimes referred to as a “letter of engagement.” Letters of Engagement sets out the basis
of the relationship and the obligations of both parties:
 It defines the scope of the relationship, sets out what the attorney will and will not
do on behalf of the client.
 It should identify the kinds of information or documents that you may need from
your client, when you need it.
 Sets out the scope of work.
 Fees payable to the attorney, any charges for instance the cost of litigation.
 Identify the team members i.e. all the attorneys working on the case.
 Provide contact information.
Page 15 of 211
 Billing arrangements, when fees will be billed and payable.

 A Letter of Agreement can sometimes be several pages long.
If you engage a client early and there is no letter of engagement then the terms may not be
clear. Another reason to put everything in writing particularly when it comes to litigation
matters has to do with the attorney acting within the scope of their authority. When acting
for a client, an attorney must have the actual express authority of the client to do so.
Otherwise, the attorney may find himself personally liable for costs (may not just be your
client’s cost but perhaps the cost of the other party as well).
A client can ratify if he did not initially authorise the attorney to proceed with litigation but
agrees later. Words of ratification must be clear.
*Danish Mercantile v Beaumont [1951] 1 All ER 925; Young v Toynbee [1910] 1 KB

215 – are cases dealing with the implications for the attorney acting without authority.
*Danish Mercantile v Beaumont [1951] 1 All ER 925

A solicitor who starts proceedings in the name of a company without verifying
whether he has proper authority to do so, or under an erroneous assumption as to
the authority, does so at his peril, and, so long as the matter rests there, the action
is not properly constituted. In that sense it is a nullity and can be stayed at any
time, providing the aggrieved defendant does not unduly delay his application, but
it is open at any time to the purported plaintiff to ratify the act of the solicitor who
started the action, to adopt the proceedings, and to instruct him to continue them.
When that has been done, then, in accordance with the ordinary law of principal
and agent and the ordinary doctrine of ratification, the defect in the proceedings
as originally constituted is cured, and it is no longer open to the defendant to
object on the ground that the proceedings thus ratified and adopted were in the
first instance brought without proper authority. So held where an action had been
started in the name of a company without its authority, and later the company
went into liquidation and the liquidator adopted the proceedings on behalf of the
company.
*Young v Toynbee [1910] 1 KB 21

Where an authority given to an agent has, without his knowledge, been
determined by the death or lunacy of the principal, and, subsequently, the agent
has, in the belief that he was acting in pursuance thereof, made a contract or
transacted some business, with another person, representing that, in so doing, he
was acting on behalf of the principal, the agent is liable, as having impliedly
warranted the existence of the authority which he assumed to exercise, to that
other person, in respect of damage occasioned to him by reason of the non-
Page 16 of 211
existence of that authority. Solicitors were instructed by a client to conduct his

defence to an action which was then threatened and was afterwards commenced
against him. Before the commencement of the action the client became, and was
certified as being, of unsound mind. In ignorance of his unsoundness of mind, and
of his having been so certified, the solicitors entered an appearance for him in the
action, and delivered a defence, to which the plaintiff replied, and other
interlocutory proceedings took place in the action. Subsequently, the action not
then having come to trial, the plaintiff's solicitor was informed that the defendant
had been certified as being of unsound mind; and an application was made on
behalf of the plaintiff at chambers for an order that the appearance and all
subsequent proceedings in the action should be struck out, and that the solicitors
who had assumed to act for the defendant should be ordered personally to pay the
plaintiff's costs of the action up to date, on the ground that they had so acted
without authority. The Master made an order that the appearance and subsequent
proceedings in the action should be struck out, but refused to make an order for
payment of the plaintiff's costs by the solicitors personally, which refusal was on
appeal affirmed by the judge at chambers. The plaintiff having appealed to the
Court of Appeal:- Held - (1.) (by Buckley L.J. and Swinfen Eady J.) that the appeal
was on a matter of practice and procedure within the meaning of the Judicature
Act, 1894, s. 1, sub-s. 4, and, therefore, the appeal lay direct to the Court of Appeal,
and not to the Divisional Court; (2.) (by Vaughan Williams L.J., Buckley L.J., and
Swinfen Eady J., Vaughan Williams L.J. doubting), that the solicitors who had taken
on themselves to act for the defendant in the action had thereby impliedly
warranted that they had authority to do so, and therefore were liable personally to
pay the plaintiff's costs of the action.
Page 17 of 211
WORKSHEET 3:
ATTORNEY/CLIENT RELATIONSHIP (PART TWO)
RETAINER: DURATION AND TERMINATION OF THE RETAINER
Worksheet 3 is a continuation of discussion on retainer.
There has been a traditional distinction between contracts relating to the retainer.
The two categories are those described as
i) entire contracts
ii) non entire contracts.
Entire contracts
This refers to situations where an attorney accepts the retainer to carry on or defend a suit
or to do any kind of business for the client where the intention is that he is not entitled to
be paid until the completion of the assignment. Therefore if the matter is litigated an
attorney would not be entitled to fees until a judgment has been entered. However an
attorney would be entitled to recover out-of-pocket expenses incurred. It is therefore very
important from the outset to make a distinction between fees and expenses.
There could be an arrangement whereby you have a periodical fee arrangement with the
client, which means you are entitled to payments along the way periodically. If you have
such an arrangement, meaning your retainer expressly states when you will be paid, then
that overrides the general principle of entire contract where you would not get paid until
the end of the matter. The exception is that if there is litigation you would be allowed to
receive reimbursement for expenses but not for your fees.
This came about usually in common law cases where matters historically were said to be
simple more straightforward and did not take a long time to be determined, and as such it
was not difficult for solicitors to wait for fees.
But in matters which involved equity where cases were more complex and took a longer
time that rule (general rule of waiting until completion) did not prevail.
*Underwood and Piper v Lewis [1894] 2 QB 306: The contract of a solicitor

who accepts a retainer in a common law action is, in the absence of agreement to
the contrary, an entire contract to conduct the case of the client until the action is
finished. He is not entitled, therefore, without good cause, on giving reasonable
notice to his client, to decline to act further in the action for him, and thereupon
sue for his costs in respect of the previous conduct of the client's case.
Page 18 of 211
*Re Hall & Barker (1878) 9 CD 538: The retainer and employment of a solicitor
in such a matter as a bankruptcy, an administration, or a winding-up, does not
constitute an entire contract so as to deprive the solicitor of his right to payment,
except for costs out of pocket, till the whole matter is completed, and successive
bills of costs in such a matter are not necessarily to be treated as one bill brought
down to the date of the latest delivery. Accordingly, where solicitors had been
retained to act for a trustee in bankruptcy, and also to protect the interests of S., a
creditor, who subsequently by arrangement with the other creditors took over the
bankrupt's estate, and they delivered a bill of costs up to a certain date, with an
intimation that there were then and would still be some further items, and
delivered a second bill of costs incurred after the date to which the first bill came
down, - on an application by S. to tax both bills, more than twelve months after the
delivery of the first:-Held, that they must be treated as separate bills, and that the
second bill only could be taxed.
Romer v Haslam [1893] 2 QB 286: Where a solicitor is retained to conduct

litigation, other than an ordinary action at common law, which may extend over a
considerable period of time, and in which breaks may occur of such a kind as to be
equivalent to the conclusion of a definite and distinct part of the proceedings, he
may deliver to his client a bill of costs for business done up to the occurrence of
any such breaks in the litigation, and demand payment. Where, however, in the
course of the proceedings several bills of costs have been sent in at different times
by the solicitor, it is always a question of fact whether they were sent in as final
bills for work done up to the occurrence of any such break in the litigation, so as
to be separate bills and therefore not liable to taxation after the lapse of twelve
months, or whether they were merely statements of account or portions of one
entire bill, so as to make the whole liable to taxation if the last part has been
delivered within twelve months of the application to tax. Semble, that the making
of an award and its remission to the arbitrator for reconsideration may be treated
as breaks in protracted arbitration proceedings, upon the occurrence of which the
solicitor may send in such a bill of costs to his client as to amount to a separate
bill. The handing by a client to his solicitor of a negotiable security for the amount
of his bill of costs, coupled with the giving of a receipt by the solicitor in which it is
expressed to be taken "in settlement" of his bill, does not amount to payment in
the event of the negotiable security being dishonoured, unless there be proof (the
onus of which lies on the solicitor) that such was at the time the intention of the
parties, and that the client was aware of the effect of the transaction upon his
right to tax the bill of costs. Where natural breaks between various stages of the
proceedings then attorney would be justified in presenting a bill where those
natural breaks occur. Entire contract also meant attorney not entitled to abandon
a matter as he sees fit. So can’t present a bill and can’t bail out.
Page 19 of 211
Where there is an entire contract it also means that an attorney was not entitled to
abandon a matter as he thought fit.
Non-entire contracts
This is where the attorney is engaged to prosecute or deal with a number of discrete
matters, separate and discrete matters, not usually in relation to litigation. Where you have
a non-entire contract an attorney is entitled to be paid as each piece of work is completed
and the client is getting the benefit of it. For example, this tends to arise more in
commercial matters e.g. building contracts where you may have to draft and negotiate
different contracts e.g. with financial institutions and with builder.
Payment is made where there is a natural break e.g. at the end of the case management
conference. The case of Warmington v McMurray [1937] 1 All ER 562 and Milner v Sons
v Percy Bilton [1966] 2 All ER 894 make the distinction between entire and non-entire.
*Warmington v McMurray [1937] 1 All ER 562 : The defendant had embarked

upon a variety of investments and transactions which were likely to result in
serious losses. She retained the plaintiffs generally to prosecute all such actions
and proceedings as might be necessary to get her out of her difficulties. Having
successfully prosecuted several matters the plaintiffs delivered a bill of costs. The
defendant, while offering to meet all disbursements in arbitration proceedings
which were then being prosecuted on her behalf, intimated that she could not pay
anything further. The plaintiffs then discharged themselves from their retainer
and delivered a second bill and brought this action upon both bills:—Held – this
was not a case of a solicitor retained to prosecute an action and no question of
entire contract arose. The retainer here was one to prosecute a variety of matters
and in such a case it was not reasonable that a solicitor should engage himself for
an indefinite time without payment. In this case the solicitor could upon
reasonable notice cease to act and sue for his costs. Notes: Even when a retainer
is entire the fact that the solicitor ceases to act for the client before the final
conclusion of the matter in which he was retained does not necessarily preclude
him from recovering his costs for work done. He can recover, where he discharges
himself, if his client refuses to supply the requisite funds for the prosecution of the
action or if the client conducts himself improperly. Here, however, the decision is
upon another ground, in that it is held that the retainer was a general one to get
the client generally out of her difficulties. In such a case there is no question of the
solicitor being bound to prosecute the matter to a conclusion before being able to
recover his costs. He may upon reasonable notice decline to proceed further with
the matter unless his costs are paid; in other words, he may discharge himself
from his retainer and sue for all his costs.
Page 20 of 211
Milner v Sons v Percy Bilton [1966] 2 All ER 894: Negotiations being in

progress between the defendants and others with a view to developing a London
building site through the medium of a building agreement and subsequent lease, a
partner in a firm of solicitors concerned, who had long acted for B, one of the
parties to the negotiations, wrote to the defendants on 11 March 1959, a letter
confirming the basis of agreement between the defendants and B. The letter
included the following paragraph—“May we please take this opportunity of
placing on record the understanding that all the legal work of and incidental to the
completion of the development and the grant of the leases shall be carried out by
us“. A letter of 12 March 1959, written in reply on behalf of the defendants,
included the following—“I see that you have tied up the legal work and, of course,
it has never been agreed and I do not like tying it up unless it has been agreed. I
am quite prepared, however, to accept it in relation to this particular property“. At
the time of the letter of 11 March 1959, there was no existing agreement, so the
court found, between the solicitors and the prospective client (the defendants) for
employment in legal business. The solicitors in fact transacted some legal work in
connexion with the development and with fringe properties. In 1962 the solicitors
enquired of the defendants whether they should call for a lease in pursuance of
the building agreement and as to the method of disposing of flats built on the site,
and the defendants replied that they had by then their own legal department and
were unable to instruct the solicitors. By further letter of 5 November 1962, the
defendants wrote to the solicitors saying that they had acquired B's interests in
1959 and had established their own legal department, and that it was desirable
that their legal work should be carried out by their own solicitor. The solicitors
brought an action against the defendants claiming damages for breach of contract
to employ them. Held – The claim for damages failed because — (i) the letters of
March, 1959, did not amount to a binding legal contract, but at most produced
confirmation on behalf of the defendants of a present intention to instruct the
solicitors to do legal work as and when it arose . (ii) even if, however, there were a
binding contract of retainer, it was a retainer for non-contentious business and
was not an entire contract; the defendants were entitled to terminate the retainer
at any time on giving notice to the solicitors, and had terminated it by their letters
in 1962.
Termination of retainer
This would depend in part whether you have an entire or non entire contract. Where you
have an entire contract usually you have to wait until it is completed unless the other party
(client) is in breach. Otherwise, you can only terminate before completion for good reason
and upon sufficient notice. See the case of Underwood and Piper v Lewis [1894] 2 QB
306.
Page 21 of 211
*Underwood and Piper v Lewis [1894] 2 QB 306

The contract of a solicitor who accepts a retainer in a common law action is, in the
absence of agreement to the contrary, an entire contract to conduct the case of the
client until the action is finished. He is not entitled, therefore, without good cause,
on giving reasonable notice to his client, to decline to act further in the action for
him, and thereupon sue for his costs in respect of the previous conduct of the
client's case
Note examples of a situation where an attorney would be justified in terminating a

contract:
a) Where the client refuses to fund certain disbursements or where the client insists on
the attorney taking some steps which are fraudulent.
b) Where the client’s conduct prevents the attorney from continuing to act in a proper and
lawful manner. However in such cases the attorney should give notice to the client that
he is not going to pursue the matter any further and the attorney would be entitled to
sue for costs already incurred including fees.
In the case of Richard Buxton (Solicitors) v Mills-Owen the English High Court confirmed
the doctrine of entire contract and stated that the solicitor could not sue for costs until the
contract had been entirely fulfilled. The Court held that the solicitor could not terminate
the retainer simply because he disagreed with the client’s instructions. He was not entitled
to costs because he had no just cause for terminating the retainer; see the judgment of
Justice McKay.
This case goes back to why your Letter of Agreement (retainer) has to be so specific. With
the entire contract generally you have the comparison between suits in equity (where an
attorney is allowed to sue for fees where there are natural breaks) and the material breach
doctrine. The same approach, it is suggested can be taken for common law suits which are
of a protracted nature and which can be divided into stages for purpose of payment of
costs.
*Richard Buxton (Solicitors) v Mills-Owen [2010] All ER (D) 242 (Feb)

The claimant firm of solicitors (the firm) was retained by the defendant to advise
upon and prosecute a statutory appeal. A term of the firm's terms of business was
that the firm could decide to cease acting for the defendant 'only with good
reason'. The firm terminated the retainer because the defendant insisted that the
claimant and counsel, who had been instructed in the case, should advance certain
points which neither the firm nor counsel considered to be properly arguable.
Following the termination of the retainer, the firm submitted its final fee account.
The fees were assessed by a costs master, who found that the firm should not
Page 22 of 211
have terminated the retainer but should have carried out the instructions of the
defendant even though it was of the view that 'such instructions were doomed to
disaster'. In the event, the master found that since it had been retained for the
entire business it was not entitled to recover any costs other than for
disbursements. The firm appealed. The judge dismissed the appeal, finding that
the firm was not entitled to terminate its retainer. He further found that it had
been an entire contract which could only be terminated for just cause; and that if a
client wanted a claim to be advanced on a particular basis which did not involve
impropriety on the part of the solicitor or counsel, it was no answer for the
solicitor to say that he believed that the claim, if so advanced, was bound to fail.
The firm appealed.
The issues were whether: (i) the firm was entitled to terminate its retainer; (ii)
the firm was entitled to its profit costs and disbursements up to the date of
termination. The appeal would be allowed. The cross-appeal would be dismissed.
(1) A retainer was an entire contract. A client instructed a solicitor as a skilled
person to act for him in the action, to take all necessary steps in it, and to carry it
on to the end. A solicitor might terminate his retainer before the end on
reasonable notice and if he had a reasonable ground for refusing to act further for
the client. It was wrong to restrict the circumstances in which a solicitor could
lawfully terminate his retainer to those in which he was instructed to do
something improper. Counsel might not draft any document containing a
contention which he did not consider to be properly arguable; and he might not
make any submission in court which he did not consider to be properly arguable.
If an advocate considered that a point was properly arguable, he should argue it
without reservation. If he did not consider it to be properly arguable, he should
refuse to argue it. In the instant case, the firm had been retained to institute and
take the statutory appeal to the end. The parties had agreed that the firm could
terminate 'only with good reason'. In the circumstances, the firm and counsel had
been right to consider points advanced by the defendant hopeless and not
properly arguable. On the evidence, therefore, the firm had had good reason to
terminate the retainer. Underwood, Son and Piper v Lewis [1891-4] All ER Rep
1203 applied. (2) It was settled law that where a solicitor terminated an entire
contract before completion and did so for good cause or on reasonable grounds,
subject to any provision contained in the agreement between the parties, he was
entitled to be paid for the work that he had done.
In all the circumstances of the instant case, the firm was entitled to be paid its
profit costs and disbursements for the work done prior to the termination.
Decision of Mackay J [2008] EWHC 1831 (QB) reversed.
Page 23 of 211
*Richard Buxton (Solicitors) v Mills-Owen [2008] EWHC 1831 (QB)

The claimant acted for the defendant in two planning matters. The claimant
advised the defendant that any appeal was bound to fail, yet the defendant failed
to accept the claimant's advice and was unequivocal as to how he wanted his case
to be presented. Prior to the statutory appeal to the Administrative Court, the
claimant came off the record. The defendant was obliged to unsuccessfully
represent himself. Subsequently, the claimant sought his costs of acting for the
defendant. The costs master held that the claimant should not have terminated his
retainer and, as he had failed to carry out his client's instructions, he was not
entitled to charge the defendant fees in the matter. The claimant appealed. He
contended, inter alia, that he had had good reason to terminate his retainer as the
defendant had issued instructions that were improper in the sense that they were
not properly arguable. Held – The appeal would be dismissed. Provided that a
solicitor had given clear advice to a client, that if the client wished to pursue a
case that the solicitor honestly believed was going to lose, the client was entitled
to instruct him to do so, absent any impropriety or misleading of the court. In the
instant case, the claimant had not been entitled to terminate his retainer. The
order made by the costs master had not been wrong in the circumstances in
which it had been made.
Where you have a non entire contract in the absence of a material breach by the
client the retainer may be terminated in a number of ways including:
1. Effluxion of time
2. Breach of contract by the client, for instance where the client fails to pay fees or
disbursement
3. Death of the client
4. Insanity of the client
5. Bankruptcy of the client
6. Termination by the client
7. Where the attorney has a good cause to terminate and gives reasonable notice. For
e.g. the client asks the attorney to do something unlawful or dishonourable.
Look at canons/codes to see the requirements in relation to termination where there is a

requirement for reasonable notice and termination for good cause. There is also a general
concept that where there has been a serious loss of confidence between the attorney and
client which goes to the basis of the relationship then the attorney will have a justified
cause for withdrawal. This really goes to situations where the client is not paying when he
should pay, or is asking the attorney to do something unlawful or dishonourable.
Page 24 of 211
Effects of termination
The effects of the termination means that the attorney can recover costs on quantum
meruit (Latin for “what one has earned”) basis, meaning for work done up to this point and
the client will be entitled to taxation of costs.
If the attorney terminates you may have some issues as relates to change of attorneys
where client needs to get a new attorney – Watts v official Solicitor [1936] 1 All ER 925.
Watts v official Solicitor [1936] 1 All ER 925

The Official Solicitor, on appointment to defend an action in place of a deceased
defendant, gave notice of change of solicitors and substituted his name for that of
the solicitors on the record as acting for the deceased defendant, who were also the
solicitors of the deceased's insurance company. On summons for directions issued
by the plaintiff, counsel for the solicitors moved the learned Judge to order that the
Official Solicitor should leave the control of the defence in the hands of the said
solicitors, and that they should remain on the record, and that the learned Judge
accordingly varied in this sense his original order appointing the Official Solicitor to
represent the deceased defendant. The Official Solicitor appealed:—Held – as the
Official Solicitor had the same right as any other litigant to choose who should be his
solicitor, and was entitled to act for himself, he was entitled to control the defence of
himself as representative of the deceased defendant and the change of solicitor on
the record was properly made, and the learned Judge had no jurisdiction to make
the variation complained of. Notes The difficulty here arises from the dual position
of the Official Solicitor. He may be both a party and a solicitor and thus acting as a
solicitor for himself. He is entitled either to act for himself or to employ another
solicitor or firm of solicitors to act for him. He has, therefore, a perfect right to act
for himself and he may, therefore, subject to giving the proper notices and providing
for costs if necessary, displace a solicitor previously acting in the matter. Under RSC
Ord XVI, r 46, the court may appoint a person to represent the interest of a
deceased's estate, which saves the expense of constituting a personal representative
and adding him as a party.
Notice of change of attorney must be filed and served. Also an attorney who has been
discharged by a client is entitled to a lien on the client’s documents until the fees have been
paid.
Where the attorney terminates, especially in litigation, the attorney should hand over the
documents to the client’s new attorney subject to an undertaking that the first attorney’s
lien would be preserved. If he does not hand over the documents the court could order him
to do so. It is not appropriate to hold on to documents in order to obtain fees. See the cases
of Gamlen Chemical Co. (UK) Ltd v Rochen Ltd [1980] 1 All ER 1049 and A v B [1984] 1
All ER 265.
Page 25 of 211
*Gamlen Chemical Co. (UK) Ltd v Rochen Ltd [1980] 1 All ER 1049
In 1974 a firm of solicitors accepted a retainer to represent the defendants in an
action. It was an express term of the retainer that the defendants would make
periodical payments on account of costs and they paid large sums for cost and
disbursements incurred up to 31 March 1978. In a letter dated 2 February 1979 the
solicitors put in a further bill for £21,000. The defendants protested that the bill was
excessive and although they paid part of it over £12,000 remained outstanding. The
solicitors gave several warnings to the defendants that they would apply to the
court to be removed from the record if the outstanding costs were not paid. On 25
June they wrote to the defendants giving notice of intention to apply to be removed
from the record and on the same day issued a summons under RSC Ord 67 r 6(1) for
an order declaring that they had ceased to be the defendants’ solicitors. In a letter
dated 3 July they stated that they would withdraw the summons if their outstanding
costs were paid but would otherwise proceed with the summons. On 9 July the
defendants instructed new solicitors and gave notice of change to the original
solicitors who in consequence withdrew their summons. On 24 July the judge, on a
motion by the defendants, ordered the original solicitors to deliver all the papers in
the action to the new solicitors (on the latter undertaking to hold them subject to
the original solicitors’ lien for costs) on the ground that the original solicitors had
discharged themselves from the action, and had not been discharged by the
defendants, and consequently the court was entitled to make a mandatory order
that they hand over the papers to the new solicitors, and the fact that under rule
6(1) they remained on the record was irrelevant. The original solicitors appealed
from the judge’s order contending, inter alia, (i) that they had been discharged by
the defendants when the defendants instructed the new solicitors because they
were unwilling to meet the original solicitors’ bill, (ii) that as a matter of law they
would have discharged themselves only if they had proceeded with the summons
and obtained an order under Ord 67 r 6 but since they had withdrawn the summons
they remained under r 6(1) the defendants’ solicitors for all purposes, (iii) to allow
the mandatory order to stand would whittle away their lien for costs and thereby
cause them hardship, and (iv) they should be allowed to retain the papers until it
was determined whether they had had reasonable cause, because of the non-
payment of their costs, to discharge themselves:
Held the appeal would be dismissed for the following reasons. (i) The practice
whereby a solicitor who discharged himself in the course of an action was required
to hand over his client’s papers to the client’s new solicitor, against undertakings to
preserve his lien on the papers for costs and to redeliver the papers to him at the
end of the litigation, should still be followed because of the overriding principle that
Page 26 of 211
a solicitor discharging himself should not be allowed to exert his lien so as to

interfere with the course of justice and therefore the original solicitor only had a
qualified lien on the papers. Accordingly, where a solicitor discharged himself the
court would normally make a mandatory order obliging him to hand over the
client’s papers to the new solicitor against an undertaking to preserve his lien. (ii)
The proper inference from the facts was that the original solicitors had discharged
themselves. Moreover, RSC Ord 67 r 6(1), on its true construction, governed the
position between the client and other parties to the litigation and not the position
between the client and the solicitor on the record. Accordingly, the r 6 did not
prevent the ending of the relationship between the solicitor and client before an
order was made under the rule. (iii) Furthermore, the original solicitors were not
entitled to retain the papers pending determination of the issue whether they had
had good cause to withdraw from the action and (per Templeman LJ) even if they
had had reasonable cause to discharge themselves there were no exceptional
circumstances which would justify modifying the usual practice that a solicitor who
discharged himself was bound to hand over the papers to the new solicitor, against
an undertaking as to his lien.
Per Templeman LJ: The court will not automatically make a mandatory order
obliging a solicitor who discharges himself to hand over the papers to the new
solicitor, for the remedy is equitable in character and an automatic order is
inconsistent with the inherent jurisdiction of the court to grant or withhold an
equitable remedy. In exceptional cases, therefore, the court may impose terms on
the mandatory order where justice so requires.
A v B [1984] 1 All ER 265

In late 1981 the plaintiffs' vessel was blacked by port labour at the instigation of
an international federation of transport workers unions. The plaintiffs instructed
a firm of solicitors in the matter, and in due course obtained an injunction against
the federation's officials on the ground that the blacking constituted unlawful
secondary industrial action. Shortly afterwards the vessel's crew went on strike
and were, in consequence, dismissed. The plaintiffs instituted proceedings against
the crew and obtained an injunction ordering the crew to leave the vessel. In
conducting the litigation to that stage the plaintiffs' solicitors incurred costs and
disbursements amounting to some £30,500, and, after setting off certain
payments on account and receiving certain costs from parties unsuccessful in the
litigation, about £20,000 of the solicitors' original bill remained outstanding.
Throughout 1982 the solicitors unsuccessfully pressed for payment of their costs.
Meanwhile a claim was made against the plaintiffs for payment of the vessel's
crew. The solicitors emphasised to the plaintiffs the importance of defending that
Page 27 of 211
claim but they made it plain that they could not assist in doing so unless payment
of their costs were made. By October 1982 the crew's claim had progressed to a
stage where the solicitors' assistance was required to defend it. The plaintiffs
were told by the solicitors that they had until 11 November to serve a defence. On
5 November, however, the solicitors, with a view to securing payment of their
costs, procured the arrest of the vessel and issued a summons for an order
declaring that they had ceased to act as solicitors for the plaintiffs in order that
they might be removed as solicitors from the record. The plaintiffs then instructed
other solicitors, who applied to the original solicitors for the papers in the case,
but they refused to hand them over, asserting that they had a lien on them. On 26
November the original solicitors applied for a default judgment in the sum then
outstanding of about £25,000, and on 13 January 1983 default judgment was
entered. The plaintiffs applied for an order that the original solicitors deliver up
all papers in the case which they retained by virtue of the lien in respect of their
costs, on the plaintiffs' new solicitors undertaking to hold the papers without
prejudice to that lien and to return them intact after the action was over. It was
common ground that the original solicitors had discharged themselves by the
arrest of the vessel and that they had done so in circumstances which made their
action reasonable. The plaintiffs contended, however, that by arresting the vessel
the solicitors had taken alternative security from the plaintiffs and had waived
their lien on the papers. The plaintiffs further contended that there were no
exceptional circumstances that would justify the court in departing from its
general practice to order a solicitor who discharged himself during litigation to
yield up, without prejudice to his lien, papers required for use in the litigation to
the solicitor who replaced him against an undertaking by the new solicitor, so
long as he retained the papers, to allow the old solicitor access to them and to
return them to him as soon as the litigation was completed. Held – (1) The arrest
by the solicitors of the plaintiffs' vessel was merely part of a process of
enforcement following the default judgment entered by the solicitors and was to
be distinguished from such contractual arrangements as a solicitor might in the
ordinary course make for the provision by his client of a security that could
properly be regarded as given in substitution for the solicitor's lien on the client's
papers. The arrest of the vessel was accordingly not inconsistent with the
maintenance of the solicitors' lien and did not lead to any inference of an intention
to waive the lien (2) Where during litigation a solicitor discharged himself, the
usual practice of the court was to order the old solicitor to hand over to the new
solicitor the papers which he had on the undertaking of the new solicitor to hold
them subject to the old solicitor's lien, even if that rendered the lien useless.
However, the court would not exercise its power automatically, the matter being
equitable and therefore one of discretion, to be exercised judicially on the facts of
Page 28 of 211
the case. In approaching the matter the overriding principle was that the order
which would be made would be that which would best serve, or at least not
frustrate, the interests of justice, and the principle that a litigant should not be
deprived of material relevant to the conduct of the case and so driven from the
judgment seat, if that would be the result of permitting the lien to be sustained,
was to be weighed against the principle that litigation should be conducted with
due regard to the interests of the court's own officers, who should not be left
without payment for what was justly due to them. On that basis, and contrasting
the conduct of the solicitors, who had behaved impeccably and of whose conduct
there had been no criticism, with that of the plaintiffs, who, without any excuse,
had not paid that which was the subject of the default judgment against them, the
balance of hardship would be far greater on the solicitors if the lien were not
enforced, because they would then probably recover nothing, whereas it was
open to the plaintiffs to preserve their position in the continuing litigation simply
by paying the solicitors' costs, which they had never themselves directly disputed.
The plaintiffs' application would accordingly be dismissed.
Whether or not an attorney’s lien would be in force is discretionary. The court will have
regard to both the attorney and the client and all other relevant matters. The overriding
principle is that the attorney cannot prevent the client’s matter proceeding simply because
he has not been paid
WORKSHEET 3:
ATTORNEY/CLIENT RELATIONSHIP (PART TWO)
RETAINER: DURATION AND TERMINATION OF THE RETAINER
Concept of Actual Authority

That is referring to the authority that flows from the retainer itself. The scope of that
authority is usually determined by applying the ordinary rules of construction; the
ordinary rules of interpreting a contract are relevant. Apart from the express words that
are used you would also need to consider what may be implied. How do you determine
what may be implied? You do so by looking at the express words, trade usages,
circumstances around the contract and usual course of business between the parties.
So the attorney will also be deemed to have implied authority to take whatever steps are
necessary to obtain the best interest for the client as long as it is in the scope of that actual
or express authority. Actual authority is based on what is expressed or implied.
In Wright v Pepin [1954] 2 All ER 52 where the solicitor was authorized by the client to
put his affairs in order in relation to financial dealings with his creditors it was held that
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the solicitor had the implied authority to acknowledge a debt on behalf of his client in order
to bring it within the statute of limitations. And in Thompson v Alexander (1964) 6 WIR
538 it was held that the solicitor’s actual authority to accept an offer to purchase and to
complete a sale on behalf of the client included an implied authority to do whatever was
reasonably necessary to bring the sale to a meaningful conclusion.
*Wright v Pepin [1954] 2 All ER 52: By a legal charge dated 10 November 1928,
the defendant mortgaged her leasehold premises, 101, Mountview Road, Hornsey,
in consideration of a loan of £600, interest thereon to be paid quarterly. In
September, 1940, the premises were damaged by enemy action, the interest on
the loan due on 1 November 1940, was not paid, and no payment of interest was
made thereafter. By letter dated 19 October 1949, the solicitors to the plaintiffs
(who were executors of the transferee of the mortgage), wrote to the defendant's
solicitor: “Re 101 Mountview Road … As mortgagees' solicitors we shall be glad if
you will advise us fully on the present position of the matter, whether the
property is to be re-built … “ In subsequent letters the plaintiffs' solicitors stated
that the plaintiffs wished the mortgage to be discharged. On 4 August 1950, the
defendant's solicitor wrote to the plaintiffs' solicitors: “Re 101 … Mountview Road
… I understand that [the defendant] will shortly be making an appointment to see
you with regard to her accounts with you for some time past. She has several
questions she wishes to raise. Steps are being taken to re-build 101, Mountview
Road. Plans have been prepared and submitted to the local authority, and as soon
as the work is in hand I will let you know when [her] position can again be
reviewed … “ On a summons for possession dated 4 June 1953, the defendant
contended that as no payment of interest had been made since August, 1940, the
period of twelve years under the Limitation Act, 1939, s 4(3), had run, and that
the plaintiffs' cause of action was statute-barred. Held – The letter which the
defendant's solicitor wrote on 4 August 1950, when looked at in the light of the
claims being made against the defendant by the plaintiffs' solicitors, who
described themselves as the mortgagees' solicitors, was an acknowledgment of
the existence of the mortgage; it was given within twelve years of 1 November
1940; the defendant's solicitor, although not expressly authorised to acknowledge
the mortgage debt, was authorised to take the steps needed to put the defendant's
affairs in order, and so to write the letter of 4 August 1950; and, therefore, the
plaintiffs' cause of action was not statute-barred, and they were entitled to
possession.
*Thompson v Alexander (1964) 6 WIR 538: The respondent offered to

purchase premises belonging to the appellant and others by a letter addressed to
one S, the agent of the appellant and her co-owners, in which he stipulated that he
should get a registered title within four months. The appellant and her co-owners
instructed S to accept the respondent's offer, and also instructed their solicitor to
Page 30 of 211
prepare a registered title and complete the contract of sale. The solicitor, realising
the impossibility of obtaining the issue of a registered title within four months,
succeeded in getting the respondent to waive the stipulation. The solicitor did not
consult the appellant or her co-owners before doing this. The appellant refused to
complete the sale, and in an action by the respondent, specific performance was
ordered against her. On appeal, it was contended on behalf of the appellant that
the solicitor had no authority to bind the appellant and her co-owners in effecting
the waiver by the respondent of the stipulation as to the time within which the
title was to be issued as this was not within the scope of his authority. Held: the
solicitor had a general authority from the appellant and her co-owners to
complete the sale and what he did to protect their interest was something that fell
within the scope of such authority. The appellant and her co-owners were
accordingly bound by the contract, specific performance of which was properly
decreed.
Unusual Expenses
When the attorney is retained he would have the implied authority to incur expenses to
deal with the matter, for example costs to file a suit (stamping costs and that for filing the
documents etc.) so an attorney does not have to get express authority because these are
necessary steps to pursue the claim. However, in some cases there are unusual expenses,
for example - expert witness. On may also have to do research or go to another jurisdiction,
things that may not have been in contemplation of the parties to begin with, so an attorney
must get special authority from the client to incur these expenses. An attorney must advise
the client that these costs may not be recoverable on the party and party basis.
If the attorney does not do the above he would have to bear the costs unless the client
ratifies his actions. Blythe v Flanshawe (1882) 10 QBD 207; Re Snell (1877) 5 Ch D
815.
*Blythe v Flanshawe (1882) 10 QBD 207: Where a solicitor proposes to incur

unusual expense in the course of an action, such as taking shorthand notes of the
evidence or procuring the attendance of experts and scientific witnesses, it is his
duty to point out to his client that such expense might not be allowed on taxation as
between party and party, and might therefore have to be borne by the client
whatever might be the result of the trial. Therefore where the solicitor had omitted
such duty, he was not allowed on taxation as between solicitor and client the costs
of shorthand notes of the evidence, although the client authorized him to employ a
shorthand writer to take such notes and used and otherwise availed himself of them
after they had been so taken.
Page 31 of 211
*Re Snell (1877) 5 Ch D 815: A solicitor had a retainer to act generally for a
company, and also a special retainer to conduct a Chancery suit on behalf of the
company. Being employed by another client to go to America, he collected
information on behalf of the company in furtherance of their suit, but without
special instructions from the company to do so. On his return to England he
reported to the company what he had done, and they made use of the information
he had obtained. He afterwards took three journeys to Paris to conduct negotiations
for a compromise of the same suit, without instructions from the company, but with
the knowledge of some of the directors, and on two of them he was accompanied by
the chairman:- Held, by the Court of Appeal (reversing the decision of the Master of
the Rolls), that, under the special circumstances of the case, the solicitor was
entitled to charge the company for his professional services in America, and also for
his professional services and expenses on his journeys to Paris. Observations on the
rule that a solicitor must not undertake journeys on behalf of his client without
special instructions.
Apparent or Ostensible Authority

Principle that comes from law of agency and may give rise to binding relations between the
attorney and third parties even in cases where entering into such relations exceeds the
attorneys’ actual authority Freeman & Lockyer v Buckhurst Park Properties Limited
[1964] 2 QB 480 . Based on this where an attorney has actual or implied power to
compromise litigation he may do so in terms which exceed that authority as long as it falls
within his apparent or ostensible authority and the compromise does not contain collateral
matters that are entirely extraneous to the litigation Waugh v H B Clifford & Sons Limited
[1982] 1 All ER 1095.
*Freeman & Lockyer v Buckhurst Park Properties Limited [1964] 2 QB 480:

K., a property developer, and H. formed the defendant company to purchase and
resell a large estate. K., personally, agreed to pay the running expenses and to be
reimbursed out of the proceeds of the resale. K. and H. and a nominee of each
were appointed directors of the company. The articles of association contained
power to appoint a managing director but none was appointed. K. instructed the
plaintiffs, a firm of architects, to apply for planning permission to develop the
estate and do certain other work in that connection. The plaintiffs executed the
work. The plaintiffs claimed their fees, the amount of which was not in dispute,
from the defendant company. The county court judge held that, although K. was
never appointed managing director, he had acted as such to the knowledge of the
board of directors of the defendant company and he gave judgment for the
plaintiffs. The defendant company appealed. On the Court of Appeal's finding that
K. had no actual authority to employ the plaintiffs but had ostensible authority as
he acted throughout as managing director to the knowledge of the board:-Held,
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that K.'s act in engaging the plaintiffs was within the ordinary ambit of the
authority of a managing director and the plaintiffs did not have to inquire whether
he was properly appointed; it was sufficient for them that under the articles of
association there was in fact power to appoint him as such and accordingly the
defendant company were liable for the plaintiffs' fees. Per Willmer L.J. Houghton's
case, Schenkers' case and Rama's case (supra) are cases of unusual transactions in
none of which were the plaintiffs in a position to allege that the person with
whom they contracted was acting within the scope of such authority as one in his
position would be expected to possess . Those decisions are no more than
illustrations of the well-established principle that a party who seeks to set up an
estoppel must show that he in fact relied on the representation (whether it was in
words or by conduct) that he alleges .
*Waugh v H B Clifford & Sons Limited [1982] 1 All ER 1095: In January 1980
the buyers of two houses brought an action against the builders from whom they
had purchased the houses, claiming damages for negligence, breach of contract,
distress and inconvenience, and alleging that the internal and party walls of the
houses had been built with defective breeze blocks and that the houses were
unsaleable in their current condition. Negotiations took place between the parties'
solicitors in which a compromise of the action was discussed on the basis that the
builders should buy back the houses at an agreed valuation. When valuers
appointed by each party were unable to agree on a valuation the buyers' solicitors
wrote to the builders' solicitors on 1 May 1980 confirming agreement between
them that the builders had offered to purchase the houses at their current value,
disregarding the defects, and proposing that if the parties' valuers could not agree
a valuation a third, independent, valuer be appointed. By a letter dated 21 May the
builders' solicitors informed their clients of the proposal made by the buyers'
solicitors, suggested the name of an independent valuer, and stated that unless
they received contrary instructions from the builders they would proceed to
appoint the independent valuer. On 30 May the builders telephoned instructions
to their solicitors not to agree to the appointment of an independent valuer, but
those instructions did not reach the partner dealing with the case until after 6
June. Meanwhile, on 30 May the buyers' solicitors wrote to the builders' solicitors
confirming an agreement by telephone that the valuation of the houses should be
made by the independent valuer and that payment in accordance with the
valuation should be made by the builders as soon as they received vacant
possession of the houses. On 6 June the builders' solicitors replied to that letter
acknowledging its receipt and confirming their agreement with its contents. On 9
June the builders informed their solicitors that they no longer wished to settle the
action and on 13 June withdrew instructions from them, repeating the instruction
not to appoint an independent valuer and stating that they no longer wished to
Page 33 of 211
purchase the houses. On 18 July the buyers commenced a second action seeking
as against the builders specific performance of the contract to purchase the
houses alleged to be contained in the letters dated 1 and 30 May and 6 June 1980
passing between the parties' solicitors, or alternatively damages, and as against
the builders' solicitors damages for breach of warranty of authority. By their
defence to the second action the builders denied that the letters constituted a
concluded contract but contended that, if they did, their solicitors had not had
express or implied authority to settle the first action on the terms proposed in the
letters. On the trial of the second action the judge held that although the builders'
solicitors had no express authority to compromise the first action, because the
builders had instructed them not to enter into such a compromise prior to the
compromise in fact being entered into, the buyers' solicitors were entitled to
assume that the builders' solicitors had such authority. The judge further held
that the letters of 1 and 30 May and 6 June constituted a binding contract to
compromise the first action and ordered specific performance against the
builders. The builders appealed, contending that their solicitors had had no
authority to contract to compromise on their behalf and that in the absence of
express authority their solicitors' ostensible authority to compromise the first
action had not extended to making an agreement on behalf of the builders to
purchase the houses in satisfaction of the plaintiffs' claim for damages. Held – The
appeal would be dismissed for the following reasons— (1) In litigation the
ostensible or apparent authority of a solicitor or counsel to bind his client to a
compromise of the action which the solicitor or counsel held himself out as
possessing vis-à-vis the opposing litigant could be wider than his implied
authority to compromise the action without prior reference to his client for his
consent. Thus a solicitor or counsel could have ostensible authority to arrange a
compromise when he in fact had no implied authority. The only limitation, vis-à-
vis the opposing litigant, on the ostensible authority to compromise held out by a
solicitor or counsel was that it could not be taken as authority to include in the
compromise matters collateral to the suit, but, that apart, the opposing litigant
was not required to put the solicitor or counsel to proof of his authority,
regardless of the magnitude of the compromise or the burden it imposed on the
client of the solicitor or counsel. Moreover, in the interests of not limiting too
restrictively the ostensible authority of a solicitor or counsel to bind his client to a
compromise, the subject matter of a compromise was only to be treated as
collateral to the suit in exceptional cases where it really was extraneous to the suit
. (2) In an action based on the sale of a defective house a compromise on terms
that the vendor was to purchase back the allegedly defective house at a price
reflecting its current value in a proper condition did not involve matters collateral
to the action but, rather, went to the heart of the action. (3) Since the buyers'
solicitors had had no notice of any limitation on the ostensible authority of the
Page 34 of 211
builders' solicitors to compromise the action, they had been entitled to assume
that the builders' solicitors had had ostensible authority to compromise the first
action on behalf of the builders on the terms contained in the letters of 1 and 30
May and 6 June 1980. It followed that the builders were bound by the compromise
contained in those letters.
Liability for Acting Without Authority

An attorney who acts without authority may be liable for a breach of warranty of authority.
By professing to act as agent he impliedly contracts that he has such authority and it is
immaterial whether he knew of this defect in his authority. Where he acts without
authority a stay of proceedings may be Granted Carl Zeiss Stiftung V. Rayner & Keeler
LTD. And Others (No. 2) [1965] Ch 596 which says that where an attorney files an action
or takes any steps on behalf of a client when he has no authority to do so he may be liable
to the other parties in the proceedings for such costs as they may incur as a consequence of
these steps. So the attorney may find himself liable not just for the costs incurred for his
client but by the other parties in the action as well Yonge v Toynbee [1910] 1 KB 215.
*Carl Zeiss Stiftung V. Rayner & Keeler LTD. And Others (No. 2) [1965] Ch
596: In 1896 there was established at Jena, in the Grand Duchy of Saxe-Weimar-
Eisenach, the Carl Zeiss Stiftung ("the foundation"), an organisation with
industrial, scientific and charitable objects. Under the articles of its constitution
(or "statute") the legal domicile of the foundation was to be Jena, and for
representing it as an incorporate body, for the administration of its estate and
effects, and for the supreme direction of its affairs, a "special board" was to be
formed, the rights and duties of which were to pertain to that department of the
State service of the Grand Duchy under which the affairs of the University of Jena
were for the time being placed. In the case of the cessation of the special board in
consequence of political changes in the State, the representation of the
foundation, and its statutory administration, was to be made over to that
department of state which, with regard to the university, occupied the place of the
State Department of the Grand Duchy, providing that its seat was in Thuringia,
otherwise to "the highest administrative authorities in Thuringia." In 1918 the
Grand Duchy was abolished and Jena became part of the "Land" of Thuringia. In
1949 there was set up, in the Russian Zone of Germany, and recognised by the
Union of Soviet Socialist Republics, the German Democratic Republic, and the
court proceeded on the basis that the Land of Thuringia continued to exist until
1952, when, under a decree of the German Democratic Republic, it was divided
into smaller areas, Jena being in the area of Gera, governed by the Rat or Council
of Gera, which was itself set up by that decree.
In 1955, English solicitors, on the instructions of an individual authorised by the
Rat of Gera as the special board of the foundation, issued a writ against the
defendants, two English limited companies and an organisation with its
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headquarters in the Federal German Republic (West Germany) also calling itself
Carl Zeiss Stiftung, to restrain them, inter alia, from passing off optical or glass
instruments with reference to the name "Carl Zeiss Stiftung," or "Carl Zeiss," or
"Zeiss." In 1956 the defendants took out a summons to stay all proceedings in the
action and to have it dismissed on the ground that it had been begun and was
being maintained without the authority of the foundation. On March 6, 1964,
Cross J. dismissed the summons, holding that under the articles of the foundation
the proper body to authorise on its behalf an action such as the present was its
"special board," which was at the material time the Rat of Gera. No point was
taken before Cross J. as to whether Her Majesty's Government had recognised de
jure or de facto the German Democratic Republic or its government, or as to the
applicability in the English courts of East German legislation or decrees.
The defendants appealed, and moved the Court of Appeal asking that a letter be
written to the Foreign Secretary requesting him to certify whether, inter alia, Her
Majesty's Government had granted recognition de jure or de facto to the German
Democratic Republic or to its government, and, if yes, when. The court, holding
that recognition was a matter which the court of its own motion was bound to
consider,1 acceded to that request and the Foreign Secretary subsequently
certified that: "Her Majesty's Government have not granted any recognition de
jure or de facto to (a) the 'German Democratic Republic' or (b) its 'government.'"
In answer to a further letter from the court2 the Secretary of State certified, inter
alia, that since June, 1945, and up to the present date "Her Majesty's Government
have recognised the State and Government of the Union of Soviet Socialist
Republics as de jure entitled to exercise governing authority in respect of [East
Germany]."
On the defendants' contention that, the Rat of Gera having been set up by a decree
of the unrecognised government of the German Democratic Republic, it could not
be recognised by the English courts as being the special board of the foundation
with authority to institute proceedings therein on its behalf: Held, allowing the
appeal, that the "proper law" to be applied in relation to both the construction and
application of the constitution of the foundation in determining whether the
action had been brought with proper authority was that in force at the place of its
incorporation at the date when the instructions were given for the issue of the
writ, but only in so far as such law had been made by persons recognised by the
Crown as being, or as acting on behalf of, the sovereign government of that place
that it was not sufficient, either as a matter of law or on the facts of the present
case, that such laws were recognised as valid by the de jure sovereign, since so to
hold would mean that the Crown could never differ from another sovereign
government in the matter of recognition of a third, nor could it be presumed that
any law in fact acted upon and enforced in that place had been made by persons
authorised by the de jure sovereign so to do; that while the proper body to
Page 36 of 211
authorise the present action was, on the true construction of the articles of the
foundation, in the first place the special board, the Rat of Gera had been set up by,
and owed its existence, its constitution, and whatever powers it possessed, to the
unrecognised "government" of the "German Democratic Republic" ; that, on the
facts, that "government" could not be considered as having acted, either in that
regard or at all, as the agent of the Government of the Union of Soviet Socialist
Republics and, accordingly, the Rat of Gera could not be recognised by the English
courts as being competent to set the wheels of justice in motion as the special
board of the foundation: and that it was not sufficient to constitute the Rat of Gera
the "highest administrative authorit[y]" in Thuringia that it should in fact be
exercising control in the area, the question being, on a true construction of the
articles, whether or not it was performing acts of government. That meant:
"according to law" .
Per Diplock L.J. There was expert evidence of the "proper law" before Cross J.
which enabled him to find that the special board, as opposed to the boards of
management, was the proper body to bring these proceedings on behalf of the
foundation, and I see no grounds upon which his decision to that effect can be
assailed. Decision of Cross J. reversed on a different basis.
*Yonge v Toynbee [1910] 1 KB 215: Where an authority given to an agent has,

without his knowledge, been determined by the death or lunacy of the principal,
and, subsequently, the agent has, in the belief that he was acting in pursuance
thereof, made a contract or transacted some business, with another person,
representing that, in so doing, he was acting on behalf of the principal, the agent is
liable, as having impliedly warranted the existence of the authority which he
assumed to exercise, to that other person, in respect of damage occasioned to him
by reason of the non-existence of that authority. Solicitors were instructed by a
client to conduct his defence to an action which was then threatened and was
afterwards commenced against him. Before the commencement of the action the
client became, and was certified as being, of unsound mind. In ignorance of his
unsoundness of mind, and of his having been so certified, the solicitors entered an
appearance for him in the action, and delivered a defence, to which the plaintiff
replied, and other interlocutory proceedings took place in the action.
Subsequently, the action not then having come to trial, the plaintiff's solicitor was
informed that the defendant had been certified as being of unsound mind; and an
application was made on behalf of the plaintiff at chambers for an order that the
appearance and all subsequent proceedings in the action should be struck out,
and that the solicitors who had assumed to act for the defendant should be
ordered personally to pay the plaintiff's costs of the action up to date, on the
ground that they had so acted without authority. The Master made an order that
the appearance and subsequent proceedings in the action should be struck out,
Page 37 of 211
but refused to make an order for payment of the plaintiff's costs by the solicitors
personally, which refusal was on appeal affirmed by the judge at chambers. The
plaintiff having appealed to the Court of Appeal:- Held - (1.) (by Buckley L.J. and
Swinfen Eady J.) that the appeal was on a matter of practice and procedure within
the meaning of the Judicature Act, 1894, s. 1, sub-s. 4, and, therefore, the appeal
lay direct to the Court of Appeal, and not to the Divisional Court; (2.) (by Vaughan
Williams L.J., Buckley L.J., and Swinfen Eady J., Vaughan Williams L.J. doubting),
that the solicitors who had taken on themselves to act for the defendant in the
action had thereby impliedly warranted that they had authority to do so, and
therefore were liable personally to pay the plaintiff's costs of the action.
Page 38 of 211
WORKSHEET 4 :
ATTORNEY’S OBLIGATION TO CLIENT (PART ONE)
CONFLICTS OF INTEREST – UNDIVIDED LOYALTY
Richard Buxton (Solicitors) v Mills – Owen case [2010] EWCA Civ p 122. Read both the
High Court and Court of Appeal judgments. One citation on worksheet and this is the other
- dealing with entire contracts and in what cases Solicitors can terminate.
The attorney client relationship is a fiduciary one Nocton v Lord Ashburton [1914] AC
932, in addition to the contractual duties in the retainer the attorney also has certain
fiduciary duties to the client. In the old case of Brae v Ford (1892) the principle was
confirmed that a fiduciary should not put himself in a position where his interest and duty
conflict. So what this means is that as a general rule a fiduciary should not be in a position
where he owes a duty to a third party which is inconsistent to his duty to his principal.
*Nocton v Lord Ashburton [1914] AC 932: Per Viscount Haldane L.C.: Derry v.
Peek (1889) 14 App. Cas. 337, which establishes that proof of a fraudulent
intention is necessary to sustain an action of deceit, whether the claim is dealt
with by a Court of Law or by a Court of Equity in the exercise of its concurrent
jurisdiction, does not narrow the scope of the remedy in actions within the
exclusive jurisdiction of a Court of Equity, which, though classed under the head of
fraud, do not necessarily involve the existence of a fraudulent intention, as, for
example, an action for indemnity for loss arising from a misrepresentation made
in breach of a special duty imposed by the Court by reason of the relationship of
the parties. A mortgagee brought an action against his solicitor, claiming to be
indemnified against the loss which he had sustained by having been improperly
advised and induced by the defendant, acting as his confidential solicitor, to
release a part of a mortgage security, whereby the security had become
insufficient. The statement of claim alleged that the defendant, when he gave the
advice, well knew that the security would be thereby rendered insufficient and
that the advice was not given in good faith, but in the defendant's own interest.
Neville J. found that the charge of fraud was not proved arid dismissed the action.
The Court of Appeal reversed this finding and granted relief on the footing of
fraud:- Held, (1.) that in the circumstances the Court of Appeal was not justified in
reversing the finding of fact of the judge of first instance; but (2.) that the plaintiff
was not precluded by the form of his pleadings from claiming relief on the footing
of breach of duty arising from fiduciary relationship and that he was entitled to
relief on that footing.
Decision of the Court of Appeal affirmed on different grounds.
Page 39 of 211
A conflict would arise where the performance of the duty owed to the principal is
incompatible with the performance of the duty owed to either the third party or another
principal. To put this in the context of attorney client relationship you will have a conflict if
in performing a duty to client A it will conflict with duty to client B (i.e that is where there
are two clients with competing interests and you are representing both), this is called the
existing client conflict. For example when an attorney in a sale transaction acts for both
vendor and purchaser Moody v Cox [1917] 2 Ch D 71 which had to do with a flaw in the
title; Goody v Baring [1956] 2 All ER 11 – court said it was practically impossible for
attorney to do his duty to both clients fairly. Apthorp v Niblock (1976) 28 WIR 23;
Straker v Maraj (1984) 39 WIR 22.
Moody v Cox [1917] 2 Ch D 71: A solicitor who sells his own property to a client
must deal with the client with the utmost good faith and must give the client all
that reasonable advice and information which he would have given him if the sale
had been by a third person and he (the solicitor) had not been personally
interested. He must so act that no industry on his part could have got the client a
better bargain. He must make the most ample disclosure to the client of all the
facts known to him relating to the matter of the sale. A solicitor selling to or
buying from a client is bound to disclose everything which is material or may be
material to the judgment of his client before the transaction is completed.
This duty does not depend on undue influence. The existence of the duty to
disclose is quite consistent with the absence of undue influence.
A solicitor who sells to a client property, not on his own behalf, but as a trustee, is
under the same duty. He cannot be excused on the ground that the purchaser,
being aware that he was selling as a trustee, would know that he was under an
obligation to get the best price for his cestuis que trust and that his duty to the
beneficiaries would prevent him disclosing material facts which had come to his
knowledge in the capacity of trustee.
For a plaintiff to be denied equitable relief – eg, rescission of a contract on the
ground that he has not “clean hands” the defendant must show that the plaintiff's
improper conduct had a necessary and essential relation to the contract in
question.
Accordingly, where the plaintiff sought rescission of a contract for the purchase of
property by him on the ground of the non-disclosure to him by the vendor of facts
which the vendor was under a fiduciary duty to disclose, and it appeared that
during the negotiations for the contract the plaintiff had given the defendant
bribes to facilitate the progress of the negotiations,
Held: as the bribes had no immediate relation to the rescission of the contract,
which was sought on a ground not affected by them, the improper conduct of the
plaintiff did not disentitle him to an order for rescission.
Page 40 of 211
Goody v Baring [1956] 2 All ER 11: The plaintiff instructed the defendant, a
solicitor, to act for him on the plaintiff's purchase of a leasehold dwelling-house. At
the plaintiff's suggestion the vendor instructed the defendant to act also in the
matter on his, the vendor's, behalf. The premises were registered with a good
leasehold title and were within the Rent Restrictions Acts. The house contained
three floors, and was to be sold with vacant possession of the ground floor. The
two upper floors were each let at 25s per week. The defendant noted answers to
questions raised on a printed form of “Inquiries before contract”, and in reply to a
question relating to subsisting tenancies, with particular reference to the Rent
Restrictions Acts and to the amount of the statutory and net rents, the defendant
noted, on information supplied by the vendor, that the two upper floors were each
let at 25s weekly inclusive of rates. As regards the top floor the defendant noted
that 25s was the rent receivable when the vendor bought the property in 1948
and no increases in rates had been passed on to the tenant. It was further stated
that the vendor could give no information of previous lettings. The contract of sale
contained a special condition referring to the fact that the two upper floors were
each let at rentals of 25s per week inclusive. When the plaintiff attended to sign
his part of the contract, the defendant went through the inquiries and answers and
remarked that as there had been increases in rates since 1950 it was possible that
the plaintiff could increase the rents. In January, 1954, the sale was completed. In
May, 1954, the plaintiff proposed an increase of rent to the tenants of the upper
floors. In reply a reduction was demanded and in September, 1954, the standard
rents of the upper floors were fixed by the county court at 15s each, the
recoverable rents with permitted increases being 17s 6d per week and 18s 4d per
week respectively. In consequence the plaintiff had to make repayments of
overpaid rents to the tenants. He claimed damages for the defendant's negligence.
Held – The defendant was liable for negligence because he had accepted the
information given by the vendor relating to rents without ascertaining, either by
questioning the vendor further or by asking the tenants, what were the standard
and recoverable rents of the property, and because he had failed to advise the
plaintiff that he could not rely on the rents which were being paid being
recoverable rents. Hunt v Luck ([1902] 1 Ch 428) applied. Per Curiam: where
inquiries before contract have been made, it is still the duty of a purchaser's
solicitor to make the appropriate requisitions and inquiries after the formal
contract is signed, even if the preliminary inquiries have been so complete that it
is only necessary to ask whether the answers thus received are still complete and
accurate .
*Apthorp v Niblock (1976) 28 WIR 23: The plaintiffs sought against the first
defendant specific performance of an agreement to sell to them his shares in the
second defendant, Coconut Court Ltd, and an injunction restraining him from
Page 41 of 211
parting with his shares otherwise than to the plaintiffs. They sought against the
second defendant an order restraining the company from registering the transfer
of any of the first defendant's shares to any person other than the plaintiffs. The
plaintiffs relied on a letter of 12th February 1975 from the plaintiffs to the first
defendant as containing the terms of a valid and binding contract for the sale of
the shares. The first defendant had endorsed on this letter the words 'I agree to
these terms' and signed his name and the first plaintiff had then endorsed a
cheque made out to him for the amount of the deposit and handed the cheque to
the first defendant. The letter contained the following, inter alia, clauses: '(a)
There shall be subtracted from the purchase price the total of all liabilities (if any)
contingent or actual affecting the company on the date of completion … (d) The
usual warranties and indemnities customary on a sale of shares will be given by
the shareholders and directors … (f) All permission from the Central Bank of
Barbados for the sale of the shares will be obtained by you. (g) A formal contract
for sale (transfer of the shares) will be drawn providing for completion on 1st
April 1975'. The issue between the parties was whether there was a binding
contract, the defendants' case being that no binding agreement had been
concluded. It was contended on behalf of the defendants, first, that clause (d)
constituted a term so vague or indefinite that it could not with reasonable
certainty be ascertained what the intention of the parties was, second, that the
first defendant had given to the Central Bank such information and in sufficient
time as would have enabled the bank to make up its mind by the date of
completion or within a reasonable time thereafter, and third, that specific
performance should not be ordered since the agreement provided for the
purchase money to be paid by instalments and the court had no means of ensuring
that the vendor would be paid by the purchaser. The trial judge held (27 WIR 1)
that: (i) there was a sufficient consensus ad idem to constitute a binding agreement
and clause (g) should be construed as only indicative that a formal contract as to
the transfer of shares was an incident in the performance of an already binding
obligation; (ii) the circumstances and evidence showed that if there was any
ambiguity at all in clause (d) it was rendered certain by the attorney-at-law and
accepted by the parties by their subsequent conduct as what they at all times
originally intended; in any event the clause was not so essential that it could not
be ignored; (iii) for the first defendant to be able to take advantage of the bank's
failure to give permission, he had to show that, notwithstanding all reasonable
steps taken by him, he could not obtain permission within a reasonable period
and/or that it was useless for him to take any such or any further steps; this he
had failed to do. In any event clause (f) did not make the obtaining of exchange
control permission a condition precedent to the formation of the contract; it was a
matter going to the performance of the contract; and (iv) it was no objection to the
grant of specific performance that the contract provided for the payment of the
Page 42 of 211
purchase price by instalments. The parties had not by the terms of their
agreement excluded the vendor's lien which prima facie arose and would continue
until the purchase price had been paid in full. Specific performance would be
granted and the first defendant's equitable lien safeguarded by an appropriate
order. The defendants appealed. Held - (per DOUGLAS CJ) (i) The agreement
purported to provide for the giving of warranties and indemnities by persons who
were not parties to the agreement. To this extent it envisaged further negotiation
and the obtaining of agreement from the directors other than the first
defendant-appellant to give the warranties and indemnities demanded. Moreover
the question of what constituted the 'usual warranties and indemnities' was
extremely vague and on the evidence of Mr Michael FitzWilliam, whose evidence
the trial judge preferred to that of Mr Thomas, no rule of law or practice was
shown by which the warranties and indemnities customary on a transfer of shares
may be determined. Consequently there was no material on which the trial judge
could come to the conclusion that the parties had reached a consensus ad idem on
this point and that there was no need for further clarification and agreement. And
the requirement for warranties and indemnities was not one that can be ignored.
(ii) The very nature of contingent liabilities was such that any amount set aside
under that head must be a mere estimate. That estimate would be arrived at by
the application of known accounting principles to the kind of operation involved
and having regard to the past history of the company. But in the absence of an
audited balance sheet and of any figure agreed by the parties to represent
contingent liabilities, the sum ascribable to contingent liabilities could not be
ascertained without further negotiations by the parties. (iii) Whether or not the
obtaining of exchange control permission was a condition precedent or an implied
term of the contract would depend on the intention of the parties. But in any event
the court had power, in appropriate circumstances, to order a party to carry out
the obligations which he agreed to assume. (iv) In the final analysis the question
whether or not the acceptance by the first defendant-appellant of the terms of the
letter of 12th February constituted a valid and binding contract depended on the
intention disclosed by the language employed by the parties. In this case
agreement on the warranties and indemnities to be given by the vendors and the
directors of the company went to the very heart of the matter. So did the
quantification of the company's contingent liabilities. Here the clear intention of
the parties was to settle the details of the agreement which they had reached in
outline by negotiating the warranties and indemnities which would accompany
the transfer of shares and by finding some formula to determine the amount
which should be deducted from the purchase price to cover contingent liabilities.
(v) (per Williams J) The words 'subject to contract' had now acquired a settled
meaning in negotiations between parties. They were put in to show that the
agreement was not binding but provisional only. A true construction of the letter
Page 43 of 211
of 12th February led to the conclusion that the agreement was provisional only.
The parties had not settled the essentials of the transaction nor had they provided
some certain way in which it was to be done for them. The important matters of
the quantification of the contingent liabilities and the definition of the warranties
and indemnities to be given remained to be settled and the parties had to meet
again to finalise the terms.
Straker v Maraj (1984) 39 WIR 22: Although there is no express rule in

Barbados prohibiting an attorney from acting for both vendor and purchaser on a
transfer of land for value at arm's length, ordinary prudence should prevent an
attorney from so acting in situations where dispute and litigation between the
parties could reasonably be foreseen. Further, a failure by an attorney to advise
his client that he (ie the client) should have independent advice in respect of
business dealings between the two of them constitutes negligence, as does a
failure to point out the risks likely to arise by reason of the attorney acting for
both the vendor and the purchaser in situations such as described above.
Demerara Bauxite Co v Hubbard [1923] AC 673, Goody v Baring [1956] 2 All ER 11,
and Spector v Ageda [1973] 1 Ch 30 applied.
In the UK solicitors are prohibited from acting for both vendors and purchasers except in
certain circumstances.
The attorney as a fiduciary owes undivided loyalty to his client and therefore that attorney
or firm should avoid any situation where the duty towards one client conflicts with a duty
owed to another client. Even though it is generally denounced that an attorney should not
act for clients with competing interests the one exception is where the attorney has
obtained the fully informed consent of both parties and this position was confirmed by the
Privy Council in Clark Boyce v Mouat [1993] 3 WLR 1021.
*Clark Boyce v Mouat [1993] 3 WLR 1021: The respondent’s son wished to
borrow $NZ100,000 but was unable to do so on the security of his house because it
was fully mortgaged. His mother, the respondent, agreed to mortgage her house as
security for the loan but the son’s usual solicitors declined to act in the transaction.
The respondent’s son then approached the appellant firm of solicitors, who agreed to
act for both the son and the respondent. At a meeting at the appellants’ offices the
respondent was advised to seek independent advice before entering into the
transaction but she declined to do so and signed an authority to act to that effect.
After the nature of the transaction had been explained to her and she had been
advised that she would be the principal debtor and not merely a guarantor and that
she could lose her house and property if the son failed to keep up the mortgage
payments, the respondent signed the mortgage documents. The son’s business
Page 44 of 211
subsequently failed and he became bankrupt, with the result that the respondent was
left with the liability of repaying the mortgage. The respondent brought an action
against the appellants alleging that they had acted (i) negligently and in breach of
contract in failing to ensure that she received her own independent advice and in
refusing to act for her when they were also acting for the son, and (ii) in breach of
their fiduciary duty in (a) failing to decline to act for her, (b) failing to disclose that
the son’s usual solicitors had refused to act, that they had no knowledge of the son’s
ability to service the mortgage and that it was not in her interests to sign the
mortgage, and (c) failing adequately to advise the respondent of her need for
independent advice. The judge gave judgment for the appellants but the New Zealand
Court of Appeal allowed an appeal by the respondent. The appellants appealed to the
Privy Council. Held, there was no general rule of law that a solicitor should never act
for both parties in a transaction where their interests might conflict. Instead, a
solicitor was entitled to act for both parties in a transaction even where their
interests might conflict provided he obtained the informed consent of both parties to
his acting. Informed consent in that context meant consent given in the knowledge
that there was a conflict between the parties and that as a result the solicitor might
be disabled from disclosing to each party the full knowledge which he possessed as
to the transaction or might be disabled from giving advice to one party which
conflicted with the interests of the other, and if the parties were content to proceed
on that basis the solicitor could properly act for both parties. In determining whether
a solicitor had obtained informed consent to acting for parties with conflicting
interests it was essential to determine precisely what services were required of him
by the parties since, if a client in full command of his faculties and apparently aware
of what he was doing sought the assistance of a solicitor in the carrying out of a
particular transaction, the solicitor was under no duty, whether before or after
accepting instructions, to go beyond those instructions by proffering unsought advice
on the wisdom of the transaction. On the facts, the respondent had required of the
appellants no more than that they should carry out the necessary conveyancing on
her behalf and explain to her the legal implications of the transaction since she was
already aware of the consequences if her son defaulted and was not concerned about
the wisdom of the transaction. In those circumstances the appellants had, by advising
her to obtain and offering to arrange independent advice, done all that was
reasonably required of them before accepting her instructions and had therefore not
acted in breach of contract or of a fiduciary duty. The appeal would therefore be
allowed.
*Spector v Ageda [1971] 3 ALL ER 963

 The undesirability of a solicitor acting on behalf of both purchasers and
vendors. This dangerous because what you are doing is creating a conflict.
Page 45 of 211
A memorandum of agreement dated September 8, 1967, stated that M lent to the

borrowers £1,040, to be repaid on November 8, 1967, with interest at two per cent.
per month. In fact £1,000 was lent, and £40, representing interest for two months,
had been added to the principal, providing for the payment of compound interest in
contravention of section 7 of the Moneylenders Act 1927. M was a moneylender but
had never obtained the excise licence. The plaintiff, who was M's sister and her
solicitor, had altered the memorandum without the borrowers' authority since its
execution by inserting the rate of interest which had not been shown at the time of
execution. The borrowers only paid £20 interest. On February 28, 1968, M brought
an action against them to recover the principal and interest. At that time the plaintiff
knew of the doubts about the enforceability of M's loan. She began to act as the
solicitor for the borrowers as well and without advising them of the difficulties in M's
way she agreed herself to lend them £1,180 at the rate of 12 per cent. per annum.
The £1,180 was received by M in final settlement. In an action started on April 29,
1969, the plaintiff obtained, on April 7, 1970, an order for possession of the
mortgaged property against the borrowers but the defendant in the present action,
one of the borrowers, had not been properly served. The plaintiff undertook not to
proceed against her until an order for possession against her had been obtained. On
the plaintiff's summons for an order for possession and for payment of the money
due:-
Held:
(3) That, because the plaintiff was retained by the borrowers on the usual basis, her
duty was the normal duty which a solicitor owed to his or her clients (post, p. 46E-F);
that a solicitor must put at his client's disposal not only his skill but also his relevant
knowledge, and if he was unwilling to reveal his knowledge to his client he should
not act for him (post, p. 48F-G); that, accordingly, the plaintiff was guilty of a breach
of duty towards the borrowers, and that the*32 damages for the breach of duty were
not less than the amount of the borrowers' liability to her.
*Per curiam. In all ordinary circumstances a solicitor ought to refuse to act for a
person in a transaction to which the solicitor is himself a party with an adverse
interest; and even if he is pressed to act after his refusal, he should persist in that
refusal (post, p. 47G-H).
*The courts have often pointed out the undesirability of a solicitor acting for both
parties in a conveyancing transaction, as by acting for both vendor and purchaser; yet
the practice remains widespread, sustained, it seems, by beliefs such as those of
economy, efficiency and speed, and, no doubt, others. In such cases, the solicitor, of
course, has a double duty to perform: he must safeguard the adverse interests of each of
Page 46 of 211
his clients. In the absence of any personal interest to impel him to one side or the other,
a solicitor can, and doubtless in the vast majority of cases does, stand indifferent, and,
at some risk, discharge his duty of acting impartially in the interests of each of his
clients. Where, however, one of the parties is the solicitor himself, then the matter seems
to me to be entirely different: the solicitor must be remarkable indeed if he can feel
assured of holding the scales evenly between himself and his client. Even if in fact he can
and does, to demonstrate to conviction that he has done so will usually be beyond
possibility in a case where anything to his client's detriment has occurred. Not only
must his duty be discharged, but it must manifestly and undoubtedly be seen to have
been discharged. I abstain from any categorical negative: the circumstances of life are
of such infinite variety. But I can at least say that in all ordinary circumstances a
solicitor ought to a refuse to act for a person in a transaction to which the solicitor is
himself a party with an adverse interest; and even if he is pressed to act after his
refusal, he should persist in that refusal. Nobody can insist upon an unwilling solicitor
acting for him, at all events when there is a conflict of interests.
If a solicitor does nevertheless act for a client in a transaction with the solicitor
himself, the question is what is the extent of his duty. In the present case, Mr. Scott
contended that Mrs. Spector was under no duty to advise Miss Adega of anything that
Mr. Gravesande already knew, since they came to Mrs. Spector together and were
jointly concerned,*48 and Miss Ageda evidently relied upon Mr. Gravesande. A
fortiori, Mrs. Spector was under no duty to tell Mr. Gravesande himself what he
already knew. Further, if clients instruct a solicitor to carry through a transaction for
the purpose of discharging an existing liability, the solicitor is under no duty, said Mr.
Scott, to inform the clients that there is or may be no existing liability, even though
the solicitor knows this to be the case. His duty is limited to advising on the title and
the searches in the transaction in which he was instructed.
I accept, of course, if a client instructs his solicitor to carry through a transaction

requisite to discharge an existing obligation, those instructions do not, without more,
require the solicitor to conduct an investigation into the existing obligation in order
to discover whether or not there are any defects in it. But that is not the point. The
essential question is not one of failure to investigate, but the quite different question
of failure to advise the client of what the solicitor already knows. Disregarding the
particular circumstances of the present case, I cannot believe that any reputable
solicitor would carry through a transaction for his client by way of discharging an
obligation that the solicitor knew to be wholly or partly unenforceable or void and
say not a word to his client about the defects in the obligation. In the present case
there were, of course, special elements. One was that Mrs. Spector had added the
words about 2 per cent. per month interest after the memorandum had been signed.
There is no evidence to suggest that the borrowers knew that she had done this.
Page 47 of 211
What Mr. Scott must then establish is that where a solicitor accepts clients in a
transaction, he need not tell them that, after execution, he has altered to their
detriment the document recording the obligation that they are seeking to discharge
by means of the transaction. He need not tell them, nor need he seek to advise them
of the effect the alteration may have under the general law and under statute. If he
remains completely silent as to his wrongdoing, he has nevertheless done all the law
requires him to do for his client. Leave all else on one side, and Mr. Scott must go as
far as this to make good his contention.
Such an argument has only to be stated to be rejected; in my judgment, it is wholly

wrong. A solicitor must put at his client's disposal not only his skill but also his
knowledge, so far as is relevant; and if he is unwilling to reveal his knowledge to his
client, he should not act for him. What he cannot do is to act for the client and at the
same time withhold from him any relevant knowledge that he has: see, e.g., Moody v.
Cox [1917] 2 Ch. 71.
Johnson v Thomas (1991) 28 JLR 40
Rowe P (obiter) “Although we were not addressed at any length as to the practice in
Jamaica whereby one attorney acts for both vendor and Purchaser is the transfer of
registered land, we did express the view that in an effort to avoid conflicts this practice
should be adopted as seldom as possible.”
Fully informed consent means consent given by the client in the full knowledge that there
is a conflict or potential conflict (so conflict could be actual or potential) between the
parties which may prevent the attorney from disclosing to each party his full knowledge of
the transaction or giving completely candid advice to each. The attorney must establish
precisely what services are required by each and obtain preferably the written consent of
the parties before proceeding to act for either. Hilton v Barker Booth & Eastwood [2005]
UKHL 8; [2005] 1 WLR 567 – House of Lords decision. This is a where one firm with 2
partners were representing opposing clients in a commercial matter. Breach of contract -
they breached duty of care to one party, since the firm had not made full disclosure of all
material to the other party he could not have given fully informed consent and further it is
likely that such consent would not have been given had he known all the relevant facts. The
firm had an interest in keeping quiet in order to represent one party. So the firm was held
liable.
*Hilton v Barker Booth & Eastwood [2005] UKHL 8; [2005] 1 WLR 567: The
defendants were a firm of solicitors. They were retained by B to conduct his defence
to the offences of participating in the management of a company whilst an
Page 48 of 211
undisclosed bankrupt, of fraudulent trading and of obtaining credit while an

undischarged bankrupt. B was convicted and sentenced to nine months’
imprisonment. Following his release from prison, B proposed to the claimant that
the claimant should acquire certain land, build a block of flats on it and sell the flats
to B as and when they were completed. Several meetings took place between the
claimant, B and a partner in the defendants who knew of B’s bankruptcy and his
prison sentence. The outcome was that the claimant agreed to buy the land, to
develop it and sell the developed property to B. Unbeknown to the claimant, B
agreed to sell on the flats to a sub-purchaser. All three contracts were exchanged on
the same day. The partner acted for B and a solicitor employed by the defendants
acted for the claimant. The claimant obtained a large bank loan to finance the
purchase of the land and the building of the flats. The deposit on the first contract of
£25,000 was advanced by the defendants. B failed to complete his purchase from the
claimant and the claimant decided to rescind the contract. The claimant’s business
collapsed and the bank proceeded to enforce its securities but a large deficit
remained. The claimant brought proceedings against the defendants claiming
damages for negligence and breach of duty. The judge held that the defendants had
been in breach of their professional duty but that the breach had caused no loss to
the claimant and dismissed the claim. He concluded that the defendants were in
breach of their professional duty in acting for both the claimant and B, that the facts
of B’s bankruptcy and convictions were information that the defendants could not
pass on to the claimant without a breach of their professional duty to B, that the
breach of duty lay in continuing to act, not in failing to pass on the information.
Upon that footing, the claimant was entitled to be placed in the position he would
have been if he had instructed an independent solicitor. The Court of Appeal
dismissed the claimant’s appeal and he appealed to the House of Lords.
Held – The appeal would be allowed.If a solicitor put himself in a position of having
two irreconcilable duties it was his own fault. If he had a personal financial interest
which conflicted with his duty, he was even more obviously at fault. The notion that
one breach of duty by the defendants, failure to tell the claimant that they could not
act for him and that he should seek independent advice, should exonerate the
defendants in respect of a subsequent and more serious breach of duty, failure to
disclose to the claimant facts which would have saved him from ruin, was contrary
to common sense and justice and contrary to principles established by authority. In
the instant case the defendants were in the position, through their own fault of
having two irreconcilable duties, to B and the claimant, and also of having a personal
interest, because of the undisclosed £25,000 loan, which was likely to be
recoverable only if B did well in his transaction with the claimant. If, at an early
stage, they had told the claimant that they could not act for him and that he should
go to other solicitors, they would have extricated themselves from their dilemma. In
the event, however they had continued to act for both clients and it was inevitable
Page 49 of 211
that they would be in breach of the contractual duties they owed to one or the other.
The defendants had no answer to the claim against them for damages for breach of
contract.
See the case of Marks v Spencer plc v Freshfields [2004] 3 All ER 773. This case also
dealt with informed consent. The firm represented 2 clients but not in the same transaction
(not in same matter) nonetheless the court held that there was a sufficiently close
relationship between the 2 transactions for the court to say there was a real or potential
conflict.
*Marks v Spencer plc v Freshfields [2004] 3 All ER 773: RA Ltd, a company

owned by G and his family, announced that it was considering making an offer for
the claimant company which, if it materialised, would be made by a consortium of
the family interests of G and a number of major financial institutions. In accordance
with modern practice the claimant retained a number of legal advisers to advise it in
relation to different legal matters. The claimant applied for an injunction prohibiting
the intended defendant firm of solicitors from acting for or advising or otherwise
assisting RA Ltd and/or G and/or any other entity or individual owned by or acting
in concert with G in relation to any acquisition or potential acquisition of the shares,
assets or business of the claimant. The claimant contended that by acting for the
consortium in circumstances where the defendants had an existing and on-going
retainer, in relation to one of the claimant’s main contractual arrangements and
their restructuring, they had placed themselves in a position of conflict or potential
conflict of interest to which the claimant had not consented. In addition, the
claimant contended that as a result of the services performed by the defendants
over a number of years, they were in possession of confidential information
belonging to the claimant which was or might be relevant to the retainer which they
had for the consortium.
Held – The application would be allowed. A solicitor as a fiduciary could not put
himself in a position whereby there was an actual or potential conflict between his
duty of loyalty to his existing client and his duty of loyalty to his new client without
first obtaining the informed consent of both parties. Moreover, it was established
that there had to be a reasonable apprehension of a potential conflict, not a mere
theoretical possibility. Further, where a conflict of interest arose in a case which did
not involve a single transaction there had to be a relationship between the two
matters but they did not have to be the same. On the evidence the court was
satisfied that there was a real or serious risk of conflict. The court would therefore
grant an injunction on the principal ground of the actual or potential conflict of
interest in which the defendants found themselves. In the circumstances, the court
was satisfied that there was a great deal of confidential information and Chinese
walls would not be perceived to be sufficient.
Page 50 of 211
Once an attorney accepts a retainer they have a duty to put the client’s interest first and
they must have internal procedures in place to determine whether there is a conflict in
relation to other clients.
See Canon 1V j-m.
Conflict in relation to former clients

This is where the attorney acting for one party in a transaction and the other party is a
former client of that attorney. In relation to the former client that retainer is at an end so no
contractual duty to that client. Generally speaking your fiduciary duty to that client is also
at an end however the duty of confidentiality would continue beyond expiration of retainer
see the case of Prince Jefri Bolkiah v KPMG [1999] 1All ER 517, see the judgment of Lord
Millet where he said that the only duty to the former client which survives the retainer is
the continuing duty to preserve the confidentiality of information imparted during its
subsistence.
*Prince Jefri Bolkiah v KPMG [1999] 1All ER 517, [1999] 2 A.C. 222 : The
defendants, a firm of chartered accountants, were the auditors for an investment
agency established to hold and manage the general reserve fund and the external
assets of the Government of Brunei. In 1996 the plaintiff, the then chairman of the
agency, was involved in major litigation relating to his financial affairs and he
retained the defendants to provide forensic accounting services and litigation
support. In the course of that work the defendants performed many tasks usually
undertaken by solicitors, and were given access to highly confidential information
concerning the extent and location of the plaintiff's assets. The litigation was
settled in March 1998 and thereafter the defendants undertook no further work
for the plaintiff. Around the same time the plaintiff was removed from his position
as chairman of the agency. In June 1998 the Government of Brunei appointed a
finance task force to conduct an investigation into the activities of the agency
during the period when the plaintiff had been its chairman. The agency retained
the defendants to investigate the whereabouts of certain assets which were
suggested to have been used by the plaintiff for his own benefit. The defendants
took steps to protect the plaintiff's confidentiality by ensuring that the personnel
who had been on the team assisting with the plaintiff's litigation were not on the
team working on the agency's investigation, and by attempting to create an
information barrier within its forensic accounting department so as to prevent the
flow of information between the two teams. The plaintiff commenced an action for
breach of confidence against the defendants and sought an interlocutory
injunction restraining them from acting for the agency. The judge granted the
injunction, holding that although the defendants had an honest intention not to
disclose confidential information the barrier established by them was inadequate
Page 51 of 211
to deal with inadvertent disclosure. The Court of Appeal discharged the injunction
on the grounds that there was no evidence that the plaintiff would suffer real
prejudice unless there was an injunction and that a continuation of the injunction
would set an unrealistic standard for the protection of confidential information.
On the plaintiff's appeal: - Held, allowing the appeal, that where it was established
that solicitors, or accountants providing litigation services such as those provided
by the defendants, were in possession of information confidential to a former
client which might be relevant to a matter in which they were instructed by a
subsequent client the court should intervene to prevent the information from
coming into the hands of anyone with an adverse interest unless it was satisfied
that there was no real risk of disclosure; that since it had been established that the
defendants were in possession of confidential information the burden was on
them to show that there was no risk that the information would come into the
possession of those acting for the other party; that although there was no rule of
law that "Chinese walls" or other similar arrangements were insufficient to
eliminate the risk, unless special measures were taken information moved within
a firm and the court would restrain the defendants from acting for a new client
unless it was satisfied on clear and convincing evidence that effective measures
had been taken to ensure that no disclosure would occur; that in order to be
effective arrangements had to be an established part of the organisational
structure of the firm and the ad hoc arrangements made by the defendants were
inadequate in the circumstances to prevent the risk of inadvertent disclosure; and
that, accordingly, since the defendants had not discharged the burden of showing
there was no real risk that information confidential to the plaintiff might
unwittingly or inadvertently come into the possession of those working on the
agencyinvestigation, the injunction would be granted . Rakusen v. Ellis, Munday &
Clarke [1912] 1 Ch. 831, C.A. disapproved.
In such a situation where you have an attorney acting for a client and there is a former
involved, the former client could seek to restrain the attorney from acting where the
attorney is in possession of information which is confidential to him and he has not
consented to the disclosure. The information is or may be relevant to the new matter
where the interest of the other client may be adverse to his own. Rakusen v Ellis Munday
and Clarke [1912] 1 Ch 831: – it was said the solicitor may be restrained from acting if it
was necessary to avoid a significant risk of the disclosure or misuse of confidential
information belonging to the former client.
*Rakusen v Ellis Munday and Clarke [1912] 1 Ch 831: There is no general rule
that a solicitor who has acted in a matter for one party shall not in any
circumstances subsequently act in the same matter for the opposing party, but
where there is (per FLETCHER MOULTON, LJ) a probability, or (per BUCKLEY, LJ) a
Page 52 of 211
danger, that the solicitor will disclose to the opposing party confidential information
which he has obtained from his original client while acting for him the court will
restrain him by injunction from so doing. The court will act according to the
circumstances of the particular case, and will do what it feels to be its duty as
holding the balance between the highest standard of behaviour which it requires of
its officers and the practical necessities of life. The plaintiff in an action for wrongful
dismissal consulted with regard to the case M, one of the partners in a firm of
solicitors consisting of two partners. The other partner, C, did not know that the
plaintiff had consulted M. and knew nothing of any communication made by the
plaintiff to M Later, the plaintiff changed his solicitors. The dispute in the action
went to arbitration, and while the arbitration was continuing the defendants to the
action changed their solicitors and employed C C was prepared to undertake not to
seek from M, or use any knowledge derived from M, with regard to the action. Held:
there being in the circumstances no reasonable possibility of any mischief resulting
from the employment of C by the defendants, the court would not grant an
injunction restraining him from acting for them.
In the case of Prince Jefri Bolkiah v KPMG [1999] 1All ER 517 the House of Lords
essentially reversed the emphasis and said that the court should intervene unless it is
satisfied that there is no risk of disclosure. The House of Lords also considered the issue of
Chinese walls – essentially they are artificial barriers that are in a firm that affect the
communication in a firm (may be physical or artificial in terms of how information flows
through the firm). In Prince Jefri Bolkiah v KPMG [1999] 1All ER 517 they said that this
firm’s mechanisms were not sufficient because they were ad hoc and did not form part of
the fabric of the firm and so they were deemed to be inadequate to eliminate the risk of
information moving within the firm.
In Young v Robson Rhodes [1999] 3 All ER 524 Justice Laddie said that the crucial
question is will the barriers work? Meaning, it doesn’t matter if they were not put in place a
long time ago but rather whether they are effective even to deal with a one-off problem.
Whether the system forms part of the culture of the firm. It is not often that the courts
accept the Chinese walls defence. So it is best to avoid taking on clients in circumstances
where there is conflict.
*Young v Robson Rhodes [1999] 3 All ER 524 Members of a Lloyd's syndicate,

including the plaintiffs, commenced actions for negligence and breach of contract
against the syndicate's auditors, PKF. The members required the assistance of
forensic accountants in pursuing those actions, and instructed the defendant firm,
RR, for that purpose. In March 1999, fifteen months after it was first instructed, RR
informed the plaintiffs that it was planning to merge with PKF and that it would
not be able to act for them in the actions if the merger went ahead. The plaintiffs
Page 53 of 211
subsequently commenced proceedings against RR, claiming, inter alia, that the
latter had acquired confidential information relating to the proceedings against
PKF, and that there was a risk that some of that information would pass to PKF if
the merger went ahead. RR offered to erect a 'Chinese wall' to prevent the flow of
such information, but did not propose the physical separation of the PKF
personnel involved in the actions from the three-strong RR team which had
worked for the plaintiffs (the team). The plaintiffs contended that an ad hoc
arrangement after the event was inadequate, and that their interests could be
protected only by prohibiting all direct and indirect contact, professionally and
socially, between the team and the relevant PKF personnel. In the absence of an
undertaking to that effect, the plaintiffs sought an injunction restraining the
merger until completion of the actions against PKF. RR contended, inter alia, that
the risk of inadvertent disclosure was fanciful in view of the small size of the team
and the proposed information barrier. Held – Where the court was considering an
information barrier designed to prevent the disclosure of confidential information,
the crucial question was whether the barrier would work. Thus, if the barrier was
effective, it did not matter whether it had been created before or after the problem
had arisen. In the instant case, the proposed information barrier did not go far
enough since there would be a risk of inadvertent leakage of confidential
information if members of the team worked alongside the PKF personnel involved
in the actions, or were in regular contact with them. However, an injunction
restraining the merger would inflict unwarranted harm on both firms and would
be of no legitimate benefit to the plaintiffs. Moreover, the risk of disclosure at
social events would be fanciful if the team was physically separated from, and had
no professional contact with, the PKF personnel involved in the actions, and thus it
was not necessary to proscribe social contact. Accordingly, the merger could
proceed, but for the duration of the actions against PKF no member of the team
would be allowed to work in the same premises as any PKF personnel involved in
those actions, or have any professional contact with such persons .
Prince Jefri Bolkiah v KPMG (a firm) [1999] 1 All ER 517 considered.
*Solicitors Regulation Authority v Dennison [2012]EWCA Civ 421

It was appropriate to strike off a solicitor who for several years had dishonestly
concealed from his partners and clients that he had a commercial interest in a
company which provided medical reports for the firm's clients. A fine would not be
an adequate penalty in the circumstances.
The appellant solicitor (D) appealed against a decision

(SolicitorsRegulation Authority v Dennison [2011] EWHC 291 (Admin)) that he be
struck off the roll of solicitors in respect of his professional misconduct.
Page 54 of 211
Prior to joining a law firm as a partner in 1999, D had owned one-third of the shares
in a company (L) which provided medical reports for personal injury claimants. The
firm and L entered into an agreement whereby L agreed to provide medical reports
for clients for whom the firm acted under the scheme of a claims management
company. D did not disclose his ongoing interest in L to his partners or clients. L
provided services to the firm for five years until the claims management company
went into liquidation. During that period D made substantial profits which he kept
secret. He eventually disclosed his interest to his by then former partners in 2007,
and paid them a substantial commercial settlement, part of which related to sums
paid to L in respect of the firm's clients. The Solicitors Disciplinary Tribunal held
that D had acted dishonestly, that the matter was very serious and that the
circumstances were extremely unusual. However, it imposed a fine rather than
striking off or suspending D, in view of the length of time that had passed, and given
that D had paid his former partners and that in its view he did not present a risk to
the public if he remained in practice. The Solicitors Regulation Authority appealed
against that decision and the Divisional Court decided that D should be struck off.
D submitted that the Divisional Court had failed to give proper weight to the
decision of the tribunal, which had been in a good position to assess both the risk to
the public if he were allowed to continue in practice and the risk of undermining
confidence in the profession. He further submitted that the unusual circumstances
of his case placed it in that residual category of cases of dishonesty for which
striking off was not an appropriate penalty.
Appeal dismissed. The tribunal had recognised that D's probity and therefore the
reputation of the profession were involved and that the matter was very serious.
That was not surprising because it had found that D had been knowingly dishonest
towards both his partners and clients, and that he had persisted in his dishonesty
over some five years in order to enhance his personal gain. Although it was not a
case involving the dishonest use of clients' money, it was one which on its face could
be expected to have resulted in D being struck off for all the reasons given in Bolton
v Law Society [1994] 1 W.L.R. 512, Bolton applied. Therefore it was necessary to
look at the tribunal's reasons for not taking that course. However, none of the
factors which led the tribunal to conclude that striking off or suspension was not
required carried much weight. The passage of time, although a factor to be taken
into account, did little to detract from the gravity of the conduct, especially when the
duration of the dishonesty and its subsequent concealment were taken into account.
The matter was made worse by D's receipt, albeit by a circuitous route, of advice
from the Law Society that his interest in L had to be disclosed. D's payment to his
former partners did nothing to preserve the reputation of the profession. The fact
that the tribunal was satisfied that no member of the public would be put at risk if D
continued to practise likewise did little to ensure confidence in the profession, since
Page 55 of 211
it would tend to reinforce the perception that the profession was willing to tolerate
seriously dishonest practitioners. Further, given that the tribunal had described D's
behaviour as "very serious", a large fine, even coupled with a period of suspension,
could not properly be regarded as an appropriate penalty in a case like D's. The
tribunal's power to impose fines might be relevant to less serious kinds of
dishonesty, but D's did not fall in that category. The Divisional Court had been
conscious of the respect due to the decision of a professional tribunal like the
tribunal in this case, particularly one composed of such experienced members.
However, it was entirely justified in its conclusion that the tribunal's decision was
clearly inappropriate, Salsbury v Law Society [2008] EWCA Civ 1285, [2009] 1
W.L.R. 1286 applied (see paras 13-18 of judgment).
Page 56 of 211
WORKSHEET 5 :
ATTORNEY’S OBLIGATION TO CLIENT (PART TWO)
CONFLICTS OF INTEREST – DISABILITY OF THE ATTORNEY
No Profit Rule
The attorney/client relationship is a fiduciary one and therefore the rules relating to
conflict of interest are very relevant and what it means is that the attorney ought not to put
himself in the position where his interest and duty conflict.
 A fiduciary duty is a legal or ethical relationship of confidence or trust between two
or more parties. In a fiduciary relationship, one person, in a position of vulnerability,
justifiably vests confidence, good faith, reliance and trust in another whose aid,
advice or protection is sought in some matter. In such a relation good conscience
requires the fiduciary to act at all times for the sole benefit and interest of the one
who trusts.
 A fiduciary is someone who has undertaken to act for and on behalf of another in a
particular matter in circumstances which give rise to a relationship of trust and
confidence.
 A fiduciary duty is the highest standard of care at either equity or law. A fiduciary is
expected to be extremely loyal to the person to whom he owes the duty (the
"principal"): he must not put his personal interests before the duty, and must not
profit from his position as a fiduciary, unless the principal consents.
 When a fiduciary duty is imposed, equity requires a different, arguably stricter,
standard of behavior than the comparable tortious duty of care at common law. It is
said the fiduciary has a duty not to be in a situation where personal interests and
fiduciary duty conflict, a duty not to be in a situation where his fiduciary duty
conflicts with another fiduciary duty, and a duty not to profit from his fiduciary
position without knowledge and consent. A fiduciary ideally would not have a
conflict of interest. It has been said that fiduciaries must conduct themselves "at a
level higher than that trodden by the crowd" and that "[t]he distinguishing or
overriding duty of a fiduciary is the obligation of undivided loyalty."
The no profit rule which stems from this principle means that the attorney is essentially
prevented from entering into certain transactions or dealing with his clients in a particular
way.
Your duty to client versus personal interest.
What this means is that the attorney should not profit from the attorney/client relationship
except for his remuneration. So there are certain restrictions as it relates to sales and
purchases between attorney and client, loans, gifts, both intra vivo gifts and gifts under a
will.
Page 57 of 211
The attorney is supposed to act with the utmost good faith and where there is a financial
transaction between attorney and client (other than fees) the presumption is that the
transaction should not be upheld unless the attorney can establish that it was conducted by
the free exercise of the client’s will and that there was no undue influence by the attorney.
Note the case of Demerara Bauxite Co. v Hubbard [1923] AC 673.
*Demerara Bauxite Co. v Hubbard [1923] AC 673: A transaction, such as the
purchase of property under an option, where the vendor and purchaser are client
and solicitor (or where a similar confidential relationship exists) and the vendor
has not had independent advice, cannot be upheld unless it is proved
affirmatively that the purchaser disclosed, without reservation, all the
information in his possession, and that the transaction was a fair one in all the
circumstances. To fulfil those conditions it must be shown that the solicitor
advised his client as diligently, and that the transaction was as advantageous, as if
the client had been dealing with a stranger. This principle is of wide application,
and should not be regarded as a technical rule of English law. Although the
relationship of solicitor and client, in a strict sense, has terminated, the same
principle applies so long as the confidence naturally arising from that relationship
is proved, or may be presumed, to continue. Judgment of the Court of Appeal
affirmed.
The attorney has to ensure that there is full disclosure to the client of all the circumstances
of the transaction and also that the client is to obtain independent legal advice. All of the
above is done to rebut the presumption of undue influence.
Sales to and by the Attorney

There are a number of instances where you will find that there is a sale of property by the
client to the attorney, for example, sale of land. In such instances the following rules should
be observed.
1. The attorney purchasing the property should not be the attorney to handle the sale
2. The attorney should ensure the price paid is the fair market value
3. The attorney should ensure that the client gets independent legal advice
Note the cases of Knowles v Francis (1983) 32 WIR 205 and Lalor v Campbell
(1987) 24 JLR and McMaster v Byrne [1952] 1 All ER 1362.
*Knowles v Francis (1983) 32 WIR 205: K, a close friend of F, a solicitor, visited
F's office in 1959 and 1960 to discuss an action (suit 57 of 1960) which K wished
to institute against his brother concerning the title to a parcel of land. K offered F a
portion of the land as payment of fees in connection with the action. F refused, but
offered to purchase part of the land. He paid a deposit to K; but the amount of the
deposit could not be established at a later date. F kept no record of the transaction;
the purchase price was not agreed, nor was the area to be transferred identified. It
Page 58 of 211
was clear in F's mind, however, that the purchase of the land and the payment of
his fees were inter-related. Judgment was not given in suit 57 of 1960 until 1973.
In the following year a deed of conveyance of 11 acres of the land was prepared in
F's office; the deed expressly acknowledged receipt of the purchase price. The
deed was taken to court where F was appearing as a witness on behalf of K in
another case. F handed the deed to K, who asked if it concerned F before looking
through the deed and at the attached map; K signed the deed and returned it to F,
A few months later K died.
In 1975 F applied to the court for a declaration that the defendant, K's son, was not
entitled to possession of the land. After the action had been instituted, F also died.
The trial judge held that the transaction between F and K was essentially a simple
transaction between parties who were experienced in buying and selling land;
moreover, there were no relevant disclosures that F ought to have made to K and K
was at no disadvantage in the transaction, being fully capable of conducting his
affairs without legal advice. Accordingly, he granted a declaration that the
defendant was not entitled to possession; however, he also stated that there was
no proof that F had paid the purchase price and that that sum was outstanding.
The defendant appealed to the Court of Appeal.
Held allowing the appeal–
 (1) The agreement to sell the land had been made at a time when F had
been retained as solicitor in suit 57 of 1960 and, as the agreement
involved the subject-matter of that litigation, it constituted champerty
or, at least, savoured of champerty.
 Wood v Downes (1811) 18 Ves 120 applied.
 (2) It was F's duty to have advised K to take independent advice on the
transaction which was not a simple one, and F was in breach of that
duty; accordingly, the presumption of undue influence arising from the
relationship between solicitor and client had not been rebutted and the
agreement had to be set aside on this ground also.
 Edwards v Meyrick (1842) 2 Hare 60 applied.
Per curiam. An attorney is not affected by the absolute disability to purchase
which attaches to a trustee; but if he becomes the buyer of his client's property,
he does so at his peril. He must be prepared to show that he has acted with the
most complete faithfulness and fairness; that his advice has been free from all
taint or self-interest; that he has not misrepresented anything, or concealed
anything; that he has given an adequate price; and that his client has had the
advantage of the best professional assistance which, if he had been engaged in a
transaction with a third party, he could possibly have afforded.
Page 59 of 211
Lalor v Campbell (1987) 24 JLR 67: In 1969, the respondent represented the
appellant who was to stand trial for murder. The appellant was of little means, and
so in order to pay the respondent's fees of 400 Guineas (£420 or $840) he arranged
with counsel to sell to him his only asset, a acre of land with an unfurnished house
thereon. As to this sum the respondent drew a cheque for £300 in the name of the
appellant being a down payment and then had the appellant endorse the cheque
back to him as being an account of his fees for the defence, £12 was still owing
towards his fees. The transaction took place in prison. The appellant filed a writ
against the respondent impugning their earlier agreement for the sale of the land
and requesting a declaration that the contract was voidable at his instance on the
grounds of undue influence and fraudulent misrepresentation. The trial judge
dismissed the appellant's claim. He appealed, and the main issue on appeal was
concerned with the onus resting on an attorney to justify dealings with his client's
property by way of purchase. Held: (i) that an Attorney-at-Law purchasing the
property of his client owes him duty to more full and free disclosure of every
material fact he knows and must satisfy the Court that the contract is one of full
advantage to the client. (ii) that the respondent had not satisfied the Court that he
had given the client reasonable advice against himself that he would or should have
given if the sale had been to a stranger, nor had it been established that the
appellant had been given competent, independent advice and there is also no
evidence to show that the true value of the land had been established at the
material time; (iii) that there must be an order setting aside the said contract
of sale and re-vesting the said land in the appellant; no order in respect of
outstanding fees as the rent and profit of the land over the period would more than
compensate for the charges. Appeal allowed.
McMaster v Byrne [1952] 1 All ER 1362: In 1933 M and two associates, P and E
promoted a company, S P Ltd in Canada, M and P receiving one thousand common
shares in the company and E five hundred. The promoters then acquired another
company to which they transferred their holdings in S P Ltd receiving in exchange
shares in the holding company. The respondent, who was a solicitor, was
employed by the promoters in the formation of S P Ltd the acquisition of the
holding company, and the transfer to that company of the promoters' shares in S P
Ltd. In 1936 M who had become a director of S P Ltd on its formation, resigned
from that company, and in 1939 he set up in business on his own account.
Thereafter he made frequent attempts to realise his interest in S P Ltd as
represented by his shares in the holding company. In 1944 M.'s business was
formed into a company, M P Ltd the respondent acting for M in its incorporation.
In the same year the respondent drew up M's will, under which he was appointed
one of the executors, and the will was placed in his custody. In 1946 M granted P
an option to purchase his (M's) shares in the holding company for $30,000. At
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about the same time negotiations, conducted by P were opened for the sale of a
controlling interest in S P Ltd to an English company. On 21 March 1947, the
respondent had an interview with P at which the respondent was informed of the
negotiations with the English company. At that interview he obtained from P an
assignment of P's option in M's shares. On 22 March 1942, the respondent had a
meeting with M and obtained from him a fresh option on his shares. It was
doubtful whether at that meeting the respondent disclosed to M all the facts of
which he was aware regarding the negotiations for the sale of S P Ltd. On 8 April
1947, the respondent exercised his option and purchased the shares from M for
$30,000. On 2 June the English company's offer to buy a controlling interest in S P
Ltd was accepted, and on completion of the sale the respondent received
$127,000 for the holding, representing a profit of $97,000. In July, 1947, M
executed a codicil to his will appointing his two sons executors in place of the
respondent and removing the will from his custody. In 1948 M died. In an action
by his executors against the respondent for an account of the profit made on the
transaction, Held – Although the respondent was not acting as solicitor for M on
22 March when obtaining the option from him, in the circumstances the
confidence arising from the relationship of solicitor and client which had
previously existed between them must be taken to have continued to exist on that
date; it was the duty of the respondent to disclose to M all the material facts
within his knowledge, and, although M had continually tried to dispose of his
shares, the necessity for disclosure was to be tested, not by his probable reaction
to the information, but by the natural reaction of a reasonable man; the onus was
on the respondent to prove that he had discharged his duty to M and, there being
doubt on this point, there must be a new trial.
It is the burden of the Attorney to prove that i) the client was fully informed of all the
material facts, ii) the client understood the transaction and iii) that the transaction price
was a fair one.
Note the case of Allison v Clayhills [1904 – 7] All ER 500
Allison v Clayhills [1904 – 7] All ER 500: A solicitor is not wholly incapacitated
from purchasing property or taking a lease from his client, but where the
relationship of solicitor and client exists the onus of upholding the validity of such
a transaction will rest on the Solicitor. Although the relationship of solicitor and
client in its strict sense has been discontinued, the principle as to the onus applies
as long as the confidence naturally arising from such a relationship is proved or
may be presumed to continue, and so, in the contemplation of a court of equity, it
may apply to a transaction in which the solicitor is not actually retained or
actually acting for his client in such circumstances that if he neglected his
professional duty he would be liable to an action at law for negligence. The test
whether the onus rests on the solicitor is whether or not in the particular
Page 61 of 211
transaction he owes his client any duty in the contemplation of a court of equity. If
he does owe the client any duty, the equal footing on which the parties to any
bargain should stand is impaired or destroyed, end the solicitor is solicitor in hac
re within the meaning of the authorities although he is not retained to act as
solicitor in that particular transaction or any pending transaction. In considering
whether any duty exists such as to bring the rule as to onus into operation all the
circumstances of the individual case must be weighed and examined. Thus, a
solicitor may by virtue of his employment acquire a personal ascendancy over a
client and this ascendancy may last long after the employment has ceased, and the
duty towards the client which arises out of any such ascendancy will last as long
as the ascendancy itself can operate. Again, a solicitor may by virtue of his
employment acquire special knowledge, and the knowledge so obtained may
impose on him the duty of giving advice or making a full and proper disclosure in
any transaction between himself and his client, though such transaction may take
place long after the relationship of solicitor and client in its stricter sense has
ceased to exist. There may be other circumstances which impose a duty on a
solicitor, which duty may continue to exist after the relationship of solicitor and
client in the strict sense has ceased.
Circumstances discussed in which it was held that the solicitor was not acting in
that capacity towards a former client from whom he was taking a lease.
May find yourself subject to a suit at law and disciplinary proceedings under the
canons if you fail to prove i), ii) and iii).
If the court does not find that the presumption has been rebutted they will set aside the
transaction so that the property will then revert to the client.
Intervivos Gifts from the client to the Attorney

The Rules basically renders the attorney almost incapable of receiving a gift in addition to
his remuneration. The only thing is that the courts make a distinction between what is
known as a trifling gift eg. box of chocolates, bananas, from a gift which is of material value
e.g. BMW car. That restriction also extends to family members of the attorney, see the cases
of Wright v Carter [1903] 1 Ch 27 and Re Eastmond (1995) 50 WIR 76.
*Wright v Carter [1903] 1 Ch 27: A gift by a client to his solicitor raises primƒ
facie the presumption that it was unduly influenced by the fiduciary relation
subsisting between them; and the onus is on the solicitor to prove that the gift was
uninfluenced by that relation. The presumption is, however, not irrebuttable, but
it is not sufficiently rebutted by the mere fact of the client having employed a
separate and independent solicitor - even though without any fraud or collusion
on the part of the two solicitors - to advise him in the matter of the gift; for the
presumption will continue so long as the relation of solicitor and client continues
Page 62 of 211
for other purposes outside the gift, or at all events until it can be clearly inferred
that the influence arising from the relation no longer exists. On the other hand,
there is no objection to a sale by a client to his solicitor, provided the solicitor can
prove - (1.) that the client was fully informed; (2.) that he had competent
independent advice; and (3.) that the price given was a fair one.
In 1900 the plaintiff, being in pecuniary difficulties, executed a voluntary deed
giving part of his property in trust (subject to trusts thereby declared in favour of
persons not parties) after his own death in certain shares for two of his children,
who were sui juris, and for his solicitor, C., whom he expressed a wish to benefit
for services rendered but not yet paid for. C. and one of the two children were the
two trustees of the deed, and all three were parties to it. The draft of the deed had
been prepared in C.'s office, though not under his supervision, but on his
suggestion had been submitted by the plaintiff to a separate solicitor, A., to advise
him in the matter, especially in respect of the gift to C., and the deed was executed
by the plaintiff on A.'s advice. In all other matters C. continued to act for the
plaintiff as before.
In 1901 the plaintiff executed another deed, to which the two children and C. were
again parties, whereby the whole of the plaintiff's property, both present and
future, was conveyed to the same trustees, discharged from the trusts declared by
the deed of 1900 in favour of the two children and C., but to be held upon trust for
the same three persons in equal shares, in consideration of a covenant by them to
pay the plaintiff a certain annuity during his life. This deed also had been prepared
by a separate solicitor, T., who, on C.'s suggestion, had been called in to advise the
plaintiff in the matter. C. continued to act in all other matters for the plaintiff as
before. No fraud or collusion was found as between C., A., and T. in either
transaction, but in neither was A. or T., when advising the plaintiff, fully informed
of his actual position or property.
In an action by the plaintiff to set aside both deeds:-
Held, (1.) that the deed of 1900 was void as against C., but not as against the
children, since the benefits it conferred upon them had not been induced by any
undue influence on the part of C.; and
Held, (2.) that the deed of 1901 was void altogether as being a transaction of
bargain and sale entered into by the plaintiff without, as the evidence shewed, his
having been properly advised as to the sufficiency of the consideration and
without the advice of an independent solicitor fully cognizant of the facts.
Hatch v. Hatch, (1804) 9 Ves. 292; 7 R. R. 195, and Holman v. Loynes, (1854) 4 D. M.
& G. 270, followed.
In the absence of some of the beneficiaries under the deed of 1900, the Court
refused to remove C. from being a trustee thereof or to make a declaration as
against him further than that the deed was void so far as related to his beneficial
interest. The law as stated by Farwell J. in Powell v. Powell, [1900] 1 Ch. 243, 247,
Page 63 of 211
as to the duty of a separate solicitor called in to advise a donor in the case of an

intended gift to a donee standing in a fiduciary relation to the donor, approved of.
Re Eastmond (1995) 50 WIR 76: A client instructed an attorney at law, E, to act

on his behalf in a personal injuries claim. An agreement was reached that they
should share in the fruits of the action 50:50. A settlement was reached in the
action and $73,100 was paid over on behalf of the client. At the same time, the
insurance company paid a fee of $7310 to E. Initially, $10,000 was paid by E to his
client, followed by a sum of $5000; E retained $30,000 in accordance with a loan
agreement between himself and his client (who received no independent advice in
relation to such), although this was later repaid; E retained the balance ($28,100,
plus a further fee of $1000 paid by his client) for his fee in accordance with the
agreement between them. The client complained to the Bar Association that E had
acted unprofessionally in retaining $29,100 as remuneration. After a hearing, the
Disciplinary Committee of the Bar Association found that E had been guilty of
professional misconduct, and it recommended that he should be suspended from
practice for six months and should repay to his client the sum claimed with
interest. Held that E had failed to ensure that his client had received independent
professional advice before making the loan; further, that despite the entitlement of
an attorney at law to enter into an agreement with his client as to remuneration
(section 36(1) of the Legal Profession Act), remuneration of $29,100 in respect of
a settlement of $73,100 (on top of a fee of $7310) was unreasonable and
contravened the Legal Profession Code of Ethics, rule 65(2) (no agreement as to
fees may contravene the code) and rule 66(1) (fees may not be unfair or
unreasonable); E had been guilty of professional misconduct and should be
suspended from practice for six months and ordered to repay to his client $29,100
with interest. Per Sir Frederick Smith JA. Once the Disciplinary Committee of the
Bar Association has found that a prima facie case exists against an attorney at law
the Bar Association should appoint an experienced lawyer to present the evidence
before the committee and not leave the members of the committee to ask
questions of the complainant or the attorney at law in order to arrive at the facts.
BEQUESTS OR DEVISES TO ATTORNEY BY CLIENT

Should an attorney take a gift under a will he prepares/ drafts? An attorney is permitted
to take a gift under a will, but should he do this! If he does it does not invalidate the will or
the gift. The question which arises is should he do so. The rule is that although the attorney
may take a benefit under a will prepared by him, particularly in the case of a substantial
gift, the burden is on the attorney to show that i) the client knew and approved of the
contents of the will, ii) that there was no undue influence by the attorney and iii) that the
testator received independent legal advice see the case of Wintle v Nye [1959] 1 All ER
552.
Page 64 of 211
*Wintle v Nye [1959] 1 All ER 552: In summing-up to a jury on the question

whether a testatrix knew and approved the contents of her will, a general
direction by the judge to regard with suspicion evidence given by the author of the
will, who is also its chief beneficiary, is of little value if the judge so far neglects his
own precept that, on each item of evidence, he turns an indulgent eye and accepts
without vigilance or jealousy testimony that demands the closest scrutiny. In 1937
a lady of sixty-six years of age, unversed in business, whose property had been
managed by her brother until his death in 1936, was being advised in the
preparation of her will, by the respondent, her solicitor, who had for many years
been her family solicitor and then had the management of her property. The value
of her estate at that time was estimated at £38,000 after allowing for death duties.
By the first draft of her will her executors were to be the respondent and a bank,
and her residuary estate was to be given to charities. Between the first
consultation on October, 1936, and the execution of the will, there were some
twenty interviews between the testatrix and the respondent at which her will was
discussed. The will that she ultimately executed appointed the respondent to be
her sole executor and gave the residury estate to him, a clause being included
requesting him to apply the same in accordance with a letter not yet written; there
were other bequests, including an annuity of £300 to the testatrix' sister with a
provision that on her death one-third of the funds set aside for the annuity was to
be given to charities. The residuary gift, however, was of substantial value. The
will was drawn by the respondent and executed in his office. The testatrix had no
independent advice, but the respondent deposed that he had advised her to
consult a separate solicitor and that she had declined to do so. The respondent
deposed that the testatrix' reason for leaving him her residuary estate was that
she did not want to leave her sister in control of more of her estate than a limited
income, that the respondent could supply further funds for her sister's
maintenance and that there was no one whom the testatrix preferred or could rely
on, other than the respondent, to look after her sister. In 1939 the respondent
advised the testatrix to execute a codicil, which he drew, revoking the gifts to
charities on the death of the testatrix' sister; the respondent testified that he gave
this advice as a consequence of reading of the depreciation in value of estates and
of their possible inadequacy to meet legacies. The testatrix executed the codicil.
The consequence of the revocation of the gifts to charities was that their amount
fell into residue. The testatrix died in 1947 and the respondent proved the will and
codicil. Her estate was assessed for death duty at £115,000. In an action to revoke
the grant of probate on the grounds that the testatrix did not know and approve
the contents of her will or of her codicils, fraud not being alleged, the trial judge
directed the jury correctly on the law but did not scrutinise jealously to them the
evidence tendered by or on behalf of the respondent. The jury found that the
testatrix knew and approved the contents of her will and of her codicil. Held – (i)
Page 65 of 211
the burden of proof on the respondent to establish that the testatrix knew and
approved the contents of her will and codicil in so far as they benefited him was, in
the circumstances of this case, a very heavy one. Principle in Barry v Butlin
((1838), 2 Moo PCC 480) adopted. (ii) Though the judge's summing-up correctly
stated the law, it violated the law's requirements in its examination of evidence,
because it in no way led the jury to a critical approach to the respondent's
evidence and acts accordingly there was such misdirection that the verdict of the
jury could not stand. Appeal allowed.
In Re a Solicitor [1974] 3 All ER 853 the court went as far as to say that if the solicitor
told the client to seek legal advice and he refused to, then the solicitor should forego the
benefit.
*Re a Solicitor [1974] 3 All ER 853: The appellant and B, both solicitors, entered
into partnership in 1932 and bought the existing practice of a firm of solicitors.
Among the clients of that firm whom the appellant and B took over were two
ladies, Marie and Jane, whose family had had a long association with the firm.
Marie had a forceful personality and was versed in business matters. Jane was less
capable of looking after her own affairs. In 1948 Marie summoned B to see her. At
the meeting she indicated to B that she wished to make a will and that, after
certain pecuniary legacies had been made, she wished the remainder of her estate
to go to Jane for life and then to be distributed as to one moiety to B's son and as to
the other moiety to the appellant's daughters. B drew up a will for her on those
lines, and it was duly executed by her. She received no independent legal advice in
regard to the making of it and the detailed attendance note made by B of the
meeting did not contain any reference to the question of independent legal advice
being discussed. B acquainted the appellant with the contents of the will; the
appellant had the impression that it had been suggested to Marie that she should
obtain independent advice in respect of the will but had refused to do so. Early in
1949 Jane made a will leaving the bulk of her estate to Marie. In 1955 Marie
executed a codicil to her will in which she specifically confirmed the gift of residue
made under the will. In 1963 Jane, who was in poor health, instructed B to make a
new will for her. Under it, inter alia, the residue was to be held on trust for W for
life and then to be divided equally between B and the appellant. Jane did not
receive any independent advice before she made that will, but the appellant had
the impression that it had been suggested to her that she should seek such advice.
In 1966 Marie died and under her will Jane became entitled to the residue of
Marie's estate. The appellant was then concerned to devise a scheme which would
avoid or mitigate estate duty claims on Jane's death. He took counsel's opinion and
as a result procured the drafting of a deed of release by Jane of her life interest in
Marie's estate. He did not suggest that she should be separately advised and she
Page 66 of 211
was not. Jane died in 1969. Claims were made that the gifts to B, the appellant and
their respective families could not stand and as a result B and the appellant had to
refund all the money which they received from either estate. A complaint was
made to the Law Society that B and the appellant had been guilty of professional
misconduct in that they had prepared documents under which they had benefited
to a substantial extent without observing the appropriate rules as to ensuring that
their client received independent advice before committing herself to them. The
disciplinary committee of the Law Society held (i) that a solicitor in whose favour a
client wished to make a will, was bound to tell her that she must be separately
advised and if she refused to go to another solicitor, it was his duty to forego the
benefit; (ii) as B and the appellant had failed to comply with that standard of
conduct they were guilty of the offence and would be struck off the Roll of
Solicitors. The appellant appealed contending that the disciplinary committee had
imposed too strict a standard and that the penalty was too severe.Held – (i) A
decision as to what was professional misconduct was primarily a matter for the
profession expressed through its own channels and the court would not, and
should not, question what a properly constituted disciplinary committee
considered was the standard of conduct required of members of its profession .(ii)
The committee, in considering the penalty to be imposed on a person guilty of
professional misconduct, had to have regard to the extent to which the existence of
the standard was known and accepted within the profession at the time when the
alleged default occurred; and the court could and would alter the penalty imposed
if it found that there were extenuating circumstances affecting the accused which
would make it proper to say that his failure to comply with the rule laid down by
the committee did not merit the penalty imposed, i.e. because he did not know of
the rule he was breaking. There were no grounds for reducing the penalty imposed
on the appellant for (a) he must have known that Marie and, more especially, Jane
should have been offered independent advice in respect of their respective wills
and that he was himself under a personal obligation to see that each was
separately advised before he accepted her gift; (b) in respect of the deed of release
he knew that Jane had never been separately advised or invited to have separate
advice and yet he had proceeded with the matter regardless of his obligations to
her as a solicitor. The appeal would accordingly be dismissed .
Regarding Financial Transactions, there are some instances where an attorney may want to
lend a client money to complete a transaction. An attorney must be very wary of doing this,
an attorney really ought to avoid it.
Interest on clients’ funds
Page 67 of 211
Interest on clients’ funds is something over and above your remuneration; as such the
interest accrued belongs to the client. Also see the Legal Profession Accounts and
Records Regulations 1999, Regulation 815 also deals with this issue.
In the case of Brown v Inland Revenue Commission [1965] AC 673 it was held that that
interest earned on a clients funds belong to the client and not the lawyer.
Brown v Inland Revenue Commission [1965] AC 673: By section 123 (1) of the
Income Tax Act, 1952: "Tax under Schedule D shall be charged under the following
Cases respectively, that is to say - … Case III - tax in respect of - (a) any interest of
money, whether yearly or otherwise …" By section 148: "Tax under Schedule D shall
be charged on and paid by the persons receiving or entitled to the income in respect of
which tax under that Schedule is in this Act directed to be charged." Section 211
provides for certain reliefs in respect of earned income, which is defined by section
525 (1) as meaning "in relation to any individual … (c) any income which is charged
under Schedule B or Schedule D and is immediately derived by the individual from the
carrying on or exercise by him of his trade, profession or vocation …"
The appellant, a solicitor, in the course of his practice received on his clients'
behalf large sums of money, deposited with his firm. These sums were placed in a
banking account called "Clients' current account." As the account built up to a
sum exceeding £5,000 that sum was placed on deposit receipt in the firm's name
and the appellant retained the interest there from and used it for his own benefit.
(When a considerable sum standing to the credit of any client was not likely to be
required for some time, it was put on deposit, earmarked as belonging to that
client, to whom the accrued interest was credited, and no question arose here in
regard to such cases.) The firm also lent clients' moneys at its disposal to other
clients, these loans bearing interest. Interest was paid at a lower rate to clients
who deposited money with the firm, which retained the difference between the
higher and lower rates of interest. The appellant was assessed to income tax
under Case III of Schedule D on the deposit interest and on the difference
between the interest charged and the interest allowed to clients on their accounts
with the firm. The appellant claimed earned income relief:- Held, that the
appellant was not entitled to earned income relief, because the interest in
question belonged not to him but to his clients. If a person in a fiduciary position
receives any financial benefit arising out of the use of the property of the
beneficiary, he cannot keep it unless he is authorised to do so. On the facts the
appellant was not authorised to keep this interest either by custom or by implied
agreement, although a similar practice had long been followed by a number of
solicitors.
Page 68 of 211
WORKSHEET 6 :
ATTORNEY’S OBLIGATIONS TO CLIENT
DUTY OF CARE AND SKILL
An attorney should be skilful and careful in how he conducts his clients’ matters. The scope
of the duty depends on the nature of the work. The duty of skill and care arises
independent of the retainer which means the attorney can be liable in both tort and
contract.
See the case of Kitchen v Royal Air Forces Association [1958] 2 All ER 241- Negligent
actions against an attorney should be a cause for anxiety because it means that the
adequacy of the profession has been impugned.
*Kitchen v Royal Air Forces Association [1958] 2 All ER 241: On 22 May 1945,
the plaintiff's husband, who was serving in the Royal Air Force and was then on
leave, was electrocuted, when using domestic electrical equipment in the kitchen
of his home, and died. The plaintiff believed that his death was caused by some
negligence on the part of the electricity company in relation to the wiring of the
installation. Through a voluntary organisation information concerning her case
was forwarded in November, 1945, to the second defendants, a firm of solicitors
who had offered to help members of the Royal Air Force and their dependants.
The second defendants became solicitors for the plaintiff. They were, as the court
found, negligent in their conduct of the matter on the plaintiff's behalf, failing to
pursue proper inquiries how it had been possible for the accident to have
happened, allowing the twelve months' limitation period for bringing proceedings
under the Fatal Accidents Acts, 1846 to 1908, to expire without beginning an
action and failing to distinguish between a claim under those Acts and a claim
under the Law Reform (Miscellaneous Provisions) Act, 1934. The maximum
amount which the plaintiff could have recovered in an action under the Fatal
Accidents Acts, 1846 to 1908, was £3,000, though her chances of success were
uncertain. On 3 June 1946, the second defendants attempted to persuade the
electricity company to make an ex gratia payment, but were unsuccessful. In
October, 1946, the plaintiff herself wrote to the company, and, as a result of her
letter, the company approached the defendants and offered to make a donation of
£100 to be used for the benefit of the plaintiff and her family, it being agreed that
the plaintiff should not be informed who the donor was. The second defendants
deducted five guineas from the donation for their charges, and the remainder was
applied in assisting the plaintiff without disclosing the source of the money. At this
time the relationship of solicitor and client still subsisted, so the Court of Appeal
found, between the second defendants and the plaintiff. On 30 September 1955,
the plaintiff brought an action against the second defendants for damages for
Page 69 of 211
negligence in the formulation and prosecution of her claim against the electricity
company. In reply to a plea that the action was barred by lapse of time the plaintiff
alleged that her right of action had been concealed by fraud within s 26(b)a of the
Limitation Act, 1939. The plaintiff having been awarded £2,000 damages, the
second defendants appealed on the ground (a) that the cause of action was
statute-barred and (b) that, if the action lay, only nominal damages were
recoverable. Held – (i) the word fraud in s 26 (b) of the Limitation Act, 1939, was
not confined to deceit or dishonesty, and the conduct of the second defendants in
concealing that payment was made by the electricity company in the autumn of
1946 for the plaintiff's benefit amounted, for the purposes of s 26(b), to
concealment by fraud of her right of action against them at that time; therefore,
the plaintiff's right of action for negligence was not barred by s 2 of the Act of
1939. Beaman v ARTS Ltd ([1949] 1 All ER 465) applied. (ii) the right of action
under the Fatal Accidents Acts, 1846 to 1908, which the plaintiff lost was a right of
substance and the award of damages for the second defendants' negligence should
not be nominal; there being no appeal against the award of damages in so far as it
exceeded nominal damages, the award, though generous, would stand. Appeal
dismissed.
The case of Midland Bank v Hett, Stubbs & Kemp [1978] 3 All ER 571 – confirmed that
an attorney can be liable both in contract and in tort.
*Midland Bank v Hett, Stubbs & Kemp [1978] 3 All ER 571: W owned a farm
which he let to his son G. In 1961 W agreed to give G an option to purchase the
freehold reversion of the farm at a stated price at any time during the next 10
years. W and G went together to the firm of solicitors who had acted for them both
for many years and there saw A, the senior partner, who drew up a formal
agreement dated 24 March 1961 embodying the terms of the option which W
signed. A kept the option in custody for G and opened a file on it but failed to
register it as an estate contract under the Land Charges Act 1925. In June 1967 G
consulted the solicitors about the possibility of exercising the option and the
solicitors instructed counsel to advise when G should exercise it. However no
check was made to see whether the option had been registered. On 17 August
1967 W conveyed the farm to his wife. In October 1967 G attempted to exercise
the option and found out for the first time that the option had never been
registered and that the farm had in the meantime been sold. After bringing an
action which later proved unsuccessful against W's wife for specific performance,
G issued a writ on 21 July 1972 against the solicitors for damages for breach of
their professional duties. Before the action G died and the plaintiffs took over the
action as his executors. The solicitors contended, inter alia, that their failure to
register the option within a reasonable time of 24 March 1961 was a breach of
Page 70 of 211
contract only and any action against them in respect of events occurring prior to
the commencement of the limitation period on 21 July 1966 was barred by the
Limitation Act 1939. It was contended by the plaintiffs (1) that the solicitors were
employed on a general retainer by G and therefore, when they were consulted by
G in June 1967, they were under a duty to consider whether the option had been
registered, (2) that the solicitors were liable in tort and the cause of action in tort
was not complete until the damage was sustained in August 1967, ie within the
limitation period, and (3) that, if the solicitors were liable only in contract,
nevertheless their breach of contract was the non-performance of their obligation
to register the option before the third party acquired an interest in the land in
August 1967, ie within the limitation period. Held – (i) The solicitors were not
liable under a general retainer since the extent of a solicitor's duties to his client
depended on the terms and limits of his retainer. There was no such thing as a
'general retainer' of a solicitor in the sense of a solicitor being under a duty to
consider all aspects of his client's interests generally when consulted by the client
about a particular aspect of a problem. Therefore when in June 1967 the solicitors
had been consulted about he exercise of the option they were not under a duty to
consider at the same time its registration and enforceability. Thus nothing had
occurred within the limitation period to impose on the solicitors a fresh duty of
care of G (p 583 c d and h to p 584 b, post); Duchess of Argyll v Beuselinck [1972] 2
Lloyd's Rep 172, Griffiths v Evans [1953] 2 All ER 1364 and Hall v Meyrick [1957] 2
All ER 772 applied. (ii) The solicitors were however liable to the plaintiffs in tort
because under the general law the relationship of solicitor and client gave rise to a
duty on a solicitor to exercise that care and skill on which he knew that his client
would rely, and to a duty not to injure his client by failing to do that which he had
undertaken to do and which, at the solicitor's invitation, the client had relied on
him to do. Furthermore, there was no rule of law which confined a solicitor's duty
to his client under his retainer to a contractual duty alone; nor was there any rule
of law which precluded a claim in tort for breach of a duty to use reasonable care
and skill if there was a parallel contractual duty of care. The solicitors, in failing to
register the option, had admittedly been in breach of their duty to exercise
reasonable care and skill, and the plaintiffs had a cause of action in tort against
them in respect of their breach of duty to G, the cause of action having arisen when
the damage occurred on 17 August 1967. Accordingly the plaintiffs' claim in tort
was not barred by the 1939 Act and therefore succeeded (see p 595 h to p 596 b, p
609 c to f and p 610 a b, post); Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963]
2 All ER 575, Esso Petroleum Co Ltd v Mardon [1976] 2 All ER 5, Arenson v Casson
Beckman Rutley & Co [1975] 3 All ER 901 and Robertson v Bannigan 1965 SC 20
applied; Groom v Crocker [1938] 2 All ER 394, Clark v Kirby-Smith [1964] 2 All ER
835, Bagot v Stevens Scanlon & Co [1964] 3 All ER 577, Cook v S [1967] 1 All ER
299 and Heywood v Wellers [1976]1 All ER 300 doubted and not followed; dictum
Page 71 of 211
of Lord Campbell in Brown v Boorman (1844) 11 Cl & Fin at 44 doubted. (iii)

Furthermore, even if the duty owed by the solicitors to G was only contractual in
nature, because the solicitors had never treated themselves as functi officio in
relation to the option, that duty was a continuing duty to register the option
before a third party acquired an interest in the land, ie it continued until 17 August
1967 when it became impossible to perform. It was at that date that the contract
was broken and, accordingly, the plaintiffs' claim in contract was also not barred
by the 1939 Act and therefore succeeded ; Bean v Wade (1885) 2 TLR 157
distinguished.
Per Curiam. The principle enunciated in Hedley Byrne & Co Ltd v Heller & Partners
Ltd ([1963] 2 All ER 575) of tortious negligence arising out of a special
relationship is a general principle and is not confined in its operation to voluntary
or non-contractual relationships. The enquiry on which the court should embark
when deciding whether or not the principle applies is 'what is the relationship
between the plaintiff and defendant?' and not 'how did the relationship (if any)
arise'? Nor is the operation of the principle confined to cases where the service
undertaken takes the form of a representation or statement of fact or opinion, or
of advice. Logically it applies where the service involves some other positive
action such as the giving of a notice, and once the duty is established it cannot
matter whether the breach takes the form of malfeasance or nonfeasance.
The classic formulation of the claim for damages for negligence is that reasonable care and
skill is to be expected from a normally competent and careful practitioner. An attorney at
law is not expected to have perfect knowledge of the law but he is expected to have a sound
knowledge of its cardinal principles.
See the case of Fletcher & Son v Jubb, Booth & Helliwell [1920] 1 KB 275, in which it
was observed that while it is not the duty of the solicitor to know the contents of every
statute, it is his duty to know the contents of certain statutes, e.g. statutes of limitations. If
you are in breach of the cannons you would be liable for disciplinary proceedings to be
brought against you e.g. Cannons IV (s) in Jamaica – In the performance of his duties an
Attorney shall not act with inexcusable or deplorable negligence or neglect.
*Fletcher & Son v Jubb, Booth & Helliwell [1920] 1 KB 275: A solicitor instructed
by a client to make a claim against a corporation for a neglect or default in the
execution of a public duty or authority is bound to know the provisions of s. 1 of the
Public Authorities Protection Act, 1893, and to bear them in mind at all material
times, and to inform his client if the period is running out during which an action
may be commenced. If he loses sight, and allows his client to lose sight, of the
provisions of that section so that the claim is barred, the solicitor is guilty of
negligence.
Page 72 of 211
In the case of Diggs – White v Dawkins (1976) 23 WIR 102 it was stated that an attorney
must demonstrate a level of competence which can be deemed as professional conduct.
*Diggs – White v Dawkins (1976) 23 WIR 102: Section 12 (1) of the Legal
Profession Act 1971 [J] provides, inter alia:
“Any person alleging himself aggrieved by an act of professional
misconduct (including any default) committed by an attorney may
apply to the Committee to require the attorney to answer
allegations contained in an affidavit made by such person…”
The appellant took instructions from a client, the complainant, to file a petition
for divorce on behalf of his daughter and prosecute the matter to decreee
absolute or dismissal. In due course the appellant filed a petition which, in two
respects, was defective. Thereafter he made an unsuccessful attempt by
summons to have the petition amended. He did nothing further. He had charged a
fee of $800 to conduct the case to completion. Being dissatisfied with the
appellant's handling of the petition the client filed a complaint against the
attorney requiring him to answer specific allegations of misconduct before the
Disciplinary Committee of the General Legal Council. He asserted, inter alia, that
the appellant had charged a fee of $350 which he had paid in full and that the
appellant had deceived him by giving him two “false dates for trial when in fact
no case had been set down for trial”. He made no allegation as to negligence. The
Committee found that the appellant had charged a fee of $800 and that he had
been guilty of “gross neglect or negligence amounting to professional
misconduct”. It made no findings in relation to the other matters about which the
client complained. The Committee ordered that the appellant be suspended from
practice for three months and that he refund the $350 paid to him by the client.
On appeal, it was argued, inter alia, that even if the Committee were justified in
concluding that the appellant had been guilty of gross neglect or negligence this
did not amount to professional misconduct. Held: (i) that it was not open to the
Committee to find that the appellant had been guilty of gross neglect or
negligence since there had been no such charge preferred against him; (ii) that
the Committee had not determined the matters in respect of which the
appellant's client had complained since, with one exception, it had made no
findings in respect of the several allegation made against the appellant by the
complainant; (iii) that even assuming that a finding of gross neglect or negligence
was, in the circumstances of the case, open to the Committee such a finding did
not amount to professional misconduct. Appeal allowed. Application directed to
be reheard by the Committee.
In Re Cooke (1889) 5 TLR 407 it was stated that it is not enough to show that the
attorney’s conduct would support an action for negligence but that he did something that
was dishonourable to him and the profession i.e. you have to show gross negligence for
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disciplinary proceedings to be brought against you i.e. failure to search for a good root of
title.
*Re Cooke (1889) 5 TLR 407: A barrister is not bound to degrade himself in
carrying on a case; a barrister ought not to fight unfairly; but short of that he ought
to use every effort to bring the case of a client to a successful issue; a barrister ought
not to set himself up as a judge of his client's case; he has no right to forsake a client
on any mere suspicion of his own as to his chance of success.
DUTY OF SKILL AND CARE TO A 3RD PARTY
Generally there is no contractual remedy to a 3rd party due to privity of contract . In
relationship to negligence in what circumstances would an attorney owe a 3rd party a duty
of care ?
In the case of Robertson v Fleming (1861) 4 Marq 164 actions were dismissed by court
where a 3rd party brought an action against an attorney. Compare with the case of Ross v
Caunters [1980] Ch 297 where a disappointed beneficiary recovered damages for a will
not properly done by a solicitor.
*Ross v Caunters [1980] Ch 297: The testator instructed solicitors to draw up

his will to include gifts of chattels and a share of his residuary estate to the
plaintiff, who was his sister-in-law. The solicitors drew up the will accordingly,
naming the plaintiff and giving her address in the will. The testator requested the
solicitors to send the will to him at the plaintiff’s home, where he was staying, to
be signed and attested. The solicitors sent the will to the testator with a covering
letter giving instructions on executing it but failed to warn him that under s 15 of
the Wills Act 1837 attestation of the will by a beneficiary’s spouse would
invalidate a gift to the beneficiary. The plaintiff’s husband attested the will which
was then returned to the solicitors who failed to notice that he had attested it. The
testator died two years later, and nine months after that the solicitors informed
the plaintiff that the gifts to her under the will were void because her husband had
attested the will. The plaintiff brought an action against the solicitors claiming
damages in negligence for the loss of the gifts under the will, and for her legal
expenses in investigating her claim up to the date of issue of the writ. The plaintiff
alleged that the solicitors were negligent in failing (i) to warn the testator about
the consequences of s 15, (ii) on the return of the will, to check that it had been
executed in conformity with the 1837 Act, (iii) to observe that the plaintiff’s
husband was an attesting witness, and (iv) to draw that fact to the testator’s
attention so that he could re-execute the will or make a new and valid will. The
solicitors admitted negligence but denied that they were liable to the plaintiff,
contending (a) that a solicitor was liable only to his client and then only in contract
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and not in tort, and could not, therefore, be liable in tort to a third party, (b) that
for reasons of policy a solicitor ought not to be liable in negligence to anyone
except his client, and (c) that in any event the plaintiff had no cause of action in
negligence because the damage suffered was purely financial. The solicitors
further contended that if damages were recoverable they ought not to include any
sum in respect of the plaintiff’s legal expenses prior to the issue of the writ,
although they might be recoverable as costs in the action: Held the solicitors were
liable to the plaintiff because (1) a solicitor who was instructed by his client to
carry out a transaction to confer a benefit on an identified third party owed a duty
to that third party to use proper care in carrying out the instructions because (i) it
was not inconsistent with the solicitor’s liability to his client for him to be held
liable in tort to the third party, having regard to the fact that the solicitor could be
liable for negligence to his client both in contract and in tort, (ii) there was a
sufficient degree of proximity between a solicitor and an identified third party for
whose benefit the solicitor was instructed to carry out a transaction for it to be
within the solicitor’s reasonable contemplation that his acts or omissions in
carrying out the instructions would be likely to injure the third party, and (iii)
there were no reasons of policy for holding that a solicitor should not be liable in
negligence to the third party, for the limited duty owed to him of using proper care
in carrying out the client’s instructions differed from the wider duty owed to the
client of doing for the client all that the solicitor could properly do, and far from
conflicting with or diluting the duty to the client was likely to strengthen it; (2) the
fact that the plaintiff’s claim in negligence was for purely financial loss and not for
injury to the person or property, did not preclude her claim, for, having regard to
the high degree of proximity between her and the solicitors arising from the fact
that they knew of her and also knew that their negligence would be likely to cause
her financial loss, the plaintiff was entitled to recover the financial loss she had
suffered by their negligence. Judgment would therefore be entered for the plaintiff
for damages to be assessed; (3) the plaintiff’s legal expenses of investigating her
claim up to the date of the issue of the writ could not, however, be recovered as
damages but only as costs, so far as they properly ranked as such.
It is said that Ross v Caunters (1980) is a logical extension of Robertson v Fleming

(1861) and is a practical result where a solicitor has been negligent . In White v Jones
[1995] 1 All ER 691 a similar recovery against a solicitor was allowed as the claimant’s
loss was reasonable foreseeable. Lord Goff had raised some criticisms of this development
pointing to difficulties in certain conceptualities:
1. One must look at the duty of care more restrictedly with lawyers and clients by
linking it to a contractual duty.
2. It was pure economic loss and should not be recovered unless there is a negligent
misstatement (Headley Byrne)
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3. If they accepted Ross v Caunters it would expose solicitors to an indeterminate

class of claimants (flood gates argument).
4. Owing a duty of care to a disappointed beneficiary is not a stretch because it is
reasonably foreseeable, as the party would suffer loss if the attorney does not draft
the will properly. The testator is already deceased so there is no way of remedying
it.
*White v Jones [1995] 1 All ER 691: On 4 March 1986 the testator, who had
quarrelled with the plaintiffs, his two daughters, executed a will cutting them out
of his estate. In June the testator was reconciled with the plaintiffs and sent a
letter to his solicitors giving instructions that a new will should be prepared to
include gifts of £9,000 each to the plaintiffs. The solicitors received the letter on 17
July but nothing was done to give effect to those instructions for a month. On 16
August the solicitors' managing clerk asked the firm's probate department to draw
up a will or codicil incorporating the new dispositions. The following day the
managing clerk went on holiday and on his return to work a fortnight later he
made arrangements to visit the testator on 17 September. However, the testator
died on 14 September before the new dispositions to the plaintiffs were put into
effect. The plaintiffs brought an action against the solicitors for damages for
negligence. The judge held that the solicitors owed no duty of care to the plaintiffs
and dismissed the action. The plaintiffs appealed to the Court of Appeal, which
allowed the appeal on the grounds that a solicitor who was instructed to prepare a
will for a client and, in breach of his professional duty, failed to do so was liable in
damages to a disappointed prospective beneficiary if the client died before the will
had been prepared or executed. The Court of Appeal held that the plaintiffs were
each entitled to damages of £9,000. The solicitors appealed to the House of Lords,
contending that the general rule was that a solicitor acting on behalf of a client
owed a duty of care only to his client under the solicitor-client retainer, which was
contractual in nature, that since the plaintiffs' claim was for purely financial loss
any claim could only lie in contract and not in tort and there was no contract
between the solicitor and a disappointed beneficiary, and that no claim lay in tort
for damages in respect of a mere loss of an expectation, which fell exclusively
within the zone of contractual liability. Held – (Lord Keith and Lord Mustill
dissenting) Where a solicitor accepted instructions to draw up a will and as the
result of his negligence an intended beneficiary under the will was reasonably
foreseeably deprived of a legacy the solicitor was liable for the loss of the legacy,
for the following reasons— (a) (per Lord Goff and Lord Nolan) The assumption of
responsibility by a solicitor towards his client should be extended in law to an
intended beneficiary who was reasonably foreseeably deprived of his intended
legacy as a result of the solicitor's negligence in circumstances in which there was
no confidential or fiduciary relationship and neither the testator nor his estate had
a remedy against the solicitor, since otherwise an injustice would occur because of
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a lacuna in the law and there would be no remedy for the loss caused by the
solicitor's negligence unless the intended beneficiary could claim (see p 702 d e, p
710 d to h, p 711 f g, p 734 d e, p 735 a b and p 736 j, post); Hedley Byrne & Co Ltd v
Heller & Partners Ltd [1963] 2 All ER 575, Linden Gardens Trust Ltd v Lenesta
Sludge Disposals Ltd [1993] 3 All ER 417 applied; dictum of Lord Campbell in
Robertson v Fleming (1861) 4 Macq 167 at 177 and Ross v Caunters (a firm) [1979]
3 All ER 580 doubted. (b) (per Lord Browne-Wilkinson and Lord Nolan) Adopting
the incremental approach by analogy with established categories of relationships
giving rise to a duty of care, the principle of assumption of responsibility should be
extended to a solicitor who accepted instructions to draw up a will so that he was
held to be in a special relationship with those intended to benefit under it, in
consequence of which he owed a duty to the intended beneficiary to act with due
expedition and care in relation to the task on which he had entered (see p 712 c to
e, p 715 j to p 716 b h to p 717 b h to p 718 a h and p 736 j, post); Nocton v Lord
Ashburton [1914–15] All ER Rep 45, Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1963] 2 All ER 575, Caparo Industries plc v Dickman [1990] 1 All ER 568 and
Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506 applied.
It followed that the solicitors owed the plaintiffs a duty of care and since their
negligence had effectively deprived the plaintiffs of the intended legacies their
appeal would be dismissed .
Decision of the Court of Appeal [1993] 3 All ER 481 affirmed.
See the cases of Hemmens v Wilson Browne [1993] 4 All ER 826 and Hill v Van Erp
(1997) 188 CLR 159.
*Hemmens v Wilson Browne [1993] 4 All ER 826: P instructed S, a partner in
the defendant firm of solicitors, to draft a document giving the plaintiff the right to
call on P at any time in the future to pay her the sum of £110,000 to enable her to
buy a house. Although duly executed by P, the document as drafted did not grant
the plaintiff any enforceable rights, since it was not a promissory note or a
contract, because there was no consideration, it was not a deed, because it was not
under seal, and it did not create a trust, because there was no identifiable fund
which could form the subject matter of such a trust. At the time the document was
executed S explained to the plaintiff that its effect was 'akin to a trust'. Some
weeks later, when the plaintiff subsequently asked P to fulfil his promise, he
refused and the plaintiff was unable to force him to do so as the document had not
granted her any enforceable rights. The plaintiff brought an action against the
defendants alleging (i) that S owed her a duty of care to carry out P's instructions
with reasonable care and skill and that by reason of a breach of that duty she had
lost the benefit, ie the £110,000, which she would have received if S had not been
negligent and (ii) that she had relied on representations made by S regarding the
nature and effect of the document and had suffered damage, namely the loss of the
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opportunity to persuade P to execute another document giving her enforceable

rights. Held – (1) There could be circumstances in which a solicitor could owe a
duty of care in carrying out an inter vivos transaction, but no such duty was owed
by the defendants to the plaintiff. Although S's lack of care and skill had resulted in
a document being drafted which failed to give the plaintiff any enforceable rights
and although it had been reasonably foreseeable that the plaintiff would be likely
to suffer damage if S failed to exercise reasonable care and skill in carrying out his
retainer for P and there was a sufficient degree of proximity between S and the
plaintiff, it would not be fair, just or reasonable for a duty of care to be imposed on
the defendants because P was still alive and therefore able to rectify the situation,
e g by instructing another solicitor to draft the document properly, and had a
remedy for breach of contract against S, who accordingly would not go
unpunished. In those circumstances it was not necessary for the law to give the
plaintiff a remedy .(2) Although the plaintiff had relied on the negligent
misrepresentation by S regarding the effect of the document that it would be akin
to a trust, it would not be fair, just or reasonable for a duty of care to be imposed
on the defendants in relation to that misrepresentation because S had made it
clear that he was acting for P, not for the plaintiff, and that she should not rely
solely on his opinion regarding the document's effect but should seek independent
legal advice .
Hill v Van Erp (1997) 188 CLR 1

Cases have limited 3rd party recovery to wills cases so the floodgates argument is of no
consequence here.
GENERAL DUTY OF CARE TO CLIENTS AND TO THIRD PARTIES
When dealing with the general duty of care to clients and to third parties we must note the
following reinforcing pointers to consider:
Reinforces
1. Negligent misstatement: It has always been the case that where someone’s actions
have been negligent and have caused loss then it is possible to claim compensation.
Traditionally it was necessary for the claimant to show that there was some pre-existing
contractual relationship between him and the defendant but this changed in 1932 when the
House of Lords ruled in the case of Donaghue v. Stevenson that everyone has a duty to take
care that their actions do not cause harm to anyone at all where it is reasonably foreseeable
that the harm might result.
However, the courts have been less willing to accept that where someone gives
negligent advice or negligently states incorrect facts that there should be any
liability for damage caused as a result. Partly this position is based on a recognition
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that most people are very careless with their words and often open their mouths
without thinking, and that to allow people to sue every time someone starts talking
about a topic on which they actually know very little would create chaos. In
addition, the law already provides two causes of action which can be used to obtain
compensation from someone who has caused damage by making false statements:
 The torts of Slander and Libel cover situations where the defendant
deliberately & maliciously or recklessly makes statements about someone
else which he knows or suspects not to be true and where as a result the
claimant’s reputation or good standing is damaged;
 The tort of deceit covers situations in which the defendant makes a
statement of fact dishonestly when he knows or reasonably suspects that this
is not true and causes damage as a result. This might apply, for example,
where the seller of goods makes false claims about their condition in order to
close a deal.
However, neither of these torts applies to situations where the defendant has
merely been negligent or careless but where there is no malice or belief that the
statements are untrue.
2. *Hedley Byrne & Co v Heller [1964] AC 465: The appellants were advertising
agents, who had placed substantial forward advertising orders for a company on terms
by which they, the appellants, were personally liable for the cost of the orders. They
asked their bankers to inquire into the company's financial stability and their bankers
made inquiries of the respondents, who were the company's bankers. The respondents
gave favourable references but stipulated that these were "without responsibility." In
reliance on these references the appellants placed orders which resulted in a loss of
£17,000. They brought an action against the respondents for damages for negligence:-
Held, that a negligent, though honest, misrepresentation, spoken or written, may give
rise to an action for damages for financial loss caused thereby, apart from any contract
or fiduciary relationship, since the law will imply a duty of care when a party seeking
information from a party possessed of a special skill trusts him to exercise due care,
and that party knew or ought to have known that reliance was being placed on his skill
and judgment . However, since here there was an express disclaimer of responsibility,
no such duty was, in any event, implied.
Nocton. v. Lord Ashburton [1914] A.C. 932; 30 T.L.R. 602, H.L. applied.
3. *Capparo v Dickman [1990] 2 AC 605: The plaintiffs, a public limited company,

which had accomplished the take-over of F. Plc., brought an action against its directors
alleging fraudulent misrepresentation and against its auditors claiming that they were
negligent in carrying out the audit and making their report, which they were required
to do within the terms of sections 236 and 237 of the Companies Act 1985. In the
statement of claim the plaintiffs alleged that they had begun purchasing shares in F. Plc.
a few days before the annual accounts had been published to shareholders, that in
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reliance on those accounts they made further purchases of shares so as to take over the
company, and that the auditors owed both shareholders and potential investors a duty
of care in respect of the certification of the accounts and should have known that as F.
Plc.'s profits were not as high as projected and its share price had fallen significantly,
that it was susceptible to a take-over bid and that reliance on the accuracy of the
accounts would be placed by any potential bidder such as the plaintiffs. On the trial of a
preliminary issue against the auditors, on the facts as alleged, the judge determined
that the auditors did not owe the plaintiffs a duty of care at common law either as a
shareholder of F. Plc. or as an investor holding no shares. On appeal by the plaintiffs the
Court of Appeal, by a majority, held that a duty of care was owed to the plaintiffs as
shareholders but not as investors. On appeal by the auditors and cross-appeal by the
plaintiffs: - Held, allowing the appeal and dismissing the cross-appeal, that liability for
economic loss due to negligent mis-statement was confined to cases where the
statement or advice had been given to a known recipient for a specific purpose of which
the maker was aware and upon which the recipient had relied and acted to his
detriment; that since the purpose of the statutory requirement for an audit of public
companies under the Act of 1985 was the making of a report to enable shareholders to
exercise their class rights in general meeting and did not extend to the provision of
information to assist shareholders in the making of decisions as to future investment in
the company, and since, additionally, there was no reason in policy or principle why
auditors should be deemed to have a special relationship with non-shareholders
contemplating investment in the company in reliance on the published accounts, even
when the affairs of the company were known to be such as to render it susceptible to an
attempted take-over, the auditors had not owed any duty of care to the plaintiffs in
respect of their purchase of F. Plc.'s shares .
Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, H.L.(E.) and Smith v.
Eric S. Bush [1990] 1 A.C. 831, H.L.(E.) applied.
When you are making the statements your assumption of responsibility comes about when
you know the person receiving the information will not be getting independent advice.
Further always be cautious when people approach you informally for advice i.e. there is no
retainer, note that you can still be held liable.
LIABILITY OF AN ADVOCATE FOR THE CONDUCT AND MANAGEMENT OF THE CASE IN

COURT
Should there be liability for negligence?
Rondell v Worsley [1967] 3 All ER 993 represents the traditional approach that a
barrister should enjoy immunity from negligence suits for the way he conducts the case in
court.
Rondell v Worsley [1967] 3 All ER 993: The immunity of counsel from being
sued for professional negligence in the conduct of a cause, criminal or civil, is
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based on public policy, not on his contractual incapacity to sue for fees, and it is in
the public interest that the immunity should be retained, one factor being that
counsel owes a duty to the court for the true administration of justice .
Swinfen v Lord Chelmsford ((1860), 5 H & N 890), Munster v Lamb ([1881–85] All
ER Rep 791) and Thornhill v Evans ((1742), 2 Atk 330) considered and applied.
Wilkinson v Coverdale ([1775–1802] All ER Rep 339) considered.
Kennedy v Broun ((1863), 13 CBN S 677) and Re Brasseur & Oakley ([1896] 2 Ch
487) explained.
Per Lord Reid and Lord Upjohn (cf, also per Lord Pearson): this immunity extends
to work done in the conduct of litigation, criminal or civil, at the trial, to work
where litigation is pending (per Lord Upjohn, from the time of the letter before
action), to drawing pleadings and to conducting subsequent stages; but (Lord
Pearce dissenting) it does not extend to other advisory work or work in drafting
or revising documents (see p 1001, letter c, p 1036, letters d and f, and p 1041,
letters f and h, post; cf, p 1022, letter i, post; and p 1030, letter d, post).
Perring v Rebutter ((1842), 2 Mood & R 429); Kennedy v Broun ((1863), 13 CBN S
677) and Mostyn v Mostyn ((1870), 5 Ch App 457) considered.
Per Lord Reid and Lord Pearce, Lord Upjohn concurring (cf, per Lord Morris Of
Borth-Y-Gest and Lord Pearson): a solicitor should not be liable to be sued for
negligence in carrying out work in litigation which, if counsel had been engaged,
would have been carried out by counsel; but (per Lord Upjohn) the general result
of such immunity, having regard to the different position of a solicitor, is likely to
be that he will have immunity only while actually acting as advocate on behalf of
his client or when settling pleading . The appellant, being arraigned at the Old
Bailey in May, 1959, on an indictment containing two counts, of which one was for
causing grievous bodily harm with intent to M, a doorkeeper, obtained the
services of the respondent as counsel to defend him on a dock brief. It was not in
dispute that the appellant had seriously injured M. The appellant himself did not
suffer a scratch. His only line of defence was self-defence. He was convicted.
Nearly six years later the appellant issued a writ against the respondent. In the
course of the action so instituted he told the judge in chambers “I tore [M's] hand
in half and bit part of his ear off”. The appellant, when asked by the judge in
chambers whether he suggested that he would have been acquitted if the
respondent had conducted his case differently, replied “No”. At a later stage, on
the fourth day of appeal to the Court of Appeal and over seven years after the
incident, the appellant, then represented by a solicitor, produced a draft re-
amended statement of claim alleging in essence negligence on the part of the
respondent in that (in substance) the respondent (a) failed to reveal and prove in
cross-examination of prosecution witnesses and by demonstration that M's
wounds were not caused by a knife; (b) failed by cross-examination of the police
or by calling the landlord, Rachman, and one Nash to prove that the appellant was
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not in the habit of using a knife and, (c) failed to establish that the appellant was in
the employ of Rachman and was on the premises in that capacity. The appellant
sought leave to serve the re-amended statement of claim. On appeal from a
decision of the Court of Appeal refusing leave and affirming a decision that the
appellant's statement of claim should be struck out and the action dismissed, Held
– An action did not lie at the suit of the appellant against his counsel, the
respondent, for negligence (if there were any negligence) in the conduct of the
appellant's defence. Per Lord Pearce: when a party changes his story to meet
difficulties, that fact is one of the matters which should be taken into account in
determining whether leave to amend (under RSC, Ord 20, r 5) should be given
when it is sought that a pleading should be struck out; in the present instance
leave to serve the re-amended statement of claim was rightly refuse . Semble: the
decision in Hedley Byrne & Co Ltd v Heller & Partners Ltd ([1963] 2 All ER 575) has
not altered the position in regard to liability for professional negligence as
between barrister and client. Per Lord Upjohn: counsel is not liable in negligence
merely because he expresses an opinion which ultimately turns out to be wrong,
nor merely because he overlooks one of a number of relevant authorities; I remain
of opinion that counsel will only be guilty of gross negligence by some really
elementary blunder . Purves v Landell ((1845), 12 Cl & Fin 91) considered.
Decision of the Court Of Appeal ([1966] 3 All ER 657) affirmed. Notes: It is now
clearly intimated that even if the appellant's account of the matter were true, there
was no substance in his complaint of negligence, and that there was nothing in the
facts disclosed to indicate that the appellant would have been better off if the
respondent had acted differently.
IMMUNITY
Immunity is coded in the Legal Professional Act of Antigua, Barbados, St Lucia, Guyana
and Trinidad and Tobago. Immunity is not coded in Jamaica and Belize but governed by the
common law .
In Saif Ali v Mitchell [1980] AC 198, Lord Diplock expressed dissatisfaction that an
advocate should always enjoy immunity for liability stemming from negligence for what
he or she does or say in court.
*Saif Ali v Mitchell [1980] AC 198: The plaintiff was injured in a motor accident
in March 1966 when there was a collision between a van in which he was
travelling as a passenger and a car driven by a wife and owned by her husband.
The wife subsequently pleaded guilty to driving without due care and attention. In
1967 both the plaintiff and the driver of the van consulted the defendant solicitors
regarding a claim in respect of the accident. In October 1968 the solicitors
instructed a barrister, the third party, to settle proceedings on behalf of the
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plaintiff and the driver of the van in respect of the accident and to advise. The
barrister settled a draft writ and statement of claim claiming damages against the
husband on the basis that he was the owner of the car and his wife had been
driving as his agent. The writ was issued in November 1968 and served in August
1969. Before the three-year limitation period expired in March 1969 the solicitors
consulted the barrister about allegations by the husband's insurers that there was
contributory negligence by the driver of the van and that the wife was not driving
as her husband's agent. The barrister did not advise any change in the writ or the
statement of claim. The husband's defence to the action of October 1969 alleged
that the accident was caused wholly or in part by the van driver's negligence; an
amended defence admitted the wife's agency but that was denied by a re-amended
defence. In April 1974 the plaintiff's action against the husband was discontinued.
Any claim by the plaintiff against the wife or the van driver was by then time-
barred.
In September 1974 the plaintiff issued a writ claiming damages for professional
negligence against the defendant solicitors in their conduct of his claim in respect
of the accident of March 1966 in that they failed to advise him to take proceedings
against either or both of the drivers concerned. In May 1975 the solicitors issued a
third party notice against the barrister claiming an indemnity from him. The
district registrar struck out the third party proceedings as disclosing no
reasonable cause of action. Kerr J. allowed the solicitors' appeal.
On appeal, the Court of Appeal reversed that decision holding that the advice
tendered fell within the ambit of the immunity from an action for negligence
granted to a barrister in respect of his conduct and management of a cause in
court.
On appeal by the solicitors:-
Held, allowing the appeal (Lord Russell of Killowen and Lord Keith of Kinkel
dissenting), (1) that in principle those who undertook to give skilled advice were
under a duty to take reasonable care and skill, and that a barrister's immunity
from suit for negligence in respect of his conduct of litigation on the ground of
public policy was an exception and applied only in the area to which it extended;
that the immunity was not confined to what was done in court but included some
pretrial work but that the protection should not be given any wider application
than was absolutely necessary in the interests of the administration of justice and
each piece of pre-trial work had to be tested against the one rule, namely, that the
protection existed only where the particular work was so intimately connected
with the conduct of the cause in court that it could fairly be said to be a
preliminary decision affecting the way that cause was to be conducted when it
came to a hearing .
(2) That on the assumption that the factual basis of the allegations of negligence
was correct the acts complained of did not come within the above rule, and that,
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accordingly, there was no justification for striking out the third party claim.
Dictum of McCarthy P. in Rees v. Sinclair [1974] 1 N.Z.L.R. 180, 187 applied. Rondel
v. Worsley [1969] 1 A.C. 191, H.L.(E.) considered.
Hall v Simons [2003] 3 All ER 673: Law Lord re-evaluating the realm or rationale behind
this immunity, it has been submitted that it is necessary for necessary for public policy
reason. The question raised was whether this immunity was still necessary.
*Hall v Simons [2003] 3 All ER 673: The appeal involved four individual
appellants, each of whom was a widower whose wife had died at a time when,
under ss 36–38a of the Social Security Contributions and Benefits Act 1992,
widows received certain benefits in circumstances in which widowers did not.
Widow's payment was a lump sum payment of £1,000. Widowed mother's
allowance was payable to widows with dependent children. Widow's pension was
payable to widows, not entitled to widowed mother's allowance, over 45 and
under 65. Article 14b of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights
Act 1998) prohibited discrimination on inter alia grounds of sex. Article 8c secured
the right to respect for private and family life and art 1d of the First Protocol
provided for the protection of property. The 1998 Act came into force on 2
October 2000. On 9 April 2001 the Welfare Reform and Pensions Act 1999 came
into force, amending the 1992 Act and introducing a system of survivor's benefits
payable to both men and women. The appellants claimed that between 2 October
2000 and 9 April 2001 they should have received the same benefits that were
available to widows under the previous regime. Three appellants with dependent
children had claims for the equivalent of widowed mother's allowance, M claimed
the equivalent of widow's payment and N claimed the equivalent of widow's
pension. A number of similar claims had been brought before the European Court
of Human Rights and it was the policy of the Secretary of State to settle those
claims declared to be admissible. The court identified, inter alia, the following
issues: (i) whether s 3e of the 1998 Act, which provided for legislation to be read
and given effect in a way compatible with convention rights, required ss 36–38 of
the 1992 Act to be interpreted in such a way as to confer on widowers as well as
widows the right to receive the benefits in issue; (ii) whether there had been
objective justification for the entitlement of women but not men to widow's
pension until 9 April 2001; (iii) whether the state had been entitled to a
reasonable period within which rectify discriminatory law; (iv) whether
discrimination between widowers who brought proceedings at the European
Court of Human Rights and had their claims settled and the appellants was a
violation of art 14 of the convention read with art 8 or art 1 of the First Protocol or
of the principles of domestic public law; (v) whether extra-statutory payments
preventing discrimination could be made lawfully; and (vi) whether it was
Page 84 of 211
necessary to make payments of compensation to the appellants in order to afford

them just satisfaction within s 8f of the 1998 Act. Held – The appeal would be
allowed, in part, for the following reasons. (1) It was not possible, pursuant to s 3
of the 1998 Act, to read references to the feminine gender in ss 36–38 of the 1992
Act as including the masculine. Those sections drew a distinction between men
and women and husbands and wives (2) The difference in economic activity
between men and women no longer justified discriminating between them by
paying, indiscriminately, pensions to widows aged between 45 and 65. There had
been therefore no objective justification for not taking steps to remove the
discrimination involved in paying pensions under s 38 of the 1992 Act . (3) The
state was entitled not merely to a wide margin of appreciation when considering
whether and when a change was required to domestic law in order to ensure that
it remained convention compliant in changing circumstances, but also, having so
decided, to such time as was reasonable to make the necessary change. No
criticism had been, or could be, made of the period taken to consult on and then
introduce the 1999 Act. The criticism, which was well-founded, had been of the
delay in deciding that a change in the law was necessary (see [78], below); Walden
v Liechtenstein (App No 33916/96) (16 March 2000, unreported) considered.(4)
The policy under which any pre-1998 Act victim who had brought a claim before
the European Court of Human Rights and had had that claim ruled admissible
would receive a friendly settlement did not constitute discrimination such as to
constitute an independent violation of art 14 of the convention read with art 8 or
art 1 of the First Protocol between those widowers with claims similar to the
appellants and the appellants themselves. The policy did not create two classes of
victims, one of which was treated more favourably than the other. The reason why
the appellants were not able to benefit from the policy was because they had not
advanced a claim before the European Court of Human Rights, and not because the
policy discriminated between one class and another (see [101], below); Abdulaziz
v UK (1985) 7 EHRR 471 considered. (5) There was nothing demonstrably
perverse, irrational or unfair about the state's course of conduct which had
brought about the result that the issues which were concerned in the instant case
had been preserved for litigation in the domestic forum before contesting them at
the European Court of Human Rights (see [108], below). (6) It was plainly implicit
that Parliament had intended the express statutory provisions for payment of
benefits to widows to occupy the entire field of entitlement to payment of benefits
as a result of the death of a spouse. After the 1998 Act came into effect there was a
presumption that Parliament did not intend legislation to infringe the convention.
In so far as the 1998 Act placed upon the Secretary of State an obligation to make
extra-statutory payments, no constitutional impropriety or illegality could be
involved in his putting in place a scheme to give effect to that obligation. It
followed that neither s 6(2)(a) nor (b) of the 1998 Act afforded the Secretary of
Page 85 of 211
State a defence to the claim that by failing to make extra-statutory payments to the
appellants he had infringed art 14 .(7) By failing to make extra-statutory payments
the Secretary of State had acted in a way incompatible with the appellants'
convention rights. However, although the making of extra-statutory payments
would have prevented discrimination, it was not irrational for the Secretary of
State to have declined to adopt that course. If Parliament conferred on one class a
benefit for which there was no rational justification, it might make more sense to
leave those who did not receive that benefit to seek such remedy as the law
allowed rather than to make to them also payments for which there was no
rational justification. (8) The discrimination that existed during the relevant
transitional period from 2 October 2000 to 9 April 2001 resulted in the failure of
widowers to receive lump sum payments to which in justice they should have
been entitled. M and any others in his position should receive damages of £1,000
and interest by way of just satisfaction. The appellants who claimed payments
equivalent to widowed mother's allowance had not demonstrated that the
discrimination complained of had caused them any pecuniary loss so the principle
of just satisfaction did not require any award in that respect. In relation to
widow's pension there was no justification for making equivalent payments to
widowers. Accordingly, the principle of just satisfaction did not entitle N to extra-
statutory payments equivalent to widow's pension , below);Van Raalte v
Netherlands (1997) 24 EHRR 503 considered.
It has been submitted that question of negligence would:

a) tend to erode special status given to barristers
b) open the flood gates if allowed suits to be brought against advocates
c) court has power to strike out unmerited and vexatious claim
d) court can also make wasted cost claim
In Hall v Simons [2003] 3 All ER 673 it was also established that immunity should cease
to apply in respect of conduct of criminal proceedings and the HOL said that it is not that
Rondell v Worsley [1967] 3 All ER 993 was wrongly decided but the world was different
then and it was a recognised public policy . Note what was good then is not necessarily
good now.
Judges are immune.
Lawyers have a duty to their client, where a lawyer breaches that duty to a client a client
should have the right to sue.
Kindly note also that in dealing with the issue of whether an attorney has exercised his
duty with care and skill one should also consider situations where one settles a personal
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injurt matter at the door of the court. Note that there is a real risk of settling a personal
injury case at door of court. (See the case of May v Deffman- Smith HL (2005) need to
verify case name)
On the question of liability in Jamaica and Belize where the rules are not codified note the
following:
 Immunity – Rondell v Worsley [1967] 3 All ER 993
 No immunity – Hall v Simons [2003] 3 All ER 673
regarding liability in relation to conduct of a matter in court.
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WORKSHEET 7 :
CONFIDENTIALITY AND LEGAL PROFESSIONAL PRIVILEGE
Confidentiality is implicit by virtue of there being a) a fiduciary relationship and b) the

existence of a retainer.
The attorney has to keep a clients information secret or private. He cannot disclose this
information unless a client authorises him, the attorney to do so. Generally information is
disclose to an attorney for the purpose of the attorney giving the client advice or providing
other legal service.
One must be careful not to breach confidentiality. It is easy for confidentiality to be

breached inadvertently, this may occur where an attorney inadvertently discloses by virtue
of a conversation and or when passing messages utilising email i.e. forwarding email
messages. Both instances result in disclosure without the client’s consent.
Since the duty of confidentiality arose at both tort and in contract a client could sue and get
damages or an injunction. Note Canon IV (s) Jamaica, 262 Barbados and 66 Belize.
 Cannons IV (s) Jamaica – In the performance of his duties an Attorney shall not act
with inexcusable or deplorable negligence or neglect.
In most jurisdictions the duty of confidence is recognised and an attorney is prohibited

from breaching the confidence of the client either to a client’s advantage or disadvantage or
to the advantage or disadvantage of a 3rd party.
The Cannons permit non consensual disclosure in certain circumstances, e.g. where it is
necessary for the attorney to collect his fees or to defend himself or employees against
accusation of misconduct.
If none of these circumstances exist it is a breach of conduct amounting to professional

misconduct for which an attorney can be punished.
Connection between a duty of confidence and a statutory obligation: Where there is a

conflict between a duty of confidence and a statutory obligation, disclosure is required.
This is with particular reference to anti money laundering and counter terrorism financing
regulation.
In all these statutes there are a number of investigative tools available to law enforcement
which may involve professionals such as lawyers, being required to disclose confidential
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information against clients. There may be court orders or production orders ordering
disclosure.
In some jurisdictions there also exists a positive duty on attorneys to report suspicion that
a client’s funds may be proceeds of crime.
Within the context of Whistle Blower Legislations an attorney is designated a non financier.
Origin of term: The term whistleblower comes from the phrase "blow the whistle,"
which refers to a whistle being blown by a police officer or a referee to indicate an
activity that is illegal or a foul. Definition: Most whistleblowers are internal
whistleblowers, who report misconduct on a fellow employee or superior within
their company. One of the most interesting questions with respect to internal
whistleblowers is why and under what circumstances people will either act on the
spot to stop illegal and otherwise unacceptable behaviour or report it.[5] There is
some reason to believe that people are more likely to take action with respect to
unacceptable behaviour, within an organization, if there are complaint systems that
offer not just options dictated by the planning and control organization, but a choice
of options for individuals, including an option that offers near absolute
confidentiality. External whistleblowers, however, report misconduct on outside
persons or entities. In these cases, depending on the information's severity and
nature, whistleblowers may report the misconduct to lawyers, the media, law
enforcement or watchdog agencies, or other local, state, or federal agencies. In some
cases, external whistleblowing is encouraged by offering monetary reward.
Under most US federal whistleblower statutes, in order to be considered a
whistleblower, the federal employee must have reason to believe his or her
employer has violated some law, rule or regulation; testify or commence a legal
proceeding on the legally protected matter; or refuse to violate the law.
In cases where whistleblowing on a specified topic is protected by statute, US courts
have generally held that such whistleblowers are protected from retaliation. [7]
However, a closely divided US Supreme Court decision, Garcetti v. Ceballos (2006)
held that the First Amendment free speech guarantees for government employees
do not protect disclosures made within the scope of the employees' duties.
Note the Proceeds of Crime Act (POCA) Jamaica. Cases which fall under the Proceeds of
Crime Act are investigated by the Financial Investigation Divisions but prosecuted by the
Office of the DPP.
An attorney cannot say he will not be compliant because he has a duty of confidence. Also
confidentiality cannot be used as a bar and no liability will be incurred for breaching. In all
jurisdictions any information subject to legal professional privileges would be exempt from
disclosure.
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A court order can enforce an obligation to file a suspicious transaction report.
WHAT IS LEGAL PROFESSIONAL PRIVILEGE

Legal professional privilege is the privilege of a client to prevent certain communication
and documentation between a client and attorney from being admissible in evidence.
Legal professional privilege restricts a courts power to compel the production of this
evidence.
In R v Derby Magistrates Court ex parte B [1995] 4 All ER 526 - it was deemed to be

essentially a fundamental principle on which the administration of justice lie.
R v Derby Magistrates Court ex parte B [1995] 4 All ER 526: In 1978 the
applicant went for a walk with a 16-year-old girl, who was later found murdered.
The applicant was arrested and made a statement to the police admitting being
solely responsible for the murder. Shortly before his trial at the Crown Court for
murder he retracted that statement and alleged that although he had been at the
scene of the crime his stepfather had killed the girl. The applicant was acquitted.
In 1992 the stepfather was charged with the girl's murder and committal
proceedings were commenced before the stipendiary magistrate. The applicant
gave evidence for the prosecution and repeated his allegation that his stepfather
had murdered the girl. Counsel for the stepfather, in cross-examining the
applicant, asked about the instructions he had initially given to his solicitors when
admitting to the murder. The applicant declined to answer on the grounds of legal
professional privilege. An application was thereupon made on behalf of the
stepfather, pursuant to section 97 of the Magistrates' Courts Act 1980, for a
witness summons directed to the applicant's solicitor requiring production of the
attendance notes and proofs of evidence disclosing the relevant instructions. The
stipendiary magistrate held that the documents were "likely to be material
evidence" within section 97 and, having weighed the public interest in protecting
solicitor and client communications against the public interest in securing that all
relevant evidence was available to the defence, issued the summons. A second
summons to like effect directed to the applicant himself was later issued. The
applicant obtained leave to seek judicial review of the stipendiary magistrate's
decisions, but the Divisional Court dismissed the applications. On the applicant's
appeals: - Held, allowing the appeals, (1) that the use which could be made in
criminal proceedings of a witness's previous inconsistent written statements was
governed by sections 4 and 5 of the Criminal Procedure Act 1865, which
presupposed that the statements were already available to the cross-examiner to
put to the witness so that if he denied making them or denied their inconsistency
they could then become admissible evidence; that where the cross-examiner did
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not have the previous statements to put to the witness they could not be admitted
under the Act of 1865 and as such did not meet the requirement of section 97 of
the Magistrates' Courts Act 1980 that they were "likely to be material evidence;"
that the objection to material not being admitted unless it was already available to
the cross-examiner was in accordance with the principle that section 97 could not
be used to obtain discovery; and that, accordingly, since the documents sought by
the stepfather could not have been admitted under the Act of 1865 and since,
further, the object of his application had been to discover what the applicant had
said to his solicitor, the conditions for the issue of a witness summons under
section 97 had not been satisfied . (2) That, in any event, a witness summons could
not be issued under section 97 of the Magistrates' Courts Act 1980 to compel the
production of documents subject to legal professional privilege which had not
been waived, since the principle that a client should be free to consult his legal
advisers without fear of his communications being revealed was a fundamental
condition on which the administration of justice as a whole rested; that
notwithstanding the public interest in securing that all relevant evidence was
made available to the defence, legal professional privilege was to be upheld in all
cases as the predominant public interest, even (Lord Nicholls of Birkenhead
dubitante) where the witness no longer had any recognisable interest in
preserving the confidentiality; and that, accordingly, the applicant had been
entitled to claim legal professional privilege.
The privilege is necessary so that clients can get legal advice in full confidence. If you look
at the case of R (on the application of Morgan Grenfell Ltd) v Special Commissioner of
Income Tax [2002] 3 All ER 1 Lord Hoffman said ‘...legal professional privilege
fundamental right..’
R (on the application of Morgan Grenfell Ltd) v Special Commissioner of
Income Tax [2002] 3 All ER 1: The appellant taxpayer marketed a simple tax
avoidance scheme to create chargeable gains for clients who had available capital
losses. Although the taxpayer had been completely open about the way in which
the scheme operated, an inspector of taxes asked to see documents relating to the
advice that the taxpayer had obtained from leading counsel and solicitors about
whether the scheme would work. The taxpayer objected on the ground, inter alia,
that the documents were protected by legal professional privilege. A Special
Commissioner gave his consent to the issue by the inspector of a notice under s
20(1)a of the Taxes Management Act 1970, which empowered the inspector to
require a person, by such a notice, to deliver to him such documents as were in
that person's possession or power and, in the inspector's opinion, contained or
might contain information relevant to any tax liability to which the person might
be subject, or the amount of such liability. The taxpayer applied for judicial review
to quash the notice, contending, inter alia, that the inspector was not entitled to
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require delivery of documents subject to legal professional privilege. That

contention was rejected by the Divisional Court which dismissed the application.
The Court of Appeal affirmed that decision, and the taxpayer appealed to the
House of Lords. In seeking to uphold the decisions below, the Revenue contended
that Parliament had provided, in other provisions of the 1970 Act, a number of
specific safeguards and restrictions for the protection of the taxpayer, including an
express preservation of legal professional privilege for documents in the
possession of a barrister, advocate or legal advisor, and that accordingly no wider
qualification of the general words of s 20(1) had been intended. Held – On its true
construction, s 20(1) of the 1970 Act did not entitle an inspector of taxes to
require a taxpayer to deliver to him material that was subject to legal professional
privilege. That privilege was a fundamental human right long established in the
common law. Although general words in a statute might literally be capable of
having some startling or unreasonable consequence, such as overriding
fundamental human rights, the courts would ordinarily construe them as not
having been intended to have that effect. An intention to override such rights had
to be expressly stated or appear by necessary implication. Section 20(1) contained
no express reference to legal professional privilege, and the provisions upon
which the Revenue relied were not sufficient to create a necessary implication that
legal professional privilege was intended to be excluded. It would have been
irrational for Parliament to have preserved legal professional privilege for
documents in the hands of the lawyer but not for documents (which might well be
copies or originals of the same documents) in the hands of the taxpayer. Legal
professional privilege was a single privilege for the benefit of the client, whether
the documents were in his hands or those of his lawyer. Accordingly, the appeal
would be allowed . (Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA
[1992] BCLC 583 overruled.
Decision of the Court of Appeal [2002] 1 All ER 776 reversed.
In Three Rivers District Council v Bank of England [2004] 3 WLR 1274 the HL of
confirmed that legal professional privilege is absolute can only be overridden by statute
and be waived by a client.
Three Rivers District Council v Bank of England [2004] 3 WLR 1274 : Under
the Banking Acts of 1979 and 1987, the Bank of England (the bank) had a
supervisory role in relation to banks and financial institutions carrying on business
in the United Kingdom. After the collapse of the Bank of Credit and Commerce
International SA (BCCI), an independent inquiry was set up into the bank’s
supervision of BCCI, and its report was published in 1992. In 1993 proceedings
were commenced against the bank for losses caused by the BCCI collapse. In the
course of those proceedings, an issue arose whether communications between the
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officials of the bank appointed to deal with all communications between the bank
and the inquiry (the BIU), and its solicitors and counsel, relating to the content and
preparation of the overarching statement submitted to the inquiry by the bank,
qualified for legal professional privilege. The judge held that the only documents or
parts of documents which the bank was entitled to withhold from disclosure on the
ground of legal advice privilege were communications passing between the BIU and
the lawyers for the purpose of seeking or obtaining ‘advice concerning the bank’s
rights and obligations’. On the bank’s appeal against that decision, the Court of
Appeal held that for legal advice privilege purposes, the advice being sought had to
be advice as to legal rights or liabilities, and that advice as to how the bank should
present its case to the inquiry so as to lead to a conclusion as favourable to the bank
as possible did not qualify for privilege. The bank appealed against that decision.
Held – The appeal would be allowed. Presentational advice sought from lawyers by
any individual or company who believed himself, herself or itself to be at risk of
criticism by an inquiry, whether a coroner’s inquest, a statutory inquiry or an ad hoc
inquiry, fell within the policy reasons underlying legal advice privilege. The defence
of personal reputation and integrity was at least as important to many individuals
and companies as the pursuit or defence of legal rights whether under private or
public law. One of the main purposes of the inquiry in the instant case was to
examine whether in relation to BCCI the bank had properly discharged its public law
duties of supervision imposed by the Banking Acts. The preparation of the evidence
to be submitted and the submissions to be made to the inquiry on behalf of the bank
were for the purpose of enhancing the bank’s prospects of persuading the inquiry
that its discharge of its public law obligations in relation to BCCI was not deserving
of criticism and had been reasonable in the circumstances. The presentation advice
given by the lawyers for that purpose was advice as to what should prudently and
sensibly be done in the relevant legal context. All the communications between the
BIU and the bank’s lawyers regarding the content and manner of presentation of the
overarching statement made on the bank’s behalf to the inquiry, and all internal
notes and memoranda relating thereto, accordingly qualified for legal advice
privilege.
LEGAL ADVIS : PRIVILEGE AND LITIGATION

PRIVILEGE
It is the communication between an attorney and client for the purpose of obtaining legal
advice, as well as non litigious matter.
In Stewart v Issa unreported HCV 2328 of 2008 (JM 2009 SC 4); September 25,
2009(CA) - advice to client is not restricted to telling the client the law on this or that but
extends to advising the client how to navigate his way in light of what a lawyer has told him
the law is.
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LITIGATION PRIVILEGE
Litigation privilege refers to communications at a stage where litigation is pending or in
existence. It extends to communication between attorney and client as well as 3rd parties,
where the communication is made for the dominant purpose of obtaining legal advice in
connection with pending or contemplated litigation.
Since it is the privilege of the client, the client may waive it. There may be express waiver
which is quite clear, see the case of Paragon Finance v Freshfields [1999] 1 WLR 1183.
Paragon Finance v Freshfields [1999] 1 WLR 1183: The plaintiff mortgage
lenders claimed damages for professional negligence from the defendant firm of
solicitors, which had formerly acted for them in connection with insurance claims
arising out of defaults on mortgages. The defendant, recognising the possibility of
conflict, withdrew in 1993, and S & M thereafter acted for the plaintiffs. The
defendant strongly contested the allegations of negligence made by the plaintiffs,
and also the causation and quantum of the plaintiffs’ alleged loss. The defendant
sought disclosure of certain confidential communications between the plaintiffs and
S & M and counsel concerning claims made by the plaintiffs against the insurers and
the pursuit and settlement of those claims. The judge granted the defendant’s
application, holding that if a client sued his former solicitors claiming damages for
alleged negligence in the handling of a commercial transaction between the client
and a third party, the client’s waiver of legal professional privilege, which was
implied from the bringing of the proceedings against the former solicitors, applied
not only to confidential communications between the client and those former
solicitors relating to that transaction, but also to confidential communications
between the client and different solicitors whom he later instructed to pursue and
settle his claim against the third party. The plaintiffs appealed on the ground that
the judge’s decision was contrary to principle and contrary to the balance of
authority.
Held – The appeal would be allowed. The protection afforded by legal professional
privilege was absolute unless the client, whose privilege it was, expressly or
impliedly waived it. A client who, alleging negligence, sued a solicitor who had
formerly acted for him invited the court to adjudicate on questions directly arising
from the confidential relationship which had formerly subsisted between them.
Since court proceedings were public, the client brought the formerly confidential
relationship into the public domain, and thereby waived any right to claim the
protection of legal professional privilege in relation to any communication between
them so far as necessary for the just determination of his claim. In the instant case,
although the plaintiffs had, by bringing the proceedings, impliedly waived any claim
to legal professional privilege in relation to confidential communications between
themselves and the defendant concerning the transactions in question up to the
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moment when the defendant had ceased to act, they had not invited the court to
adjudicate on any question arising from their confidential relationship with S & M.
They had not, therefore, brought that confidential relationship into the public
domain, and had done nothing to release S & M from the obligation of confidence by
which they were bound.
See also the case of Re D (a child) [2011] EWCA Civ 684 where a client was said to have
implicitly waived his right even though, he unwittingly did so.
Re D (a child) [2011] EWCA Civ 684: The child was due to be one-year-old at
the time of the proceedings. He was six weeks old when he suffered various
fractures and injuries. The local authority obtained interim care orders and
arrangements were made to hold a fact-findings hearing to establish the
perpetrator, or the perpetrators of the injuries. Initially the mother said that she
did not know how the child had received his injuries. Shortly thereafter, the
parents separated. The mother then gave a very different explanation of the
child's injuries and essentially said that the father had been responsible for
causing the injuries. In that statement, the mother said that she not initially told
the truth because she had been afraid of the father. The mother also gave some
details of the advice that she had been given leading up to the change in her
statement and said that she had changed her position in consequence of that
advice. The father asserted that the mother had waived her legal professional
privilege such as to justify the court ordering disclosure of attendance notes made
by her solicitors and counsel at various conferences and meetings leading to the
preparation of her second witness statement. The judge found for the father on
the basis that fairness inevitably lead to the need for full disclosure. The mother
appealed.
The issue arose as to whether the judge had erred in ordering disclosure. It was
common ground that the mother's meetings with her solicitor and the
conferences with counsel attracted legal professional privilege which only she
could waive. The mother accepted that she had waived that privilege.
The appeal would be dismissed.
The critical question in the instant case was whether, in the light of what had
been disclosed and context in which disclosure had 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. In the
circumstances of the case, the judge had arrived at the correct conclusion. As the
judge had been charged with the burden of finding the facts relating to the
injuries suffered by the child, he had been well placed to hold the balance of
fairness between all parties and thus ultimately to serve the paramount best
interests of the child. His immediate task had been to find the material facts
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relating to the child's injuries and identify the perpetrator. In choosing to explain
her shift in position as a consequence of advice she had been given, the mother
had undoubtedly elaborated on the nature of that advice and explained the need
for sustained questioning. It was therefore, a legitimate concern that she might be
saying what she believed her interrogators wished to hear rather than what she
knew to be true. The undesirability of breaching confidentiality had to be
balanced against the unfairness to the father if the cloak that ordinarily concealed
the discussions with her lawyers was not lifted. Having made public, at least in
part, the circumstances in which she bared her soul to her lawyers, she had to be
left bare for cross-examination. Accordingly, privilege had been waived and
fairness demanded further full disclosure.
THE ILLICIT PURPOSE EXCEPTION

In R v Cox & Railton (1884) 14 QBD 153 it was stated that privilege would not attach
where to uphold it would be promote sinister purpose.
R v Cox & Railton (1884) 14 QBD 153: If a client applies to a solicitor for advice
which is intended to facilitate, or to guide the client in the commission of, a crime
or fraud, the solicitor being ignorant of the purpose for which his advice is wanted,
the communication between the two is not privileged. The rule relating to
privilege does not apply to all which passes between a client and his solicitor. For
the rule to apply there must be both professional confidence and professional
employment. If the client has a criminal object in view in his communications with
his solicitor, one of these elements must necessarily be absent. The client must
either conspire with his solicitor or deceive him. If his criminal object is avowed,
the client does not consult his solicitor professionally because it cannot be the
solicitor's business to further any criminal object. If the client does not avow his
object he reposes no confidence and the solicitor's advice is obtained by fraud.
Accordingly, no privilege can be claimed for a communication between a solicitor
and his client which is a step preparatory to the commission of a criminal offence,
and evidence of the communication is admissible on the prosecution of the client
for the offence. In each case the court must determine, on the facts actually given
in evidence or proposed to be given in evidence, whether it seems probable that
the accused person may have consulted his legal adviser, not after the commission
of the crime for the legitimate purpose of being defended, but before the
commission of the crime for the purpose of being guided or helped in committing
it.
R v Central Criminal Court ex parte Francis & Francis [1989] AC 346 - Lord Gough
stated that ‘privilege would be negatived when a client has intention in furtherance of a
criminal purpose whether or not the intention is shared by a lawyer’.
Page 96 of 211
R v Central Criminal Court ex parte Francis & Francis [1989] AC 346 : The
police, while investigating the affairs of a person suspected of large-scale drug
trafficking, formed the view that he had laundered the proceeds of his trafficking by
providing substantial sums of money to members of his family for the purchase of
properties. The police wished to investigate the purchase of a particular property by
a member of the suspect's family, who was a client of the applicant solicitors, and
applied ex parte to a circuit judge for an order under s 27 of the Drug Trafficking
Offences Act 1986 requiring the solicitors to produce all files in their possession
relating to the transaction. The judge made the order and the solicitors applied for
judicial review to have it quashed, contending (i) that the application by the police
should have been heard inter partes and not ex parte and (ii) that the files were
'items subject to legal privilege' within s 10(1) of the Police and Criminal Evidence
Act 1984, as applied by s 29(2) of the 1986 Act, and were therefore protected from
disclosure by virtue of s 27(9)(a)of the 1986 Act. The police contended that the files
were 'items held with the intention of furthering a criminal purpose' and therefore
under s 10(2) of the 1984 Act they were not subject to legal privilege. The question
arose whether the items could be held with the intention of furthering a criminal
purpose when the person holding the files, in casu the applicant solicitors, did not
have that intention.
(1) A constable … may, for the purposes of an investigation into drug trafficking,
apply to a Circuit judge … for an order under subsection (2) below in relation to
particular material or material of a particular description. (2) … on such an
application the judge … may make an order that the person who appears to him to
be in possession of the material to which the application relates shall—(a) produce
it to a constable for him to take away, or (b) give a constable access to it, within such
period as the order may specify (9) An order under subsection (2) above—(a) shall
not confer any right to production of, or access to, items subject to legal privilege … '
Held – (1) In the absence of express provision in s 27 of the 1986 Act for service of
notice of the application on the recipient, it was intended that an application by the
police under s 27 for production of documents should be heard ex parte rather than
inter partes. However, the recipient of an order had to be given the opportunity to
apply to discharge or vary the order before it took effect. (2) Since legal privilege
was the privilege of the client and not that of his solicitor and since 'a criminal
purpose' in s 10(2) of the 1984 Act referred to any criminal purpose, the relevant
intention referred to in s 10(2) included that of the client or a third party.
Accordingly, documents held by a solicitor which were intended by his client or a
third party to be used to further a criminal purpose, such as the laundering of the
proceeds of drug trafficking, were not subject to legal privilege and were not
protected under s 27(9)(a) of the 1986 Act from disclosure to the police.
The solicitors' application would therefore be dismissed.
Page 97 of 211
Privilege is negatived where a 3rd party with an criminal intent uses a client as an innocent
tool.
SEARCH OF LAWYERS OFFICE

The Court of Appeal held in the Jamaican Bar Association Ernest Smith & Company et
aux v A. G. and DPP (unreported) (2007) SCCA that legal professional privilege was
breached where the law office had been searched and clients files seized without lawful
authority based on an unlawful search warrant.
The court accepted that legal professional privilege should not be used as a mask to
promote criminal conduct.
Not everything in a lawyer’s office is privileged :

 If something in the office protects criminal, then it is not privileged
 If not within legal and litigation privilege it is not exempt
It is not the fact of one being a lawyer that makes something privilege but that you are
speaking to an attorney in his capacity as lawyer giving you and obtaining legal advice.
LEGAL PROFESSIONAL PRIVILEGE:

 In common law jurisdictions, legal professional privilege protects all
communications between a professional legal adviser (a solicitor, barrister or
attorney) and his or her clients from being disclosed without the permission of the
client. The privilege is that of the client and not that of the lawyer.
 The purpose behind this legal principle is to protect an individual's ability to access
the justice system by encouraging complete disclosure to legal advisers without the
fear that any disclosure of those communications may prejudice the client in the
future.
 In England and Wales, the rules on legal professional privilege are set out in
common law. The Civil Procedure Rules 1998 ('CPR') Rule 31.15 establishes a right
to inspect documents in civil litigation, and provide that a party to whom a
document has been disclosed (ie. mentioned or relied upon in litigation) has a right
to inspect that document (if such inspection would be proportionate given the
nature of the case) - except where the party making disclosure has the right to
withhold such inspection.
 One of these rights is legal professional privilege. It is a privilege that attaches to the
client (not to the lawyer) in a client-lawyer relationship. It may only, therefore, be
waived by the client. In the law of England and Wales, legal professional privilege is
divided into two types: advice privilege, and litigation privilege, the former category
being more absolutely and broadly-defined than the latter.
Page 98 of 211
WORKSHEET 8:
LIABILITY FOR BREACH OF UNDERTAKINGS
An undertaking is a promise made by an attorney in his professional capacity. It is a

promise to either do something or to refrain from doing something. An undertaking may be
given done orally or in writing, but the latter is better. An undertaking may be given to a
client, a third party or to the court (these are the ones that are sometimes done orally). In
all the jurisdictions in the Commonwealth Caribbean the Canons speak to the issues of
undertakings. Note Canon 6 (c) & (d) for Jamaica and Rule 45, 81 (1) and (2) for
Belize. They state that an attorney should not breach any undertaking given by him, that
he should not give a professional undertaking which he cannot fulfil, and that he shall fulfil
every undertaking that he gives.
Most of the undertakings given by attorneys are in relation to conveyancing matters, see
the case of Morris v General Legal Council, Ex Parte Alpart Credit Union (1985) 22 JLR
1. In this case Justice Carey emphasized the importance of undertaking in the world of
conveyancing and commerce. He said that without undertakings conveyancing would
literally be brought to a halt because financial institutions and attorneys for the purchaser
need it to complete transactions.
Morris v General Legal Council, Ex Parte Alpart Credit Union (1985) 22 JLR 1:
The appellant, as an Attorney-at-Law, acted on behalf of a client in the purchase of
a property. The loan for the purchase was obtained from Alpart Credit Union on the
terms that the registered title of the property in the name of the client shall be
deposited with the Alpart Credit Union until the loan is fully repaid. The appellant,
in his capacity as an attorney gave a written undertaking to send the said registered
title to the Alpart Credit Union, but failed to do so. The client somehow obtained
possession of the said certificate of title and used it to secure a separate loan from
another mortgagee, with the result that the loan advanced by the Alpart Credit
Union remained unsecured and the said client refused to repay the loan to Alpart
Credit Union.
The Alpart Credit Union lodged a complaint to the Disciplinary Committee of the
General Legal Council against the appellant for breach of his undertaking. In
response, the appellant averred that he had given instructions to his office staff to
send the certificate of title to the Alpart Credit Union but that unknown to the
appellant, it was not sent; and that the certificate of title was abstracted from his
office in circumstances for which he could not be held accountable, the said
certificate having been removed in his absence and unknown to him. The
Disciplinary Committee ruled that the conduct of the appellant amounted to
misconduct in a professional respect, and that he was liable to repay the balance of
the loan to the Alpart Credit Union. He appealed to the Court of Appeal.
Page 99 of 211
On appeal, the Court considered the provisions of s. 12 (4) of the Legal Profession
Act and Canons vi (d) and viii (d) of The Legal Profession (Canons of Professional
Ethics) Rules.
Canon VI (d) provides as follows -
"An Attorney shall not give a professional undertaking which he cannot fulfil and
shall fulfil every such undertaking which he gives."
CAREY JA
Canon VIII(d) provides that a breach of Canon VI (d) shall Constitute misconduct in
a professional respect and an Attorney who is in breach thereof "shall be subject to
any of the orders contained in s. 12 (4) of the Legal Profession Act."
S. 12 (4) provides that on the hearing of a complaint of professional misconduct -
"the Committee may as they think just make any such order as to -
(c) the payment by the Attorney of any such sum by way of restitution as they may
consider reasonable."
Held: (i) The Court as well as the Disciplinary Committee of the General Legal
Council can enforce any undertaking given by an Attorney-at-Law in his
professional capacity and may take punitive measures against such
attorney in respect of its breach.
(ii) The jurisdiction of the Court as well as the Disciplinary Committee in matters
of the professional conduct of members of the legal profession is akin to the
special control which a court exercised at common law over officers of the
court so that in certain cases they may be called upon summarily to perform
their undertakings even where the contention that they are not liable to
perform them is entirely free from any taint of moral misconduct.
(iii) Where it is found that an Attorney-at-Law, gave an undertaking in his
professional capacity to a third party, he cannot exonerate himself from
liability by pleading that he had delegated the performance of such
undertaking to another person. In the instant case, assuming the story of
the appellant could be believed, it cannot protect him from liability on the
undertakings.
(iv) The breach of an undertaking by an Attorney-at-Law amounts to professional
misconduct, both at common law and by the present statutory provisions, if
the Attorney is found to have given such undertaking in his professional
capacity. In the instant case, it is clear that the appellant gave the
undertaking in his capacity as attorney for his client.
(v) In order that the court should exercise its penal jurisdiction over an Attorney-
at-Law it is not sufficient to show that his conduct had been such as would
support an action for negligence or want of skill. It must be shown that the
solicitor had done something which is dishonorable to him as a man and
dishonorable in his profession. In the instant case, the conduct of the
appellant is dishonourable.
Page 100 of 211

Appeal dismissed.
In United Bank of Kuwait v Hammond [1988] 3 All ER 418 it was observed that
solicitors are presumably men and women of good character and so their word should be
their bond. Therefore, their statement should not require that degree of confirmation and
cross checking that might be appropriate for persons who are not members of this
respected profession. Breach of undertaking is dealt with harshly by the court because this
can undermine the whole dignity of the profession.
United Bank of Kuwait v Hammond [1988] 3 All ER 418: In two separate appeals
the question arose whether the partners in two firms of solicitors were liable on
undertakings given by a fraudulent solicitor, E, while in the employ of the two firms,
by which he undertook that the firms would provide security for loans made to
clients of the firms by two banks.
In the first case, H, a client of the firm, requested a temporary loan of £100,000
from a bank on the basis that he expected to receive £700,000(which was on
deposit with another bank) when the deposit matured in two months' time. H
stated that the solicitors' firm had control of the money and he gave E as a
reference. The bank agreed to make the loan provided the firm undertook to
transfer the £700,000 to H's account with the bank when the deposit matured and
the firm also guaranteed the loan. E, who was a salaried partner in the firm, gave
the undertaking purportedly on behalf of the firm but without the knowledge of
the other partners and knowing when signing it that it was not backed by funds
or any form of security. H disappeared with the money and the bank brought an
action against the firm to recover the amount of the loan, contending that the firm
was contractually liable to pay on the undertaking under s 5a of the Partnership
Act 1890, which provided that every partner was an 'agent of the firm' and his
acts 'for carrying on in the usual way business of the kind carried on by the firm'
bound the firm. The judge dismissed the bank's action, holding that the
undertaking had not been given by E in his professional capacity as a solicitor nor
in the usual course of a solicitor's business. The bank appealed.
In the second case, E, while employed as an assistant solicitor in sole charge of a
branch office of another solicitors' firm, gave an undertaking to a bank without
his employer's knowledge, having falsely represented to the bank that the firm
controlled off-shore funds belonging to a number of its non-resident clients and
was authorised to apply those funds to discharge a debt of £150,000 owed by
those clients to J. The undertaking stated that the firm would within two months
transfer £150,000 to an account to be opened by J with the bank. Largely on the
strength of that undertaking the bank advanced £55,000 to J which was never
repaid. The bank subsequently brought an action against the solicitors' firm to
recover the loan under the undertaking. The judge held that the undertaking was
enforceable against the firm, on the ground that the solicitor had ostensible
Page 101 of 211

authority to bind the firm, since the undertaking was such as might be given
during the course of a solicitor's business and he awarded damages against the
firm. The principal of the firm appealed, contending that giving an undertaking in
support of a personal loan was not part of a solicitor's usual business. Held – (1)
Where a solicitor who had actual authority to represent himself as being a
practising solicitor with an established firm gave an undertaking which the
receiver of the undertaking was entitled to assume was given in the context of an
underlying transaction which was part of the usual business of a solicitor, the
undertaking would be enforced against the firm as having being given with
ostensible authority and therefore binding on the firm under s 5 of the 1890 Act if
it subsequently turned out to be false and worthless ; Uxbridge Permanent Benefit
Building Society v Pickard [1939] 2 All ER 344 applied. (2) On the facts as
represented to the banks, a reasonably careful and competent bank would have
concluded that the undertaking was given in the context of an underlying
transaction which was part of the usual business of a solicitor. In each case,
therefore, the lender had discharged the burden of proving that E had had
ostensible authority to bind the firm of solicitors which employed him.
Accordingly, the appeal in the first case would be allowed and that in the second
case dismissed, and the two undertakings would be enforced.
If there is a breach of an undertaking there are three possible consequences:

1. Proceedings for disciplinary action – ranging from reprimand to being struck off.
2. If the undertaking was made to the court an application may be made to the court to
enforce the undertaking (in such an instance the court is exercising its inherent
supervisory jurisdiction). However, the court will usually only enforce an undertaking
by summary process where there has been a serious dereliction of duty. See the case of
United Mining and Finance Corporation Ltd v Becher [1910] 2 KB 296. Again it is
because the courts are saying that a higher standard is expected of attorneys hence the
court is justified in exercising control over them.
United Mining and Finance Corporation Ltd v Becher [1910] 2 KB 296. The
Court has jurisdiction, on the application by a person to whom a solicitor gives an
undertaking in his capacity as a solicitor, to exercise its summary procedure to
compel the solicitor to carry out the undertaking, even though the applicant is not
the client of the solicitor and the undertaking was not given in the course of legal
proceedings, and there is no suggestion of dishonourable or discreditable conduct
on the part of the solicitor.
3. An action in law because the undertaking could actually be deemed to be a contract and
therefore the person to whom an undertaking is given could sue the attorney for breach
of contract and the remedy would be damages. In Udall v Capri Lighting Ltd [1987] 3
All ER 262, the court had recommended that the parties take civil action rather than
invoke the court’s inherent jurisdiction.
Page 102 of 211

Udall v Capri Lighting Ltd [1987] 3 All ER 262: In May 1983 the plaintiff issued
writs against the defendant company claiming the amount of goods sold and
delivered and he subsequently issued summonses for summary judgment under
RSC Ord 14. Before the summonses were heard the defendant's solicitor gave an
oral undertaking to the plaintiff's solicitor that he would procure the execution of
charges in favour of the plaintiff by the defendant's directors over their homes or
life assurance policies, in return for which the plaintiff's solicitor agreed to
adjourn the summonses. The charges were not executed and in due course
judgment was entered against the defendant. Subsequently, however, the
defendant went into liquidation and the judgment could not be enforced. The
plaintiff then applied for an order that the defendant's solicitor should procure the
execution of charges by the directors pursuant to his undertaking. The judge,
without considering whether performance of the undertaking was impossible,
ordered that the undertaking be performed, on the assumption that in the exercise
of the court's supervisory jurisdiction over solicitors the court could not, in the
absence of dishonourable conduct, make an alternative order that the solicitor pay
compensation for non-performance of his undertaking. The defendant's solicitor
appealed, contending that it was impossible for him to perform the undertaking
and therefore it ought not to be enforced. The plaintiff cross-appealed, contending
that the judge's order should be varied to require the solicitor to pay damages in
lieu of the undertaking or, alternatively, compensation to make good the loss
caused by his breach of duty to perform the undertaking. Held – Where a solicitor
was unable to carry out or procure the performance of an undertaking given by
him the court could exercise its inherent supervisory jurisdiction over the
solicitor, because failure to implement an undertaking prima facie constituted
professional misconduct or a serious dereliction of professional duty even though
the solicitor may not have acted dishonourably or actual performance of the
undertaking required action by a third party and was therefore beyond the
solicitor's control. Although the court would usually order performance of the
undertaking, where performance was impossible the court could order the
solicitor to pay compensation to any person who had suffered loss because of the
solicitor's failure to implement his undertaking, provided it was shown that the
failure amounted to professional misconduct or serious dereliction of duty. It
followed that the judge had been wrong not to take into account the fact that it
was impossible for the solicitor to perform the undertaking or to consider the
possibility of making a compensatory order against the solicitor. Both the appeal
and the cross-appeal would therefore be allowed and the case remitted to the
judge for further consideration .
United Mining and Finance Corp Ltd v Becher [1908–10] All ER Rep 876, Myers v
Elman [1939] 4 All ER 484, R & T Thew Ltd v Reeves (No 2) [1982] 3 All ER 1086
Page 103 of 211

and John Fox (a firm) v Bannister King & Rigbeys (a firm) [1987] 1 All ER 737
applied.
Per Kerr LJ. Except in straightforward cases, performance of a solicitor's
undertaking should never be ordered without the court first considering the
practical implications of such an order.
Apart from breach of contract in certain cases the attorney may be deemed to owe a
duty of care as a result of an undertaking given to his clients. In Al-Khandari v JR
Brown & Co [1988] 1 All ER 833, where there was a custody battle and hostile
litigation, the attorney for one of the parties gave an undertaking to the other party that
the passports belonging to the children would not be given to the other party. Through
various events the passports were given to the father who took the children out of the
jurisdiction and so the mother was left without the children. Any cause of action would
have between her and the solicitors who gave the undertaking.
Al-Khandari v JR Brown & Co [1988] 1 All ER 833: The plaintiff was the wife of a
Kuwaiti national. The two children of the family were included on the husband's
passport. In 1981 the parties separated and the husband abducted the children
and took them to Kuwait. He was persuaded to return to England with the children
and consented to an order granting the plaintiff custody, care and control of the
children. The husband was granted access on his undertaking, inter alia, to deposit
his passport with the defendants, who were his solicitors. The husband later
indicated that he wished to use his passport to return to Kuwait and wanted the
children's names removed from it. The defendants, after informing the plaintiff's
solicitors, forwarded the passport to their London agents with instructions to take
it to the Kuwaiti Embassy to get the children's names removed. The defendants
told the plaintiff's solicitors that they would not release the passport to the
husband and also requested their London agents not to. However, the embassy
stated that they could not remove the children's names from the passport
immediately but would retain the passport while the children's birth certificates
were obtained. The husband told the defendants that he would take the necessary
documents to the embassy the next day. The defendants, relying on an assurance
from the embassy that the passport would be safe, did not send anyone to be
present when the husband was at the embassy and did not inform the plaintiff's
solicitors of what had happened. While the passport was in the embassy's
possession, the husband persuaded the embassy to release it to him. The husband
then arranged for three persons to kidnap the plaintiff while he abducted the
children and took them out of the country to Kuwait using the passport to do so.
The plaintiff, who was bound and gagged and suffered injuries during her
kidnapping, brought an action against the defendants claiming damages for, inter
alia, negligence, contending that the husband was able to recover the children
because of the defendants' negligence and that the circumstances were such that
Page 104 of 211

the defendants, albeit they were her husband's solicitors and not her own, owed
her a duty of care. The judge held that the defendants owed the plaintiff a duty of
care and were in breach of that duty but that the damage suffered by the plaintiff
was not a foreseeable consequence of the breach of duty. The plaintiff appealed.
Held – Although a solicitor would not normally owe a duty of care to his client's
opponent in hostile litigation, he would owe such a duty if he stepped outside his
role as solicitor for his client and accepted responsibilities towards his client's
opponent. When the defendants gave an implied undertaking to retain the
husband's passport and not release it to the husband, they were not acting as
solicitors or agents of the husband but as independent custodians of the passport
subject to the direction of the court and the joint direction of the parties. In the
circumstances the defendants owed the plaintiff a duty to take reasonable care to
keep the passport in their possession (save as the plaintiff might otherwise agree)
and to inform the plaintiff if for any reason it ceased to be in their possession. The
defendants were in breach of that duty because, having regard to the husband's
previous abduction of the children, there was a real risk that if he obtained the
passport he might abduct them again, there was a more than negligible risk that
the embassy might release the passport to the husband, and if the plaintiff had
known that the passport was no longer in the defendants' custody she could have
prevented the husband having access to the children on the day the abduction took
place. Furthermore, the damage suffered by the plaintiff was a natural and
probable consequence of the defendants' breach of duty. The defendants were
accordingly liable to the plaintiff. The appeal would therefore be allowed . Decision
of French J [1987] 2 All ER 302 reversed.
When dealing with hostile litigation you could find yourself in a position where you owe
a duty of care, see the cases of Geoffrey Silver and Drake v Baines [1971] 1 All ER
473, Rooks Rider v Steel [1993] 4 All ER 611.
Geoffrey Silver and Drake v Baines [1971] 1 All ER 473: The defendant was
the only partner in a firm of solicitors and employed B, an admitted solicitor, to
carry out much of the firm's work. In March 1969, B asked the plaintiff, a partner
in another firm of solicitors, to advance £4,000 for a client of the defendant's firm.
The plaintiff advanced the money, and in an undertaking written on the
defendant's professionally headed notepaper, dated 21 March 1969, addressed to
the plaintiff, and signed by B on behalf of the defendant's firm, it was stated that
in consideration 'of you handing to me the sum of £4,000, we hereby undertake to
repay the said sum to you together with interest at 2% a month on the 21st day of
May 1969'. The defendant knew nothing about the loan. It was not repaid by 21
May 1969, and when the plaintiff demanded repayment the defendant said that
he knew nothing about the loan and he repudiated any liability under the written
Page 105 of 211

undertaking. The plaintiff took out an originating summons against the defendant
for an order of the court in the exercise of its summary jurisdiction over solicitors
for payment of the £4,000 and the interest on it. The judge dealt with the
summons summarily on the affidavits and without oral evidence and, holding that
the undertaking was binding on the defendant because it was within B's implied
or ostensible authority, he ordered the defendant to pay the sum claimed. On the
defendant's appeal, Held – (i)(per Lord Denning MR and Widgery LJ) Assuming
that the written undertaking was given by the defendant, since it was merely to
repay money lent it was not an undertaking given by him in his capacity as a
solicitor, even though the money was for the benefit of a client, but was given in
his personal capacity, for in regard to money an undertaking given by a person in
his capacity as a solicitor was usually one to pay money which he held in trust or
an undertaking to apply money in a particular way; accordingly, the first
requirement for the exercise of the court's summary jurisdiction over solicitors
for breach of an undertaking was absent . (ii) In any event, the court's summary
jurisdiction over solicitors should be exercised only in a clear case which the
present case was not since the issue of B's implied or ostensible authority to give
the undertaking was arguable; accordingly, the case was not an appropriate one
for summary procedure and the plaintiff must bring an action at law for the
money; the appeal would therefore be allowed . United Mining and Finance Corpn
Ltd v Becher [1908–10] All ER Rep 876 and Re a Solicitor [1966] 3 All ER 52
considered. Dictum of Bowen LJ in Ex parte Cobeldick (1883) 12 QBD at 151
applied.
Rooks Rider v Steel [1993] 4 All ER 716: The plaintiff solicitors acted for H Inc, a
Louisiana corporation which had agreed to lend £35m to C Ltd at interest of 10%
per annum, on condition that C Ltd would in advance provide H Inc with a letter of
credit to cover the first year's interest and would pay H Inc's costs. The plaintiffs
were asked to prepare the loan contract as a matter of urgency. They agreed to act
upon a written undertaking being given by the defendants, C Ltd's solicitors, 'to
pay your proper fees and disbursements in connection with the preparation and
execution of the proposed Loan Agreement between your Client … and our Client
… whether the matter proceeds to completion or not'. It later transpired that H Inc
had no funds and its directors never intended to make the loan but intended to use
the loan agreement as a means of fraudulently securing money from C Ltd or
elsewhere in advance of the loan. The plaintiffs nevertheless sought to enforce the
undertaking given by the defendants in respect of the plaintiffs' costs of preparing
the loan documentation amounting to £31,918. They applied for an order to that
effect, pursuant to the court's inherent jurisdiction in relation to solicitors'
conduct. The defendants contended that they were entitled to refuse to pay
because the undertaking had been vitiated by H Inc's fraudulent intention. Held –
Page 106 of 211

It was professional misconduct for a solicitor, without lawful justification, not to

comply with an undertaking. On the facts, the plaintiffs were not affected by any
illegality arising from the fraudulent intention of H Inc in entering into the
transaction, and there was therefore no lawful justification for the defendants not
to comply with the undertaking, since the plaintiffs had no notice of any illegality
and were in no sense successors in title of persons affected by the illegality as they
had insisted on the undertaking for their own protection. The defendants would
therefore be directed to comply with their undertaking .Udall v Capri Lighting Ltd
[1987] 3 All ER 262 considered.
If the undertaking given is in relation to a mortgagee and there is a breach of undertaking

then the attorney may be sued for breach of contract or negligence because he owes a duty
of care to the mortgagee. If the attorney is sued in negligence he would automatically be
reprimanded by the General Legal Counsel, if they are made aware. Yes, The General Legal
Counsel can actually act without the complainant but they would have to be aware and
dependent on the circumstances.
Page 107 of 211

WORKSHEET 9:
ETHICS, RIGHTS & OBLIGATIONS OF THE LEGAL PROFESSION
ATTORNEY’S DUTIES TO THE COURT
An attorney owes a duty to:

1. The client
2. The profession
3. The court
There is a trio of obligation
In Rondel v Worsley [1967] 3 All ER 993, Lord Reid said that every counsel has a duty to
his client to raise every issue, advance every argument, and ask every question, however
distasteful, which he thinks will help his client’s case; but as an officer of the court who is
to be concerned with the administration of justice counsel has a duty to the court, to the
standards of the profession and justice which may lead to a conflict with the client’s
interest.
*Rondel v Worsley [1967] 3 All ER 993: The immunity of counsel from being sued
for professional negligence in the conduct of a cause, criminal or civil, is based on
public policy, not on his contractual incapacity to sue for fees, and it is in the public
interest that the immunity should be retained, one factor being that counsel owes a
duty to the court for the true administration of justice. Per Lord Reid and Lord
Upjohn (cf, also, per Lord Pearson): this immunity extends to work done in the
conduct of litigation, criminal or civil, at the trial, to work where litigation is pending
(per Lord Upjohn, from the time of the letter before action), to drawing pleadings
and to conducting subsequent stages; but (Lord Pearce dissenting) it does not
extend to other advisory work or work in drafting or revising documents. Per Lord
Reid and Lord Pearce, Lord Upjohn concurring (cf, per Lord Morris of Borth-y-Gest
and Lord Pearson): a solicitor should not be liable to be sued for negligence in
carrying out work in litigation which, if counsel had been engaged, would have been
carried out by counsel; but (per Lord Upjohn) the general result of such immunity,
having regard to the different position of a solicitor, is likely to be that he will have
immunity only while actually acting as advocate on behalf of his client or when
settling pleadings. Appellant, being arraigned at the Old Bailey in May 1959, on an
indictment containing two counts, of which one was for causing grievous bodily
harm with intent to M, a doorkeeper, obtained the services of respondent as counsel
to defend him on a dock brief. It was not in dispute that appellant had seriously
injured M. Appellant himself did not suffer a scratch. His only line of defence was
self-defence. He was convicted. Nearly six years later appellant issued a writ against
respondent. In the course of the action so instituted he told the judge in chambers ‘I
tore (M's) hand in half and bit part of his ear off’. Appellant, when asked by the judge
in chambers whether he suggested that he would have been acquitted if respondent
had conducted his case differently, replied ‘No’. At a later stage, on the fourth day of
appeal to the Court of Appeal and over seven years after the incident, appellant then
Page 108 of 211

represented by a solicitor, produced a draft re-amended statement of claim alleging

in essence negligence on the part of respondent in that (in substance) respondent
(a) failed to reveal and prove in cross-examination of prosecution witnesses and by
demonstration that M's wounds were not caused by a knife; (b) failed by cross-
examination of the police or by calling the landlord, Rachman, and one Nash to
prove that appellant was not in the habit of using a knife and, (c) failed to establish
that appellant was in the employ of Rachman and was on the premises in that
capacity. Appellant sought leave to serve the re-amended statement of claim. On
appeal from a decision of the Court of Appeal refusing leave and affirming a decision
that appellant's statement of claim should be struck out and the action dismissed:
Held: An action did not lie at the suit of appellant against his counsel, respondent, for
negligence (if there were any negligence) in the conduct of appellant's defence. Per
Lord Pearce: when a party changes his story to meet difficulties, that fact is one of
the matters which should be taken into account in determining whether leave to
amend (under RSC Ord 20 r 5) should be given when it is sought that a pleading
should be struck out; in the present instance leave to serve the re-amended
statement of claim was rightly refused. Semble: the decision in Hedley Byrne & Co
Ltd v Heller & Partners Ltd (1963), has not altered the position in regard to liability
for professional negligence as between barrister and client.
Per Lord Upjohn: counsel is not liable in negligence merely because he expresses an
opinion which ultimately turns out to be wrong, nor merely because he overlooks
one of a number of relevant authorities; I remain of opinion that counsel will only be
guilty of gross negligence by some really elementary blunder.
It is admittedly a matter of discretion whether, when a pleading is struck out, the

court will give leave to amend. Where there appears to be good faith and a genuine
case the court will allow extensive amendments almost up to the twelfth hour in
order that the substance of a matter may fairly be tried. But when a party changes
his story to meet difficulties, that fact is one of the matters to be taken into account
(Lord Pearce).
An attorney is an officer of the court, as such the court has inherent jurisdiction to regulate
their conduct. So far in an instance where an attorney commits a serious dereliction of duty
to the court and extra cost is incurred the court may order the attorney to pay those costs.
See the case of Holden & Co. v Crown Prosecutor Service [1990] 1 All ER 368.
Holden & Co. v Crown Prosecutor Service [1990] 1 All ER 368: In five separate
cases the question arose whether the court had jurisdiction to order the solicitor
acting for the defendant in a criminal trial personally to pay the whole or part of
the costs of the prosecution.
Page 109 of 211

In the first case the defendant was charged with possessing a shotgun without a
licence. His defence was that the shotgun did not belong to him but to his brother.
The defendant's solicitors knew the brother's address but made no attempt to
contact him until the first day of the trial because they were told that he had gone
to ground and would be unwilling to attend. In fact the brother was still living at
his last known address and after two visits from the police shortly before and
during the trial the brother attended the Crown Court but by the time he arrived
the jury had already retired. The trial judge discharged the jury and ordered a
fresh trial. He further ordered the solicitors to pay the costs thrown away. In the
second case the defendant was charged with drug offences. His solicitors
indicated that he would probably plead guilty but when the case was listed for a
plea counsel of the defendant's choice was not available and he decided to plead
not guilty. The defendant's solicitors were unable to arrange a conference with
the defendant's chosen counsel until the morning of the trial. Following that
conference the defendant changed his plea to guilty with the result that the
witnesses who had been summoned were not needed. The trial judge ordered the
solicitors to pay the costs thrown away. In the third case the solicitors instructed
to represent the defendant under a legal aid certificate had little or no contact
with the defendant prior to his trial and considered that a conference was not
necessary. When the defendant failed to appear at the trial it had to be adjourned
and the trial judge ordered the solicitors to pay the costs thrown away on the
ground that the solicitors had lost contact with the defendant and ought to have
notified the court of that fact. In the fourth case the defendant was charged with
dishonestly obtaining a pecuniary advantage by failing to disclose her previous
convictions when applying for employment with a security firm. At the trial
defence counsel sought to exclude evidence of a conversation between the
defendant and a police officer regarding her previous convictions and the trial
was adjourned to enable the prosecution to obtain a memorandum of convictions.
The trial judge ordered the defendant's solicitors to pay the costs of the
adjournment. In the fifth case the defendant was charged with robbery and
assault. His defence was that although he had been in the vicinity of the alleged
crime he had not taken part in it. Before the trial the defendant's solicitor was
informed of a possible alibi witness but the defendant's solicitor was unable to
interview him. In the course of the trial the defence served an alibi notice on the
prosecution and the trial was adjourned for two hours to enable the prosecution
to investigate the alibi. The trial judge ordered the solicitor to pay the costs of the
adjournment. The solicitors in the five cases appealed against the orders made
against them.
Held – The court retained an inherent jurisdiction in both civil and criminal cases
to make an order that the solicitor acting for the defendant personally pay the
whole or part of the costs of the other side if his conduct involved a serious
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dereliction of his duty to the court which caused extra costs to be incurred.
However, an improper act or omission which fell short of a serious dereliction of
duty was not sufficient for an order to be made against a solicitor for personal
payment of costs. Moreover, the object of such an order was not punitive and
therefore the amount of the costs which the solicitor could be ordered to pay was
limited to the costs which his default had caused. On the facts, the solicitors in the
first case had been guilty of a serious dereliction of their duty to the court in not
attempting to contact the defendant's brother before the trial and their appeal
would be dismissed. In the second, third and fourth cases the solicitors had not
been guilty of a serious dereliction of their duty to the court and their appeals
would be allowed. In the fifth case the defendant's solicitor had been in breach of
his duty to the court in not serving an alibi notice before the trial but since he had
acted in the genuine belief that he was not in breach of his duty to the court and
that he was acting in the interests of his client it was not an appropriate case for
an order that the solicitor personally pay the costs thrown away and accordingly
his appeal would be allowed dictum of May LJ in Sinclair-Jones v Kay [1988] 2 All
ER 611 at 616 not followed.
Per curiam. If the initiative in making an order that a solicitor personally pay the
costs thrown away comes from the judge it is not necessary for any respondent to
be named in any appeal against that order .
Read article Lawyers Duties to the Court by D.A. Ipp (1983) 114 LQR 63. It summarises the
duty under four broad headings:
1. the general duty of disclosure owed to the court.
2. the general duty not to abuse the process of the court.
3. the general duty not to corrupt the administration of justice ex bribery.
4. the general duty to conduct cases expeditiously & efficiently.
o Overall, the attorney must make full disclosure to the court of all relevant law and
facts, whether for or against him.
o To be absolutely candid with the court.
o To act with perfect courtesy to the court, including opposing counsel.
o To present issues as clearly and economically as possible, so as to avoid wasting the
court’s time.
Note the following:

Jamaica Canon 3 g & h, Canon 4 c & Canon 5.
Belize Part 3,4 + 5 (Codes).
Appendix C of Archbold.
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Criminal Case
Prosecuting Counsel
o A prosecutor is essentially a minister of justice, therefore the primary concern is to
ensure that justice is done.
o It is not the prosecutors duty to obtain a conviction at all costs.
*Randall v R (2002) 60 WIR 103: Not every departure from good practice
renders a trial unfair. Inevitably, in the course of a long trial, things are done or
said which should not be done or said. Most occurrences of that kind do not
undermine the integrity of the trial, particularly if they are isolated and
particularly if, where appropriate, they are the subject of a clear judicial direction.
But the right of an accused to a fair trial is absolute. There may come a point when
the departure from good practice is so gross, or so persistent, or so prejudicial, or
so irremediable that an appellate court will have no choice but to condemn a trial
as unfair and quash a conviction as unsafe, however strong the grounds for
believing the accused to be guilty. In this case, the Privy Council concluded that
there had been such departures from good practice in the course of the trial as to
deny the accused the substance of a fair trial. Prosecuting counsel had conducted
himself as no minister of justice should conduct himself. The trial judge had failed
to exert the authority vested in him to control the proceedings and to enforce
proper standards of behaviour. The judge had allowed himself to be overborne
and had allowed his antipathy to both the accused and his counsel to be manifest.
While none of the matters of complaint taken on its own would have supported a
successful appeal, taken together they left no alternative but for the convictions to
be quashed. Observations on the rules which should be observed to safeguard the
fairness of a criminal trial.
o The prosecution is not to withhold facts or secrete them.

*Johnson v R (1996) 53 WIR 206: The deceased was murdered in September
1991. Two days later a warrant was issued for the arrest of the appellant in
connection with the murder. The appellant was arrested in the USA in July 1992
and, in late June 1993, the sole eye-witness to the murder made a statement to the
police purporting to implicate the appellant, whom he claimed to have seen on
numerous previous occasions. At the appellant's trial, the prosecution also called a
detective sergeant to give evidence. The sergeant said that, on the day of the
murder, he had received a report and had started investigations; two days later he
obtained warrants for the arrest of the appellant whom he did not know, but
about whom he had recorded statements in this matter. During the course of the
trial, prosecuting counsel made certain allegations against defence counsel and the
conduct of prosecuting counsel was later admitted to have been indefensible in
this respect. The appellant was convicted and appealed to the Court of Appeal.
Held, allowing the appeal (1) that the evidence of the detective sergeant had no
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probative value, it was inadmissible as hearsay and must have conveyed to the
jury the impression that some person other than the eye-witness (whose
statement to the police had not been made until nineteen months after the
murder) had identified the appellant as the murderer; nothing that could have
been said in the summing-up could have countered the prejudicial effect of such
evidence. Hopson v R (1994) 45 WIR 307 followed. (2) That a trial judge had a duty
to maintain the dignity and authority of the court and to guard against conduct
that might improperly influence jurors in the performance of their duty; in this
case the jury must have been distracted from their task by the conduct of
prosecuting counsel and the appellant's trial had not been fair, despite such
rebukes as the judge had delivered to counsel. Sankar v The State (1994) 46 WIR
452 applied.
o Prosecutor repeatedly suggested that D was involved in another murder.

Tillett v R (1999) 55 WIR 10, PC Appeal No 56/98 :Two persons entered a
clothes shop. The first left the shop with some clothes which they had selected, and
the second produced a gun and held up one of the assistants. The second was
allowed to leave the shop without paying. As they left, they were approached by a
man with a gun; the first dropped the clothes and made his escape. In the course of
an incident the second person shot the man with the gun. The appellant was
charged with murder. The first person (who was himself charged with robbery)
was called as a witness. He claimed that the appellant was the second person
involved with the robbery and that he (the witness) knew him well; they had gone
to the shop together, but the witness was not part of any plan to rob or to kill and
had not known that the second person had a gun. The appellant denied that he
knew the witness, denied involvement with the incident and put forward an alibi
defence. The appellant was convicted of murder and his appeal to the Court of
Appeal was dismissed. On further appeal to the Privy Council on the grounds (inter
alia) that the witness should not have been called to give evidence as he was
himself awaiting trial for the robbery and no direction as to accomplice evidence
had been given by the trial judge, Held, advising that the appeal be allowed, (1)
that although it was desirable that a prosecution witness should not have an
interest of his own to serve, the existence of such an interest did not in itself
preclude the witness from giving evidence, provided that the trial judge gave due
warning to the jury that, in view of such interest, the evidence of the witness
should be viewed with particular care. Chan Wai-keung v R [1995] 2 Cr App Rep
194 applied. R v Pipe (1966) 51 Cr App Rep 17 not applied. (2) That the witness
not having been charged with the same offence as the appellant was not an
accomplice; accordingly, the trial judge was not required to warn the jury as to the
need for corroboration of the evidence of an accomplice (cf. section 90(4) of the
Evidence Ordinance), but he should nevertheless have warned the jury that the
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witness had an interest to serve and that they should exercise caution before
accepting his evidence; the failure to give such warning constituted a material
irregularity in the trial. R v Beck (1981) 74 Cr App Rep 221 and R v Witts and Witts
[1991] Crim LR 562 applied
Defence counsel’s concern is to obtain a committal within the lawful procedure.
Munroe Friedman says that defence lawyers operate under a trilemma, as they are
required to obtain as much knowledge about the case, hold it in confidence and yet
never mislead the court.
Therefore there is an overriding duty not to mislead the court while fulfilling one’s duty
to promote and protect a client’s interest. This means by using proper and lawful
means.
Generally you will find in the canons the duty of defence to use all fair and reasonable
means to present every defence available. An attorney should not bring his personal
views.
A solicitor should not knowingly make false statements of facts, Bridgewood, Re

(November 9, 1988) LS Gazette 53.
If a client confesses to committing a crime to you, unless they have an available defence
you must encourage them to enter a plea of guilty.
Sankar v The State (1994) 46 WIR 452- counsel has a duty to withdraw, if instructed
by a client to do something dishonourable.
Sankar v The State (1994) 46 WIR 452: The appellant was charged with murder
in Trinidad following an incident during which he had stabbed the deceased. At his
trial defence counsel’s cross-examination of prosecution witnesses presaged a
defence based on self-defence, provocation or accident. While the last prosecution
witness was giving evidence there was a short conference between defence counsel
and the appellant in the dock as the result of which at the conclusion of the Crown’s
case defence counsel told the court that he would not be presenting a defence but
merely putting the prosecution to proof and in his closing statement he told the jury
that no defence had been submitted and if the jury accepted the prosecution’s case
they should find the appellant guilty. According to an affidavit subsequently sworn
by defence counsel, his reason for taking that course and not putting the appellant in
the witness box or allowing him to make an unsworn statement from the dock to
rebut the prosecution’s case or set up the defences of self-defence, provocation or
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accident, was that when he told the appellant to speak the truth when making an
unsworn statement the appellant told him something (which counsel did not
divulge) which caused him as a matter of professional duty to advise the appellant
to remain silent. According to the appellant he wanted to give evidence but defence
counsel told him that he was not putting him in the witness box ‘because of the way
the trial had gone’ and he thought it would look bad if he were to argue with his
counsel in front of the jury. The appellant was convicted and sentenced to death. He
appealed to the Court of Appeal of Trinidad and Tobago which dismissed the appeal.
He appealed to the Privy Council, contending, inter alia, that his counsel’s decision
not to call him to give evidence had deprived him of a fair trial. Held, when defence
counsel was told by the appellant something which embarrassed his further conduct
of the trial he was under a duty to investigate the matter fully with the appellant and
explain the options which were open to him and should, if necessary, have sought an
adjournment for that purpose. By unilaterally deciding, after giving no more than
whispered advice to the appellant, not to put him in the witness box or allowing him
to make an unsworn statement from the dock and thereby abandoning any attempt
to make out a positive defence, counsel had not fulfilled the duty he owed to his
client to explain to him how important his evidence would be to the outcome of the
trial and that, without that evidence, in practice there was no defence. If the
appellant had then insisted on a course which was inconsistent with counsel’s duty
to the court and which placed him in an embarrassing position counsel could have
withdrawn from the trial, but even then he would have been under a duty to explain
the position to the appellant and place before him the options which arose in
consequence of the position in which counsel found himself. Because the appellant
had thus been deprived in reality of deciding whether or not he should give
evidence or at least make a statement from the dock there had been a miscarriage of
justice, since it could not be said that if the appellant had not been deprived of the
opportunity of properly considering whether to give evidence or make a statement
he would have decided not to do so and if he had given evidence, it was almost
certain that the judge would have been under an obligation to leave the issues of
accident, self-defence and possibly provocation to the jury, with the possibility of a
different outcome. The appeal would therefore be allowed.
Per curiam. In an extreme situation where the defendant is deprived of the

necessities of a fair trial then even though it is his own advocate who is responsible
for what has happened, eg because of hostile exchanges between counsel and the
trial judge, an appellate court may have to quash the conviction and will do so if it
appears there has been a miscarriage of justice.
Counsel’s duty where there is an error on part of the court:
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o Traditionally, it was seen that defence counsel only owed a duty to his client, and
did not have a duty to bring to the judge’s attention.
o This has started to change, see the case of Edwards v R (1983) 77
Crim App R 5. In this case LJ Geoff said- defence counsel had been wrong not to
draw the judge’s attention to an error in his summing up. It is inconceivable that
defence counsel in acting in the best interest of his client could have failed to
draw the judge’s attention to serious omissions, as failure to give a direction on
standard of proof.
o R v Bruley [1997] 1 Cr App R (S) 339.
Note the distinction stemming from the cases of Edwards v R and R v Bruley.
Where it is an error of law the trend now is to suggest that both defence and the
Prosecution have a duty to correct the judge. Where there is an error of fact the burden is
on the Prosecution to prove their case. It is okay for defence counsel to essentially sit back
and hear prosecuting counsel correct the judge as long as defence counsel does not
participate in the deception.
Regarding the error of fact, see the case of Saif Ali v George Mitchell & Co. [1980] AC 198
at 220. In that case Lord Diplock said that where there is an error of fact consistent with
the rule that the Prosecution must prove its case defence counsel may passively stand by
and watch the court being misled by reason of its failure to ascertain facts that are within
the barrister’s knowledge. Lord Diplock was suggesting that you cannot lie by your silence.
It is not your duty to correct the Prosecution because the Prosecution has the burden of
proof.
Saif Ali v George Mitchell & Co. [1980] AC 198 : Although public policy requires
that a barrister should be immune from suit for negligence in respect of his acts of
omissions in the conduct and management of litigation which causes damage to his
client, such immunity is an exception to the principle that a professional person who
holds himself out as qualified to practise that profession is under a duty to use
reasonable care and skill and is not to be given any wider application than is
absolutely necessary in the interests of the administration of justice. Accordingly, a
barrister's immunity from suit extends only to those matters of pre-trial work which
are so intimately connected with the conduct of the cause in court that they can
fairly be said to be preliminary decisions affecting the way that cause is conducted
when it comes to a hearing. Where a barrister's advice and settling of the pleadings
in fact prevents plaintiff's cause from coming to court as it should have done, it
cannot be said to be intimately connected with the conduct of plaintiff's cause in
court and is therefore not within the sphere of a barrister's immunity from suit for
negligence.
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Henderson and Bradshaw v R (2010) 1 CCLE pg 21. This is a case from Bermuda some
time last year, where during the course of a trial junior counsel for the Prosecution got on
her phone and posted on facebook messages about the trial while a key witness for the
defence was giving evidence. Junior counsel wrote “I am listening to lies in court.”
The case wasn’t dealt with in terms of ethics but turned on the judge’s direction to the jury
but with respect to the worksheet think about it as regards ethics.
Note that if members of the jury could access facebook, then there could be prejudice.
The Role of the Trial Judge

*Jones v National Coal Board [1957] 2 QB 55, confirms that the trial judge is supposed to
sit and hear the issues being raised by the parties and not to conduct an investigation on
his own as this is not an inquisitorial system but rather an adversarial system. It is okay for
the trial judge to ask witnesses a few questions for clarification or to help the witness
understand a question and generally to intervene only when necessary for the purpose of
clarification. It is a question of balance to determine whether the judge went too far. If he
gets too involved he ‘enters into the arena’ and takes on the role of counsel which he is not
supposed to do.
*Jones v National Coal Board [1957] 2 QB 55: The judge's part when evidence is
being given is to hearken to it, asking questions of witnesses only when it is
necessary to clear up a point; to see that advocates behave themselves seemly and
keep to the rules laid down by law; to exclude irrelevancies and discourage
repetition; to make sure by wise intervention that he follows the points made by the
advocates and can assess their worth; and at the end to make up his mind where the
truth lies. Though a judge is entitled and bound to intervene at any stage of a
witness's evidence to understand the nature of the evidence, such intervention
should be as infrequent as possible during cross-examination, for the very gist of
cross-examination lies in the unbroken sequence of question and answer.
A coalminer working at the coal face was killed by a fall of roof. Some weeks before
the accident there had been a previous fall at that point and conditions had not been
completely restored to normal. The widow brought an action for damages against
the National Coal Board alleging, inter alia, breaches of statutory duty under section
49 of the Coal Mines Act, 1911,1 and rules made thereunder, and also negligence at
common law, in that the board, by using props and not using chocks, had failed to
take proper steps to support the place where the dead man had been working. The
board denied liability and in turn relied on section 102 (8) of the Act of 19111 to
excuse them from liability for the alleged breaches of statutory duty.
At the trial of the action the trial judge intervened during the evidence for the
plaintiff in order to understand the technicalities. During the evidence for the
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defendant board the judge intervened frequently, both during examination-in-chief

and during cross-examination, at times conducting the examination of a witness
himself, at times interrupting cross-examination to protect a witness against
questions which he considered misleading, the
1 Coal Mines Act, 1911, s. 49: "The roof and sides of every travelling road
and working place shall be made secure, and a person shall not, unless
appointed for the purpose of exploring or repairing, travel on or work in
any travelling road or working place which is not so made secure. …"
S. 102: "(8) The owner of a mine shall not be liable to an action for
damages as for breach of statutory duty in respect of any contravention
of or non-compliance with any of the provisions of this Act if it is shown
that it was not reasonably practicable to avoid or prevent the breach."
nature and extent of his interventions being such as to break the sequence of
question and answer. On the issue of chocks in particular the judge in effect stopped
cross-examination. He gave judgment for the board on all the matters in issue. The
plaintiff appealed against that decision on the ground, inter alia, that she had not
had a fair trial. After the issues as to liability had been fully canvassed on the basis of
the transcript of the evidence, the documents, and the relevant statutory provisions
and authorities, the board sought and obtained leave to give notice of cross-appeal
on the same ground, namely, that there had not been a fair trial:- Held that, though
the judge was actuated by the best of motives, his interventions taken together were
excessive and ill-timed, with the result that not sufficient primary facts had been
elicited to enable the appellate court to determine the issues as to liability; and that
there must therefore be a new trial.
Roles of judge and advocate considered.
Per curiam. The dearth of evidence on the issue of common law negligence,
attributable to the judge's interventions, made it impossible for the court to decide
whether the board were excused from liability under section 102 (8); for if the
board were exempt from liability at common law, they would also be exempt from
liability under section 102 (8).
See also the case of R v Hamilton [1969] Crim L R 486.
Instances where the judge over steps his role/ Instances where the defence would want the
conviction quashed because of the way the judge behaves.
1. Where the judge intervenes excessively and if it is a criminal case it will result in the
conviction being quashed where the judge’s intervention leads the jury to disbelieve the
defence evidence.
2. Where the judge’s interventions make it impossible for defence counsel to present the
defence properly.
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3. Where the judge’s interventions essentially prevent the defendant from presenting his
own case.
See the cases of R v Hulusi & Purvis (1973) 58 Cr App R 378; R v Matthews (1983) 78
Cr App R 33 and R v Renshaw [1989] Crim LR 811.
The Disciplinary Jurisdiction of the Court over Attorneys

Attorneys are officers of the court and they are therefore admitted to practise by the court,
your name appears on the roll of the court. It follows that if the court admits you then the
court can discipline you. So the court has that inherent jurisdiction but this would be a
punitive jurisdiction and in most jurisdictions that punitive jurisdiction has now been
delegated to a disciplinary body (for example General Legal Counsel, Jamaica). This
delegation is by way of statute.
In Myers v Elman [1939] 4 All ER 484, the court recognized that its inherent jurisdiction
was from time immemorial and it is justified by the highest standard of conduct required of
attorneys and to enforce honourable conduct on the part of the courts officers. In other
words, the courts are the guardians of the profession’s standards but in those jurisdictions
where that punitive jurisdiction has been delegated it would be considered inappropriate
for the judge to exercise the punitive jurisdiction of his own motion.
Myers v Elman [1939] 4 All ER 484: The jurisdiction of the court to order a
solicitor to pay the costs of proceedings is not limited to cases where he personally
has been guilty of misconduct, but extends to a case where his managing clerk, to
whom he has entrusted the necessary work, is guilty of misconduct, as, for example,
in the preparation and filing of incorrect and inadequate affidavits of documents.
The jurisdiction is not limited to deal with cases of misconduct or default, but
extends to the case where costs have been improperly incurred or without
reasonable cause or have proved fruitless by reason of undue delay in proceeding
under a judgment or order.
An order for discovery requires the client to give information in writing and on oath
of all documents which are or have been in his possession or power, whether he is
bound to produce them or not, but as a client cannot be expected to realise the
whole scope of that obligation without the aid and advice of his solicitor, the latter
has a peculiar duty as an officer of the court, carefully to investigate the position,
and, as far as possible, see that the order is complied with. The solicitor cannot
simply allow the client to make whatever affidavit of documents he thinks fit, nor
can he escape the responsibility of careful investigation or supervision. If the client
will not give him the information which he is entitled to require, or if the client
insists on swearing an affidavit which the solicitor knows to be imperfect, the
solicitor’s duty is to withdraw from the case. A solicitor who has innocently put
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upon the file an affidavit by his client which he subsequently discovers to be false,
owes a duty to the court to put the matter right at the earliest moment if he
continues to act as solicitor on the record.
The reason for that is that the judge would now be seen as acting as both judge and
prosecution essentially, R & T Thew v Reeves (No.2) [1982] 3 All ER 1086. The judge is
to report the attorney to the disciplinary body either himself or through the Registrar so
that disciplinary proceedings are conducted by the relevant disciplinary body. If it appears
to the judge that the conduct is criminal then he should report it to the Director of Public
Prosecution.
R & T Thew v Reeves (No.2) [1982] 3 All ER 1086: The jurisdiction of the
Supreme Court over solicitors as officers of the court, which is preserved by s 50a
of the Solicitors Act 1974, is both punitive (in which case it can strike a solicitor's
name off the roll or suspend him) and compensatory (in which case it can order a
solicitor to pay the costs of his own client, those of the opposite party or those of
both). In so far as it is punitive it is usually inappropriate for the court to exercise
the jurisdiction of its own motion, such matters generally being reported by the
court to the Law Society for the consideration of the Solicitors Disciplinary
Tribunal. In so far as the jurisdiction is compensatory, however, it is retained by
the court itself, and the court may act on its own motion or on the application of
the party who has incurred useless costs as a result of the conduct of the solicitor
of which complaint is made. To warrant the exercise of the jurisdiction the
solicitor's conduct must be inexcusable and such as to merit reproof; mistake,
error of judgment and mere negligence are not generally sufficient to call into
operation the exercise of the court's jurisdiction. Myers v Elman [1939] 4 All ER
484 followed.
Compensatory jurisdiction versus inherent punitive jurisdiction. It is the punitive

jurisdiction that has been delegated. As it relates to the compensatory jurisdiction e.g.
where the attorney wastes the court’s time the court can impose on the attorney
responsibility to pay certain costs and compensation.
Contempt of court – where attorney commits an act of professional misconduct it is still in

the remit of the court.
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WORKSHEET 10:
CONTEMPT OF COURT
Introduction
Civil contempt arises where there is an order of the court and the person to whom the
order is made does not abide by that order. What we are concerned with here is criminal
contempt and specifically where contempt of court is committed by a lawyer . It is
important to note that criminal contempt is different from professional misconduct.
We are looking at situations where the words or action of the lawyer are of such a nature
that they may interfere with the course of justice or to prejudice the proceedings. Contempt
of court refers to the behaviour of the lawyer in such a way as to interfere with the course
of justice. This is where the words or action of the lawyer affects the way the case is being
conducted.
Contempt of Court
Where there is contempt, the court may invoke its summary power of committal or impose
a fine. This power should be used sparingly because in a way the judge is acting as judge
and prosecutor. The case of Shandasami v R [1946] AC 264 confirms that the power
should be used sparingly and not to suppress methods of advocacy that are merely
offensive. It must go beyond offensive and actually impede the administration of justice.
*Shandasami v R [1946] AC 264

The appellant, who was appearing in person on a summons to review taxation of the
costs of an action in which he had been an unsuccessful plaintiff, having been
accused by opposing counsel in the course of the argument of misleading the court
as to the nature of the issues raised in the action, replied: "I do not keep anything
back at all. My fault is that I disclose everything, unlike members of the Bar, who are
in the habit of not doing so and misleading the court." Later, in dealing with the
statement by the taxing master, with regard to the allowance of discretionary items,
that he had taken into consideration all the matters mentioned in r. 563 of the High
Court Rules, the appellant said: "It is customary for the taxing masters to write what
is written at the end of the paragraph, but is it considered at all?" The appellant was
found guilty of contempt of court both in his reflections on the Bar and on the taxing
masters:-
Held, first, that the words used by the appellant respecting the Bar, and which must
be taken to have been intended by him to refer to the opposing counsel in particular,
did not, and could not, amount to a contempt of court. For words or action used in
the face of the court, or in the course of proceedings, to be a contempt, they must be
such as would interfere, or tend to interfere, with the course of justice. An insult to
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counsel or to the opposing litigant is very different from an insult to the court itself
or to members of the jury, who form part of the tribunal, though conceivably if a
litigant or an advocate used language so outrageous and provocative as to be likely
to lead to a brawl in court the offence could be said to have been committed.
Held, secondly, that while, no doubt, if a litigant were to suggest in court that its
officers were corrupt or habitually failed to carry out their duties the court might
consider it a contempt, though if it were only the latter that was suggested it would
be unwise to do so, here in the light of all the circumstances the words relating to
the taxing masters afforded no reasonable grounds for adjudging the appellant
guilty of contempt of court.
The summary power of punishing for contempt should be used sparingly and only in
serious cases, and to use it to suppress methods of advocacy which are merely
offensive is to use it for a purpose for which it was never intended.
Type of behaviour by lawyers that may amount to contempt:-

1. Improper conduct in the face of the court such as attacking the judge’s integrity
(accusing him of being incompetent, biased). Offensive language being used to the
judge (swearing at the judge or acting in a violent manner).
2. Scandalizing the court. Saying or writing things, maybe publishing articles in the
paper and so on which tend to bring the court or a particular judge into disrepute or
even where you write about certain court officials,
*Weston v Central Criminal Courts Administrator [1977] 1 QB 33.
Mere discourtesy to a court official and failure to comply with a direction to
attend court by a solicitor does not amount to a contempt of court. A solicitor
whose client was on bail awaiting trial at the Central Criminal Court was
anxious that the start of a trial should be delayed to enable further inquiries
to be made. On a Thursday evening he discovered that the trial was listed for
the following day; the court's administrator having declined to remove the
case from the list, the solicitor wrote an offensive letter to
the administrator and told his client to attend the following day
unrepresented. The judge read the letter on the Friday and ordered the trial
to start on the following Monday; further attempts by the solicitor to
persuade the administrator to take the case from the list failed. On the
Monday the client appeared again unrepresented and sought an
adjournment. The judge directed that the solicitor should attend to explain
his conduct. The client so informed the solicitor, but nobody else did, and the
solicitor failed to attend. Thereupon the judge issued a bench warrant for his
arrest. In due course the solicitor appeared and was represented by counsel.
During a hearing when there was apparently some misunderstanding
between the judge and such counsel, the solicitor declined to apologise and
Page 122 of 211

the judge ordered him to pay the prosecution costs thrown away, limited to
GBP 200.
Held, allowing the solicitor's appeal, that the judge was exercising his inherent
jurisdiction to punish summarily a contempt of court but that the solicitor had not
been in contempt since what he had done had not actually interfered with the due
administration of justice nor had he failed to obey an order of the court; per
Stephenson L.J.: an order to pay costs is not an appropriate punishment for
contempt. ( Izuora v Queen, The [1953] A.C. 327 applied and Balogh v St Albans
Crown Court [1975] Q.B. 73 applied).
You cannot simply invoke the power of contempt because someone is criticising the judge
or judicial system because it is in the public interest that the justice system is subject to
scrutiny. In Ambard v Attorney General for Trinidad & Tobago [1936] AC 322, Lord
Atkin said justice is not a cloistered virtue, she must be allowed to suffer the scrutiny and
respectful even though outspoken comments of ordinary men.
*Ambard v Attorney General for Trinidad & Tobago [1936] AC 322: It is
competent to His Majesty in Council to give leave to appeal, and to entertain
appeals, against orders of Courts of Record overseas imposing penalties for
contempt of Court. There is no reason for limiting in this respect the general
prerogative of the Crown to review all judicial decisions of Courts of Record,
whether civil or criminal, in the dominions overseas. Interferences with the
administration of justice, whether they be interferences in particular civil or
criminal cases, or take the form of attempts to depreciate the authority of the
Courts themselves, when they amount to contempt of Court are quasi-
criminal acts, and orders punishing them should, generally speaking, be
treated as orders in criminal cases, and leave to appeal against them should
only be granted on the well-known principles on which leave to appeal in
criminal cases is given [see In re Dillet (1887) 12 App. Cas. 459.] Rainy v.
Justices of Sierra Leone (1852-3) 8 Moo. P. C. 47, dissented from.
Surendranath Banerjea v. Chief Justice and Judges of the High Court of Bengal
(1883) L. R. 10 I. A. 171, considered. McLeod v. St Aubyn [1899] A. C. 549,
followed. Whether the authority and position of an individual judge, or the
due administration of justice, is concerned, no wrong is committed by any
member of the public who exercises freely the ordinary right of criticizing
temperately and fairly, in good faith, in private or in public, any episode in
the administration of justice. Provided that members of the public abstain
from imputing improper motives to those taking part in the administration of
justice, and are genuinely exercising a right of criticism and not acting in
malice, or attempting to impair the administration of justice, they are
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immune from proceedings for contempt of Court. Dicta of Lord Russell of

Killowen C.J. in Reg. v. Gray [1900] 2 Q. B. 36, at p. 40, applied.
3. Non-attendance by counsel in court - Izuora v R [1953] AC 327. What the Privy
Council was saying is that not showing up is not automatically contempt but where
non-attendance crosses the line to contempt, has to be where you essentially fail to
appear in order to intentionally delay the proceedings because this was said to
interfere with the course of justice. A deliberate act being engaged in to affect the
administration of justice. It’s at the discretion of the judge whether to hold a
particular lawyer in contempt.
*Izuora v R [1953] AC 327: A barrister practising in Nigeria, who was
appearing in a divorce case, was absent from court on the day on which
judgment was to be given, permission to be absent, which had been
previously granted by the judge, having been withdrawn. He was summoned
to attend the Supreme Court of Nigeria, which fined him £10 and ordered
that, in default of payment, he be imprisoned for two months, for contempt of
court. He appealed to the West African Court of Appeal, which struck out the
appeal on the ground of lack of jurisdiction. Section 10 of the West African
Court of Appeal Ordinance (which deals with appeals in criminal cases)
provides: “A person convicted by or in the Supreme Court . . . may appeal to
the Court of Appeal. . .”: Held while an act of discourtesy may amount to
contempt of court, yet summary punishment should be used sparingly;
appellant’s conduct was clearly discourteous, and it may have been in
dereliction of his duty to his client; but it did not amount to contempt of
court.Per curiam: the Supreme Court of Nigeria adjudged the appellant’s
conduct to amount to contempt of court of a criminal nature, and therefore,
the order for payment of a fine and imprisonment in default was a
“conviction” within the meaning of s 10 of the West African Court of Appeal
Ordinance, and, accordingly, the West African Court of Appeal had
jurisdiction to hear the appeal.
4. Abuse of pleadings i.e. where you file documents containing false statements or you
submit fictitious affidavits.
5. Abuse of the court process. This involves forgery of court documents. e.g. where you
collude with a court official.
Process of committing someone for contempt

Judge acts as prosecutor and witness. Under the constitution everyone is entitled to a
fair trial. Where the judge is going to summarily punish the person he must give him
particulars of the contempt. It may be advisable too that the judge give him opportunity
to consult counsel, see Maharaj v Attorney General for Trinidad & Tobago [1977] 1
All ER 411.
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*Maharaj v Attorney General for Trinidad & Tobago [1977] 1 All ER 411:
On 2 April 1975 the appellant was engaged as counsel in a case in the Court
of Appeal, Trinidad which was estimated to last five days. The appellant had
also accepted two briefs to appear in another court on 14 April. The appeal
lasted until 15 April and the appellants' two briefs for 14 April were held by
another counsel who made an application to the judge that both cases be
adjourned for various reasons, including the appellant's inability to appear.
In both cases the judge refused the application and gave judgment against
the appellant's clients. On 15 April the same judge refused an application on
behalf of defendants in another action, who were to have been represented
by the appellant, to have the action adjourned because the appellant was
unable to appear. The judge allowed two doctors to give evidence for the
plaintiffs in that action and then adjourned it to 17 April. On 16 April the
appellant appeared before the same judge in chambers. At that hearing he
recited the events of 14 April and asked the judge to disqualify himself from
hearing any other cases in which he (the appellant) was engaged on the
ground that the judge had behaved unjudicially on 14 April. The judge
refused. At the adjourned hearing on 17 April the appellant made an
application to the same judge that the two doctors who had given evidence
on 15 April be recalled so that he could cross-examine them. The judge
refused. The appellant then repeated to the judge in open court what he had
said to him on the previous day in chambers and stated that he reserved the
right to impeach the entire proceedings. The judge then wrote a note to the
appellant which stated: 'Are you suggesting that this court is dishonestly and
corruptly doing matters behind your back because it is biased against you?'
The appellant replied: '… I say you are guilty of unjudicial conduct having
regard to what I said yesterday.' The judge then charged the appellant with
contempt of court and sentenced him to seven days' imprisonment. The
formal court order stated that the appellant said that the court was guilty of
'unjudicial conduct' in matters in which he was engaged. In his written
reasons for his decision the judge stated that the appellant had made a
'vicious attack on the integrity of the Court'. On appeal, Held – Where a
person was charged with contempt of court particulars of the specific nature
of the contempt had usually to be made plain to the alleged contemnor by the
judge before he could be properly convicted and punished. The judge had
failed to explain to the appellant that the contempt with which he intended to
charge him was 'a vicious attack on the integrity of the court'. That failure
vitiated the appellant's committal for contempt since he had not been
afforded the opportunity to explain what he had meant by his allegation of
'unjudicial conduct'. Accordingly the appeal would be allowed Re Pollard
(1868) LR 2 PC 106 applied. Dictum of Lord Goddard in Parashuram Detaram
Page 125 of 211

Shamdasani v King-Emperor [1945] AC at 270 approved. Per Curiam. The law

does not require that anyone charged with contempt of court should
necessarily be given the opportunity of consulting solicitors or counsel
before he is dealt with .
Ordinarily you have to give the alleged contemptor an opportunity to explain his conduct
(show cause) so you would say to him “I am holding you in contempt because you did X” so
he is given the opportunity to defend himself/explain his behaviour, Pershadsingh, Re
(1960) 2 WIR 340; Frater v R (1981) 18 JLR 381.
Pershadsingh, Re (1960) 2 WIR 340: The appellant, a barrister, was fined
£10 or, in default of payment, to be imprisoned for 21 days for misbehaviour
in court during the course of a trial. An opportunity was not given to him to
show cause or to give any explanation of his conduct before the punishment
was ordered. Held: that in cases of contempt of court an opportunity must
first be given to the person offending to show cause or to explain his conduct
before punishment is ordered.
*Frater v R (1981) 18 JLR 381: The appellant, an Attorney-at-Law, was

conducting the defence of one of two defendants upon their trial for murder
before Parnell, J and a jury. The appellant had cross-examined the father of
the deceased with the object of showing that at some time before the murder
one of the accused and the deceased had been on friendly terms. At the
conclusion of this cross-examination the judge put to the witness some
questions directed to elucidating whether the suggested friendship had
continued up to the date of the murder of the deceased. The appellant rose to
his feet, objecting to the line of questioning on the ground that it was not
relevant. The judge overruled the objection and requested the appellant to
resume his seat. The appellant refused to do so, but continued to protest to
the judge in terms that were discourteous and disrespectful. The judge then
ordered him to take his seat, which the appellant point-blank refused to do.
The judge then told him he was obstructing the court, to which the appellant
replied:
"I am not sitting, I am standing for the men I am defending. You cite me.
You can do anything. You lock me up as well; but I am standing up because
that is unfair, that is not justice."
The judge thereupon announced his intention of adjourning for ten minutes
and stated that on his return he would require the appellant to show cause
why he should not be cited for contempt. At the re-commencement the
appellant, who was represented by counsel, pleaded in his defence that no
disrespect of the court was intended and that he was merely defending his
client. The judge nevertheless convicted the appellant for contempt in the
Page 126 of 211

face of the court and fined him $500.00. On appeal to the Court of Appeal, it
was contended on behalf of the appellant, inter alia, that the judge was wrong
in law in failing to inform the appellant of the specific charge against him and
giving him an opportunity for explanation before arriving at his verdict. The
court of appeal by a majority upheld the conviction, but the penalty imposed
was reduced to $200.00. On appeal to the privy council under section 110 of
the constitution, Held: (i) that there was no room for doubt as to what were
the specific acts by the appellant that constituted the offence of contempt of
court with which the judge was charging him and giving him an opportunity
to explain; neither the appellant nor his counsel (who had been present
during the whole incident) was under any misapprehension as to what the
charge was and there was no substance in this ground of complaint. (ii)
that no call upon a person to show cause why he should not be cited for
contempt amounted to charging him with the offence of contempt. Per.
Curiam: that in their Lordships' view the courts of Jamaica should exercise
vigilance to see that claims made by appellants to be entitled to appeal as of
right under section 110(1) (c) of the constitution are not granted unless they
do involve a genuinely disputable question of interpretation of the
Constitution and not one which has merely been contrived for the purpose of
obtaining leave to appeal to Her Majesty in Council as of right. Appeal
dismissed.
Latter is where counsel was constantly interrupting the judge when he was putting
questions to the witness. PC said his behaviour amounted beyond all doubt to contempt. It
was said that where there is no doubt as to what specific acts of counsel constituted the
contempt there is no requirement for the precise nature of the contempt to be brought to
his attention.
So where the contempt is committed in the face of the court the judge may commit the
offender on his own motion and without notice or formal institution of committal
proceedings but the judge must tell the attorney what he did and give him an opportunity
to show cause. This jurisdiction must be exercised in exceptional circumstances.
In the case of *Bologh & St Albans County Court, [1975] 1 QB 75, Lord Denning said it
should only be exercised when it is urgent and imperative to act immediately so as to
maintain the authority of the court to prevent disorder and to enable witnesses to be free
from fear and jurors from being improperly influenced.
*Bologh & St Albans County Court, [1975] 1 QB 75
A Crown court judge's power to commit summarily for contempt should be

exercised only where the contempt is clear and proved beyond reasonable doubt
Page 127 of 211

and it is urgent and imperative to act immediately. Per curiam. The superior courts'
power to commit to prison of their own motion has been inherited by the Crown
courts under the Rules of the Supreme Court Ord.52, r. 5 and extended to contempt
"in the face of the court" meaning in the cognisance of the court. B, intending to
enliven proceedings at St. Albans Crown court, stole a cylinder of laughing gas which
he planned to introduce into the court's ventilation system. In furtherance of the
plan, B left the cylinder in a case in the adjoining court, intending later to climb onto
the roof to obtain access to the ventilation system. But B had been suspected by
police and B was arrested after the cylinder had been found and before the plan had
been put into action. B immediately admitted the plan and also stealing the cylinder,
in respect of which he was charged with theft. B was brought before Melford
Stevenson, J. on the same day, was kept in custody overnight and on the following
morning was committed to six months' imprisonment for contempt of court.
Held, allowing B's appeal and setting aside the sentence, (1) that at the time of his
arrest B's conduct had not amounted to even an attempt to commit contempt and
accordingly there was no contempt of the court; (2) that even had B's acts amounted
to contempt, B was already in custody upon the theft charge and accordingly there
was no urgency requiring the court to act immediately of its own motion.
Page 128 of 211

WORKSHEET 11:
PROFESSIONAL DISCIPLINE
Professional discipline is a consequence of professional misconduct which refers to

conduct of the attorney which violates the codes/ canons of ethics, this really amounts to a
breach of the canons. Professional discipline is the action taken by the disciplinary body to
enforce those canons. See sections 11-15 of the Legal Profession Act. It is the disciplinary
committee of the General Legal Council that investigates the matter and makes the order.
The attorney can appeal to the Court of Appeal (s.16-17) who can vary the order, or set
aside. See the case of McCalla v Disciplinary Committee of the General Legal Council
(1994) 49 W.I.R. 213; (1998) 53 W.I.R. 272.
McCalla v Disciplinary Committee of the General Legal Council (1994) 49
W.I.R. 213: The appellant, an attorney on the Roll in Jamaica, emigrated to Canada
in 1977 where he was admitted to practice at the Saskatchewan and Ontario Bars.
His name, however, remained on the Roll in Jamaica. In March 1985 he returned to
Jamaica and resumed practice as an attorney within the jurisdiction. After his
return, the General Legal Council of Jamaica was alerted to a Canadian newspaper
report claiming that the appellant had been charged with breach of trust and
fraud. Inquiries were instituted with the Law Society of Upper Canada and it was
learnt that the appellant had been the subject of professional disciplinary
proceedings in Canada where he had been disbarred. The General Legal Council
took advice on the question of instituting disciplinary proceedings against the
appellant in Jamaica. As a result of that advice, the chairman of the council laid a
complaint alleging professional misconduct against the appellant in January 1990
with regard to the time whilst he was in Canada. The appellant denied the
allegations in the complaint and sought particulars. The council then proceeded to
ascertain the identity and whereabouts of witnesses (all of whom were resident in
Canada) in order to obtain full particulars of the complaint and to obtain affidavits
from them. The complaint would be heard by the Disciplinary Committee of the
council; the members of that committee would be appointed by the council in
accordance with section 11 of the Legal Profession Act, but the committee
members did not necessarily have to be members of the council. A date in
September 1992 was fixed for the hearing of the disciplinary proceedings, but
shortly before that the appellant obtained an ex-parte order from Walker J
granting him leave to apply to the Full Court for an order of prohibition directed to
the Disciplinary Committee prohibiting it from hearing the complaint. At the same
time Walker J made an order staying the proceedings. The Full Court, however,
declined to make an order of prohibition. The appellant appealed to the Court of
Appeal on the grounds that the Disciplinary Committee was not competent to hear
the complaint (by reason of want of jurisdiction, the composition of the committee
Page 129 of 211

and the person who had instituted the proceedings), that the proceedings had not
been instituted within a reasonable time of the subject matter of the complaint
(section 20(2) of the Constitution of Jamaica), and that there had been procedural
improprieties, including the fact that the committee had not been satisfied of the
existence of a prima facie case in accordance with rule 4 of the Legal Profession
(Disciplinary Proceedings) Rules (empowering the committee to dismiss
proceedings without a hearing if no prima facie case is shown to exist) before the
date fixed for the hearing. Held, (Rattray P dissenting) dismissing the appeal, (1)
that the Legal Profession Act was a disciplinary measure and not a penal measure
limited to territorial effect, and was concerned with misconduct by attorneys at
law wherever such misconduct occurred; whilst the appellant was abroad his
name had remained on the Roll and he could at any time have returned to Jamaica
to practise as an attorney, as he in fact did in March 1985; accordingly, whilst he
was abroad he remained subject to the jurisdiction of the Disciplinary Committee
under the Act. (2) That the words 'independent and impartial' in section 20(1) and
(2) of the Constitution (fair hearing by independent and impartial court or
tribunal) connoted freedom on the part of the court or tribunal to come to a just
conclusion; those words did not preclude members of the panel who had decided
that a prima facie case existed in disciplinary proceedings from also being
members of the tribunal at the substantive hearing; the criteria of independence
and impartiality in proceedings under the Legal Profession Act must be applied
within the boundaries of the Act and the Rules made thereunder; the constitution
of the Disciplinary Committee did not fall foul of the requirements of section 20(2)
of the Constitution as there was no body but the General Legal Council to nominate
members of the committee and no-one to hear disciplinary proceedings but the
members nominated by the council. (3) That section 12(1) of the Legal Profession
Act empowered any member of the General Legal Council to institute disciplinary
proceedings; accordingly, the chairman of the council was competent to institute
such proceedings, even though subsequently he maintained that he had acted on
behalf of the council. (4) That in considering whether the disciplinary proceedings
had been heard within a reasonable time (section 20(2) of the Constitution), the
time which was relevant was the time since the institution of the proceedings in
January 1990 until September 1992 when proceedings were stayed by the court
on the application of the appellant; delay was viewed more critically in criminal
proceedings where the accused might be exposed to the possible loss of liberty
than in civil proceedings in respect of which a delay of six years after filing was not
unusual and, in disciplinary proceedings, the court would not allow the mere
passage of time to prejudice the upholding of the standards of the legal profession;
moreover, there was no evidence of the delay prejudicing the appellant's defence.
Bell v Director of Public Prosecutions (1985) 32 WIR 317 followed. Re Iles (1922)
66 SJ 297 and Bolton v Law Society [1994] 1 WLR 512, applied. (5) That in rule 4 of
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the Legal Profession (Disciplinary Proceedings) Rules the expression 'prima facie
case' meant no more than a case serious enough to require a response;
accordingly, it could not be said that the Disciplinary Committee had found a
prima facie case to have been made out on insufficient evidence.
McCalla v Disciplinary Committee of the General Legal Council (1998) 53

W.I.R. 272: The appellant had been admitted to the Bar in Jamaica in 1962. In
1977 he went to live in Canada and was subsequently admitted to the Bar in two
Provinces. He never practised as a lawyer in Canada, but worked as a lecturer in
law, as a legal researcher and as a writer on legal subjects. In 1985 he returned to
Jamaica where he practised as an attorney at law. In 1985 articles were published
in a Canadian newspaper which stated that the appellant was being sought on a
warrant for charges of fraud and breach of trust. The articles were brought to the
attention of the General Legal Council of Jamaica ('the council') which contacted
the Law Society of Upper Canada about them. In 1986 the Law Society of Upper
Canada, after considering a report of its disciplinary committee (following a
hearing at which the appellant did not appear) ordered the appellant to be struck
off the Roll of Solicitors. The council was sent a copy of the report and in February
1987 the clerk to the disciplinary committee sent an affidavit to the council setting
out the history of the disciplinary proceedings against the appellant in Canada. In
January 1990, the chairman of the council issued a complaint alleging professional
misconduct against the appellant under the Legal Profession Act 1979, section
12(1). In a subsequent affidavit, the chairman of the council stated that he had
issued the complaint at the instigation of the council. The complaint alleged (inter
alia) that the appellant when employed by a Government agency in Canada in
1982 had submitted work prepared by other persons as his own for commercial
publication and that he had submitted a curriculum vitae in support of his
application for work in Canada which contained false representations. (The
appellant denied the alleged plagiarism; the complaint as to false representations
depended on whether the curriculum vitae had in fact been prepared and
submitted by him.) The complaint was served on the appellant who promptly
replied that he was severely embarrassed by the delay in making the complaint
and that the information made available to the council regarding him whilst he
had been in Canada amounted to a continuation of racial harassment to which he
had been subjected whilst he was in that country. A date for hearing the
disciplinary proceedings in Jamaica was fixed for November 1991, but this was
vacated following a letter from the appellant's attorney at law in which he drew
attention (inter alia) to the delay in proceeding with the allegations and the
consequent prejudice to the appellant. A new date was fixed for the hearing in
September 1992, but a few days before that date the appellant applied for an order
of prohibition to prevent the disciplinary committee from proceeding with the
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hearing. A constitutional motion was also filed seeking redress on the ground of a
breach of the appellant's constitutional right to a hearing within a reasonable time
(Constitution of Jamaica, section 20(2)). The Supreme Court held that there was
power under the common law to stay proceedings where there had been such
delay in bringing the complaint that the appellant was substantially prejudiced,
but was satisfied that on the facts the appellant had not been so prejudiced in this
case; the application for an order of prohibition was refused both on common-law
principles and under section 20(2). The appellant having appealed unsuccessfully
to the Court of Appeal (where Wright JA specifically referred to the personal
knowledge of the appellant as obviating the difficulties in locating witnesses and
documents to support the appellant's case) appealed to the Privy Council. Held,
(1) that the chairman of the council, as a member thereof, was entitled to apply to
the disciplinary committee under the Legal Profession Act 1979, section 12(1), to
require an attorney to answer allegations of professional misconduct, and the fact
that the chairman had acted in this instance on behalf of the council did not, in the
absence of mala fides (which was not, and could, not be alleged) invalidate his
complaint. (2) Advising that the appeal be allowed in part (Lord Lloyd of Berwick
and Lord Clyde dissenting), that seemingly the Supreme Court and the Court of
Appeal in considering the application for a stay of proceedings on the ground of
delay in terms of the common law and in terms of section 20(2) of the Constitution
had had regard only to the period of delay between 1987 and September 1992; in
so doing those courts had applied the wrong test in relation to the common-law
principles, in that they ought to have had regard to all the time since the alleged
misconduct had occurred; accordingly, the Board (with reluctance) would
consider for itself whether or not the delay had caused substantial prejudice to the
appellant. Dictum of Lord Lane CJ in Attorney-General's Reference (No 1 of 1990)
[1992] QB 630 at page 641 applied. (3) That the complexities of the investigation
necessary in relation to the allegation of plagiarism, the difficult issues of fact
which would arise, and the difficulties in marshalling witnesses and documents
located in Canada to prove the appellant's case that the allegation was malicious
and motivated by racial prejudice had been made much more difficult by the
passage of time since 1982 or 1983 and the delay in respect of that allegation was
likely to prejudice substantially the fair hearing of the complaint; the prejudice
was not offset by reason of the appellant's personal knowledge of the facts, as he
maintained that there had been no plagiarism and he must be presumed innocent
until proved otherwise; accordingly, a stay of proceedings would be granted in
respect of the allegation of plagiarism, but not the allegation of false
representations as (in respect of the latter) the delay was unlikely to prejudice any
defence which the appellant would put forward. Re Iles (1922) 66 SJ 297
distinguished. (4) That as the appellant was entitled to have the disciplinary
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proceedings (in part) stayed, he was entitled to apply to the Supreme Court for
relief rather than wait and apply for a stay to the disciplinary committee.
Dictum of Lord Templeman in Bell v Director of Public Prosecutions (1985) 32 WIR
317 at page 321 applied.
Quaere: whether, in determining what is a 'reasonable time' for the purposes of
section 20(2) of the Constitution, regard is to be had to the period commencing
with the institution of the proceedings, or to the period commencing with the date
of the alleged conduct giving rise to the proceedings, or to some other period
McCalla v Disciplinary Committee of the General Legal Council (1994) 49 WIR 213
reversed in part.
The aims of sanctions for professional misconduct are to uphold the dignity of the
profession and to protect the public rather than simply to punish the individual attorney.
In Bolton v Law Society at page 518, Sir Thomas Bingham said “It is required of lawyers
practising in this country that they should discharge their professional duties with
integrity, probity, and complete trustworthiness”. If the lawyers drop below this standard
then there have to be sanctions in order to uphold the dignity of the profession. Sanctions
range in most jurisdictions from a reprimand (warning), a fine, suspension which would
mean that for a duration of time you will not be allowed to practice. You can work as a
paralegal but not as a lawyer. Ultimate sanction is that your license can be revoked. After a
lapse of time you can ask to be reinstated but this is discretionary. In some jurisdictions the
disciplinary body has authority to order the attorney to make restitution. Also, they may
have the power to order the attorney to pay the costs (as in Jamaica).
In Bolton’s case, Sir Thomas Bingham said where the solicitor falls below that standard
and there is proven dishonesty on the part of the lawyer that should merit an automatic
striking out. If the attorney did not act dishonestly but still fell below the standard then
this is less serious but remains very serious indeed as the legal profession depends on trust
but it does not automatically follow that he would be struck off, for example, if you were
negligent.
Bolton v Law Society [1994] 2 All ER 486; [1994] 1 WLR 512 CA: In 1989 a
solicitor whose wife had agreed to sell a flat in her house to her brother acted for all
the parties in the transaction. The brother agreed to purchase the flat with the
assistance of a building society mortgage and the solicitor received a cheque for
£45,000 from the building society. However, he did not place the money in his client
account, as was his duty, but disbursed the whole sum. The sale was never
completed and documentation in regard to the building society’s security was never
executed. In 1990 an accountant from the Solicitors Complaints Bureau discovered
the shortage in the client account. The solicitor admitted that he had misused the
building society funds and made good the shortage in full. The complaints bureau
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complained to the Solicitors Disciplinary Tribunal that the solicitor had misapplied
funds received from the building society. The tribunal held that the solicitor’s
conduct was wholly unacceptable and very serious and would ordinarily have
merited his being struck off the Roll of Solicitors, but since he was an honest man
who had not stolen his clients’ moneys in a premeditated fashion or embarked on a
deliberate course of dishonest conduct, he would be suspended from practice for
two years. The solicitor appealed to the Divisional Court and, pending the appeal,
the tribunal’s order for suspension was stayed. The Divisional Court allowed the
appeal and substituted a fine of £3000 on the grounds that there was no dishonesty
on the solicitor’s part, that in practice there was not much difference between an
order of suspension and a striking off order since the solicitor’s chance of recovering
a practice after two years would be virtually non-existent, that the penalty imposed
by the tribunal was disproportionate to its findings, and that the court had seen
testimonials which had they been seen by the tribunal might have caused it not to
make an order for suspension. The Law Society appealed to the Court of Appeal.
Held, a solicitor who discharged his professional duties with anything less than
complete integrity, probity and trustworthiness had to expect severe sanctions to be
imposed upon him by the Solicitors Disciplinary Tribunal, and except in a very
strong case, an appellate court should not interfere with the sentence imposed by
the tribunal. The decision whether to strike off or to suspend involved a difficult
exercise of judgment made by the tribunal as an informed and expert body on all the
facts of the case, and only in a very unusual or venial case would the tribunal be
likely to regard as appropriate an order less severe than one of suspension.
Furthermore, because orders made by the tribunal were not primarily punitive but
were directed to ensuring that the offender did not have the opportunity to repeat
the offence and to maintaining the reputation of the solicitor’s profession and
sustaining public confidence in its integrity, considerations which would ordinarily
weigh in mitigation of punishment had less effect than in criminal cases and so it
could never be an objection to an order of suspension in an appropriate case that
the solicitor might be unable to re-establish his practice when the period of
suspension was over. Accordingly, since in making the order the tribunal was fully
aware of the solicitor’s honesty and the consequences of suspension, as the majority
of its members were practising solicitors, since it had considered the solicitor’s
conduct wholly unacceptable and very serious and since it was inconceivable that it
would have thought it appropriate to impose a fine even if the testimonial evidence
had been before it as that evidence was of limited weight, it followed that the
Divisional Court had not had good reason for interfering with the tribunal’s decision
and had acted contrary to settled principles in doing so. However, having regard to
the time which had elapsed and the fact that as a result of being stayed the order for
suspension had never taken effect, it would be oppressive to reinstate that order.
The appeal would therefore be dismissed.
Page 134 of 211

Other breaches of canons that would give rise to sanctions:

 Breach of confidentiality
 Misappropriation of clients funds
Look at the Legal Profession Accounts and Records Regulation 1999, see also the Canons.
a) Attorneys need to file an accounting report
b) Failure to do so could lead to disciplinary action
c) General Legal Council v Haughton-Cardenas [2009] UKPC 20
General Legal Council v Haughton-Cardenas [2009] UKPC 20: Section 35(1) of

the Legal Profession Act 1971 provided that the appellant, the GLC, was empowered
to 'make regulations requiring attorneys--(a) to open and keep separate bank
accounts of clients' moneys ... (b) to keep accounts ...' Subsection (2) provided that
the GLC could 'take such action as may be necessary to ascertain whether or not the
regulations are complied with'. Regulation 16 of the Legal Profession (Accounts and
Records) Regulations 1999 provided that attorneys were required to deliver an
accountant's report in respect of the financial year to the GLC. A complaint was
made to the GLC that the respondent, H, who practised as an attorney, had failed to
fulfil that requirement. At a hearing before the GLC Disciplinary Committee, H
submitted that the GLC had no power to make reg 16 and that the GLC could make
regulations only in relation to specific matters referred to in s 35(1). The
Disciplinary Committee rejected that suggestion. On appeal, the Court of Appeal
accepted H's argument. The GLC appealed to the Privy Council, before which H
submitted that the Privy Council did not have jurisdiction to hear the appeal. Section
110(3) of the Constitution provided: 'Nothing in this section shall affect any right of
Her Majesty to grant special leave to appeal from decisions of the Court of Appeal to
Her Majesty in Council in any civil or criminal matter ...' Subsection (5) defined 'a
decision of the Court of Appeal' as meaning a decision of that court on appeal 'from a
Court of Jamaica'. H submitted that the Disciplinary Committee of the GLC was not a
'court' and that, therefore, there was no power to grant special leave under s 110(3).
HELD: Special leave to appeal granted. Appeal allowed.
(1) Section 110 was not intended to affect the previous power of the Board to grant
special leave to appeal. The purpose of s 110(5) was founded on the fact that
appeals from the courts of the Crown Colonies of the Cayman Islands and of Turks
and Caicos Islands continued to be made to the Court of Appeal of Jamaica and
separate provision was made by Order in Council for appeals to the Privy Council
from decisions of that Court of Appeal on appeal from those colonies. Section 110(5)
therefore confined the provisions from appeal to the Privy Council under the
Constitution of Jamaica to appeals from decisions of the Court of Appeal when
exercising its jurisdiction in relation to Jamaica only. Furthermore, the phrase 'Court
of Jamaica' in s 110(5) should be interpreted broadly as applying to anybody
Page 135 of 211

exercising jurisdiction in Jamaica from which an appeal lay to the Court of Appeal
and s 110(3) did not remove the pre-existing power of the Board to grant special
leave to appeal from decisions of the Court of Appeal on appeal from tribunals and
other bodies such as the Disciplinary Committee. The effect of s 110(3), (5) was to
leave the Board with power to grant special leave from a decision of the Court of
Appeal, exercising its jurisdiction in relation to Jamaica, in any case where it was
appropriate. Therefore the Board had power to grant the council special leave to
appeal in the instant matter. (2) Although there was scope for the argument that a
power, expressed generally, should not be construed as conferring the same specific
power as conferred by other provisions, the focus had to be on the terms of s 35
itself. Section 35(2) conferred power on the GLC to take the necessary action to
confirm that the rules on accounts were complied with. H accepted that the powers
exercised by the GLC, requiring her to produce an accountant's report, could
properly be regarded as necessary to ascertain whether the regulations were
complied with. That requirement would be ineffective unless there could be a
sanction for failure to comply. Consequently, the GLC had to have the power under s
35(2) to make a failure to comply with its requirement professional misconduct.
The appeal should be allowed and the complaint remitted to the Disciplinary
Committee.
 Section 35 of the Legal Profession Act 1971;
 Regulation 16 of the Legal Profession (Accounts and Records) Regulations 1999;
 Section 110 of the Constitution of Jamaica 1962.
If you commit a criminal offence Canon 3(k) in Jamaican says even in situations where you
have not been convicted or even prosecuted but the disciplinary committee feels that what
you did is of a nature that will bring the profession into disrepute, it will give rise to
disciplinary proceedings.
The Legal Profession (Prescribed Offences Rules) (1988), sets out a number of offences
which if you commit would automatically trigger disciplinary proceedings. These include
such offences as: murder, treason, rape, larceny, et al. There is also a general catch all canon
which deals with behaviour which discredits the profession, Canon 1(b). Canon 8(b)
confirms that where explicit ethical guidance does not exist an attorney shall act in a
manner that promotes confidence and integrity.
Examine also behaviour which undermines the manner and dignity of the profession, Re
Weare [1893] 2 Q.B. 439 - where the solicitor was struck off where he allowed his
property to be used as a brothel.
Re Weare [1893] 2 Q.B. 439: Upon an application by the Incorporated Law Society
to strike the name of a solicitor off the roll, it appeared that he had been summarily
convicted of allowing houses, of which he was the landlord, to be used by the
Page 136 of 211

tenants as brothels:- Held, that a solicitor may be struck off the roll for an offence
which has no relation to his character as a solicitor, the question being whether it is
such an offence as makes a person guilty of it unfit to remain a member of the
profession. Conviction for a criminal offence primâ facie makes a solicitor unfit to
continue on the roll; but the Court has a discretion, and will inquire into the nature
of the crime, and will not as a matter of course strike him off because he has been
convicted; and the Court considered that in the present case the nature of the
offence was such that the solicitor ought to be struck off the roll: Held, also, that an
application to the Committee of the Incorporated Law Society under the Solicitors
Act, 1888, s. 13, was not a condition precedent to the application to strike the
solicitor off the roll, the case being one where no report of a Master would have
been necessary before the Act, and the old jurisdiction of the High Court being saved
by s. 19.
The test really is whether the behaviour renders the person unfit to remain a member of
the profession. In Re a Solicitor [1960] 2 All ER 621, the court made a distinction and
said where you are looking at conduct you should look at the conduct unbecoming of a
solicitor which prevents him from carrying out his duties. Criminal matters and nature of
the offence are to be considered. This is about parking offences which it was said didn’t
matter.
In Re a Solicitor [1960] 2 All ER 621: A solicitor was convicted in 1959 under
the Metropolitan Police Act, 1839, s 54, para 13, for using insulting behaviour
whereby a breach of the peace might be occasioned, and was sentenced to the
maximum fine of £10. Disciplinary proceedings were taken before the Disciplinary
Committee of the Law Society. No evidence was before the committee as to the
circumstances giving rise to the conviction. The solicitor had previously been
convicted on two charges of indecent assault, as a result of which he had been
suspended from practice in 1956 for two years. He did not tender any explanation
to the committee concerning the conviction of 1959. The committee, in their
findings concerning that offence, found that he had been guilty of conduct
unbefitting a solicitor, stating in their findings that “the fact that a solicitor has
been convicted of an offence of this nature tends to bring the profession as a whole
into disrepute and conduct which results in a conviction for such an offence can
only be regarded as unbefitting a solicitor”. The committee ordered that the
solicitor's name should be struck off the roll. Conduct constituting an offence
under s 54, para 13, of the Act of 1839 could differ greatly in culpability according
to the type of conduct that was the subject of the conviction. The solicitor appealed
against finding and sentence. Held – (i) although it was not conviction of every
type of criminal offence that would show of itself conduct unbefitting a solicitor,
yet a conviction of insulting behaviour followed by sentence to the maximum fine
showed conduct unbefitting a solicitor; the finding, therefore, should stand. (ii) it
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was the duty of the disciplinary committee to inquire into the circumstances
before they inflicted a penalty, and they were not entitled to assume, in the
absence of any explanation by the solicitor, that the offence of 1959 was of the
same nature as the offences of 1956 (see p 623, letter i, to p 624, letter a, post);
accordingly, as the circumstances of the offence might have been of a different and
minor character, and as the misconduct was not professional misconduct (in
which case the court would not interfere with the penalty imposed), a sentence of
suspension from practice for one year would be substituted . Re Weare ([1893] 2
QB 439) considered. Re a Solicitor ([1956] 3 All ER 516) applied. Practice of the
disciplinary committee, as regards taking into consideration, after deciding on
their finding, previous disciplinary findings and orders relating to the same
solicitor, approved. Appeal allowed in part.
The Procedure at Disciplinary Hearings

The disciplinary committee has the power to regulate their hearings. In Re a Solicitor
[1992] 2 All ER 335, the court said the tribunal could use evidence which might in strict
law be inadmissible, subject to the following:
Re a Solicitor [1992] 2 All ER 335: The appellant was admitted as a solicitor in

England and Wales in 1976 and qualified as a solicitor in Western Australia in
1981. In 1988 the secretary to the Barristers' Board of Western Australia, which
was the statutory disciplinary body for legal practitioners in Western Australia,
wrote to the Law Society in England advising it that the Supreme Court of Western
Australia had ordered that the appellant's name be struck off the roll of
practitioners in Western Australia in that she had committed perjury in
connection with her divorce in Western Australia by falsely stating that she had
lived apart from her husband for more than 12 months in order to provide
grounds for the divorce and that there were no children of the marriage, when in
fact there were two children, and had committed unprofessional conduct of the
gravest kind at the hearing of the matter before the judge by either verifying the
false information contained in her divorce application or failing to inform the
judge that the application and her affidavit in support were inaccurate. A
complaint was made to the Solicitors Disciplinary Tribunal that the appellant was
guilty of conduct unbefitting a solicitor. The tribunal, having heard the complaint,
found the charge proved on the basis that there was no reason to doubt the
Australian board's decision and ordered that the appellant be struck off the roll of
solicitors. The appellant appealed against the tribunal's findings and order on the
ground, inter alia, that the Australian board's findings were inadmissible in
evidence before the tribunal and that the tribunal had applied the wrong standard
of proof inasmuch as by accepting the findings of the Australian board without
Page 138 of 211

question it had not found the complaint proved beyond reasonable doubt. Held –
(1) The Solicitors Disciplinary Tribunal was entitled, by virtue of its power under r
39(a)a of the Solicitors (Disciplinary Proceedings) Rules 1985 to regulate its own
proceedings, to use evidence which might in strict law be inadmissible especially
since the 1985 rules did not provide that the strict rules of evidence were to apply
to the tribunal's proceedings and r 41b provided that the provisions of the Civil
Evidence Act 1968 applied, and although s 1(1)c of that Act restricted the
admission of any 'statement' other than one made by a person giving oral evidence
in the proceedings that provision did not apply to the Australian board's decision
since the findings of a tribunal were sui generis, being the judgment of the tribunal
based on an assessment of all the matters of fact and law presented to it, and were
not hearsay or opinion and were therefore not a 'statement' for the purposes of s
1(1). Accordingly, the tribunal had been free to make such use of the Australian
board's findings as was proper in the circumstances (see p 340 c e to g and p 341
a, post); Re Weare [1893] 2 QB 439 applied; Re a solicitor, ex p Incorporated Law
Society [1898] 1 QB 331 considered. (2) The task of the tribunal was to have
regard to all the evidence which was adduced before it, including the board's
findings, the course of events in Western Australia, the evidence of the appellant
and the contents of the affidavits adduced on her behalf, and to ask whether it was
satisfied to the requisite standard of proof that the charges were made out. In
determining that issue the tribunal was required to apply the criminal standard of
proof of beyond reasonable doubt and not some lesser standard, since the tribunal
was investigating what was tantamount to a criminal offence alleged against a
solicitor. Since it was not clear what standard of proof had been applied by the
tribunal or that the tribunal had recognised that it was required to reach a final
conclusion of its own on the critical question of whether the appellant had been
proved guilty of the misconduct alleged against her rather than merely
determining that there was no reason to doubt the correctness of the Australian
board's decision, the appeal would be allowed and the matter remitted to the
tribunal.
a) The tribunal should act as if it were a court, so because it has the nature of a trial you
should follow the procedure of a trial as far as possible, and the attorney has a right to a
fair hearing.
See the case of Aris v Chin (1972) 19 WIR 459, where disciplinary committee refused
an adjournment even where the attorney had presented a medical certificate and it was
said he was denied a fair hearing.
*Aris v Chin (1972) 19 WIR 459: On 17 April 1969, there came on for hearing
before the Solicitors Disciplinary Committee a complaint by one JT against the
appellant, a solicitor. The appellant was absent but sent a medical certificate
stating that he would be unable to do any heavy work for six weeks. The hearing
Page 139 of 211

was postponed to 19 June on which date the appellant appeared before the
Committee and produced another medical certificate recommending two weeks'
leave of absence from his duties. The appellant applied for a further
postponement. On JT advising the Committee that she would be leaving Jamaica
permanently on 29 June the Committee postponed the hearing of her complaint to
26 June and told the appellant that JT's evidence would be taken on 26 June
whether he was able to be present or not and that if he could not be present he
should take steps to be legally represented. On 26 June the appellant was present
but not legally represented. JT's evidence was taken, the appellant declined the
Committee's invitation to cross-examine her and her case was closed. The
appellant thereupon asked the Committee to adjourn the matter to enable him to
give evidence when he felt better. This request was refused and the Committee
reserved its decision. Immediately thereafter the respondent's complaint came on
for hearing and the Committee decided to proceed therewith. Again the appellant
applied for a postponement, and again his application was refused. The
respondent commenced her evidence during which it was sought to put in certain
correspondence. The appellant refused to consent thereto and left the room.
Thereafter the evidence of two witnesses was taken. On 1 July the Committee gave
its decision on the respondent's complaint, namely, that the appellant was guilty of
professional misconduct and that his name should be removed from the roll of
solicitors. On his appeal against the Committee's decision the appellant argued
that by refusing his application for postponement of the hearing of the
respondent's complaint of 26 June the Committee had denied him a full and fair
opportunity of being heard in answer to that complaint. It was also argued that the
appeal was not competent since the right of appeal given the appellant under the
Solicitors Law, Cap 363 [J], had not survived the repeal of that Law by the Legal
Profession Act 1971. held: (i) (per SMITH and ROBINSON JJ A, FOX JA, dissenting) that
by its refusal on 26 June of the appellant's application for a postponement of the
hearing of the respondent's complaint the Committee had denied the appellant a
full and fair opportunity of being heard in answer to that complaint, and that its
order removing his name from the roll of solicitors could not be allowed to stand;
(ii) (per FOX, SMITH and ROBINSON JJ A) that the appellant's appeal was perfectly
competent since his right of appeal under the Solicitors Law survived the repeal of
that Law by the Legal profession Act 1971 by virtue of the provisions of the
Interpretation Act of 1968 which expressly saved rights acquired or accrued under
the repealed enactment; (iii) (per SMITH and ROBINSON JJ A) that the appellant's
right of appeal under the repealed Solicitors Law also survived at common law
since on long settled principles the Legal Profession Act did not operate
retrospectively. Appeal allowed.
Page 140 of 211

b) Campbell v Hamlet [2005] 3 All ER 1116, where the committee took eight years after
hearing before delivering their decision and the Privy Council said that was not
acceptable. Also confirmed that the standard of proof is the criminal standard because
there are very severe consequences so “beyond reasonable doubt” standard of proof.
*Campbell v Hamlet [2005] 3 All ER 1116: The appellant was an attorney-at-law
practising in Trinidad and Tobago. The respondent made a complaint of
professional misconduct against him to the Attorneys at Law Disciplinary
Committee. The essence of the complaint was that the respondent had paid the
appellant a sum of money to purchase from him two parcels of land but the
appellant had neither conveyed the land nor returned the purchase price. The
committee heard the complaint during the course of 1988 but it did not produce its
findings and order until October 1996. It then found the allegation substantiated
and ordered the appellant to refund the respondent's money with interest from the
date of the committee's order. The appellant's appeal to the Court of Appeal of
Trinidad and Tobago was dismissed and he appealed to the Privy Council
contending (i) that the committee should have applied the criminal standard of
proof and had in fact applied either the civil standard of a mere balance of
probabilities or a standard somewhere between that and the criminal standard; and
(ii) that the eight-year delay in the delivery of the committee's judgment was
manifestly unfair and had adversely affected the quality of the judgment. Held – (1)
The criminal standard of proof was to be applied in all disciplinary proceedings
concerning the legal profession. In the instant case there was nothing in the
committee's determination to suggest that it had applied a lower standard of proof
(see [16], [21], [22], [24], below); Re a Solicitor [1992] 2 All ER 335 considered. (2)
The committee's delay in giving judgment had been highly reprehensible but it did
not follow that the appellant had been prejudiced by the delay nor that it afforded
him any sustainable ground of appeal. The delay had been to his benefit; the
evidence against him had been overwhelming and the complaint had been likely
therefore to be found proved but in the meantime he had been able to retain and
make use of the disputed moneys. The committee's ability to decide the case had not
been compromised by the delay; it had had full transcripts of all the evidence and it
had been well able to provide a reasoned decision in reliance upon them.
Accordingly, the appeal would be dismissed; Goose v Wilson Sandford & Co [1998]
TLR 85 considered.
c) The attorney has a constitutional right to a fair hearing.
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WORKSHEET 12:
ADVERTISING
General Points
 Advertising is presenting or describing the product or service in a publication or on the
internet in order to increase sales. Any format you use with the intent of attracting new
customers is advertising. OECS and Barbados have it in their rules.
 The best advertisement for an attorney is the establishment of a reputation for personal
integrity, capacity, dedication to work and fidelity to trust.
 For the United Kingdom advertisement was prohibited, one could have a small sign at
ones place of business. This similarly so in Belize.
 Public speeches are a way of getting people to know who you are, without selling
yourself. Barbados expressly forbids you to solicit business by advertisements via
circulars, but business cards are allowed.
 An attorney is forbidden from seeking to retain an agent. Note the 1988 Amendment to
Rules- Legal Profession Canons of Professional Ethics.
 An attorney is not allowed to make false or misleading statements, as this creates

unjustifiable expectations e.g. success guaranteed. No testimonial of former clients is
allowed.
 Canon II (d)(3)- any such advisory shall not be vulgar, sensational or of such frequency
or otherwise such as would or would be likely to adversely affect the reputation or
standing of an attorney – canon II (d) (8).
 An advertisement should not contain any clause which implies that one is an expert or
leader in a practice area, may contain a statement of the areas in your practice.
 There is some amount of restraint as t what you can say in the advertisement.
 Medium through which you can advertise: An attorney can advertise in the telephone
directory, in the past you could have names listed; now you can have it in colour and
bigger advertisements in the yellow pages.
 Fair Competition Act – breach to prohibit advertising so the rule was amended to
introduce advertising subject to constraints.
EXCERPT: A Guide To Professional Conduct And Discipline Of The Legal Profession (2007)
The Bar of England and Wales
2.03 ADVERTISING AND MARKETING LEGAL SERVICES
2.03(1) ADVERTISING
Discussion
Law first and foremost is a profession. That explains the nature and extent of many of the
rules of professional conduct which apply to the practice of law. Lawyers are not simply
there to make profit by representing clients. Beyond the duty to clients are the other duties
mentioned, such as to the court and the integrity of the system of justice. One aspect of these
rules has been the historic restrictions on the way lawyers can obtain their clients. With
time, however, competition policy, concerns about commercial free speech and the desire to
make members of the public aware of the legal services available, have eroded many of these
restrictions.
Many jurisdictions now permit lawyers to advertise their services, even on television,
subject to general controls to ensure honesty and decency. While the old rules on touting
and ambulance chasing are less restrictive than in the past, there might still be controls to
prevent people being misled or exploited . Trying to ensure that members of the legal
profession do not lower its standing in society might also be a factor in the continuation of
some of the earlier controls. A third factor in the remaining controls is to curb the tendency
of any member of the profession to use unfair tactics to obtain clients from others.
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The problem as regards the advertising and marketing of legal services is to balance
competing goals. On the one side is the need to promote access to legal services and to
ensure the benefits of competition. On the other side is the need to maintain the standing of
the profession, to prevent unfair tactics which may harm other members of the profession,
and to prevent the public from being misled or exploited. The rules may vary according to
the degree of sophistication of the consumer and the extent to which they discount
advertising claims because of a more or less cynical view of claims made in advertising.
General rules on advertising in the Code may exist along with more specific ones. At one end
of the spectrum is a complete ban on advertising, or certain types of advertising (e.g. on
television). Along the spectrum is an approach under which only certain types of advertising
are permitted or only certain types of information can be used in advertisements. This
might be defined in general terms (for example any information which assists the public in
making an informed choice as to a provider of legal services). Alternatively, the information
permitted may be specifically defined and could be limited to qualifications of lawyers, their
specialisms and contract details.
The principle below adopts a liberal approach. So long as the information is not false or
misleading, a breach of confidentiality and is not such as to bring the profession into
disrepute, it is allowed. Specific provisions about fees and charges may be thought
necessary, such as requiring that they be clear and include disbursements and any value
added or consumption tax payable.
Principle 2.03 (1)

(a) Lawyers are entitled to inform the public about their services provided that the
information is accurate and not misleading, and respectful of the obligation of
confidentiality and other core values of the profession.
(b) Personal publicity by a lawyer in any form of media such as by press, radio, television,
by electronic commercial communications or otherwise is permitted to the extent it
complies with the requirements of Principle 2.03 (1)(a).
(c) Any publicity as to charges or a basis of charging must be clearly expressed. It must be
clear whether disbursements and tax are included.
Source: CCBE, 2.6; LSG, Annex 11A 1(b)
2.03(2) MARKETING LEGAL SERVICES

Discussion
Restrictions on “ambulance chasing” and touting are designed not only to maintain the
dignity of the legal profession but also to prevent abuse. While many jurisdictions have
loosened these restrictions, controls still operate on different aspects of marketing. Some of
these might derive from the general law and apply to the marketing of all types of services
including legal services. Others might apply to the marketing of legal services specifically.
The issue is to balance the need to provide the public with access to legal services on the one
hand and the need to prevent its exploitation, especially when in a vulnerable position. So
unsolicited mail and even door-to-door marketing of legal services might be
acceptable, but visits to wards in hospitals to make unsolicited contact with those injured in
accidents might not be. At that point people are especially vulnerable and their capacity for
judgement is impaired.
Principle 2.03 (2)

(a) Lawyers may engage in any advertising or promotion in connection with their practice,
which conforms to the [applicable domestic law relating to Advertising and Sales
Promotion] and such advertising or promotion may include:
(i) photographs or other illustrations of the lawyer;

(ii) statements of rates and methods of charging;
(iii) statements about the nature and extent of the lawyer’s services;
(iv) information about any case in which the lawyer has appeared (including the name
of any client for whom the lawyer acted) where such information has already
become publicly available or, where it has not already become publicly
available, with the express prior written consent of the lay client.
(b) Advertising or promotion must not:
(i) be inaccurate or likely to mislead;

(ii) be likely to diminish public confidence in the legal profession or the
administration of justice or otherwise bring the legal profession into disrepute;
(iii) make direct comparisons in terms of quality with or criticisms of other
identifiable persons (whether they be lawyers or members of any other
profession);
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(iv) include statements about the lawyer’s success rate;

(v) indicate or imply any willingness to accept instructions or any intention to
restrict the persons from whom instructions may be accepted otherwise than in
accordance with this Code;
(iv) be so frequent or obtrusive as to cause annoyance to those to whom it is
directed.
(c) Practitioners must not publicise their practices by making unsolicited visits or
telephone calls to a member of the public.
“Member of the public” does not include:
(i) a current or former client;

(ii) another lawyer;
(iii) an existing or potential professional or business connection; or
(iv) a commercial organisation or public body.
Source: BC, 7.09-7.10; LSG, Annex 11A 1(d)
2.03(3) ADVERTISING NAME OF PRACTICE

Discussion
There may be restrictions on the names which legal practices use so as to avoid any
misleading impression. Some jurisdictions may take the strict view that only the names of
the partners and former partners can be used. If a more liberal approach is taken, the name
of the firm should not suggest any official connection of approval or otherwise be misleading
or deceptive. Some jurisdictions may take the view that a geographic designation is
misleading, by suggesting that the law firm is stronger or has a greater coverage than other
firms (e.g. “Ruritanian Law Firm”). It would clearly be misleading if persons were described
as partners when they were not. Terms such as “associate”, “assistant”, “consultant” and “of
counsel” may need defining if there is no accepted meaning in a jurisdiction and lawyers are
beginning to use these on their letterhead. It may be the role of government to protect by
legislation basic titles such as “lawyer” or “advocate”.
Principle 2.03 (3)
(a) A private practice must not use a name or description that is misleading. It
would be misleading for a name or description to include the word "lawyer", if
none of the principals or directors (or members in the case of a limited liability
partnership) is a lawyer.
(b) If non-partners are named on notepaper, their status should be made clear. A
printed line is not in itself sufficient to distinguish partners from non-partners
in a list.
(c) If salaried partners’ names appear on headed notepaper of a firm in the list of
partners, they will be treated as full partners and as holding or receiving clients’
money irrespective of whether they can operate the client account. This is so
even if the names appear on the notepaper under a separate heading of ‘salaried
partners’. Salaried partners must accept responsibility for the books of the firm
and for any breach of the [Accounts Rules], even if they are not permitted access
to the books.
(d) Salaried partners whose names appear on headed notepaper of a firm in the list
of partners, whether or not separately designated salaried partners, are thereby
held out as principals. Thus they must comply with the [Indemnity Rules].
(e) It is improper for two sole principals to hold themselves out as being in
partnership when this is not in fact the case.
Source: LSG, Annex 11A 1(c); 3.05 (3) – (6)
 Halsbury’s Laws of England 4th Ed Vols 3(1) and 44 check for this online or in library.
*General Legal Council v. the Fair Trading Competition (1995) 32 JLR 398 :
 The plaintiff was established by the Legal Profession Act in 1972 and pursuant to power
contained in that Act, the plaintiff prescribed the Legal Profession (Canons of Professional
Ethics) Rules 1978 (the Canons). By the First Schedule to the Act, the membership of the
plaintiff was specified as comprising the Chief Justice or his nominee, the Attorney-General or
his nominee, one member appointed by the minister responsible for the law courts and
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fourteen other persons being Attorneys-at-Law nominated by the Jamaican Bar Association.
 The Fair Competition Act was enacted on March 9, 1993 in order to provide for the
maintenance and promotion of competition in the conduct of trade, business and in the supply
of services and "service" was defined by the Act as "a service of any description whether
industrial, trade, professional or otherwise". The defendant was established under the Fair
competition Act with powers to carry out investigations in connection with matters falling
within the provisions of the Fair Competition Act.
 By letter dated November 29, 1994, the Senior Legal Officer of the defendant wrote to the
President of the Jamaican Bar Association, with a copy to the plaintiff, indicating that the
defendant was of the view, that some of The Canons of Professional Ethics were inconsistent
with the Fair Competition Act and might contravene the provisions of s. 35 of that Act as
amounting to a conspiracy between the Government of Jamaica and the plaintiff with Attorneys-
at-Law in Jamaica to restrain or injure competition unduly.
 The plaintiff filed an Originating Summons seeking declarations, inter alia, that in performing its
statutory functions and duties under the Legal Profession Act, the plaintiff was not amenable or
subject to the jurisdiction of the defendant and that the Legal Profession (Canons of
Professional Ethics) Rules, being subsidiary legislation and/or statutory rules made under the
Legal Profession Act, were not governed by the Fair Competition Act.
 Held: (i) by the Legal Profession Act, which was enacted before the Fair Competition Act, the
plaintiff was established and given power in all matters relating to the Legal Profession Act,
and it was not clear that the Fair Competition Act was intended to interfere with the Legal
Profession Act, nor was there any necessary inconsistency between the two Acts standing
together. In the circumstances, the Fair Competition Act had not repealed, amended or modified
the Legal Profession Act, and it followed therefore that the plaintiff in performing its statutory
duties was not subject to the jurisdiction of the defendant; the Legal Profession (Canons of
Professional Ethics) Rules were not agreements or
arrangements within the meaning of those words as used in the Fair Competition Act. An
agreement or arrangement, referred to by the Fair Competition Act, must be the result of an
understanding between two or more people in keeping with the ordinary and popular meaning
of those words and there was nothing in the Fair Competition Act which required that some
special or particular meaning should be given. The plaintiff, as a statutory body, could not agree
with itself and further there was no statutory requirement nor evidence establishing an
agreement between the plaintiff with any other person or body, such as the Jamaican Bar
Association as a prerequisite to prescribing the Canons. The Canons were not therefore an
agreement or arrangement governed by the Fair Competition Act, but rather, the Canons were
regulations having the force of statute.
*Solicitor, Re a [1945] KB 368 :

 On a re-investigation of findings of fact of the Disciplinary Committee of the Law Society, the
Court of Appeal applies the general principle upon which the House of Lords acts in regard to
appeals from concurrent findings of fact of the two lower courts, viz, unless such findings are
vitiated by some error of law, the House will very rarely interfere with the findings of the first
court.
Page 145 of 211

 The obligation imposed on solicitors by r 4(c) of Solicitors’ Practice Rules 1936 (revoked), of
making reasonable inquiry before accepting instructions in respect of claims arising as the
result of death or personal injury from any organisation whose business it is to support or
present such claims, is an absolute obligation and does not depend on what the result of such
inquiry would be, unless the known facts obviously preclude the necessity for such inquiry.
 Proceedings before the disciplinary committee of the Law Society in respect of an alleged
breach of such rules are not governed by the rules of the criminal law, whether or not such
proceedings can properly be described as quasi-criminal.
 Attitude of the Court of Appeal, before which the proceedings are a rehearing, towards the
findings of the committee, discussed.
Legislation:
 Consumer Protection Act (Ja)
 Fair Competition Act (Ja)
 Legal Profession (Canons of Professional Ethics) (Amendment) Rules
1998 (Jamaica)
Page 146 of 211

WORKSHEET 13:
REMUNERATION
MUST READ CHAPTER 5 OF TEXT.
 Note in the beginning the agreement for remuneration should be clear. The manner of
disbursement should also be clear and should be in writing. Apart from fees attorneys
may incur certain expenses. Put this in the agreement (agreement must be in writing)
that permission or consultation will be sought for over a certain sum, for e.g.
recoverability. Give guidelines, time frame for recoverability.
 A bill of cost must be in writing, it must be signed by the attorney, and it must be
delivered to the client.
 Wait 30 days or 1 month to lapse before you can initiate any sort of action to recover
fees under the bill of cost.
 Once the bill of cost has been presented, generally not allowed to withdraw it. One must
be sure about it.
Chappell v. Mehta [1981] 1 All E.R. 349: The defendant was a party to five actions which
were due to be heard in January 1979. In December 1978 he retained the plaintiff firm of
solicitors to act for him and instructed them to brief counsel. Because the solicitors would
become personally liable for counsel's fees once the brief was delivered and the fees agreed,
they obtained from the defendant a substantial sum of money on account of counsel's fees.
Counsel subsequently advised the defendant that he had no prospect of success in his
litigation. As a result of that advice the defendant decided to settle three of the actions and
fight the other two, which he lost. The defendant expressed dissatisfaction with counsel to
the solicitors and instructed them not to pay counsel's fees. The defendant then instructed
them to take steps to see whether there was any prospect of a successful appeal and the
solicitors instructed different counsel to advise. Thereafter the solicitors delivered six bills
of costs to the defendant, who disputed them. None of the bills included counsel's fees. In
due course the costs were taxed and a final certificate was issued by the master. On the
certificate the sums which the defendant had paid to the solicitors on account of counsel's
fees were shown as being due to the defendant, since they had not been paid. The solicitors
then realised that they had not dealt with counsel's fees and the work done in respect of the
defendant's instructions about an appeal and they therefore applied to the court by
summons for liberty to withdraw their six bills and deliver a new bill. The judge granted
them leave and ordered that the certificate of taxation should be set aside. The defendant
appealed, contending that the court had no jurisdiction to allow a solicitor to withdraw a
taxed bill of costs and present a new bill. Held – Although as a general rule a solicitor was
required to deliver a bill of costs which was final, and in the interests of his client would not
be allowed to amend a bill once it was delivered, if there were special circumstances the
court had jurisdiction to allow a solicitor to withdraw a bill. Since there was no evidence
that the solicitors had been negligent or had tried to deceive the court and since it would be
unjust if the court were to allow the defendant to assert that the solicitors were responsible
for counsel's fees and that he was not, it was clearly a case where it was appropriate for the
court to allow the solicitors to withdraw the bills and present a new one. The appeal would
Page 147 of 211

accordingly be dismissed (see p 351 h to p 352 c and e g, post). Re a Solicitor, re Taxation of

Costs [1943] 1 All ER 157 applied.
A bill of cost is subject to taxation, register securities to see if it is fair and reasonable.
How does the registrar determine if it is fair and reasonable, see Canon IV(f).
1) The time and labour required
2) The novelty of the issue involved
3) The skill required to perform the task properly
4) The likelihood that acceptance of that retainer would preclude the employment
5) The fee that is customarily charged in that locality for similar legal services
6) The amount of money being involved
7) Any sort of time limitation
8) Nature and length of the professional relationship with the client
9) Experienced ability and reputation of the attorney
10) Recommended scale of fees – Fair Trading Commission Could not interfere with the
scale of the fees charged
 Whether the client is a fellow attorney – in practice lawyers do not charge each other.
 Method of fixing fees, note the time and task
Fixed or contingent
Contingent on attorney’s right to receive payment is made contingent on his client
receiving an award in the settlement or judgement of the case. This type of arrangement is
criticised as being unethical, as it creates a conflict of interest between the attorney and
client. Since the attorney gets his award at the outcome of the case, he may advise the client
based on his own interest. The attorney may use inappropriate methods to gain at all costs.
Alternatively it allows more people access to justice.
In the UK there is a system of conditional fees.
In Jamaica 2007 Amendment to the Legal Professions Act speaks to contingency fees being
any sum paid on the success of action/ suit on contentious proceedings.
*Geddes v. Millingen [2010] JMCA Civ 2
 Matters pertaining to arrangement for 60:40 surplus on winding up.
 Cannot use contingency fee in a criminal or domestic matter.

 WORKSHEET 14:
Page 148 of 211

 Liability for Handling a client’s tainted wealth


*R v Duff [2002] EWCA Crim 2117
D appealed against a sentence of six months' imprisonment for failing to disclose

knowledge or suspicion of money laundering contrary to the Drug Trafficking Act
1994 s.52(1). D was a solicitor practising as a sole principal with a number of
salaried partners. The bulk of the firm's work was conveyancing and personal injury
litigation and in or about 1994 D began to act for a client, G, in relation to litigation
in which G was involved. In March 1998 G and another were arrested in possession
of cocaine valued at GBP 5 million and D was instructed to act on behalf of G in
relation to the criminal proceedings. Several months later evidence was put forward
by the Crown that caused D to doubt G's innocence and to question his own
involvement in G's affairs. D became concerned that he might have been used by G
for the purpose of money laundering. He had received GBP 70,000 in cash from G in
April and May 1997 but he formed the view that he was not under any duty to
disclose his suspicions. It was only after G had been tried on offences relating to
drug trafficking that D sought legal advice and was advised that he had not been
under a duty to disclose his dealings with G. D was subsequently arrested and
interviewed but was less than frank with those interviewing him about the
underlying facts. He eventually pleaded guilty on the basis that he had not realised
that the payments he had received in 1997 might have been related to drugs until
the allegations against G were widened to cover a period before March 1998. G
contended that, as a solicitor dealing almost exclusively with conveyancing and
personal injury work, he was not familiar with the provisions of the 1994 Act and
that he had taken advice following G's conviction.
Held, dismissing the appeal, that D was a married man of previous good character
and his legal practice had collapsed as a result of this case. In an offence of this type
it was important to look at the underlying facts. D's suspicions over the monies he
had received became aroused in October 1998, which was over a year after he had
accepted the GBP 70,000 in cash. Although most of this money had been returned to
G, the rest had been put into fictitious names. He did not seek advice until six
months later and he was not entirely cooperative with the authorities following his
arrest. The sentencing judge was correct in his approach; money laundering was a
very serious matter and breaches of the legislation by professional people could not
be overlooked. This was clearly a case where a custodial sentence was warranted
and it could not be said that the sentence was excessive.
Page 149 of 211

R v Griffiths and Pattison [2006] EWCA Crim 2155
The second appellant (P), an estate agent who had been convicted of entering into a
money-laundering arrangement and acquiring criminal property, appealed against
his sentence of three years' imprisonment, while the first appellant (G), a solicitor
who had been convicted of failing to make a required disclosure to the authorities,
appealed against his sentence of 15 months' imprisonment.
P had bought a house from two drug dealers, who had just pleaded guilty to
substantial offending and were awaiting sentence and confiscation proceedings. P
had valued the house at GBP 150,000 for the purposes of the confiscation
proceedings, but had been offered it for GBP 43,000 and had accepted. G did the
conveyancing on the property, charging his standard fee. The prosecution case was
that P had entered into a money-laundering agreement and acquired criminal
property, knowing or suspecting in the first case that it facilitated the drug dealers'
acquisition, retention, and use or control of criminal property and, in the second,
that it represented in whole or in part the proceeds of their criminal conduct. G was
similarly charged and whilst he was acquitted of those offences, he was convicted of
failing to make a required disclosure to the authorities, having reasonable grounds
for knowing or suspecting that other persons were engaged in money laundering.
Appeals allowed. (1) Organising the cover-up of or laundering the proceeds of crime
was always particularly serious, especially if organised as an operation. Custodial
sentences were absolutely inevitable in almost every case, if not every case. P had
been involved in a one-off attempt to hide profit from the court, which had given
rise to substantial confiscation proceedings against him, and his offences could have
been met sufficiently by sentences of 27 months' imprisonment, (2) G's offence was
the product of a lapse in the high standards expected of a solicitor, but his sentence
should only have been six months' imprisonment, R. v Duff (Jonathan Michael)
[2002] EWCA Crim 2117, [2003] 1 Cr. App. R. (S.) 88 considered.
Page 150 of 211

Revision NOTES
Worksheet 6- Attorney’s Obligations to Client and Third Parties (Duty of Care and Skill)
OBLIGATIONS TO CLIENT
 At common law, an attorney contracts with his client to be skilful and careful, applying the
standard of care to be expected of a reasonably competent attorney. See:
Midland Bank
The relationship of solicitor and client gave rise to a duty on the defendants under the general
law to exercise that care and skill on which they must know perfectly well that their client relied
Dennis Morrison: Their common law duty was not to injure their client by failing to do that
which they had undertaken to do and which at their invitation, he relied on them to do.
**It was further held that there was no rule of law which confined a solicitor’s duty to his client
under his retainer to a contractual duty alone. Nor was there any rule of la which precluded a
claim in tort for breach of duty to use reasonable care and skill if there was a parallel
contractual duty of care
 Prior to the Midland Bank case, there was the position the relationship between attorney and
client was purely contractual and the attorney owed no duty of care to his client beyond that in
the law of contract. See:
Groom v Crocker
The mutual rights and duties of a solicitor and his client are regulated by the contract of
employment and the appellants were not liable to the respondent in tort.
Since the cause of action was in contract, no damages could be recovered by the respondent on
account of injury to reputation or feelings
**Groom v Crocker suggested that an attorney cannot owe simultaneous duties to a client in
contract and tort (Lecturer’s emphasis).
Griffiths v Evans
The duty of a solicitor depends very much on what he is employed to do. In this case the
solicitor says that he was employed solely for the purpose of a claim under the Workmen’s
Compensation Acts, and, therefore, he was under no duty to consider the possibility of a
common law claim
Page 151 of 211

Kitchen v Royal Airforces Association
Actions against a solicitor are a cause for anxiety as our system and profession of law is
impugned and adequacy and competency challenged.
Hall v Meyrick
A widow and a man H had been living in her house for 15 years and each instructed a solicitor
at an interview where both were present to prepare a fresh will for her and him. In each other’s
will, benefits were conferred on the other. During the interview, mention was made of the
widow and H getting married. The solicitor knew that they had lived together and if they got
married, their wills would be revoked. He did not draw their attention to that fact. The wills
were prepared and the widow and H got married. H dies without executing a new will. The
widow brought an action for damages against the solicitor for negligence in failing to advise that
the marriage would revoke their wills.
Held: The court does not suppose it is the duty of a solicitor in all cases to draw the attention
of persons who come into his office to make wills to the effect of the marriage on the wills.
Each case depends on its particular facts.
**Note that the facts of this case were unusual because there was a dispute between the
solicitor and the widow as to what was said at the interview.
 While an attorney does not have to have perfect knowledge of the law, he is expected to have
sound knowledge of it cardinal principles. See:
Fletcher & Sons v Jubb
The appellants were the owners of a horse and cart which were injured by a collision with a
tram car of a corporation. The appellants alleged that their horse and cart were damaged by the
negligence of the corporation’s servant and that they had a claim for damages against the
corporation. The claim would be barred unless brought by March1917. The appellants went to
the respondents and instructed them to negotiate with the corporation and to try to arrive at a
settlement and failing that, to commence proceedings. The solicitors entered a plaint against
the corporation in July 1917. The corporation gave notice that the claim was barred by a
Statute of Limitations. The appellants brought an action against the solicitors alleging
negligence.
Held: A solicitor so instructed is bound to know the provisions of the relevant Act and to bear
in mind at all material times and to inform his client if the period is running out during which
an action may be commenced.
If he loses sight and allows his client to lose sight of the provisions of the Act so that the claim
is barred, the solicitor is guilty of negligence
**Solicitors are under an obligation to bring to the discharge of their duty as solicitors,
reasonable care and skill and knowledge of the practice of the court whose process they invoke
on behalf of their clients.
Page 152 of 211

Lecturer: While it is not the duty of a solicitor to know the content of every statute, there are
some statutes which is his duty to know e.g. Statute of Limitations.
 At common law, failure to observe the standard of reasonable skill and care would attract civil
liability in contract or tort. Note however that this has been distinguished from the kind of
dishonourable conduct which might attract the punishment of professional misconduct. See:
Diggs-White v Dawkins
The appellant took instructions from a client, the complainant to file a petition for divorce on
behalf of his daughter and prosecute the matter to decree absolute or dismissal. The appellant
filed a petition which was defective in 2 respects. He unsuccessfully made attempts to have the
petition amended and did nothing further. He had charged a fee to conduct the case to
completion. The client filed a complaint against the attorney referring him to answer to
allegations of misconduct before the Disciplinary Committee. He made no allegation as to
negligence but said the appellant had deceived him by giving him false dates for trial when no
case had been set down. The Committee found that the appellant had been guilty of gross
negligence amounting to professional misconduct.
Held: It was not open to the Committee to find that the appellant had been guilty of gross
negligence since there had been no such charge against him. The court cannot hold that the
incompetence of the appellant in relation to filing a petition amounted to professional
misconduct.
Even assuming that a finding of gross negligence was in the circumstances of the case open to
the Committee, such a finding did not amount to professional misconduct.
**In every inquiry by the Disciplinary Committee it must be for the Committee to decide
firstly whether the matters of fact alleged in a complainant’s affidavit are proved and secondly,
whether the attorney against whom he complaint is made in relation to those facts is guilty of
professional misconduct.
**What is professional misconduct- If it is shown that a medical man, in the pursuit of his
profession has done something with regard to it which would reasonably be regarded as
disgraceful or dishonourable by professional brethren of good repute and competency, then it
is open to the General Medical Council to say that he has been guilty of infamous conduct in a
professional respect.
The thinking reflected in the definition also finds expression in the standards of professional
etiquette and conduct of attorneys prescribed the rules of the General Legal Council
Section 12 (1) Legal Profession Act- Any person alleging himself aggrieved by an act of
professional misconduct (including any default) committed by an attorney, may apply to the
Committee to require the attorney to answer allegations in an affidavit made by such a person.
Page 153 of 211

Re Cooke
In order for the court to exercise its penal jurisdiction over a solicitor, it was not enough to
show that his conduct would support an action for negligence.
It must be shown that the solicitor had done something dishonourable in his profession.
 The Canons of ethics have been revised to deal with negligence. See:
Canon IV (s)- In the performance of his duties, an attorney shall not act with inexcusable or
deplorable negligence or neglect.
**Note that it follows from the preceding provision that gross negligence on the part of an
attorney will not only be actionable at law (tort) but would also be punishable by the
disciplinary body.
OBLIGATIONS TO THIRD PARTIES
 In the old case Robertson v Flemming an action brought by third parties against a solicitor for
negligence was dismissed. What is the current position? See:
Ross v Caunters
Solicitors who prepared a will for a testator and sent it to him for execution failed to warn him
that the will should not be witnessed by a spouse of the beneficiary. When the testator signed
the will, one of the witnesses was the husband of a residuary beneficiary under it. After the
testator’s death, the solicitor wrote to the beneficiary referring to a possible defect in
connection with the witnessing of the will. The beneficiary claimed damages against the
solicitors for negligence in respect of loss benefits given to her by the will. The solicitors
admitted negligence but contended that the only duty of care which the owed was to the testator
alone.
Held: There was longer any rule that a solicitor negligent in his professional work was liable
only to his client in contract.
**He could also be liable for the tort of negligence, not only to his client but to others where a
prima facie duty of care towards them could be shown.
Robertson v Flemming not followed.
Page 154 of 211

**On the facts, the 3 fold elements of the tort of negligence existed in that the beneficiary was
someone to whom the solicitors owed a duty of care as being a person within the solicitor’s
direct contemplation as being likely to be injured by their failure to carry out the testator’s
instructions.
**Secondly, there was a breach of duty of care towards her and thirdly, as a result the
beneficiary suffered loss.
**It was immaterial that the beneficiary did not rely on their skill. It was not a case where such
reliance was essential to liability
Lecturer: It was also said that this result followed logically from the development of the law of
negligence in the 100 years since the Robertson decision in particular decisions such as
Donoghue v Stephenson, Hedley Byrne and Midland Bank.
 Ross v Caunters has been criticized has having a number of conceptual difficulties as set out in:
White v Jones
As a consequence of a family quarrel, a testator executed a will disinheriting the plaintiffs, his 2
daughters. After a reconciliation, he resolved to make a new will which was to include legacies
to his daughters. The second defendants, his solicitors received a letter signed by him,
instructing them to prepare a will to that effect. The first defendant, a legal executive employed
by the second defendant, did nothing to implement those instructions until 1 month later when
he dictated an internal office memo on the matter. Little progress was made with the
preparation and the testator died without the new will having been executed. The original will
remained unrevoked. The judge dismissed a claim in negligence holding that although the
defendants were in breach of their professional duty to the testator, they owed no duty of care
to the plaintiffs. On appeal:
Held: The assumption of responsibility by a solicitor to his client who had given instructions
for the drawing of a will for execution extended to an intended beneficiary under the proposed
will in the circumstances where the solicitor could reasonably foresee that a consequence of his
negligence might result in the loss of an intended legacy without either the testator or his estate
having a remedy against him. The plaintiffs were entitled to the relief sought.
**Lord Goffe criticizing the holding:
(a) An attorney acting for his client was in a relationship that was primarily contractual
and so ought only to owe duties to his client
(b) The disappointed beneficiary’s claim is a claim for damages in negligence only and
the general rule is that liability for pure economic loss can only arise in contract
(c) Ross v Caunters principle appears to have opened the floodgate and will give rise to
potential liability of solicitors to an indeterminate class of claimants.
**Note however that the HoL addressed these difficulties by making the attorney liable on the
principle of foreseeability of damage to the beneficiary as well as assuming the responsibility to
Page 155 of 211
give effect to the testator’s wishes and therefore the solicitor was liable under the Hedley Byrne
principle.
Lecturer: Although there was no contractual relationship and this was a case of pure economic
loss, these hurdles were overcome in order to provide a remedy where there might otherwise
be none.
Hemmens v Wilson Browne
P instructed S, a partner in the defendant firm of solicitors to draft a document giving the
plaintiff the right to call on P at any time in the future to pay her the sum of $110,000 to enable
her to buy a house. Although duly executed by P, the document drafted did not grant the
plaintiff any enforceable rights, since it was not a promissory note or contract because there was
no consideration. It was not a deed because it was not under seal and it did not create a trust
because there was no identifiable fund to form the subject matter of a trust. At the time it was
executed, S explained to the plaintiff that its effect was akin to a trust. Weeks later when the
plaintiff asked S to fulfil his promise, he refused and the plaintiff could not seek to enforce the
document had not granted her any enforceable rights. The plaintiff brought an action against
the defendants alleging that S owed her a duty of care to carry out P’s instructions and by
reason of that breach she had lost a benefit.
Held: There could be circumstances where a solicitor could owe a duty of care in carrying out
an inter vivos transaction but no such duty was owed by the defendants to the plaintiff.
Although S’s lack of care and skill had resulted in the document being drafted which failed to
give the plaintiff any enforceable rights and although it had been reasonably foreseeable that
the plaintiff would be likely to suffer damage if S failed to exercise reasonable care and skill in
carrying out the retainer for P and there was sufficient degree of proximity between S and the
plaintiff, it would not be fair, just or reasonable for a duty of care to be imposed on the
defendants because P was still alive and therefore able to rectify the situation.
P could have instructed another solicitor to draft the document properly and had a remedy for
breach of contract against S who accordingly would not go unpunished.
**In those circumstances, it was not necessary for the law to give the plaintiff a remedy
Ross v Caunters considered
Carr-Glynn v Fearson
A solicitor when preparing a will owed a duty of care to an intended beneficiary to ensure that
effect was given to the testator’s testamentary intentions so that the beneficiary received what
the testator intended he should receive.
Page 156 of 211

**That duty was owed notwithstanding that the testator’s estate might also have a remedy
against the solicitor for breach of duty, since the duties owed by the solicitor to the testator and
to the beneficiary were complementary and extended to ensuring that the relevant property
formed part of the testator’s estate.
LIABILITY OF ADVOCATE IN NEGLIGENCE
 The long established rule is that a barrister is immune from any action for negligence at the suit
of his client in respect of his conduct and management of a case was affirmed in:
Rondell v Worsley
The appellant was arraigned on an indictment containing courts and obtained the services of
the respondent as counsel to defend him on a dock brief. The appellant had seriously injured
M and there was no dispute as to this. The appellant did not suffer a scratch. His only time of
defence was self-defence. He was convicted and nearly 6 years later the appellant issued a writ
against the respondent. He then produced a draft of the re-amended statement of claim
alleging negligence on the part of the respondent that (a) he failed to reveal and prove in cross-
examination of prosecution witnesses and by demonstration that M’s wounds were not caused
by a knife (b) he failed by cross-examination of the police or by calling the landlord and
another to prove that the appellant was not in the habit of using a knife etc.
Held: An action did not lie at the suit of the appellant against his counsel, the respondent for
negligence in the conduct of the appellant’s defence.
**The immunity of counsel from being sued for professional negligence in the conduct of a
cause (criminal or civil) is based on public policy, not on his contractual incapacity to sue for
fees.
**And it is in the public interest that the immunity should be retained, one factor being that
counsel owes a duty to the court for the true administration of justice
 The rule relates to both civil and criminal matters whether at first instance or appeal and it also
relates o pre-trial matters including the drafting of pleadings, however it does not extend to
purely advisory work or work limited to drafting or revising documents
**Note that the rule is applied as a common law principle in Jamaica
 The rule in Rondell v Worsley was implemented as public policy because it was felt that the
requirements of public policy would not be served if actions against barristers for negligence in
the conduct and management of a case in court were allowed. The 3 public policy reasons are:
(a) The administration of justice requires that a barrister should be able to perform his task
fearlessly and independently in the interest of his client, however he also has a duty to the
court and to the administration of justice generally and this is a higher duty than the one
owed to his client. And this may be jeorpardized where out of fear of a negligence suit the
advocate allows his duty to his client to prevail over his duty to the court.
Page 157 of 211

(b) If actions against barristers for negligence were allowed, it would make the retrial of the
original action inevitable and this would prolong litigation contrary to the public interest.
(c) A barrister is obliged to accept any client who offers him a brief (instructions) and so it is
not in the public interest for him to be liable to suit in respect of that brief.
 In some circles, dissatisfaction has been expressed with the rule that an advocate should always
enjoy immunity from liability for negligence for what he does or says in court. See:
Saif Ali v Mitchell
This immunity represented an exception to the general principle that a professional person
who held himself as qualified to practice that profession was under a duty to use reasonable
care and skill.
Therefore the application of immunity should not be given any wider application than was
absolutely necessary in the interest of the administration of justice.
As it relates o pre-trial work, the immunity should only extend to those matters which were so
intimately connected with the conduct of the case that it could fairly be said to be preliminary
decisions affecting the way that case was conducted when it came to trial.
See the developments 20 years later in:
Hall v Simon
The plaintiff solicitors had acted for the defendant in protracted litigation concerning a building
dispute. On the eve of the trial, the defendant had been advised by counsel to compromise the
proceedings on terms negotiated by counsel and the plaintiffs which was subsequently
embodied in a consent order. In proceedings brought by the plaintiffs for recovery of their
fees, the defendant counter claimed alleging their negligence, in particular their failing to advise
properly as to liability of the other parties and to timeous settlement.
Held: In light of the changes in the law of negligence, the functioning of the legal profession,
the administration of justice and public perceptions, reconsideration of the issue of advocate’s
immunity from suit was appropriate.
**None of the reasons said to justify immunity had sufficient weight to sustain immunity in
relation to civil proceedings. The principles of res judicata, issue estoppel and abuse of process
were sufficient to prevent any action being maintained which would be unfair or bring the
administration of justice into disrepute.
**The obstacle of proving that a better standard of advocacy would have produced a different
outcome and the ability of the court to strike out unsustainable claims under the CPR would
restrict the ability of clients to bring unmeritorious and vexatious claims against advocates
should the immunity be removed.
Page 158 of 211

**Accordingly, the public interest in the administration of justice no longer required that
advocates enjoyed immunity from suit for alleged negligence in the conduct of civil
proceedings.
Lecturer: It was also held that the immunity should also cease to apply in criminal proceedings.
The overall effect is that Rondell would no longer be good law in Jamaica
At the end of the day, the view of the majority was not that Rondell was wrongly decided at the
time, but as Lord Hoffman puts it, “the world was different then”
Even then, it was recognized that public policy was not immutable.
Worksheet 7- Confidentiality and Legal Professional Privilege
 Duty of confidence refers to the duty of the attorney to keep the client’s information secret or
private unless he is otherwise authorized by the client to do so.
 This duty of confidence is implicit in the contract of retainer and also by virtue of the fiduciary
nature of the relationship between attorney and client.
 Where the attorney has breached the duty of confidence by disclosing the information without
authority the client may seek remedial relief in the form of damages or where there is an
anticipated breach, injunctive relief may be obtained to prevent the disclosure from occurring.
 Apart from common law, Canon IV (t) recognizes the significance of this duty and expressly
prohibits an attorney from relieving a confidence or secret of his client either to the client’s
disadvantage or to the attorney’s advantage or to the advantage of a third party, unless done
with consent of the client after full disclosure.
**Note that Canon IV (t) permits non-consensual disclosure only where it is necessary for the
attorney to collect his fees or to defend himself, his employees or associates against an
accusation of misconduct.
INTERFACE BETWEEN DUTY OF CONFIDENCE/OBLIGATIONS UNDER LEGISLATION

DEALING WITHSERIOUS FINANCIAL CRIME
 Under legislation dealing with money laundering (Proceeds of Crime Act) there exists a
number of investigative tools available to law enforcement which may involve professionals
including attorneys being required to disclose confidential information about their clients.
Page 159 of 211

These may include court orders such as disclosure or production orders, monitoring orders,
customer information orders and search orders.
 In some jurisdictions the legislation may also impose on the attorney a positive duty to report
suspicions about the client’s financial transactions e.g. a suspicion that the client’s funds may
involve proceeds of crime. These types of provisions are known as whistle blower provisions.
 Non-compliance with these types of obligations could result in criminal liability for the
attorney.
 Because of the conflict in these situations, the legislation would usually expressly stipulate that
confidentiality is not to be raised by the professional as a bar to avoid compliance with the
order or making a suspicious report.
BUT
 At the same time, the legislation (Section 100 Proceeds of Crime Act) protects the professional
by exempting him from liability for any breach of duty of confidence that he may otherwise
violate, by making the requisite disclosure
 Communications or documents that are subject to legal professional privilege are expressly
excluded from the scope of these investigative devices under the legislation (Section 108
Proceeds of Crime Act)
LEGAL PROFESSIONAL PRIVILEGE
 Legal professional privilege refers to the privilege of the client to prevent certain
communication and documentation between himself and his attorney from being admissible in
evidence.
 It restricts the power of the court to compel production of what would otherwise be relevant
evidence.
 The privilege originated as a rule of evidence but it has now come to resemble a basic
constitutional right or principle. See:
R v Darby Magistrates Court
The appellant applied for judicial review of the decision of a magistrate to issue summons
directed to the appellant and his solicitor requiring then to produce notes of attendance and
proof of evidence relating to the charge of murder which had been brought against the
appellant and of which he had been subsequently acquitted. The appellant’s step father was
subsequently charged with the murder and sought to adduce evidence that the appellant had
confessed the offence.
Held: The appellant was absolutely entitled to maintain his privilege
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**A man must be able to consult with his lawyer in confidence since he might otherwise hold
back half of the truth. The client must be sure that what he tells the lawyer in confidence will
never be revealed without his consent.
**Lawyer/client privilege is a fundamental condition on which the administration of justice

rests.
Three Rivers DCv Bank of England
The inquiry unit of a bank sought the advice from attorneys as to how to present themselves
before a non-adversarial inquiry. It was presentation advice that was sought and not legal advice
per se.
Held: It was privileged.
**It was desirable as a matter of policy that communication between clients and their lawyers
for the purpose of obtaining legal advice should be privileged from discovery, notwithstanding
that as a result, cases might have to be decided in the absence of relevant probative material.
**Legal advice extended to advice as to what should prudently and sensibly be done in the
relevant legal context which would include presentation of a case to an inquiry by someone
whose conduct may be criticized by it.
 There are 2 types of legal professional privilege:
(a) Legal Advice Privilege- This attaches to all communications made in confidence between
the attorney and client for the purpose of giving or obtaining legal advice and it may exist
independent of litigation.
**Note that legal advice privilege allows the client the right to decline disclosure of the
confidential communication or document in question.
(b) Litigation Privilege- This refers to communications at the stage where litigation is either in
existence of in contemplation and it extends to communications between attorney and
client as well as third parties for the dominant purpose of obtaining legal advice in
connection with existing, pending or in contemplation of litigation.
 Exception to legal professional privilege- Illicit Purpose Exception

The legal professional privilege would not preclude disclosure of information or production of
documents held by a lawyer where to do so would promote a criminal purpose. See:
R v Cox & Railton
Page 161 of 211

C and R were partners under a partnership deed. M brought an action against the R & Co. and
obtained judgment and issued execution against the goods of R. The goods seized were then
claimed by C as his absolute property under a bill of sale executed in his favour by R at a date
subsequent to the judgment. Upon trial of an issue to determine the validity of the bill of sale
the partnership deed was produced on C’s behalf bearing endorsement purporting to be a
memorandum of dissolution of the partnership prior to the commencement of the action by
M. C and R were tried and convicted for conspiring to defraud M. Upon trial, a solicitor was
called on behalf of the prosecution to prove that after M had obtained judgment, C and R had
consulted him together as to how they could defeat M’s judgment and that time no suggestion
was made of any dissolution of the partnership. The reception o the evidence was objected to
as being communication between solicitor and client and therefore privileged.
Held: All communication between a solicitor and his client are not privileged from disclosure,
but only those passing between them in a professional confidence and in the legitimate
professional employment of the solicitor.
**Communications made to a solicitor by his client before the commission of a crime for the
purpose of being guided or helped in the commission of it are not privileged from disclosure
**This is the only known exception to the rule of legal professional privilege. It will not apply
where the client seeks advice from a lawyer as to the best or most effective way to commit a
crime or perpetrate a fraud.
Ex Parte Francis
Lord Goffe observed that since the privilege is that of the client and not the lawyer it would be
negatived where the client has the intention of furthering a criminal purpose whether or not his
intention is shared by the lawyer.
Furthering a criminal purpose also extends to laundering the proceeds of the crime.
It also extends to situations where the criminal intent is that of a third party who uses the client
as his innocent tool to promote his illicit purpose.
To protect such communication between attorney and client would be injurious to the interests
of justice.
THE SEARCH OF LAWYERS’ OFFICES
 The issue of searching lawyers’ offices became relevant recently because of the Jamaica Bar
Association case.
Page 162 of 211

Jamaican Bar Association, Ernest Smith & Co. v AG & DPP
Pursuant to s.23 (1) of the Mutual Assistance (Criminal Matters) Act the DPP authorized a
Deputy Superintendent of Police (KP) to apply to the RM for the Corporate Area Criminal
Court for a search warrant to be issued in keeping with the request of a foreign state. Acting
upon the authorization of the DPP, the police applied for and obtained warrants to search
some lawyers’ offices. In keeping with the authority of the warrants, the police duly searched
the offices and removed from them several files. The claimants contended:
(i) the conduct and actions of the DPP and police were in breach of the constitution
(ii) the conduct and actions of the DPP and RM and the police were in breach of the
principles of Legal Professional Privilege as enshrined under the constitution and the
common law
(iii) warrants issued by the RM were illegal and void and of no effect and/or were issued
without jurisdiction
(iv) the Act properly construed, protects legal professional privilege or in the alternative, if
the said does not protect/provide sufficient protection for legal professional privilege
the Act is contrary to he constitution and wrong in law.
Held: Legal professional privilege had been breached since the searches were done without any
lawful authority
The search warrants issued under the Mutual Assistance Act were unlawful in that neither the
lawyers nor their staff was suspected of committing any crime.
The legal professional privilege cannot be used to either mask or permit criminal conduct,
however in this case, the searches were unconstitutional and a breach of legal professional
privilege.
**The authorities and the legal profession should cooperate to develop guidelines to regulate
law office searches.
 In the UK, the practice has evolved that where during a search certain documents are in
dispute as to whether they are privileged or not, the practice is that these documents should be
placed in a bag and sealed and then submitted to independent counsel to resolve the status of
the documents
**If the document is deemed privileged, then it would be immediately returned because they
are not admissible as evidence
 Not everything in a lawyer’s office is privileged. Examples are:

(a) items falling in illicit purpose exception
(b) documents in certain commercial or conveyancing matters may not be privileged if they do
not contain any attorney/client advice
**Note that it is important to first determine whether the document falls within the 2 types of
privilege- legal advice privilege or litigation privilege
Worksheet 8- Disabilities of the Attorney
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 Disability of the attorney refers to things that the attorney is prevented from doing.
 The attorney/client relationship is fiduciary and therefore gives rise to certain duties which exist
independent of contract. See:
Nocton v Lord Ashburton
A mortgagee brought an action against his solicitor claiming to e indemnified against the loss
which he had sustained by having been improperly advised and induced by the defendant
acting as his confidential solicitor to release part of a mortgage security whereby the security
had become insufficient. The statement of claim alleged that the defendant gave advice when
he knew that the security would be rendered insufficient and the advice was not given in good
faith but in the defendant’s own interest.
Held: The plaintiff was not precluded from claiming relief on the footing of breach of duty
arising from a fiduciary relationship and that he was entitled to relief on that footing.
**This case reaffirmed that the relationship between attorney and client is a fiduciary one thus
giving rise to rights and obligations that are independent of contract.
**It is a fiduciary relationship which disables an attorney from entering into certain types of
transactions with a client particularly where the client has not had the benefit of independent
legal advice.
 The disability of the attorney prevents him from acting in a particular way. See:
Demerrara Bauxite v Hubbard
On transaction involving a lawyer and a client, there was a presumption of undue influence
which could only be displaced by the attorney showing that the transaction was as beneficial to
the client as it would have been if entered into with a stranger and that the client had the
benefit of independent legal advice.
**In such circumstances, the attorney is under a duty to the client to disclose all relevant
circumstances of the transaction and to ensure that the client’s position is protected by
independent legal advice.
Lalor v Campbell
The respondent represented the appellant who was a man of little means. In order to pay the
respondent’s fees, the appellant arranged with counsel to sell him his only asset, an acre of land
with an unfurnished house on it. The respondent drew a cheque in the name of the appellant
being the down payment and then had the appellant endorse the cheque back to him as being
Page 164 of 211

an account of his fees for the defence. Some money was still owing towards his fees and the
transaction took place in prison. The appellant filed a writ against the respondent impugning
their earlier agreement for the sale of land and requested a declaration that the sale was
voidable on the grounds of undue influence and fraudulent misrepresentation.
Held: **An attorney purchasing the property of his client owes him a duty to more full and
free disclosure of every material fact he knows and must satisfy the court that the contract is
one of full advantage to the client.
**The respondent had not satisfied the court given that he had given the client reasonable
advice against himself that he would have given if the sale had been to a stranger. Nor had it
been established that the appellant had been given competent, independent advice and there is
also no evidence to show that the true value of the land had been established at the material
time.
 Other disabilities refer to the sale to or purchase from a client; loans by the attorney to the
client; gifts by the client to the attorney; and bequests by the client to the attorney in wills
prepared by that attorney.
**Note that in such dealings with the client, the attorney must exercise the utmost good faith,
and in any financial transactions with his clients (other than fees) there is a presumption that
that transaction shall not be upheld unless the attorney can establish that it was conducted by
the free exercise of the client’s will and without any influence on the part of the attorney. See
Demerrara Bauxite case.
**In these cases the attorney is obliged to ensure that there is full disclosure to the client of all
the circumstances of the transaction and that the client’s interests are protected by independent
legal advice.
SALE OF LAND TO AND BY THE ATTORNEY
 Many cases regarding the disability of the attorney involves the sale of land by a client to the
attorney. See:
Knowles v Francis
K, a close friend of F, a solicitor visited F’s office to discuss an action which K wished to
institute against his brother concerning title to a parcel of land. K offered F a portion of the
land as payment of fees in connection with the action. F refused, but offered to purchase part
of the land. He paid a deposit to K but the amount of the deposit could not be established at a
later date and F kept no record of the transaction. The purchase price was not agreed nor was
the area to be transferred identified. It was clear in F’s mind that the purchase of the land and
the payment of his fees were interrelated. Later a deed of conveyance was prepared in F’s
Page 165 of 211

office and expressly acknowledged receipt of the purchase price. When K died, F applied to
the court for a declaration that K’s son was not entitled to possession of the land.
Held: It was F’s duty to have advised K to take independent advice on the transaction which
was not a simple one and F was in breach of that duty.
**The presumption of undue influence arising from the relationship between solicitor and
client had not been rebutted and the agreement had to be set aside.
Per curiam: An attorney is not affected by absolute disability to purchase which attaches to a
trustee. But if he becomes a buyer of his client’s property, he does so at his peril.
**He must be prepared to show that he has acted with the most complete faithfulness and
fairness and that his advice is free from all taint or self interest. And that he has not
misrepresented anything or concealed anything.
**That his client has had the advantage of the best professional assistance which, if he had
been engaged in a transaction with a third party, he could have possibly afforded.
McMaster v Byrne
The respondent had acted as M’s solicitor in connection with a number of important business
transactions including the acquisition of C Securities and the transfer to that company of the
promoter’s holdings in SP of whom M had been one of the promoters. At the instance of the
respondent, M granted P an option to purchase his shares in C Securities at a specified price.
The respondent knew J Brothers were interested in buying the whole of the shares of SP at a
very favourable price. The respondent obtained an assignment of the option which M had
granted to P and eventually when J Brothers bought the shares of SP, realized a substantial
profit. After M’s death his executors (the appellants) claimed account of the profit. Evidence
showed that the respondent had told M of the negotiations with J Brothers and the reduced
purchase price of the shares. There was no evidence that he had passed on these pieces of
information to M.
See also Lalor v Campbell supra
 In some cases the disability rule may continue to apply even after the attorney client
relationship (retainer) has ended. But in considering whether any duty exists such as to bring
the disability rules into operation, all the circumstances of the case must be weighed. See:
Allison v Clayhills
A solicitor may, by virtue of his employment acquire a personal ascendancy over a client and
this may last long after the employment has ceased. However the duty towards the client will
last as long as the ascendancy itself can operate.
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A solicitor may by virtue of his employment acquire special knowledge and this may impose on
him the duty of giving advice or making a full and proper disclosure in any transaction between
himself and his client though such transaction may take place long after the relationship of
solicitor and client in its stricter sense has ceased to exists
**The disability in these cases, flows not from contract but from the fiduciary relationship
between or which existed between attorney and client.
Lecturer: Essentially, the onus is on the attorney to prove that his client was fully informed of
all the material facts and that he understood the transaction, including the price was a fair one.
If the attorney can’t prove these things, the transaction will be set aside.
GIFTS BY CLIENT TO THE ATTORNEY
 The rule relating to gifts is far more stringent than that related to purchases.
 The mere relationship of attorney/client virtually renders the attorney almost incapable of
receiving a gift in addition to his proper remuneration, particularly where the gift is of material
value. See:
Wright v Carter
In 1900, the plaintiff being in pecuniary difficulties executed a voluntary deed giving part of his
property in trust after his own death in certain shares for 2 of his children who were sui juris,
and for his solicitor C whom he expressed a wish to benefit from his services rendered but not
yet paid for. C and one of the children were two trustees of the deed and all three were parties
to it. The draft of the deed was prepared in C’s office, though not under his supervision. Under
C’s suggestion, it had been submitted to another solicitor A to advise him on the matter,
especially in respect of the gift to C. The deed was executed on A’s advice. C continued to act
for plaintiff who subsequently bequeathed another gift to C under a deed which was again
prepared by another solicitor T, on C’s advice. No fraud or collusion was found between C, A
or T in either transaction. However in neither transaction was A or T fully informed of the
plaintiff’s actual position or property. On an action to set aside both transactions:
Held: The first deed was void against the solicitor but not against the 2 children since the
benefits conferred upon them had not been induced by undue influence.
The second deed was void altogether as being a transaction of bargain and sale entered into by
the plaintiff without his having been properly advised as to the sufficiency of consideration and
without advice of an independent solicitor fully cognizant of the facts.
** A gift by a client to his solicitor raises a prima facie presumption that it was unduly
influenced by the fiduciary relation subsisting between them.The onus if on the solicitor to
prove that the gift was uninfluenced by that relation.
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**The presumption is not irrebuttable but it is NOT sufficiently rebutted by the mere fact of
the client having employed a separate and independent solicitor.
**The presumption will continue so long as the relationship of solicitor and client continues
for other purposes outside of the gift or at all events until it can be clearly inferred that the
influence arising from the relation no longer exists.
On the other hand, there is no objection to a sale by a client to his solicitor provided that the
solicitor can prove:
(i) that the client was fully informed

(ii) that he had competent independent advice
(iii) that the price given was fair one.
 The law distinguishes between trifling gift and those of substantial value. For example, a token
Christmas gift is a trifling gift.
BEQUESTS/DEVISES TO ATTORNEY BY THE CLIENT
 This is where the will is prepared by the attorney and in that will the client devises something to
that attorney.
 In the case of substantial benefits under the will, the burden of proof is on the attorney to show
that that the client knew and approve the contents of the will, and that he was under no undue
influence from the attorney and that he received proper independent advice. See:
Wintle v Nye
An elderly woman, unversed in business, signed a will prepared by her solicitor who was not an
intimate friend. The solicitor was name as sole executor and after provision had been made for
various legacies and gifts, he was to take the residue which amounted to the bulk of her estate.
The will was complex and she was not independently advised and copies of the documents
were given to her. The validity of the will was challenged on the ground that she did not know
or approve of its contents, but no allegation of fraud was made in the pleadings.
Held: The onus being on the solicitor to establish knowledge and approved by the testatrix, it
was the duty of the court to be vigilant and jealous in scrutinizing all the circumstances.
**It is not the law that in circumstances can a solicitor or other person who has prepared a will
for a testator take a benefit under it, But that fact creates a suspicion that must be removed by
the person propounding the will.
**The degree of suspicion will vary with the circumstances of the case. It might be slight and
easily dispelled. It may on the other hand be so great that it can hardly be removed.
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Lecturer: The fact that the solicitor prepared the will conferring a benefit on himself raises a
suspicion that he must remove. The degree of suspicion would depend on the circumstances of
the case such as the value of the gift and the characteristics of the testator.
Re A Solicitor
The solicitor should tell the testator that she must be separately advised and if he refuses to
seek such advice, the solicitor should forego his benefits
Lecturer: This standard is probably higher than that imposed by the Probate Courts when the
validity of the will is in question.
INTEREST ON CLIENT FUNDS
 As a general rule, a fiduciary is not allowed to profit at the expense of a beneficiary so if the
fiduciary receives any financial benefits as a result of the use of the property of the beneficiary,
he can’t keep it unless he is authorized to do so. See:
Brown v IRC
The appellant was not authorized to keep the interest on his client’s funds either by custom or
implied agreement.
Held: The general principle was well settled and was to apply to solicitors. Interest earned on
clients; funds were held to be the property of his client and not the solicitor.
Legal Profession Accounts & Records Regulations- 8, 9, 11
(i) Requires the attorney to supply accountants’ reports to the GLC on an annual basis
(ii) Requires an attorney who holds clients’ funds to account to the client for interest on
those funds in 2 circumstances:
- where the funds are held in an interest bearing account
- where the funds are not held on interest bearing account but where the sum which
he holds for the client is $200,000 or more and he holds it for 30 days or more.
Worksheet 9- Professional Discipline
 The Supreme Court has jurisdiction to remove/admit an attorney however the focus is now on
systemizing the disciplinary function of lawyers through disciplinary bodies.
 These bodies are established for the purpose of exercising powers of discipline over members
of the profession and those powers are exercised in accordance with detailed rules of conduct
an procedure.
 Nowadays, except for cases of contempt of court and other special circumstances, it would be
inappropriate for a judge to exercise his punitive jurisdiction over an attorney where the
appropriate disciplinary body exists.
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 The Legal Profession Act (ss. 11-15) fused the profession and established the General Legal
Council (GLC). This body was given the disciplinary function for lawyers.
 The GLC has a disciplinary committee and this has full punitive powers including the power to
reprimand, suspend or disbar an attorney from practice.
 If an attorney has been disciplined, he has a right of appeal to the CoA against any order that is
made by the Committee.
**On appeal, the CoA may either confirm the order, set it aside, vary the order or direct that
the application be reheard
In cases where the CoA orders a rehearing, it is specifically provided that no greater
punishment may be imposed than that which was ordered at the first hearing- (McCalla v
Disciplinary Committee)
 The disciplinary committee of the GLC can mete out punishment such as suspension from
practice, removal from the roll, imposition of a fine or a reprimand. See:
Re Eastmond
It was pointed out that the hearing before the disciplinary committee is in the nature of a trial
and therefore the committee should follow the procedure as a trial as far as practicable.
Once a prima facie case has been made out against the attorney called before the committee,
an experienced lawyer should be appointed by the Bar Association to present the case against
the attorney.
The members of the committee should not be left to ask questions of the complainant or the
attorney in order to arrive at facts.
STANDARD OF PROOF
 Whenever an allegation of professional misconduct involves an element of deceit or moral

turpitude, a high standard of proof is called for and not a mere balance of probabilities. See:
Bhandari v Advocates Committee
The appellant was an advocate who appealed an order that he should be admonished for his
professional misconduct. During his absence on holiday, his firm files a suit against the AG and
principal immigration officer on behalf of a client. On his return from holiday, the appellant
conducted the suit which was dismissed as being incompetent but the judge agreed to consider
the case on its merits. On appearing before the court to produce certain correspondence in his
possession, it was found that the appellant had not given true facts of the proceedings. The
judge brought the matter before the Advocates Committee. The latter found that the appellant
had intended to deceive and mislead the court and that a prima facie case of disgraceful and
Page 170 of 211

dishonourable conduct inconsistent with his duty as an advocate had been made out. On
appeal, it was contended on the appellant’s behalf that the correct standard of proof had not
been applied and the Committee was not a court empowered to arrive at any determination or
to give judgment.
Held: Dismissing the appeal. The Advocate’s Committee was a tribunal established by statute
for investigating cases of alleged misconduct by members of their own profession.
The Advocate Committee had the great advantage of seeing and hearing evidence at length in a
case where the facts being undisputed, the ultimate decision turned on questions of stupidity,
ignorance or deliberate intent.
**Regarding the onus of proof, in every allegation of professional misconduct involving an

element of deceit or moral turpitude, a high standard of proof is called for.
**The court cannot envisage anybody of professional men sitting in judgment on a colleague
who would be content to condemn on a mere balance of probabilities.
Re A Solicitor 1992
The appellant was a solicitor in England and Wales and qualified as a solicitor in Western
Australia. The secretary to the Barrister’s Board of Western Australia wrote to the Law Society
in England advising it that the Supreme Court in Australia had ordered that the appellant’s
name be struck off the roll for committing perjury in connection with her divorce in Australia
and that she had committed unprofessional conduct of the gravest kind at the hearing of the
matter before a judge by either verifying false information contained in her divorce application
or failing to inform the judge that the application and her affidavit in support were inaccurate.
The appellant appealed against the tribunal’s findings and order on the ground that they were
inadmissible as evidence before the tribunal and that the latter had applied the wrong standard
of proof inasmuch as by accepting the findings of the Board without question and had not
found the complaint proved beyond a reasonable doubt.
Held: The Solicitors Disciplinary Tribunal was entitled by virtue of its power to regulate its
own proceedings.
The task of the Tribunal was to have regard to all the evidence which was adduced before it,
including the Board’s findings, the course of evidence in Australia, the evidence if the appellant
and the contents of the affidavits adduced on her behalf and to ask whether it was satisfied to
the requisite standard of proof that the charge was made out.
**In determining the standard of proof the tribunal was required to apply the criminal
standard of proof, beyond a reasonable doubt and not some lesser standard. This is so because
the tribunal was investigating what is tantamount to a criminal offence alleged against a solicitor.
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**The appeal would be allowed because it was not clear what standard of proof had been
applied by the tribunal or whether the applicant had been proved guilty of misconduct alleged
rather than merely determining that there was no reason as to doubt the Board’s decision.
Hamlet v Campbell
The appellant was an attorney practicing in T&T. The respondent made a complaint of
professional misconduct against him to the Law Disciplinary Committee. The essence of the
complaint was that the respondent had paid the appellant a sum of money to purchase from
him land but the appellant had neither conveyed the land nor returned the purchase price. The
complaint was heard during the course of 1988 but its findings were not produced until 1996.
It found the allegations substantiated and found ordered the appellant to refund the
respondent’s money. The appellant appealed the order o the ground that the Committee
should have applied the criminal standard of proof and in fact had applied the standard of a
mere balance of probabilities or a standard somewhere between that and the criminal standard
and that the 8 year delay in delivering the Committee’s judgment was manifestly unfair and had
adversely affected the quality of the judgment.
Held: The criminal standard was to be applied in all disciplinary proceedings concerning the
legal profession.
The Committee’s delay in giving judgment had been highly reprehensible but it did not follow
that the appellant had been prejudiced by the delay nor that it afforded him any sustainable
ground of appeal.
THE NATURE OF THE MISCONDUCT ALLEGED
 A lawyer may be disciplined where the misconduct alleged involves his conduct as a lawyer (in
the course of his profession)
**The question is whether, should a lawyer be disciplined in relation to activities which occur
outside the course of his professional behaviour. See:
Re: Weare
Upon an application by the Law Society to strike the name of a solicitor off the roll, it appeared
that he had been summarily convicted of allowing houses of which he was the landlord to be
used as brothels.
Held: A solicitor may be struck off the roll for an offence which has no relation to his character
as a solicitor.
**The question is whether it is such an offence as makes the person guilty of it unfit to remain
a member of the profession.
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**Conviction of a criminal offence prima facie makes a solicitor unfit to continue on the roll
BUT the court has a discretion and will inquire into the nature of the crime and will not as a
matter of course, strike him off because he has been convicted.
In this case the court considered that the nature of the offence was such that the solicitor ought
to be struck off the roll.
**It would seem a very strange doctrine if it were true that a person convicted of a crime,
however horrible, must if it be not connected with his professional character, be allowed by the
court to still be a member of the profession which ought to be free from suspicion.
 It is not conviction of every type of offence that amounts to conduct unbefitting of a solicitor
e.g. minor criminal offences. See:
Re A Solicitor 1960
A solicitor was convicted for insulting behaviour whereby there was breach of the peace.
Disciplinary proceedings were commenced against him by the Law Society. The solicitor had
previously been convicted on 2 charges of indecent assault as a result of which he had been
suspended from practice for 2 years. He did not tender any explanation to the Committee
concerning the previous convictions. The Committee found that he had been guilty of conduct
unbefitting a solicitor and stated that the fact that a solicitor had been convicted of an offence of
this nature tends to bring the profession as a whole into disrepute and conduct which results in
conviction for such an offence can only be regarded as unbefitting a solicitor. The Committee
ordered that he be struck off the roll.
Held: Although it was not a conviction of every type of criminal offence that would show of
itself conduct unbefitting a solicitor, yet a conviction of insulting behaviour followed by
sentencing to the maximum fine showed conduct unbefitting of a solicitor.
It was the duty of the disciplinary committee to inquire into circumstances before they inflicted
a penalty and they were not entitled to assume, in the absence of any explanation by the
solicitor that the current offence was of the same nature as the previous offence.
** There are passages from Re Weare, which would indicate that prima facie when a man is
convicted of any criminal offence he is a person unfit to be a member of the profession.
**It seems that whatever may have been the position then, today with the multitude of minor
criminal offences, it is really impossible to say that the mere conviction of any criminal offence
is evidence of conduct unbefitting a solicitor.
Page 173 of 211

 In some jurisdiction the Canons will actually deem certain breaches amounting to professional
misconduct. Additionally, the Legal Profession Prescribed Offences Rules. speaks to some
offences which can attract disciplinary action
Canon V- An attorney has a duty to assist in maintaining the dignity of the courts and the
integrity of the administration of justice.
Canon V (o)- An attorney shall not knowingly make a false statement of law or fact.
Canon VI (c)- An attorney shall not knowingly represent falsely to a judge, a court or other
tribunal or an official of the court, that a particular state of facts exists.
Section 12 (1) (b) Legal Profession Prescribed Offences Rules- Prescribed criminal offences:
(i) treason
(ii) treason felony
(iii) capital and non-capital murder
(iv) manslaughter
(v) incest, rape, carnal abuse, sexual offences
(vi) abduction, child stealing
(vii) counterfeiting money and uttering counterfeit money
(viii) forgery and uttering forgery
(ix) offences against the Larceny Act
(x) piracy
(xi) cultivating ganja, selling or dealing with ganja or dangerous drugs
(xii) money laundering country to relevant Act
(xiii) corruption or bribery
(xiv) perjury and making of false statements
(xv) practicing as attorney without a practicing certificate
(xvi) conspiracy to commit, attempt to commit and aiding and abetting procuring or
counseling the commission of any if the preceding offences
HEARING
 In Re Eastmond it has been said that the hearing should conform to the form of a trial.
Therefore in practice there is examination, cross-examination and the addresses at the end of
the hearing.
 The Legal Profession Act provides that the Disciplinary Committee has the power to regulate
its own proceedings.
**Note that in a Re A Solicitor 1992, it was held that this type of provision permits the tribunal
to use evidence which might in strict law be inadmissible. It was held in this case, that the
tribunal was within its powers to make use of the previous proceedings against the solicitor as it
saw fit.
 The right to an attorney of a fair hearing before the committee is equal to that of a party to
proceedings in court. See:
Aris v Chin
Page 174 of 211

A complaint was made against the appellant. He applied for the postponement of the hearing
on the ground of ill health. The application was supported by medical certificate but it was
refused. The appellant was present at the commencement of the hearing but he absented
himself thereafter. Evidence in support of the complaint was heard in the absence of the
appellant. The issue was whether he waived his right to a full and fair hearing and whether the
tribunal acted in the accordance with natural justice.
Held: By its refusal of the appellant’s application for a postponement of the hearing, the
Committee had denied the appellant to a full and fair opportunity to be heard in answer to that
complaint. The order removing his name from the roll could not be allowed to stand.
**The appellant was not treated fairly. He had presented a medical certificate from a reputable
medical practitioner and his application for adjournment was rejected without due
consideration.
**This is all the more to be borne in mind that the appellant faced the loss of his profession by
an adverse decision.
Lecturer: An appeal from an order to strike the attorney from the roll was allowed on the
ground that a refusal to grant an adjournment to the attorney who had produced a medical
certificate amounted to a denial of his right to a fair hearing.
COMPARE
Re Niles
N, an attorney was instructed by the complainant who resided in the US to act on his behalf in
the purchase of certain land. Despite a long delay, N never completed the work and when the
complainant engaged another attorney, N failed to comply with requests to pay over to the
second attorney, money received from the vendors for the complainant. The complainant
made a formal complaint to the disciplinary committee regarding N’s conduct and a formal
notice was sent to promptly to him. He was invited to respond but failed to do so. A reminder
was sent advising him that failure to respond in 10 days would constitute professional
misconduct on his part. N failed to acknowledge receipt of subsequent notices. On the
morning of the hearing the secretary of the committee received 2 letters (dated one month after
the formal notice was sent) from N stating that he was unwell and sought an adjournment of the
hearing. No medical certificate accompanied the letters. One of the letters virtually admitted
the allegations. The complainant arrived in the jurisdiction to attend the hearing and it was
decided that it would proceed in N’s absence. The committee concluded that N had been
guilty of professional misconduct and recommended that he should be struck off the roll. N
maintained that he had not been allowed a fair hearing.
Held: N had been given every opportunity of informing the committee of anything that he
wanted to say. In all the circumstances, it was impossible to say that the committee was wrong
to have proceeded with the hearing in N’s absence.
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All the circumstances must be taken into account in deciding whether we should interfere with
the way in which the Committee exercised its discretion or whether or not to adjourn.
**The Committee is charged by the Legal Profession Act with the duty of upholding standards
or professional conduct and the court is disinclined to act against the recommendation of the
committee
Lecturer: No medical certificate was produced to support the application for adjournment and
the CoA upheld the Committee’s refusal to grant an adjournment to the attorney since every
opportunity had been given to him to inform the Committee of anything he wanted to say.
 The question of bias:
Hall v Bermuda Bar Council
M was appointed a member of the Disciplinary Committee set up by the Bermuda Bar
Council to investigate a complaint of improper conduct by a member of the Bar. M attended 2
meetings of the disciplinary committee and was later elected a member of the Bar Council. He
specifically drew to the attention of the Bar Council the possibility of conflicting interests and
he was advised to raise this matter with the Disciplinary Committee. He did so and he did not
attend any further meetings of the Bar Council until after the Disciplinary proceedings had
ended and the decision communicated to the member of the Bar concerned. M had not been
a member of the Disciplinary Committee when it was decided that a disciplinary Committee
should be appointed for the particular purpose nor did he participate in bringing the
disciplinary proceedings. The Committee ruled that the barrister had been guilty of improper
misconduct.
Held: The fact that M, a member of the prosecuting body, sat in a judicial capacity on a
disciplinary tribunal, would raise a suspicion of bias in the mind of a reasonable bystander.
Accordingly, the decision of the disciplinary committee would be quashed even though there
had been no actual boas on M’s part.
**Lord Denning in ex parte McCarthy stated that in considering whether there was a real
likelihood of bias, the court does not look at the mind of justice himself or the mind of the
chairman of the tribunal or whoever sits in a judicial capacity…
**The court looks at the impression which could be given to other people. Justice must be
rooted in confidence and confidence is destroyed when right minded people go away thinking
the judge was biased.
**Even if he was impartial as could be, nevertheless if right minded persons think that in the
circumstances there was a real likelihood of bias on his part, he should not sit.
**The test of disqualification for likelihood of bias is based on the principle that public
confidence in the administration of justice must not be impaired by even the smallest suspicion
of judicial impropriety.
Page 176 of 211

Lecturer: This decision turned on the fact that no man should be a judge in his own cause and
that justice should not only be done but manifestly seen to be done.
 There is power is under the common law to stay proceedings where there has been such delay
in bringing a complaint before a tribunal that a hearing of the matter would likely result in
substantial prejudice to the person against whom the complaint is brought. See:
McCalla v Disciplinary Committee
The appellant had been admitted to the Canadian Bar prior to which he had been admitted to
the Jamaican Bar. He never practiced as a lawyer in Canada but he lectured in law as a legal
researcher and wrote on legal subjects. He returned to Jamaica where he practiced as an
attorney . Articles were published in a Canadian newspaper that the appellant was being sought
on a warrant for charges of fraud and breach of trust. The articles were brought to the attention
of the GLC which contacted the Law Society in Canada. The Law Society after considering a
report of its disciplinary committee ordered the appellant to be struck off the roll. The Law
Society sent reports to the GLC to the effect that the appellant had submitted other persons’
work as his own and had presented his CV which contained misrepresentations. The appellant
denied the alleged plagiarism and contended that he was the subject of racial harassment and
also that the delay in the proceedings against him had caused severe embarrassment and that
he was prejudiced.
Held: The Chairman of the GLC as a member thereof was entitled to apply to the disciplinary
committee under the Legal Profession Act (s. 12 (i) ) to require an attorney to answer
allegations of professional misconduct and the fact that the Chairman had acted in this instance
on behalf of the council did not in the absence of mala fides, invalidate his complaint.
** The court ought to have had regard to all the time since the alleged misconduct had
occurred.
The complexities of the investigation necessary in relation to the allegation of plagiarism, the
difficult issues of facts would arise and the difficulties in marshalling evidence located in
Canada to prove the appellant’s case had been made much more difficult by the passage of
time and the delay was likely to prejudice substantially a fair hearing of the complaint.
**Accordingly, the appellant was entitled to have the disciplinary proceedings stayed. He was
entitled to apply to the Supreme Court for relief than wait and apply for a stay to the
disciplinary committee.
OBJECTS OF PUNISHMENT IN DISCPLINARY PROCEEDINGS
 Integrity, probity and complete trustworthiness are guiding principles for attorneys in
discharging their professional functions. See:
Page 177 of 211

Bolton v Law Society
A solicitor who discharged his professional duties with anything else less than complete
integrity, probity and trust worthiness had to expect sanctions to be imposed upon him by the
Disciplinary Tribunal.
**Except in a very strong case, an appellate court should not interfere with sentence imposed
by the tribunal.
**The decision whether to strike off or to suspend involved a difficult exercise of judgment
made by the tribunal as an informed and expert body on all the facts of the case.
**Only in very unusual case would the tribunal be likely to regard as appropriate an order less
severe than one of suspension.
**Orders made by the tribunal were not primarily punitive but were directed to ensuring that
the offender did not have the opportunity to repeat the offence and to maintain the reputation
of the profession.
Forde v Law Society
The appellate courts, although reluctant to interfere with the exercise of discretion by an
inferior tribunal, on a matter such as adjournment will do so if they are satisfied that the result
of the order is to defeat the rights of the parties and to effect injustice.
**Accordingly, where the appellant who complained that the refusal of an adjournment had
amounted to a denial of justice was himself instrumental in creating the situation which gave
rise to the order, he could not be successful in pleading that he had been denied justice.
**Scared is the trust which is reposed in a solicitor who is an officer of the court. A betrayal of
trust is a reflection, not only on the legal profession but also on the entire administration of
justice.
HANDLING CLIENT’S FUNDS
 Under the Legal Profession Act Part 7, the GLC is permitted to make regulations that require
attorneys essentially to keep separate accounts of clients’ monies and to keep the accounts
containing particulars and information as to monies received, held or paid to them for or on
account of their clients
 The GLC may take such action as may be necessary to ascertain whether the regulations are
complied with.
Page 178 of 211

Canon VII (a)- An attorney shall comply with rules as may from time to time be prescribed by
the GLC relating to the keeping of separate accounts regarding funds for himself or any firm
with which he is associated and those of his clients
Canon VII (b) – An attorney shall keep such accounts as shall clearly and accurately
distinguished the financial position between himself and his client as and when required
AND
Account to his client for all monies in the hands of the attorney for the account or credit of the
client, whenever reasonably required to do so.
**Note that Canon VIII deals with the consequences of breach of the provisions of the Canons
in that they would constitute professional misconduct and the attorney is subject to certain
orders ranging from reprimands to being struck off.
 The GLC made the Legal Profession Account and Records Regulation, providing the manner
in which attorneys should keep accounts and also that the attorney should submit accountant’s
reports within a specified time frame with the council. They may also have to deliver books
and records as requested. See:
GLC v Haughton-Cardenas
The appellant failed to deliver to the Secretary of the GLC, an accountant’s report for 4 years
1999-2003. In September 2005, she delivered reports for 2001- 2004, but did not do so for
1999 or 2000. The Secretary took action against the appellant. The appellant challenged the
validity of the regulation.
Held: The GLC had the power to make those regulations so that breach of them would
constitute professional misconduct under the Canons. Accordingly, the necessary sanctions
would follow.
Worksheet 10- Attorneys’ Duty To The Court (Duty of the Advocate)
 Counsel has a duty to his client to raise every issue; advance every argument and ask every
question however distasteful which he thinks will help his client’s case. ( Rondel v Worsley)
BUT
 As an officer of the court, concerned in the administration of justice, counsel has an overriding
duty to the court; to the standards of his profession; and the public which may lead to a conflict
with his client’s wishes or the client’s personal interests. ( Rondel v Worsley)
Rondel v Worsley
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Held: It was also stated that counsel must not mislead the court or lend himself to casting
aspersions on the other party or witnesses for which there is no sufficient basis in the
information in his possession.
Counsel must not withhold authorities or documents which may tell against his client but which
the law or standards of his profession require him to produce.
 Duties owed by attorneys to the court constitute a vital public interest in the administration of
justice. This is the source of the inherent jurisdiction that the court has assumed since time
immemorial in order to regulate the conduct of its officers ( Rondel v Worsley)
 It gives the judge the power to make an order that the attorney should personally pay part or
whole of he costs of the other side in cases where his conduct had been found to involve a
serious dereliction of his duty to the court. See Holden
Holden & Co. v Crown Prosecution Services
In 5 separate cases the question arose whether the court had jurisdiction to order the solicitor
acting for the defendant in a criminal trial personally to pay the whole or part of the costs o the
prosecution. In the first case, the defendant was charged with possessing a shogun without a
licence. His defence was that the gun did not belong to him, but his brother. The solicitor
knew the brother’s address but made no attempt to contact him until the first day of trial
because they were told he was gone to ground and would be unwilling to attend. But in fact the
brother was still living at his last known address and he did attend the trial even though by this
time the jury had already retired. The judge ordered a fresh trial and ordered that the solicitor
pay costs thrown away.
Held: The court retained an inherent jurisdiction in both civil and criminal cases to make an
order that the solicitor acting for the defendant personally pay the whole or part of the costs of
the other side if his conduct involved a serious dereliction of his duty to the court which caused
extra costs be incurred.
However, an improper act or omission which fell short of a serious dereliction of duty was not
sufficient for an order to be made against a solicitor for personal payment of costs
The object of such an order was not punitive and therefore the amount of costs which the
solicitor could be ordered to pay was limited to what his default caused
**In this case, the solicitor had been guilty of a serious dereliction of their duty to the court in
not attempting to contact the defendant’s brother before the trial
BUT
Page 180 of 211

In a case where a solicitor acted in breach but genuinely did not know he was so acting, it was
not appropriate to for an order that the attorney pay the costs thrown away.
 General Duties to the Court (According to Epp’s article)

(a) General duty of disclosure owed to the court
(b) General duty not to abuse the process of the court
(c) General duty not to corrupt the administration of justice
(d) General duty to conduct cases efficiently and expeditiously
**Note that these general duties have survived over the years but the content of particular duties
may change over time as social values and litigation priorities change
 These duties oblige counsel to:

(a) make full disclosure to the court of all the relevant law and facts whether they are for or against
him
(b) to be absolutely candid with the court
(c) to act with perfect courtesy to the court and opposing counsel
(d) to present issues as clearly and as economically as possible so as not to waste the court’s time
 In keeping with modern thinking on ADR, attorneys should take the lead in promoting
negotiation and mediation where the interest of the client may be best served. Set out in CPR
as a requirement.
 Ex parte/ without notice application fall into a special category an impose additional obligations
on counsel to make full disclosure of all matters that are material to the application of the court
Failure to observe this rule would result in an order made being set aside on the ground of
material non-disclosure or misrepresentation. See:
Canon V (a) - An attorney shall maintain a respectful attitude towards the Court, not for the
sake of the holder of any office, but for the maintenance of its supreme importance, and he
shall not engage in undignified or discourteous conduct which is degrading to the Court
 Duties of Prosecuting Counsel in Criminal Matters
Canon III (h) – An attorney engaged in conducting the prosecution of an accused person has a
primary duty to see that justice is done and he shall not withhold facts or secrete witnesses
which tend to establish the guilt or innocence of the accused
(a) The duty of a prosecuting counsel is not to obtain a conviction at all costs but to act as a
minister of justice. See:
Randall v R
R was charged with theft. The prosecution case was that the appellant, acting as a professional
trustee, had been entrusted with trust funds which he used for his own purposes. The victims
of the theft were beneficiaries of the trust fund, the assets of which had been deposited in the
company. The appellant had been arraigned on June 9, 1997 and pleaded Not Guilty. The
prosecution called 10 witnesses and their evidence ended on July 2, 1997. The appellant gave
evidence in chief from July 3-15 and was crossed-examined from July 15-23.He called a single
Page 181 of 211

character witness. The trial judge summed up the case to the jury over 5 days, at the end of
which the jury very quickly convicted. The trial judge summarized the effect of his direction to
the jury as: The defence’s case was that the appellant did nothing that was dishonest, that he
acted properly within the powers of the trust deed and he was perfectly entitled to do what he
did. The appellant complained that prosecuting counsel repeatedly interpolated prejudicial
comments while examining prosecution witnesses; repeatedly interrupted the cross-
examination of prosecution witnesses, often with prejudicial comment, etc and interrupted the
judge in the course of his summing up
Held: Not ever departure from good practice renders a trial unfair. During the course of a long
trial, things are done or said which should not be done or said. Most occurrences of the kind
do not undermine the integrity of the trial, particularly if they are isolated and where they are
the subject of a clear judicial direction.
**The right of an accused to a fair trial is absolute.
But there comes a time when the departures from good practice is so gross or so persistent or
so prejudicial or so irremediable that an appellate court will have no choice but to condemn
the trial as unfair and quash a conviction as being unsafe, however strong the grounds for
believing the accused to be guilty.
In this case, there had been such departures from good practice in the course of the trial as to
deny the accused the substance of a fair trial. This was evident where:
- Prosecuting counsel conducted himself as no minister of justice should do

- The trial judge failed to exert authority vested in him to control the proceedings and to
enforce proper standards of behaviour
- The judge allowed himself to be overborne by the antipathy to both the accused and
his counsel
On its own, none of the above would have supported a successful appeal but taken together
they left no alternative but for the convictions to be quashed.
These established rules are not rules of a game but rules designed to safeguard the fairness of
the proceedings.
Johnson v R
The deceased was murdered in Sept. 1991. Two days later a warrant was issued for the arrest
of the appellant in connection with the murder. The appellant was arrested in the US in July
1992 and in June 1993, the sole eye-witness to the murder made a statement to the police
purporting to implicate the appellant, whom he claimed to have seen on numerous previous
occasions. At the trial, a prosecution witness called a detective sergeant who gave evidence that
he received a report and started investigations and two days later he obtained warrants for the
arrest of the appellant whom he did not know but about whom he had recorded statements.
During the course of the trial, prosecuting counsel made certain allegations that the appellant
had been involved in another crime for which he was not charged. Prosecutions counsel’s
conduct was later admitted to have been indefensible in this respect. The appellant was
convicted and appealed.
Page 182 of 211

Held: Allowing the appeal. The evidence of the detective had no probative value because it was
inadmissible as hearsay and must have conveyed o the jury the impression that some person
other than the eye-witness had identified the appellant as the murderer. And nothing that could
have been said in summing up could have countered the prejudicial effect of such evidence.
**The trial judge had a duty to maintain the dignity and authority of the court and to guard
against conduct that might improperly influence jurors in the performance of their duty
In this case, the jury must have been distracted from their task by the conduct of prosecuting
counsel and the appellant’s trial had not been fair, despite such rebukes as the judge had
delivered to counsel.
Bendetto v R
The appellants B and L were tried for murder in the BVI. The Crown’s case stood or fell on
the credibility of a witness from the USA, P, who admitted that he had numerous convictions
for theft, among other crimes of dishonesty. In Texas he received a sentence of 45 years
imprisonment and he also admitted two violations of parole. After his original statement to the
police, P had been released from custody but at the time of giving evidence he was being held
in custody pending a hearing of charges related to bad cheques. At the close of the Crown’s
case, the accused submitted that there was no case o answer and the appellant B was acquitted
but he was released on bail and returned to NY. The plea of no case to answer for the
appellant L was rejected and the trial continued. The prosecutor used much of his speech to
the jury to make an attack on L and a defence witness who had been called with regard to the
credibility of P. There was more than a hint of xenophobia in the methods used to develop the
attack. The speech also attacked the sister of L who was not a witness and a series of derogatory
remarks were directed at L which were designed to prejudice the jury against him. The trial
judge in summing up, explored every relevant issue and presented the case to the jury on the
basis that they needed to be cautious. The jury found L guilty of murder. L appealed his
conviction and the Crown appealed against the trial judge’s ruling that B had no case to answer.
The hearing was held in the absence of B who had not returned from NY. The CoA affirmed
the conviction of L and allowed the appeal of the Crown against the acquittal of B. B’s acquittal
was quashed a retrial ordered on the charge of murder.
Held: Advising that the appeal of L be allowed- where the prosecution relied on evidence of an
untried prisoner who claimed that a fellow prisoner had confessed to him that he was guilty of
the crime for which he was then detained in custody, an acute problem was raised which would
always call for special attention in view of the danger that the evidence might lead to a
miscarriage of justice.
Although juries need to be spoken to in a language and style which they could understand and
although there could be no objection to a robust speech by the prosecution which was also
respectful, in this case some parts of the speech by the prosecutor went beyond robust and
were xenophobic and inflammatory.
Page 183 of 211

Ramdhanie v The State
The Privy Council stated that in viewing the content of counsel’s speeches to the jury, that
when considering the language used, its style and robustness, allowance must be made for
context and environment. Nevertheless there were fundamental limits which prosecuting
counsel as a minister of justice should observe whatever the context of the environment
The standards expected of prosecuting counsel are not dependent upon the compliance of
defence counsel with the rules governing the conduct of the defence
Accordingly, in cases where prosecuting counsel’s final speech included passages in which
counsel in effect told the jury or strongly implied that there was incriminating evidence which
was not put before them, and also contained emotive and unjustified comments on the
defence’s case, the tenor and content of the speech were capable of having a significant impact
on the jury despite the fairness of the trial judge’s summing up. This constituted material
irregularity and unfairness in the trial process and the jury’s verdicts could not be regarded as
safe.
 Duties of Defence Counsel
Canon III (g) – An attorney in undertaking the defence of persons accused of crime shall use
all fair and reasonable means to present every defence available at law, without regard to any
personal views he may hold as the guilt or innocence of the accused
Canon IV (c) – An attorney shall exercise independent judgment within the bounds of the law
and the ethics of the profession for the benefit of his client
**Note also that the Canons prohibit an attorney fro asserting to the jury his personal belief
belief in his client’s innocence or his personal knowledge of any facts on the investigation.
 Duty of All Attorneys

Canon V (o)- An attorney shall not knowingly make a false statement of law or fact
Re Bridgwood
A solicitor spoke in mitigation of sentence on behalf of a client for whom he had previously
acted and who on this occasion, to his knowledge had appeared in court and pleaded guilty
under a false name.
Held: The solicitor was guilty of professional misconduct on the basis that a solicitor takes part
in a positive deception of the court when he puts forward or lets his client puts forward
information which the solicitor knows to be false with intent of misleading the court.
Page 184 of 211

If he is not able to persuade the client to change his mind, he has a duty to withdraw from the
case.
Sankar v The State
During an altercation between the appellant and another, the appellant stabbed the other with a
knife. He later reported the incident to the police. The victim later died and the appellant was
charged with murder. At his trial, three eyewitnesses gave uncontradicted evidence that the
appellant had made an unprovoked attack on the deceased. It was denied that there was any
conduct by the deceased which would justify a plea of self-defence. The appellant did not give
evidence, nor did he make any statement from the dock. He was convicted and appealed to the
CoA. On his appeal, the appellant relied on hostile exchanges between his attorney and the
trial judge and misdirections in the summing up, in that the judge had not left issues of
provocation, self-defence and accident to the jury. The defence attorney later pleaded guilty to
contempt of court in respect of the trial but the CoA ruled that the trial had not been seriously
prejudiced by his conduct. The court also ruled that there was no issue of provocation, self
defence or accident such as would leave the judge to leave them to the jury. The appellant was
granted leave to appeal to the Privy Counsel.
Held: Advising that the appeal should be allowed. That it had been alleged that the behaviour
of his attorney had deprived the appellant of the opportunity to give evidence in a case in which
his evidence was essential if he was to have the opportunity of avoiding conviction.
Where the defence had been seriously prejudiced by the conduct of the defence attorney, it
was open to the court to interfere
The fact that the defence attorney may have been placed in an embarrassing position by what
the appellant had said to him would not have exonerated him from his duty to explain the
position to the appellant and place the options before him, even if the defence attorney should
feel obliged to withdraw from trial
Ebanks v R
On appeal to the Privy Counsel, the appellant alleged that he had been denied a fair trial by
reason of conduct of his attorney who despite his wish to give evidence, had in effect prevented
him from dosing so and who had failed to cross-examine two police witnesses to the effect that
they were lying when giving evidence of a statement which they had alleged had been made by
the appellant. The attorneys maintained that from the outset the appellant had insisted that he
would not give evidence, and had persisted in this view even though the matter had been fully
discussed with him. There was however, no written record of such decision of the appellant not
to give evidence nor his instructions to them.
Held: Advising that the appeal should be dismissed- That the culpable failure of the attorney to
make a contemporaneous written record of their instructions did not ipso facto entitle the
appellant to the benefit of any doubt and in consequence to have the appeal allowed
Per curiam: Where it is decided that an accused will not give evidence at his trial, this should
be recorded in writing along with a brief summary of the reasons for that decision and the
record should be endorsed by the accused
Page 185 of 211

If a client after due warning from his legal representatives as to the likelihood of strong
comments from the trial judge, insists on counsel challenging police evidence, counsel must
carry out his instructions, even though he may be aware that his client will not give evidence in
support of that challenge.
 Counsels’ Duty Re: Errors in Summing Up
Edwards
The failure of a trial judge to direct the jury on the standard of proof in his summing up is a
serious defect. In such a case, in considering whether the proviso to section 2 (1) of the
Criminal Appeal Act should be applied, the CoA should ask itself whether on evidence a
reasonable jury, properly directed on the standard of proof, would have inevitably convicted
the appellant.
The appellant was charged with rape and the trial judge in summing up had omitted to give the jury a
direction on the standard of proof and the appellant was convicted and appealed.
Held: As the evidence against the appellant was so overwhelming that a reasonable jury, properly
directed on the standard of proof, would inevitably have convicted him, the Court would apply the
proviso and dismiss the appeal for no substantial miscarriage of justice had actually occurred.
Per Curiam: The court considered it inconceivable that defence counsel acting in the best interest of
their client, could have failed to draw that serious omission in the summing up to the attention of the
judge thereby depriving their client of the benefit of the jury hearing the direction of the standard of
proof from the lips of the judge himself
Worksheet 11- Attorneys Duty to The Court : (i) Role of the Trial Judge (ii) Disciplinary
Jurisdiction of the Court over Attorneys
The Role of the Trial Judge
 The trial judge has a right and even a duty to:

(a) put questions to witnesses to clarify an obscure answer or where the witness has clearly
misunderstood a question
(b) Clear up matters of evidence
**Note that the question of what is the proper intervention will be one of balance. See:
Yuill v Yuill
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A husband sought dissolution of his marriage on the ground of adultery. During the trial, a
large part of the examination of the witnesses was conducted by the judge himself. It was said
that the judge asked more questions than counsel themselves. When the case for the petitioner
was closed, counsel for the respondent made a submission that there was no case to answer.
The judge ruled against the submission without having called upon counsel for the respondent
to elect whether to call evidence or to rely on his submission, and he heard the evidence of
respondent. He drew the conclusion that upon the petitioner’s evidence he ought not to draw
inference that adultery had taken place. He dismissed the petition. On appeal:
Held: The part which a judge should take while witnesses were giving their evidence rested with
his discretion and the mere fact that the judge took a large part in the examination of witnesses
did not justify the court in ordering a new trial.
Lord Greene expressed concerns about the inconveniences that may flow from an undue
participation by the judge in the examination of witnesses.
**He went on to say that it is always proper for a judge and it is his duty to put question with a
view to elucidating an obscure answer or when he thinks that the witness has misunderstood a
question put to him by counsel. If these are matters which the judge considers have not been
properly cleared up or questions which he himself think ought to have been put, he can take
steps to see that the deficiency has been made good.
** It is more convenient to do this when counsel has finished his questions or is passing to a
new subject.
 The nature and frequency of a judge’s intervention may result in an appeal being allowed on
the grounds of an unfair trial particularly where the judge departs from his role and enters into
the arena. See
Jones v National Coal Board
A coalminer was killed by a fall of a roof during the course of his employment. Weeks before
the incident, there was a fall and conditions had not been completely restored to normal. The
widow brought an action for damages against the defendant. At the trial, the judge intervened
during the evidence for the plaintiff in order to understand the technicalities. During the
evidence for the defendant, the judge intervened frequently, both during examination in chief
and cross-examination. At times he conducted the examination of a witness himself. The judge
also interrupted cross-examination to protect a witness against questions he considered
misleading. The nature and extent of his intervention being such as to break the sequence of
question and answer. The plaintiff appealed that she had not been given a fair trial.
Held: Though the judge was actuated by the best motives, his interventions taken together were
excessive and ill-timed, with the result that not sufficient primary facts had been elicited to
enable the appellate court to determine issue as to liability and that there must be a new trial.
**In our system of trial, the judge sits to hear and determine the issues raised by the parties,
not to conduct an investigation or examination on behalf of society at large. If a judge should
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himself conduct the examination of witnesses, he… descends into the arena and is liable to
have his vision clouded by the dust of conflict.
**It is for advocates to examine witnesses and not for the judge to take it unto himself to do so
lest he appears to favour one side over the other.
**The judge’s part is to hearken to the evidence, asking questions of witnesses when it is
necessary to clear up any point that has been overlooked or left obscure; to see that the
advocated behave themselves seemingly and keep the rules of law; to exclude irrelevances and
discourage repetition…and in the end, to make up his mind as to where the truth lies. If he
goes beyond this, he drops the mantle of being a judge and assumes the robe of an advocate.
**Though a judge is entitled and bound to intervene at any stage of a witness’s evidence to
understand the nature of the evidence, such intervention should be infrequent as possible
during cross-examination, for the very gist of cross examination lies in the unbroken sequence
of question and answer.
 In criminal cases, it is particularly inappropriate that a judge’s intervention is such as to

indicate that he has formed some adverse view of the defendant. See:
R v Hamilton
H was convicted of indecent assault. He appealed on the ground that the number and nature of
the interventions by the judge were such that the conviction should be quashed.
Held: It is wrong for a judge to descend into the arena and give the impression of acting as
advocate and often does more harm than good
Whether interventions can give ground for quashing a conviction is not only a matter of degree
but also depends on what the interventions are directed to and what their effect may be
**Intervention to clear up ambiguities and to enable the judge to make an accurate note is
perfectly justified. Interventions which may lead to quashing a conviction include:
(i) those which invite the jury to disbelieve the defence evidence in such terms that they
cannot be cured by telling the jury that the facts are for them
(ii) those which make it impossible for counsel to present the defence properly
(iii) those which have the effect of preventing the defendant from doing himself justice and
telling the story in his own way
R v Hulusi
Convictions will be quashed where there had been frequent interventions by the judge (i)
during the cross examination of witnesses for the prosecution, suggesting that defence counsel
was not doing his duty (ii) during evidence in chief or re-examination of the defendants and
their witnesses suggesting that (a) defence counsel had not fully put his case to witnesses for the
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prosecution during cross examination and (b) in effect preventing the defendants and their
witnesses from telling there story.
R v Matthews
The applicants were charged with conspiring with others to commit drug offences. In some 148
pages of the transcript of evidence, there was no page without some interventions by the trial
judge and on many pages there were more than one intervention, involving a prosecution
witness and the two applicants. The applicants were convicted and applied for leave to appeal
on the ground that the trial judge had excessively interrupted in the cross-examination of
Crown witnesses and the applicants’ own evidence and that the interruptions had a prejudicial
effect to render the conviction unsafe.
Held: The high proportion of the interventions by the trial judge would seem to have been far
more than ought to have been necessary to enable him to fulfil his functions in supervising the
conduct of the trial.
**In considering the propriety relating to the questioning by a judge of witnesses during a
criminal trial the following principles should be considered:
(i) while a large number of interruptions must put the CoA on notice of the possibility of
the denial of justice, mere statistics were not themselves decisive.
(ii) the critical aspect of the investigation was the quality of the interventions as they related
to the attitude of the judge as might be observed by the jury and the effect that the
interventions had either on the orderly, proper and lucid deployment of the
defendant’s case by his advocate or the efficacy of the attack to be made on the
defendant’s behalf on vital prosecution witnesses y cross examination
(iii) in analyzing the overall effect of the interventions, quantity and quality could not be
considered in isolation but would react to each other
The question the CoA must ultimately ask itself is, “Might the case for the defendant as
presented to the jury over the trial as a whole, be such that the jury’s verdict might be unsafe.”
If that was so and there is a possibility of the denial of justice, then the CoA ought to interfere.
R v Renshaw
R complained to the police about an assault on her by W with whom she had cohabited. W
was arrested and denied the assault. R subsequently attempted to withdraw her complaint
allegedly because it was no beneficial to do so. The police noted that she had received threats
but not by W. The police noted that R would likely be unwilling to attend court. R was present
at court and W pleaded not guilty to the charge. Crown counsel informed the judge that R had
withdrawn the complaint but the matter had proceeded to trial because R might not have come
to her own view to withdraw the complaint. The judge commented that the matter should be
tried so that it was made clear that people could not treat women in the way W had done and
escape. The trial judge interrupted Crown counsel 8 times while he endeavoured to explain
the position. R was called to give evidence and said she did not wish the trial to proceed nor to
answer any more questions. The judge informed R that she was under an obligation to give
evidence and it was not her decision as to whether the trial should proceed and that if she
refused she would face contempt of court and a possible prison sentence. She continued to r
effuse to give evidence. Accordingly the Crown offered to give no evidence against W who was
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discharged. R was subsequently found to be in contempt and sentenced to 7 days’

imprisonment.
Held: Quashing the finding of contempt, the prosecution had decided not to proceed and the
trial judge had interrupted excessively, not allowing the prosecution to put its case properly…It
also appeared that the judge had made up his mind that the matter would be dealt with by way
of contempt. In some cases, inaction was the best policy.
Disciplinary Jurisdiction of the Court over Attorneys
 Judges have a disciplinary jurisdiction over attorneys in cases of misconduct. See:
Myers v Elman
The respondent had been the solicitor on the record to one of the defendants. At the close of
the case, the plaintiff made an application that the respondent should be ordered to pay the
costs of the action on the ground that he had been guilty of unprofessional conduct. It was
proved that the respondent had left the conduct of the case in the hands of his managing clerk,
who was not a solicitor. It was alleged that the respondent had been guilty of unprofessional
conduct in that (i) he had filed a defence putting the plaintiff to the proof of her allegation,
knowing that the defence was unlikely to succeed and (ii) he had prepared affidavits of
documents which no solicitor could help knowing was inadequate.
Held: In the circumstances, the respondent was guilty of misconduct
because as a solicitor and as an officer of the court, he could not escape
his responsibility to the court for the proper discharge of his duties to the
court by delegating them to a managing clerk who was not personally amenable to the
jurisdiction exercised by the court over solicitors as its officers.
**The court is concerned with the breach of duty to itself. Its jurisdiction is punitive…
Lord Atkin: From time immemorial, judges have exercised over solicitors a disciplinary
jurisdiction in cases of misconduct. The duty owed to the court to conduct litigation before it
with due propriety is owed by solicitors for the respective parties, whether they be carrying on
the profession alone or as firm.
If the court is deceived or the litigant is improperly delayed or put to unnecessary expense, the
solicitor on the record will be held responsible and will be admonished or visited with
pecuniary penalty as the court thinks necessary.
 The disciplinary jurisdiction of judges over attorneys stems from a higher standard of conduct
required of attorneys and this justifies the special control which a court exercises over its
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officers. This is done for the purpose of enforcing honourable conduct on the part of the
court’s officers.
 Attorneys are admitted to practice by the court- their names are entered on the roll of the
court and so it follows that they should be subject to the disciplinary jurisdiction of the court.
See:
R & Thew v Reeves (No.2)
The plaintiff’s solicitor was summoned to court for the purposes of enabling the court to
consider whether they should be ordered to personally pay costs on the ground that such costs
were incurred and occasioned as a result of a mistake of their clerk.
Held: The jurisdiction of the Supreme Court over solicitors as officers of the court is both
punitive (solicitor is struck off the roll or suspended) and compensatory (solicitor is ordered to
pay costs).
In so far as it is punitive, it is usually appropriate for the court to exercise the jurisdiction of its
own motion, such matters generally reported to the Law Society for the consideration by the
Disciplinary Tribunal.
In so far as it is compensatory, it is retained by the court itself and the court may act on its own
motion or on the application of a party who has incurred useless costs as a result of the
conduct of a solicitor of which complaint is made
**To warrant the exercise of the jurisdiction, the solicitor’s conduct must be inexcusable and
such as to merit reproof. Mistake, error of judgment and mere negligence are not generally
sufficient to call into operation the exercise of the court’s jurisdiction.
 Note that the punitive jurisdiction is separate from the legal rights of the client or other
aggrieved person against the attorney.
 Where the court delegates punitive jurisdiction to a disciplinary committee, it would be

inappropriate for the judge to exercise jurisdiction of his own motion, otherwise the judge
would appear to be both prosecutor and judge. This dual role should be avoided in all but the
most exceptional cases.
**Note that in Jamaica, the Legal Profession Act expressly states that where a judge considers that
an act of professional misconduct has been committed by an attorney, he may make or cause the
Registrar to make an application to the Disciplinary Committee in respect of that attorney
If the conduct amounts to a criminal offence, it is also open to the judge to refer the matter to the
DPP
**Note also that the decision of the Disciplinary Committee I subject to appeal in the High Court.
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Worksheet 12- Contempt of Court by Attorneys
 Contempt of court, most often occurs in the face of the court. However in rare circumstances it
may arise out of things said or done out of court.
 The test is whether the words or action used in the course of the proceedings are of such
nature as to interfere with the course of justice or the prejudice of the proceedings.
 The court’s power to punish for contempt is separate from its inherent power to punish for
professional misconduct. The power to punish for professional misconduct relates to its
supervisory jurisdiction over officers of the court while the power relating to contempt is part of
a wider jurisdiction.
 In punishing an attorney for contempt, the court may:
(a) invoke its summary power of committal

(b) impose a fine
(c) grant an injunction where contempt is anticipated
 Shamdasani v R emphasized that the power to punish for contempt should be exercised
sparingly and the use of the power to suppress methods of advocacy which are merely offensive
is to use it for purposes that were never intended.
 Examples of behaviour that may amount to contempt include:
(a) Improper conduct in the face of the court for example:

- attacking the judge’s integrity or impartiality
- using offensive language to the court
- acting in a violent manner
(b) Scandalizing the court

- acts done or writings published that are calculated to bring a judge or the court into
disrepute
- acts done or writings published to interfere with the course of justice for example,
writing abusive letters to court officials. See
Weston v CCC Administrator
A solicitor was instructed by a client charged with a criminal offence, learned that the case
which was not ready for trial, had been listed as a “floater”. He telephoned the listing officer to
say that he had understood that the case would not be listed so soon, but he was told it was too
late to take it off the list. The solicitor wrote an offensive letter of protest to the court
administrator and sent the client to court by himself. The presiding judge with the letter of
protest before him fixed the trial 3 days later. The solicitor was informed of this by his client
and made further protest to the court administrator. He sent his client to court unrepresented
again. The judge ordered that the solicitor should come before him to explain his conduct.
Since that information was given to his client the solicitor did not attend court. The judge
issued a bench warrant which effectively showed that he was treating the actions of the solicitor
as contempt of court. The solicitor was arrested and brought before the court and after he
refused to apologise for the letter to the court officer, the judge told him he was in breach of his
duty as an officer of the court and ordered him to pay the costs of the prosecution. On appeal:
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Held: Allowing the appeal and setting aside the order for costs- The jurisdiction which the
judge purported to exercise was not the supervisory jurisdiction of the court over solicitors and
officers of the court which would entitle the court to make an order as to costs against a
solicitor personally. But it was the inherent jurisdiction to punish summarily for contempt of
court.
Since there was nothing that the solicitor had done to interfere with the due administration of
justice or to disobey an order of the court, he had not crossed the line dividing mere
discourtesy and breach of duty to a client or the court from contempt.
**If a solicitor deliberately fails to attend, with the intent to hinder or delay a hearing, he would
be guilty of a contempt of court as he would be interfering with the course of justice. In this
case the conduct of the solicitor was not done with intent to hinder or delay the hearing. He
took the view that in fairness to the accused the case could not be forced on for trial at such
short notice before he was ready and as it was bound to be adjourned, he did not attend. This
was serious discourtesy and even a breach of duty but it was not done to disrupt or hinder or
delay the course of justice. So it was not contempt of court.
(c) Non-attendance by counsel in court. See:
Izuora v R
The appellant at the conclusion of the hearing of a divorce case in which he had represented
the respondent and in which judgment was reserved for the following day, applied that he
might be excused from attendance on the next day. His application was granted. Counsel for
the petitioner also asked that he might also be excused. Thereafter the judge withdrew the
appellant’s permission and stated that both counsel should attend the following day. The
appellant was absent the following day with no communication from him to the court. The
appellant was summoned to show cause why he shouldn’t be committed for contempt of court.
The judge held that his absence from court without leave amounted to contempt and fined him
and ordered that in default he should be imprisoned for 2 months. On appeal:
Held applying Shamdasani: The appellant had not been guilty of contempt.
** It was not every act of discourtesy to the court by counsel which amounted to contempt, nor
was conduct which involved a breach by counsel of his duty to the client necessarily in that
category.
In the present case, the appellant’s conduct was clearly discourteous and might be a dereliction
of his duty to his client, but it could not be properly be placed over the line that divided mere
discourtesy from contempt.
It is not possible to particularize the acts which can or cannot constitute contempt in the face of
the court, but in this connection, it is desirable to bear in mind what was said in Shamdasani:
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“That the summary power of punishing for contempt should e used sparingly and only in
serious cases. It is a power which a court must of necessity possess, its usefulness depends on
the wisdom and restraint with which it is exercised..”
AND
“It is not every act of discourtesy to the court by counsel that amounts to contempt, nor is
conduct which involves a breach of duty to his client necessarily in this category.”
**Note that non-attendance must be such as to intentionally delay the proceedings as to

interfere with the course of justice
(d) Abuse of pleadings for example, filing documents with fictitious information/ presenting
false affidavits
(e) Abuse of the court process for example, forging court documents
 It is not a proper use of the power to cite for contempt in order to prevent criticism of judges
or the judicial system as it is in the public interest to subject it to proper public scrutiny. See:
Ambard v AG for T&T
The appellant was convicted of contempt of court and ordered to pay a fine or in default be
imprisoned for one month. The conviction was in respect of a leading article which criticized
alleged inequality of sentences passed for certain criminal offences. The Supreme Court held
that the article was written with the direct object of bringing the administration of the criminal
law by the judges into disrepute and disregard.
Held: Whether the authority and position of an individual judge or the due administration of
justice is concerned, no wrong is committed by any member of the public who exercises freely
the ordinary rights of criticizing temperately and fairly, in good faith, in private or in public, any
episode in the administration of justice.
Providing that members of the public abstain from imputing improper motives to those taking
part in the administration of justice and are genuinely exercising a right of criticism and not
acting in malice, or attempting to impair the administration of justice, they are immune from
proceedings of contempt of Court
**Lord Atkin- Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and
respectful, even though outspoken, comments of ordinary men.
 It is essential that the specific nature of the alleged contempt should be made plain to the
alleged contemnor by the judge before he can be properly punished. This is so because
contempt is tried summarily and the judge often the prosecutor and witness. See:
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Maharaj v AG of T&T
The appellant was engaged as counsel in a case in the CoA which was estimated to last 5 days.
He had also accepted 2 briefs to appear in another court in that same month. The appeal
lasted 13 days and the appellant’s other 2 briefs were held by another counsel who made an
application to the judge that both cases be adjourned for carious reasons including the
appellant’s inability to appear. In both cases, the judge refused the application and gave
judgments against the appellant’s clients. Subsequently, the judge refused an application to have
the action adjourned on behalf of defendants who were to be represented by the appellant.
The appellant appeared in chambers before the same judge and asked that he disqualify
himself from hearing any cases which involved the appellant on the ground that the judge had
behaved unjudicially. The judge refused. The appellant repeated what he said to the judge in
chambers in open court and stated that he reserved the right to impeach the judge. The judge
wrote a note asking the appellant whether he was suggesting that the court was acting
dishonestly and correctly. The appellant replied that the judge was guilty of unjudicial conduct.
The judge charged the appellant with contempt of court and sentenced him to 7 day’s
imprisonment. The judge stated in his written reasons for judgment that the appellant had
made a vicious attack on the integrity of the court. On appeal:
Held: Where a person was charged with contempt of court, particulars of the specific nature of
the contempt had usually to be made plain to the alleged contemnor by the judge before he
could be properly convicted and punished.
Here the judge had failed to explain to the appellant the contempt which he intended to charge
him was a vicious attack on the integrity of the court. The failure vitiated the appellant’s
committal for contempt since he had not been afforded the opportunity to explain what he
meant by his allegation of unjudicial conduct.
Had he judge given these particulars to the appellant, as he should have done, the appellant
would no doubt have explained that the unjudicial conduct of which he complained had
nothing to do with the judge’s integrity but his failure to give the appellant’s client a chance of
being heard before deciding against them.
 The law does not expressly require that a person charged with contempt should be given the
opportunity to consult with counsel before he is dealt with. But this may be a prudent course to
adopt. See:
Maharaj v AG of T&T
The law does not require that any one charged with contempt in the face of the court shall
necessarily be given the opportunity of consulting solicitors or counsel before he is dealt with,
but in this case, it was unfortunate that appellant’s request for an opportunity of consulting his
counsel, a senior member of the bar who no doubt would have given the appellant excellent
advice and also perhaps have persuaded the judge from falling into error.
 The alleged contemnor should be given an opportunity to answer or to explain his conduct to
show cause. A failure to do so may result in the conviction being quashed. See:
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Re Pershadsingh
The appellant was fined or in default of payment, to be imprisoned for 21 days for
misbehaviour in court during the course of a trial. An opportunity was not given to him to show
cause or to explain his conduct before the punishment was ordered.
Held: In cases of contempt of court, an opportunity must first be given to the person offending
to show cause or to explain his conduct before punishment is ordered.
Shamdasani applied- For words or actions used in face of the court to be a contempt, they
must be such as would interfere with the course of justice. No further definition can be
attempted.
It must be rare for words used in the course of argument, however irrelevant, to amount to
contempt when they relate to an opponent, whether counsel or litigant.
**If in the course of a case a person persists in the line of conduct or use of language in spite
of the ruling of the presiding judge, he may properly be adjudged guilty of contempt of court-
But then, the offence is the disregard of the ruling and setting the court at defiance.
Also, if a litigant or advocate threatened or attempted violence on his opponent, or if he used

language so outrageous and provocative as to be likely to lead to a brawl in court, the offence
could be said to have been committed.
**An insult to counsel or to the opposing litigant is very different from an insult to the court
itself or to members of a jury who form part of the tribunal.
Frater v R
The appellant was conducting the defence of 2 defendants. The appellant conducted his cross-
examination and at the end of this, the judge put some questions to the witness. The appellant
objected to a line of questioning by the judge stating that they were irrelevant. The judge over-
ruled the objection and requested that the appellant return to his seat. The appellant refused to
do so, but continued to protest to the judge in terms that were discourteous and disrespectful.
The judge once again ordered him to take his seat. The appellant refused point blank to do so.
The judge told him he was obstructing the court and the appellant replied that he was not
sitting, he was standing for the men he was defending. He also said that the judge could cite
him or do anything, even lock him up because he was standing for his clients because the judge
was not fair and was not dispensing justice. The judge adjourned the trial for 10 minutes and
stated that he would require the appellant to show cause why he shouldn’t be cited for
contempt. At the resumption of trial, the appellant who was represented by counsel, pleaded in
his defence that no disrespect of the court was intended and that he was merely defending his
client. He was convicted of contempt and fined. It was contended on appeal that the judge was
wrong in law for failing to inform the appellant of the specific charge was against him and giving
him an opportunity for an explanation before arriving at his verdict.
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Held: In this case, there was no room for doubt as to what were the specific acts of contempt
by the appellant therefore there was no requirement for the precise nature of the contempt to
be brought to his attention.
**Note that in this case the appeal was dismissed.
 Where the contempt is committed in the face of the court, the judge may commit the offender
on his own motion and without notice of formal institution of committal proceedings.
**Note that this jurisdiction must be exercised in exceptional circumstances (because you want
to give counsel a fair hearing). See:
Balogh v St. Albans C.C
B, a temporary clerk in a solicitor’s office, while attending a trial devised a plan to enliven the
proceedings by releasing laughing gas down a ventilation duct on the roof of the trial court. He
stole a cylinder of the gas from the hospital. Police intercepted his plan by searching his brief
case and cautioned him who at once admitted what he planned to do. B was brought before a
judge who said that B’s admitted conduct was a serious contempt of court. The next morning B
told the judge that he did not feel competent to conduct his own case on contempt and that he
understood that the only charge against him was theft. The judge said that he would not deal
with that charge but committed B to a term of imprisonment.
Held: The judge as a judge of the superior court had jurisdiction to make an immediate order
of committal of his own motion against a person guilty of contempt of court.
Even if B’s admitted acts and intention had amounted to a contempt of court, the judge should
not have punished him as he did by the summary procedure available for contempt, for that
procedure should be used only in exceptional cases where a contempt was clearly proved and
could not wait to be punished
Where a person already in custody and charged with theft there was no need for immediate
imprisonment.
**Lord Denning: The power of summary punishment is a great power but it is a necessary
power. It is given so as to maintain the dignity and authority of the court and to ensure a fair
trial.
It is to be exercised by the judge of his own motion only when it is urgent and imperative to act
immediately, so as to maintain the authority of the court, to prevent disorder and to enable
witnesses to be free from fear and jurors from being improperly influenced.
It is to be exercised with scrupulous care and when the case is clear and beyond reasonable
doubt.
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But properly exercised, it is a power of utmost value and importance which should not be
curtailed.
Canon V (a) - An attorney shall maintain a respectful attitude towards the court, not for the
sake of the holder of any office, but for the maintenance of its supreme importance and he
shall not engage in any undignified and discourteous conduct which is degrading to the court.
Canon VI (a) – An attorney’s conduct towards his fellow attorney should be characterized by
courtesy and good faith and he shall not permit ill feelings between clients to affect his
relationship with his fellow attorney’s or his demeanour towards the opposing party.
**Note therefore that the judge can refer matter to the disciplinary committee where the
attorney acts in a manner that is not necessarily contemptuous but may require disciplinary
action.
Worksheet 13- Liability for Breach of Undertaking and Costs Thrown Away
UNDERTAKINGS
 An undertaking has been defined as a pledge or a promise made by an attorney in his

professional capacity to do or refrain from doing a particular act.
 An undertaking may be given to the court, the client or even a third party.
 Sometimes an undertaking may be given orally such as in court during proceedings. Otherwise
it is in writing and even where it is initially oral, it should subsequently be confirmed in writing
(because it is evidence)
 The Canons of Ethics contain statements regarding undertakings.
Canon VI (c)- An attorney shall not commit a breach of an undertaking given by him to a
judge, a court or tribunal or an official thereof where such undertaking relates to an expression
of intention as to future conduct or is a representation that a particular state of facts exists.
An attorney shall not knowingly represent falsely to a judge or court or other tribunal or an
official of a court or other tribunal that a particular state of facts exists.
Canon VI (d) - An Attorney shall not give a professional undertaking which he cannot fulfil and
shall fulfil every such undertaking which he gives.
Morris v GLC
The appellant acted on behalf of a client in the purchase of a property. The loan for the
purchase was obtained on the terms that the registered title of the property in the name of the
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client would be deposited with the Credit Union until the loan was fully repaid. The appellant,
in his capacity as an attorney gave a written undertaking to send the said registered title to the
Credit Union, but failed to do so. The client somehow obtained possession of the said
certificate of title and used it to secure a separate loan from another mortgagee, with the result
that the loan advanced by the Credit Union remained unsecured and the said client refused to
repay the loan to Credit Union. The Credit Union lodged a complaint to the Disciplinary
Committee of the GLC against the appellant for breach of his undertaking. In response, the
appellant averred that he had given instructions to his office staff to send the certificate of title
to the Credit Union but that unknown to the appellant, it was not sent; and that the certificate
of title was abstracted from his office in circumstances for which he could not be held
accountable, the said certificate having been removed in his absence and unknown to him. The
Disciplinary Committee ruled that the conduct of the appellant amounted to misconduct in a
professional respect, and that he was liable to repay the balance of the loan to the Credit
Union. On appeal:
Held: The Court as well as the Disciplinary Committee of the General Legal Council can
enforce any undertaking given by an attorney in his professional capacity and may take punitive
measures against such attorney in respect of its breach.
**Where it is found that an attorney gave an undertaking in his professional capacity to a

third party, he cannot exonerate himself from liability by pleading that he had delegated the
performance of such undertaking to another person. In the instant case, assuming the story of
the appellant could be believed, it cannot protect him from liability on the undertakings.
**The breach of an undertaking by an attorney amounts to professional misconduct, both at

common law and by the present statutory provisions, if the Attorney is found to have given
such undertaking in his professional capacity. In the instant case, it is clear that the appellant
gave the undertaking in his capacity as attorney for his client.
In order that the court should exercise its penal jurisdiction over an attorney it is not
sufficient to show that his conduct had been such as would support an action for negligence
or want of skill. It must be shown that the solicitor had done something which is dishonorable
to him as a man and dishonorable in his profession. In the instant case, the conduct of the
appellant is dishonourable.
Lecturer: In this case, the importance of undertakings in the world of conveyancing and
commerce was underscored. For example, the practice of attorneys giving undertakings
relating to certificate of titles is longstanding and conveyancing would be brought to a halt if
the parties or financial institutions could not rely on the words of a lawyer.
 Other examples of undertakings include the attorney undertaking to hold money for a client,
pending the conclusion of a transaction; or to pay money to a third party, or to forward
documents such as titles or others relating to costs.
 Attorneys are presumably men and women of good character and so their word should be their
bond and their statements should not require that degree of confirmation or cross- checking
which might be appropriate in the case of statements by persons who are not attorneys. See:
United Bank of Kuwait v Hammon
In two separate appeals the question arose whether the partners in two firms of solicitors were
liable on undertakings given by a fraudulent solicitor, E, while in the employ of the two firms,
by which he undertook that the firms would provide security for loans made to clients of the
firms by two banks.
Held: Where a solicitor who had actual authority to represent himself as being a practising
solicitor with an established firm gave an undertaking which the receiver of the undertaking was
Page 199 of 211

entitled to assume was given in the context of a transaction which was part of the usual business
of a solicitor, the undertaking would be enforced against the firm as having being given with
ostensible authority and therefore binding on the firm if it subsequently turned out to be false
and worthless.
**For the court to enforce a solicitor’s undertaking as such, it is an essential requirement that
there be a promise made in his capacity as a solicitor
**The promise of one partner binds the other members of the firm if it was an act for carrying
on in the usual way business of the kind carried on by the firm.
**A contract made by a servant or other agent binds the principal if it was made with the
ostensible authority of the principal.
 Judges and the law have always taken a very serious view of the breach of professional
undertaking. There are 3 possible consequences that an attorney may face for breach of an
undertaking:
(a) An application may be made to the court to enforce the undertaking in the exercise of the
court’s supervisory jurisdiction over its officers.
(b) An application may be made to the relevant disciplinary body/ proceedings.
(c) An action in law may arise in cases where there is a cause of action (in contract)
 In some cases, the court does not resort to its inherent jurisdiction and has recommended that
an ordinary action in the civil courts is a more appropriate approach. See:
Udal v Capri Lighting
The plaintiff issued writs against the defendant company claiming the amount of goods sold
and delivered and he subsequently issued summonses for summary judgment. Before the
summonses were heard the defendant’s solicitor gave an oral undertaking to the plaintiff’s
solicitor that he would procure the execution of charges in favour of the plaintiff by the
defendant’s directors over their homes or life assurance policies, in return for which the
plaintiff’s solicitor agreed to adjourn the summonses. The charges were not executed and in
due course judgment was entered against the defendant. Subsequently, however, the defendant
went into liquidation and the judgment could not be enforced. The plaintiff then applied for
an order that the defendant’s solicitor should procure the execution of charges by the directors
pursuant to his undertaking. The judge ordered that the undertaking be performed, on the
assumption that in the exercise of the court’s supervisory jurisdiction over solicitors the court
could not, in the absence of dishonourable conduct, make an alternative order that the solicitor
pay compensation for non-performance of his undertaking. The defendant’s solicitor
appealed, contending that it was impossible for him to perform the undertaking and therefore
it ought not to be enforced.
Page 200 of 211

Held: Where a solicitor was unable to carry out or procure the performance of an undertaking
given by him, the court could exercise its inherent supervisory jurisdiction over the solicitor,
because failure to implement an undertaking prima facie constituted professional misconduct
or a serious dereliction of professional duty even though the solicitor may not have acted
dishonourably or actual performance of the undertaking required action by a third party and
was therefore beyond the solicitor’s control.
**Although the court would usually order performance of the undertaking, where
performance was impossible, the court could order the solicitor to pay compensation to any
person who had suffered loss because of the solicitor’s failure to implement his undertaking,
provided it was shown that the failure amounted to professional misconduct or serious
dereliction of duty.
**United Mining v Becher applied.
Although the jurisdiction is compensatory and not punitive, it still retains a disciplinary slant. It
is only available where the conduct of the solicitor is inexcusable and such as to merit reproof.
**If the misconduct of the solicitor leads to a person suffering loss, then the court has power to
order the solicitor to make good the loss occasioned by his breach of duty
Geoffrey Silver v Baines
The defendant was the only partner in a firm of solicitors and employed B, an admitted
solicitor, to carry out much of the firm’s work. B asked the plaintiff, a partner in another firm
of solicitors, to advance £4,000 for a client of the defendant’s firm. The plaintiff advanced the
money, and in an undertaking written on the defendant’s professionally headed notepaper,
addressed to the plaintiff, and signed by B on behalf of the defendant’s firm, it was stated that
in consideration ‘of you handing to me the sum of £4,000, we hereby undertake to repay the
said sum to you together with interest at 2% a month on the 21st day of May 1969’. The
defendant knew nothing about the loan. It was not repaid on time, and when the plaintiff
demanded repayment the defendant said that he knew nothing about the loan and he
repudiated any liability under the written undertaking. The plaintiff took out an originating
summons against the defendant and the judge held that the undertaking was binding on the
defendant because it was within B’s implied or ostensible authority. Onn appeal:
Held: Assuming that the written undertaking was given by the defendant, since it was merely to
repay money lent it was not an undertaking given by him in his capacity as a solicitor, even
though the money was for the benefit of a client, but was given in his personal capacity.
In regard to money, an undertaking given by a person in his capacity as a solicitor was usually
one to pay money which he held in trust or an undertaking to apply money in a particular way,
accordingly, the first requirement for the exercise of the court’s summary jurisdiction over
solicitors for breach of an undertaking was absent.
**The court has from time immemorial exercised a summary jurisdiction over solicitors. They
are officers of the court and are answerable to the court for anything that goes wrong in the
execution of their office. Even if the solicitor has been guilty of no fault personally, but it is the
fault of his clerk, he is accountable for it: see Myers v Elman.
Page 201 of 211

**This jurisdiction extends so far that, if a solicitor gives an undertaking in his capacity as a
solicitor, the court may order him straightaway to perform his undertaking. It need not be an
undertaking to the court. Nor need it be given in connection with legal proceedings. It may be
a simple undertaking to pay money, provided always that it is given ‘in his capacity as a
solicitor’-United Mining v Becher
**If such an undertaking is given, the court may summarily make an order on the solicitor to
fulfil his undertaking (see Re a Solicitor) and, if he then fails to do so, the court may commit
him to prison. Alternatively, if it is an order to pay money, execution may be levied against his
property.
**This summary jurisdiction means, however, that the solicitor is deprived of the advantages
which ordinarily avail a defendant on a trial. There are no pleadings; no discovery; and no oral
evidence save by leave. The jurisdiction should, therefore, only be exercised in a clear case.
Al-Khandari v JR Brown
The plaintiff was the wife of a Kuwaiti national. The two children of the family were included
on the husband’s passport. The parties separated and the husband abducted the children and
took them to Kuwait. He was persuaded to return to England with the children and consented
to an order granting the plaintiff custody, care and control of the children. The husband was
granted access on his undertaking, inter alia, to deposit his passport with the defendants, who
were his solicitors. The husband later indicated that he wished to use his passport to return to
Kuwait and wanted the children’s names removed from it. The defendants, after informing the
plaintiff’s solicitors, forwarded the passport to their London agents with instructions to take it to
the Kuwaiti Embassy to get the children’s names removed. The defendants told the plaintiff’s
solicitors that they would not release the passport to the husband and also requested their
agents not to. However, the embassy stated that they could not remove the children’s names
from the passport immediately but would retain the passport while the children’s birth
certificates were obtained. The husband told the defendants that he would take the necessary
documents to the embassy the next day. The defendants, relying on an assurance from the
embassy that the passport would be safe, did not send anyone to be present when the husband
was at the embassy and did not inform the plaintiff’s solicitors of what had happened. While
the passport was in the embassy’s possession, the husband persuaded the embassy to release it
to him. The husband then arranged for three persons to kidnap the plaintiff while he abducted
the children and took them out of the country to Kuwait using the passport to do so. The
plaintiff brought an action against the defendants claiming damages for, inter alia, negligence,
contending that the husband was able to recover the children because of the defendants’
negligence and that the circumstances were such that the defendants, albeit they were her
husband’s solicitors and not her own, owed her a duty of care.
Held: Although a solicitor would not normally owe a duty of care to his client’s opponent in
hostile litigation, he would owe such a duty if he stepped outside his role as solicitor for his
client and accepted responsibilities towards his client’s opponent.
When the defendants gave an implied undertaking to retain the husband’s passport and not
release it to the husband, they were not acting as solicitors or agents of the husband but as
independent custodians of the passport subject to the direction of the court and the joint
direction of the parties. In the circumstances the defendants owed the plaintiff a duty to take
reasonable care to keep the passport in their possession and to inform the plaintiff if for any
reason it ceased to be in their possession.
Page 202 of 211

The defendants were in breach of that duty because, having regard to the husband’s previous
abduction of the children, there was a real risk that if he obtained the passport he might abduct
them again, there was a more than negligible risk that the embassy might release the passport to
the husband, and if the plaintiff had known that the passport was no longer in the defendants’
custody she could have prevented the husband having access to the children on the day the
abduction took place. Furthermore, the damage suffered by the plaintiff was a natural and
probable consequence of the defendants’ breach of duty. The defendants were accordingly
liable to the plaintiff.
On the evidence the plaintiff suffered severe injuries, both physical and mental, the latter
having long-term effects. In the circumstances the appeal would be allowed and judgment
entered for the plaintiff for damages.
First Consequence- Court’s Inherent Jurisdiction
 The court will usually only enforce an undertaking by summary process where there has been a
serious dereliction of duty. See:
United Mining and Finance Corporation v Becher
The court has jurisdiction on the application by a person to whom a solicitor gives an
undertaking in his capacity as solicitor to exercise its summary procedure to compel the
solicitor to carry out the undertaking, even though the applicant is not the client of the solicitor
and the undertaking was not given in the course of legal proceedings and there is no suggestion
of dishonourable or discreditable conduct on the part of the solicitor
**For the court to enforce a solicitor’s undertaking as such, it is an essential requirement that
there be a promise made in his capacity as a solicitor
**Although the court would usually order performance of the undertaking, where
performance was impossible, the court could order the solicitor to pay compensation to any
person who had suffered loss because of the solicitor’s failure to implement his undertaking,
provided it was shown that the failure amounted to professional misconduct or serious
dereliction of duty.
Lecturer: In this case, the enforcement of professional undertakings was placed at the highest
standard of conduct that is required of attorneys and it is this high standard that justifies special
control that the court exercises over its officers.
 Consequently in some cases, attorney may be called upon summarily to perform undertakings
even where the attorney has not been guilty of dishonourable conduct. Here, the court will
order the attorney to perform the undertaking to compensate a person who has suffered loss as
a result of his failure to perform.
**Note that this power will only be exercised in clear cases and otherwise, the more
appropriate course of action would be an action at law to recover damages from the attorney.
See:
Page 203 of 211

Geoffry Silver (supra)
Rooks Rider v Steel
The plaintiff solicitors acted for H Inc which had agreed to lend £35m to C Ltd at interest of
10% per annum, on condition that C Ltd would in advance provide H Inc with a letter of credit
to cover the first year’s interest and would pay H Inc’s costs. The plaintiffs agreed to act upon
a written undertaking given by the defendants. It later transpired that H Inc had no funds and
its directors never intended to make the loan but intended to use the loan agreement as a
means of fraudulently securing money from C Ltd or elsewhere in advance of the loan. The
plaintiffs nevertheless sought to enforce the undertaking given by the defendants in respect of
the plaintiffs’ costs of preparing the loan documentation. They applied for an order to that
effect, pursuant to the court’s inherent jurisdiction in relation to solicitors’ conduct. The
defendants contended that they were entitled to refuse to pay because the undertaking had
been vitiated by H Inc’s fraudulent intention.
Held: It was professional misconduct for a solicitor, without lawful justification, not to comply
with an undertaking.
On the facts, the plaintiffs were not affected by any illegality arising from the fraudulent
intention of H Inc in entering into the transaction, and there was therefore no lawful
justification for the defendants not to comply with the undertaking.
Morris v GLC (supra)
The CoA expressed revulsion at the attorney’ s conduct and considered sanction imposed by
the disciplinary committee for him to repay the outstanding balance on the original loan and to
receive a reprimand as being benevolent an mild.
LIABILITY FOR COSTS THROWN AWAY
 In Yonge v Toynbee, an attorney who acts in litigation without authority from its clients may
become liable in costs to the opponent. The CPR makes provision for a wasted costs order to
be made against attorneys in certain circumstances in litigation.
 An attorney is therefore under a duty to avoid embarking on useless litigation and not to
continue proceedings where the prospects of success are non-existent.
 Even before the Canons, it was accepted at common law that the courts have an inherent
jurisdiction to make such orders as to costs. (Myers v Elman)
 It is in the exercise of this inherent “compensatory” jurisdiction that the court may order the
attorney to pay the costs of the other side or in some instances, both sides or to bear his own
costs. See:
R & T Thew v Reeves
Page 204 of 211

The jurisdiction of the Supreme Court over solicitors as officers of the court is both punitive
(in which case it can strike a solicitor’s name off the roll or suspend him) and compensatory (in
which case it can order a solicitor to pay the costs of his own client, those of the opposite party
or those of both). In so far as it is punitive it is usually inappropriate for the court to exercise
the jurisdiction of its own motion, such matters generally being reported by the court to the
Law Society for the consideration of the Solicitors Disciplinary Tribunal.
**In so far as the jurisdiction is compensatory, it is retained by the court itself, and the court
may act on its own motion or on the application of the party who has incurred useless costs as
a result of the conduct of the solicitor of which complaint is made.
To warrant the exercise of the jurisdiction the solicitor’s conduct must be inexcusable and such
as to merit reproof; mistake, error of judgment and mere negligence are not generally sufficient
to call into operation the exercise of the court’s jurisdiction.
 The older cases seemed to require that there was gross misconduct or negligence on the part of
the solicitor before the jurisdiction could be exercised. However some cases provide that the
jurisdiction is to be exercised with care and discretion in clear cases. See:
Orchard v S.E.E.B
The plaintiff instructed solicitors and obtained legal aid to bring an action against the defendant
electricity board claiming damages for negligence and/or breach of statutory duty and alleging,
inter alia, that faults in the electricity supply provided by the defendants to his house had
caused substantial quantities of water to appear in parts of the property, such as the floor,
ceilings and light sockets. The defendants by their defence alleged that the damage was self-
inflicted. Prior to the trial the defendants’ solicitors wrote to the plaintiff’s solicitors warning
that in their view the action was misconceived and if it was proceeded with and was
unsuccessful they intended to apply for an order making the solicitor personally liable for their
costs. The judge found that the damage to the plaintiff’s house had been deliberately caused
by the plaintiff’s son and that the plaintiff and his family must have been aware of that. The
judge accordingly dismissed the claim. The defendants then applied for an order that the
plaintiff’s solicitors be personally liable for their costs, contending that the plaintiff’s claim was
so obviously bizarre and unlikely to succeed that the solicitors had been guilty of serious
misconduct in bringing and continuing the litigation.
Held: Although the court had jurisdiction to order an unsuccessful party’s solicitor to pay
personally the costs of the opposing successful party, that power would be exercised with great
care and only where there was clear evidence that the solicitor had allowed to proceed an
action which was so inappropriate that it could only be mala fide or amount to an abuse of the
process of court.
 The CPR provides that the court may direct wasted costs be paid by an attorney in cases where
such costs have been incurred as a result of improper unreasonable or negligent act or
omission by an attorney. See also:
Ridehalgh v Horsefield
Page 205 of 211

The court, in exercising its jurisdiction to ensure that litigants should not be financially
prejudiced by the unjustifiable conduct of litigation by their or their opponent’s legal
representatives, would only make an order if it was satisfied that the conduct characterised as
‘improper, unreasonable or negligent’ directly caused the wasted costs complained of, and
would be astute to safeguard against wasted costs orders becoming a back-door means of
recovering costs not otherwise recoverable against a legally aided or impoverished litigant.
The meaning of the words ‘improper, unreasonable or negligent’ was well-established and not
open to serious doubt. Improper covered any significant breach of a substantial duty imposed
by the relevant code of professional conduct, as well as conduct which would be improper
according to the consensus of professional opinion, whether it violated the letter of a
professional code or not.
Unreasonable described conduct which was vexatious, designed to harass the other side rather
than advance the resolution of the case, and it made no difference that the conduct was the
product of excessive zeal and not improper motive, since the acid test was whether the conduct
permitted of a reasonable explanation.
Negligent was to be understood in an untechnical way to denote failure to act with the
competence reasonably expected of ordinary members of the profession.
**If an advocate’s conduct in court was improper, unreasonable or negligent he would be

liable to a wasted costs order. However, a legal representative would not be held to have acted
improperly, unreasonably or negligently simply because he acted for a party who pursued a
claim or defence which was doomed to fail. On the other hand, a barrister would be liable to a
wasted costs order if he lent his assistance to proceedings which were an abuse of the process
of the court.
Lecturer: This case suggests that there is overlap among the 3 criteria. The order will be made,
where in the course of proceedings, the attorney allowed costs to be incurred or wasted by
undue delay or without reasonable cause.
 The solicitor will only have to pay costs which his default caused. See:
Holden v CPS
In five separate cases the question arose whether the court had jurisdiction to order the
solicitor acting for the defendant in a criminal trial personally to pay the whole or part of the
costs of the prosecution.
In the first case the defendant was charged with possessing a shotgun without a licence. His
defence was that the shotgun did not belong to him but to his brother. The defendant’s
solicitors knew the brother’s address but made no attempt to contact him until the first day of
the trial because they were told that he had gone to ground and would be unwilling to attend.
In fact the brother was still living at his last known address and after two visits from the police
shortly before and during the trial the brother attended the Crown Court but by the time he
arrived the jury had already retired. The trial judge discharged the jury and ordered a fresh
trial. He further ordered the solicitors to pay the costs thrown away. In the second case the
defendant was charged with drug offences. His solicitors indicated that he would probably
Page 206 of 211

plead guilty but when the case was listed for a plea counsel of the defendant’s choice was not
available and he decided to plead not guilty. The defendant’s solicitors were unable to arrange
a conference with the defendant’s chosen counsel until the morning of the trial. Following that
conference the defendant changed his plea to guilty with the result that the witnesses who had
been summoned were not needed. The trial judge ordered the solicitors to pay the costs
thrown away. In the third case the solicitors instructed to represent the defendant under a legal
aid certificate had little or no contact with the defendant prior to his trial and considered that a
conference was not necessary. When the defendant failed to appear at the trial it had to be
adjourned and the trial judge ordered the solicitors to pay the costs thrown away on the ground
that the solicitors had lost contact with the defendant and ought to have notified the court of
that fact. In the fourth case the defendant was charged with dishonestly obtaining a pecuniary
advantage by failing to disclose her previous convictions when applying for employment with a
security firm. At the trial defence counsel sought to exclude evidence of a conversation
between the defendant and a police officer regarding her previous convictions and the trial was
adjourned to enable the prosecution to obtain a memorandum of convictions. The trial judge
ordered the defendant’s solicitors to pay the costs of the adjournment. In the fifth case the
defendant was charged with robbery and assault. His defence was that although he had been in
the vicinity of the alleged crime he had not taken part in it. Before the trial the defendant’s
solicitor was informed of a possible alibi witness but the defendant’s solicitor was unable to
interview him. In the course of the trial the defence served an alibi notice on the prosecution
and the trial was adjourned for two hours to enable the prosecution to investigate the alibi.
The trial judge ordered the solicitor to pay the costs of the adjournment. The solicitors in the
five cases appealed against the orders made against them.
Held – The court retained an inherent jurisdiction in both civil and criminal cases to make an
order that the solicitor acting for the defendant personally pay the whole or part of the costs of
the other side if his conduct involved a serious dereliction of his duty to the court which caused
extra costs to be incurred.
**However, an improper act or omission which fell short of a serious dereliction of duty was
not sufficient for an order to be made against a solicitor for personal payment of costs.
**Moreover, the object of such an order was not punitive and therefore the amount of the
costs which the solicitor could be ordered to pay was limited to the costs which his default had
caused.
On the facts, the solicitors in the first case had been guilty of a serious dereliction of their duty
to the court in not attempting to contact the defendant’s brother before the trial and their
appeal would be dismissed. In the second, third and fourth cases the solicitors had not been
guilty of a serious dereliction of their duty to the court and their appeals would be allowed. In
the fifth case the defendant’s solicitor had been in breach of his duty to the court in not serving
an alibi notice before the trial but since he had acted in the genuine belief that he was not in
breach of his duty to the court and that he was acting in the interests of his client it was not an
appropriate case for an order that the solicitor personally pay the costs thrown away and
accordingly his appeal would be allowed.
Canon VIII (d)- A breach of Canon VI (d) shall constitute misconduct in a professional
respect and an Attorney who is in breach thereof shall be subject to any of the orders contained
in s. 12 (4) of the Legal Profession Act.
Section 12 (4) LPA- On the hearing of a complaint of professional misconduct, the

Committee may as they think just make any such order as to the payment by the Attorney of
any such sum by way of restitution as they may consider reasonable.
Worksheet 14- Remuneration
Page 207 of 211

 Once an attorney is retained then the ordinary terms which are applicable to a person who
employs a professional man to do professional work on his behalf, i.e. that he should
remunerate him, comes into effect. See:
Adams v London Improved Motor Coach Builders
The plaintiff was a member of a trade union which provided legal aid for members in
connection with their employment. The plaintiff had duly paid his contributions to the union
and was entitled to benefits. The plaintiff laid his claim against the defendants for wrongful
dismissal before the executive council of the union and they decided to give him legal aid and
instructed the solicitors to the union to act for the plaintiff. The plaintiff gave no written
retainer to the solicitors. There was no agreement with the solicitors that the plaintiff was not to
be liable to them for their costs. They issued a writ on his behalf during the preliminary stages
and at trial.
Held: The union acting on the plaintiff’s behalf, engaged the solicitors to act for him and they
became his solicitors and he was liable to them for payment of their costs.
**When once it is established that the solicitors were acting for the plaintiff with his knowledge
and assent, he becomes liable to the solicitors for costs and that liability would not be excluded
merely because the union also undertook to pay costs
It was necessary in this case to go a step further and prove that 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.
 Agreements for remuneration between attorney and client should be clear, unambiguous and
preferably in writing because any ambiguities or anomalies would be resolved in favour of the
client- CONTRA PROFARENTUM RULE
 The agreement for remuneration should take into account the rules relating to entire and non-
entire contract. See:
Romer & Haslam
R had acted as solicitors for a company in various matters and in particular, certain arbitration
proceedings between them and another company which lasted for about 2 years. The first
hearing lasted 28 days and when it came to an end the arbitrator made his award. But an
application was made by the company to set aside/remit the award. It was subsequently sent
back to the arbitrator twice. The first bill was sent in August for arbitration proceedings and
other matters done to June 1890. The second bill was sent for business done to June 1891.
The third bill was sent for work done to December 1892 and the fourth bill was sent for work
done to June 1892. Each bill was accompanied by a letter from the solicitor. Those sent with
the first and third bills contained no request for payment.
Held: The greater length to which the proceedings were continued enabled the bill of costs to
be split up and sent in separate portions.
Page 208 of 211

**If this principle is to be applied, there is that kind of break in the proceedings in the present
case. There was reference and award and assuming that the proceedings were continuous,
there was a break when the award was made. A break which would have been the conclusion
of the whole matter.
Here the bills were delivered at 12 month intervals and letters were sent intimating that there
must be payment and we are of the opinion that they do not amount one continuous bill.
**When a solicitor is retained to conduct litigation, other than an ordinary action at common
law, which may extend over a considerable period of time and in which breaks may occur of
such kind as to be equivalent to the conclusion of a definite and distinct part of the
proceedings, he may deliver to his client a bill of costs for business done up to the occurrence
of any such breaks in the litigation and demand payment.
**Where however, in the course of the proceedings, several bills of costs have been sent in at
different times, it is always a question of fact whether they were sent in as final bills for work
done up to the occurrence of any such break so as to be separate bills OR whether they were
merely statements of account or portions of one entire bill.
 If unusual expenses or charges are to be incurred on behalf of the client, then the client’s prior
and specific approval should be obtained. In particular, the client should be told whether
expenses will be irrecoverable on taxation (assessment of bill cost).
Blythe v Fanshawe
Where a solicitor proposes to incur unusual expense in the course of an action, such as taking
shorthand notes of the evidence or procuring the attendance of experts and scientific witnesses,
it is his duty to point out to his client that such expense might not be allowed on taxation as
between party and party and might therefore be borne by the client whatever might be the
result of the trial
Therefore where the solicitor had omitted such a duty, he was not allowed on taxation as
between solicitor and client the costs of shorthand notes of the evidence, although the client
authorized him to employ a shorthand writer to take notes and used and otherwise availed
himself of them after they had been so taken.
 The fees charged by an attorney should be fair and reasonable. See:
Canon IV (f) – The fees an attorney may charge shall be fair and reasonable and in
determining the fairness and reasonableness of a fee any of the following factors may be
considered:
(a) time and labour required

(b) novelty and difficulty of the questions involved and the skill required to perform the legal
service properly
(c) likelihood that the acceptance of the employment will preclude other employment
(d) the fee customarily charged in the locality for similar services
(e) the amount involved
Page 209 of 211

(f) time limitations imposed by the client or by the circumstances

(g) nature and length of the professional relationship with the client
(h) the experience, reputation and ability of the attorney
(i) whether the fee is fixed or contingent
(j) the scale of fees or recommended guide as to charges prescribed by the Incorporated Law
Society of Jamaica, the Bar Association or any other body approved by the GLC for the
purpose of prescribing fees
RECOVERY OF COSTS
 An attorney cannot sue for costs unless he renders a bill of costs. That bill must be signed by
the attorney and delivered to the client. See: ss 21-28 Legal Profession Act
 An attorney is generally bound by his bill and cannot withdraw it except in special
circumstances and where the attorney has clearly acted honestly. See:
Chappell v Mehta
The defendant was a party to 5 actions due to be heard in January 1979. He retained the
plaintiff firm of solicitors to act for him and instructed them to brief counsel. Because the
solicitors would become personally liable for counsel’s fees once the brief was delivered and
the fees agreed, they obtained from the defendant a substantial sum of money on account of
counsel’s fees. Counsel subsequently advised the defendant that he had no prospect of success
in his litigation. As a result, the defendant decided to settle 3 of the actions and fight the other 2
which he lost. The defendant expressed dissatisfaction with counsel counsel to the solicitors
and instructed them not to pay counsel’s fees. The defendant also instructed the solicitor to
take steps to see whether there was any prospect of a successful appeal and the solicitors
instructed different counsel to advise. Thereafter the solicitors delivered 6 bills of costs to the
defendant who disputed them. None of the ills included counsel’s fees. The solicitors
subsequently realized that they had not dealt with counsel’s fees and applied to the court for
the bill to be withdrawn and deliver a new bill.
Held: Although as a general rule a solicitor was required to deliver a bill of costs which was
final and in the interests of his client would not be allowed to amend a bill once it was
delivered, if there were special circumstances the court had jurisdiction to allow a solicitor to
withdraw the bill.
Since there was no evidence that the solicitors had been negligent or had tried to deceive the
court and since it would be unjust if the court were to allow the defendant to assert that the
solicitors were responsible for counsel’s fees and that he was not, it was clearly a case where it
was appropriate for the court to allow the solicitors to withdraw the bills and present a new one.
**There is clearly a jurisdiction for the court in special circumstances to allow solicitors to
withdraw their bills once they have delivered them. It is for the court to decide whether those
special circumstances arise. **If the solicitors have acted honestly then maybe they should be
allowed to have their original bills withdrawn.
 The bill of costs is subject to taxation and will contain any expenses incurred by the attorney in
pursuit of the matter.
Page 210 of 211

CONTINGENCY FEES- NO WIN/ NO FEE ARRANGEMENT
 Contingency fee arrangement occurs where an attorney’s right to receive payment is made
contingent on his client receiving an award either through settlement or judgment in his favour.
 If the client wins the attorney will be paid a percentage of the judgment award BUT if the client
loses, the attorney would receive no payment.
 This type of arrangement has often been criticized as being unethical since it may result in
conflict of interests between the attorney and the client in that the attorney would have a direct
interest in the outcome of the litigation and has the potential to undermine his ability to advise
the client.
 It could also lead to inappropriate practices being employed by the attorney in order to ensure
success- bribery, tampering with evidence and misrepresenting facts or other behaviour
amounting to professional misconduct.
 In the UK, historically, contingency fees were regarded as being contrary to public policy and
thus illegal “for Champerty”. However contingency fee arrangements were made valid by
statute in the UK in 1993 and after 1967, Champerty was no longer considered criminal
although the common law rule that contingency fee arrangements were invalid was preserved.
 The general shift in attitude towards contingency fees is based on a recognition that it would
provide more persons with access to justice due to otherwise high costs of litigation and limited
availability of legal aid.
 The Jamaican Act and canons are generally silent except that Canon IV (f) provides that in
determining whether fees are fair and reasonable one should consider if the fees are either
fixed or contingent- This suggests that these arrangement are enforceable.
Page 211 of 211

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ETHICS, RIGHTS & OBLIGATIONS OF THE LEGAL PROFESSION 2012-2013

COUNCIL OF LEGAL EDUCATION

1. The profession ought to be seen as a noble one.

Meaning of words and phrases: Attorney-at-law includes – attorney, barrister,

Hugh Wooding Committee

Other factors which acted as a catalyst for the establishment of an indigenous

Establishment of the Council of Legal Education in the West Indies

Lopes v Adams et al (1965) 9 WIR 183

Re Sinanan (1964) 7 WIR 93

General rule: no general retainer

either conveyancing, scrivening, or conducting an action, but as an official solicitor,

Groom v Crocker [1939] 1 KB 194

Groom v Crocker [1939] 1 KB 194:

It may be convenient to summarise here the characteristics principally

In terms of formalities, a retainer is a contract; it could be in writing or oral. Generally

Definition of Contra Preferentem Rule : Contra Proferentem is a Latin term which

See the case of Griffiths v Evans [1953] 2 All ER 1364.

*Griffiths v Evans [1953] 2 All ER 1364

 Billing arrangements, when fees will be billed and payable.

*Danish Mercantile v Beaumont [1951] 1 All ER 925; Young v Toynbee [1910] 1 KB

*Danish Mercantile v Beaumont [1951] 1 All ER 925

*Young v Toynbee [1910] 1 KB 21

existence of that authority. Solicitors were instructed by a client to conduct his

Worksheet 3 is a continuation of discussion on retainer.

*Underwood and Piper v Lewis [1894] 2 QB 306: The contract of a solicitor

Romer v Haslam [1893] 2 QB 286: Where a solicitor is retained to conduct

*Warmington v McMurray [1937] 1 All ER 562 : The defendant had embarked

Milner v Sons v Percy Bilton [1966] 2 All ER 894: Negotiations being in

*Underwood and Piper v Lewis [1894] 2 QB 306

Note examples of a situation where an attorney would be justified in terminating a

*Richard Buxton (Solicitors) v Mills-Owen [2010] All ER (D) 242 (Feb)

Decision of Mackay J [2008] EWHC 1831 (QB) reversed.

*Richard Buxton (Solicitors) v Mills-Owen [2008] EWHC 1831 (QB)

Look at canons/codes to see the requirements in relation to termination where there is a

Watts v official Solicitor [1936] 1 All ER 925

a solicitor discharging himself should not be allowed to exert his lien so as to

A v B [1984] 1 All ER 265

Concept of Actual Authority

*Thompson v Alexander (1964) 6 WIR 538: The respondent offered to

*Blythe v Flanshawe (1882) 10 QBD 207: Where a solicitor proposes to incur

Apparent or Ostensible Authority

*Freeman & Lockyer v Buckhurst Park Properties Limited [1964] 2 QB 480:

Liability for Acting Without Authority

*Yonge v Toynbee [1910] 1 KB 215: Where an authority given to an agent has,

Straker v Maraj (1984) 39 WIR 22: Although there is no express rule in

*Spector v Ageda [1971] 3 ALL ER 963

A memorandum of agreement dated September 8, 1967, stated that M lent to the

I accept, of course, if a client instructs his solicitor to carry through a transaction

Such an argument has only to be stated to be rejected; in my judgment, it is wholly

Johnson v Thomas (1991) 28 JLR 40

undisclosed bankrupt, of fraudulent trading and of obtaining credit while an

*Marks v Spencer plc v Freshfields [2004] 3 All ER 773: RA Ltd, a company

See Canon 1V j-m.

Conflict in relation to former clients

*Young v Robson Rhodes [1999] 3 All ER 524 Members of a Lloyd's syndicate,

*Solicitors Regulation Authority v Dennison [2012]EWCA Civ 421

The appellant solicitor (D) appealed against a decision

Sales to and by the Attorney

Intervivos Gifts from the client to the Attorney

as to the duty of a separate solicitor called in to advise a donor in the case of an

Re Eastmond (1995) 50 WIR 76: A client instructed an attorney at law, E, to act

BEQUESTS OR DEVISES TO ATTORNEY BY CLIENT

*Wintle v Nye [1959] 1 All ER 552: In summing-up to a jury on the question