MAY 2004 Q 5

Handel’s files: Retainer Deposit of 75 000 Several of Handel’s files given by H to A inc

o Some related to defenceo Legal opinion on meaning of drug trafficking

All files relating toHandelAbdul’s personnel files on employeesAbdul’s personal filesClient Account FilesBank Statements

Communications, whether oral or in writing, bet A & C- inc his predecessors in title & in certain circumstances bet A & 3rd ptys are afforded legal protection by the CT (privileged communications) Waugh v Brit Rly Brd; Minet v Morgan

Part B Code of Ethics Rule 15

A shall never disclose, unless ordered to do so by the court or req’d by statute what has been communicated to him in his capacity as A by his C’s A and this duty not to disclose extends to his partners to Jnr A’s assisting him & to his employees, provided A may reveal confidences or secrets necessary to estab or collect his fee or to defend himself or his employees or associates vs an accusation of wrongful conduct……………………………………..

This privilege from disclosure is absolute not qualified ie once the claim of priv is comes w/in the rule, the comm. are absolutely inadmissible in evidence whether

oral or in writing/documentary. A Cannot disclose unless C lifts the veil.(c waives). This privilege is continued indefinitely. It is A’s duty to claim priv from disclosure for C’s benefit, if A is called upon to disclose such comm. in

evidence, yet the priv is the priv of the C.

R v Derby’Mag Ct ex p B

Applicant arrested for murder of 16yr girl. At the time of arrest, he made stmt to police admitting sole resp for the M. shortly b4 trial, he retracted the stmt & alleged his steppops had killed the girl, so he was acquitted. The stepfather was subs charged w the girl’s M.At the committal proc, counsel for the steppops XXm the applicant, asked about the instr initially given his Sol when admitting the M. The applicant declined on the grds of LPP.Appln made thereafter for a witness summons to be issued directing the applicant’s Sol to produce notes & proofs of evidence disclosing the relevant instr.At the hearing the Mag held:The aplicant’s instrc were”likely to be material evidence w/in the section”, & having weighed the pub int in securing that all relevant evidence was available to the defence, ordered that the summons be issued.A 2nd summons was issued to applicant himself by which summons the applnt applied for JR of the mag’s decision

HL held The production in CT of docments which were sub to legal PP which had not been waived by C, cld not be ordered, as the predominant pub int in such instances, was the preservation of LPP AND NOT the securing that all relevant evidence was available to the defence. This is so even where there was no recognizable or continuing int in preserving the confidentiality of the communications.

per Lord Taylor of GosforthThe refusal of the C to waive his privilege, for whatever reason, or no reason, cannot be qu’ed or investigated by the CT.He quoted w approval L Lyndhurst LC, who observed that The principle upon which the rule is estab in that comm. bet a pty & his prof advisers shld be unfettered & they shld not be restrained by the apprehension of such comm. being afterwards divulged and made use of to his prejudice.The necessary confidence will be destroyed if it be known that the comm. can be revealed at any time.

Priveleged Communications:Handel’s files:

Retainer Several of Handel’s files given by H to A inc

o Some related to defence

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o -Legal opinion on meaning of drug trafficking- if it was made in contemplation of a matter in which H’s case is to be prepared that facts from H’s communications are incorporated into the opinion, that document is privileged.

Because these Communications, whether oral or in writing, bet A & C- inc his predecessors in title & in certain circumstances bet A & 3rd ptys are afforded legal protection by the CT (privileged communications) Waugh v Brit Rly Brd; Minet v Morgan

All files relating toHandel will be privilged.

Files not attaching the privelegeAbdul’s personnel files on employees Abdul’s personal files Client Account Files Bank StatementsBecause acc to R 15 Part B Code of EthicsA shall never disclose, unless ordered to do so by the court or req’d by statute what has been communicated to him in his capacity as A by his C’s A. Those files do not concern any comm. bet A, in the capacity as A with his C. are are thus not protected by LPP.

MAY 2004 Q 6a) C pd 15000 US to appear as advocate in civil trial expected to last 5 dys, which is settled by day 1.

An attorney shall not charge fees that are unfair and unreasonable: Code of Ethics, Part B r.10(1).Breach of these rules, having the force of law (since made under the LPA):Renders agmt unenforceableMay also constitute professional misconduct O. 62, RSC provides guidelines for quantifying an attorney’s charges re contentious business in the absence of a scale of feesThese have been formulated for the guidance of the Taxing Master for the purposes of taxation of a bill, but are still taken into account by attorney in charging fees.

Scale of Fees To a ltd extent the appendix 1 sets out the costs to be charged by an attorney re certain contentious business. fees are calculated in 2 stages:Expense / Hourly Rate Factor General Care and Conduct / Uplift /Profit Cost FactorPer Donaldson J, Property and Reversionary Investment Corporation Ltd. v Secretary of State for the Environment Object of the exercise in applying method is to arrive at a sum that is fair and reasonable, having regard to all the circumstances of the case.Stage 1- Expense / Hourly Rate Factor Factor A

Time spent on client’s business / or any aspect thereof by attorney, his partner, or employee, Excluding time spent on a part of the case for which there is already a fixed charge [prescribed by stat/

RSC]. Gen- calculated on an hourly rate, having regard to the overhead expenses of the firm. If the time spent is that of employee – the reasonable (notional) salary of employee/ partner is used.

Since this matter is contentious C may have calculated this fee at an hourly rate for the cost of litigation for a 5 day period.

Also C may have factored in General Care and Conduct / Uplift /Profit Cost Factor when calculating this figure of 15 000 eg the general guidelines of complexity of the matter, her skill & experience introduced into the matter.

However, since the case has been settled on Day 1, the hourly rate factor wld have been significantly reduced, nws that C may have regard for the time already spent (by C & anyone assisting her) in preparing the case.

Additionally, since no actual litigation proceedings were conducted, C’s Advocacy skill & experience wld not have been demonstrated over the 5 days nws that she may have used her negotiating skills to secure a settlement.

The 5 days reserved by C whereby she wld have been precluded from doing other matters/work or from obtaining more work/clients is now reduced to 1 day from which she wld have been precluded from engaging in other matters.

Therefore her fee shld reflect this as a reduction under both categories of calculating the hourly rates & the general care & conduct of the matter.

To avoid any allegations of misconduct for charging fees that are either unfair or unreasonable: Code of Ethics, Part B r.10(1), C ought to reduce her fees.

b) Lisa acts 4 purchaser in conveyancing transaction, the purchase price is US 100 000.Factors guiding in charging fee.

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Overriding principle r.10(1) Part B, Code of Ethics. Quantum of fees chargeable by an attorney, whether re contentious or non-contentious business, is req’d by law to be fair and reasonable:

To det what is fair and reasonable, following factors must be taken into account:- (a) (i) the time labour req’d

(ii) the novelty and difficulty of the questions involved (iii) the skill req’d to perform the legal service properly

(b) likelihood that acceptance of the employment will preclude other employment by attorney;

(a) the fee customarily charged in the locality for similar legal services;(b) amt if any involved;(c) time limitations imposed by the client or by the circumstances;(d) nature and length of the professional relationship with the client;(e) the experience, reputation, ability of the attorney;(f) any scale fees prescribed by Law Association.

OTHER REGULATORY GUIDELINESSolicitors (Remuneration professional Charges) Order, made under s. 55 of the repealed Solicitors Act but saved by s. 52(4) of the LPA also sets out regulatory guidelines – essentially the same as those provided by Part B r.10 of the Code.

SCALE OF FEESAlso used to det the fees chargeable re non-contentious business-The Attorney s-at-Law (Remuneration)(Non-Contentious Business) Rules 1997, made under s. 52 LPA, prescribe the maximum fees which may be charged by an attorney re non-contentious business to which the rules apply.

The scale of fees, will prescribe the maximum fees that Lisa may charge for non contentious business, having compared the type of transaction (conveyance) and value of the sub matter to the scale of fees.When considering all the other factors that may impact on the fee charged, Lisa must be mindful that she cannot exceed this maximum fee prescribed by the scale of fees.

c) Contingency fees- if Savi wins p.i. case she will be permitted to take 20% of damages awarded tog w costs awarded by Ct 7 pd by other side. Can Savi do this?

This arrangement is really a contingency fee arrangement, where attorney’s rt to receive payment is made contingent on his client receiving an award by settlement /judgment.POSITION IN ENGLISH-SPEAKING CARIBBEANLPA contains no provisions re contin agmts.Hwr, the Code of Ethics, Part B, r.10(3):

An attorney shall not charge a contingency fee except reasonable commissions on collection of liquidated claims with the prior agmt of the client.

This provision is deemed to be subsidiary legislation having been made under the LPA, and thus has the force of statute.

General Grounds for Objection UnethicalCld result in conflict of interest between attorney and client –attorney wld have a direct financial interest in the outcome of the matter. This cld affect his ability to render impartial advice.

Cld lead to improper practicesAttorney’s anxiety to ensure client’s success cld lead to improper practices on his part, e.g.

o Solicitation of businesso Bribery of jurorso Coaching of Witnesses

Position in EnglandHistorically regarded as contrary to public policy or illegal for maintenance or champetry.

Maintenance- defined by Lord Denning M.R., in Re Trepca Mines Ltd, improperly stirring up litigation and strife by giving aid to one party to bring or defend a claim w/out just cause or excuse

champetry- def’n by Scrutton L.J. in Ellis v Torringtonis where a person who maintains, takes reward, a share in the property received.

Hwr, 2 developments impacted on the validity of such agmts:-3

1. s 58 of the Ct and Legal Services Act 1990 and the Conditional Fee Arrangments Order made thereunder.Cond agmts are now valid enforceable provided they fall w/in the scope of the proceedings specified therein i.e. subject to statutory restrictions as provided for in the Legal Services Act 1990. Those outside the scope of Act are void.Act signals a relaxing and rethinking of public policy objections to such agmts. Bevan Ashford v Yeandle Ltd, per Sir Richard Scott V.C.

Notions of pub pol change with time Contin agmts in the past held champetrous and thus void wld not so be held today.

2. Criminal Law Act 1967- maintenance or champetry are no longer criminal or tortuous.But this Act preserved the c/law rule that contin agmts are invalid and unenforceable as contrary to public policy or illegal for maintenance or champetry.Rationale For The Preservation Of The C/Law RulePer Lord Denning M.R., in Re Trepca Mines Ltd, Champetry may give rise to abuses.Champetor’s maintainor may be tempted to for his own personal gains

Inflame damages Suppress evidence Suborn wits

Per Buckley L.J., in Wallersteiner v MoirRemuneration payable by client to his lawyer in event of success must be higher than it wld be if lawyer was entitled to be remunerated, win/lose.It wld be unfair to the opponent of a contingency fee litigant if he were at risk to being ordered to pay higher costs to his opponent in the event of latter’s success in the action.

Factors Influencing The Ltd Acceptance Of Contin Agmts-(i) Cost of Litigation – increasingly prohibitive(ii) Cost to gov of providing Legal Aid- escalating and becoming unmanageable.(iii) Changing Attitudes toward litigationAwward v Geraghty & Co, per Schiemann L.J. Acess to justice is regarded as a fundamental rt which ought to be readily available to others in today’s world. Previously lit was regarded as evil and recourse to the law was discouraged.

(iv) Redefining and narrowing scope of maintenance or champetry, which since 1967 in Eng, are no longer criminal or tortuous, and which form the main basis of objection to contingency agreements

Thai Trading Co. v Taylor [NOT FOLLOWED in later cases]Demonstrates changing of judicial views towards acceptance.Held: it was not now contrary to public policy for a sol acting in litigation to forego all or part of his fee if he lost, provided he did not seek to recover more than his residuary profit costs and disbursements. Ct drew distinction between (a) contin normal fee arrangements and (b) contin fee arrangements which entitle a sol to a reward over and above his ordinary profits if he wins.Per Millet L.J. (b) shld be condemned as tending to corrupt the admin of justice. S.59(2) of the Sols Act 1974 didn’t prohibit contin fees-

o Although it didn’t legitimise them if otherwise unlawful,o It does not make them unlawful if otherwise lawful.

r.8 of the Sols Practice Rules 1987 [which rule made by Law Soc pursuant to s.31 of Sols Act 1974 was merely a professional rule which did not make such contin agmts contrary to law. [r.8 prohibits a sol from entering into contin agmts re contentious proceedings].

Arguments in Favour of Contin Normal Fee Arrangements:-Awward v Geraghty & Co, per Schiemann L.J. (a) They do not increase the potential liability for costs of the client’s litigant’s opponent shld he be ordered to

pay the costs of the lit;(b) Such agmts don’t allow for the division of spoils;(c) Facilitate access to ct by members of the public;(d) If lawyer has no assets the contin normal fee arrangements merely gives effect to practical reality –lawyer

only gats pd if client wins.

Current English Position:Hughes v Kingston Upon Hull City CouncilDid not follow Thai Trading Co. v Taylor.Held: that decision in Thai was per incuriam by reason of the non-citation of Swain v Law Society.

Swain v Law Society. Held: Sol Practise Rules which were made under the Sols Act 1974, Eng were subordinate legislation having been made under s.31of the Act.

Thus ct in Hughes concluded that r.8 was not merely a professional rule but was in effect subsidiary legislation and had the force of law, thereby making contin agmts unenforceable.

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Thus –In Eng Contin Agmts, inc contin normal fee arrangements, are invalid and unenforceable as being against public policy, save made under Ct and Legal Services Act and Conditional Fee Arrangments Order made thereunder.

US POSITIONSee text.

MAY 2004 Q 8

a) J, convicted of M vs

PART B r 7If A commits offence which Disc Com thinks will bring profession into disrepute, that offence = prof misconductThe offence must be personally disgraceful xterA cannot contend he was wrongfully convictedIt is not necessary that A be prosecuted, or was acquitted on a technicality, once the Court, Disc Com or other competent tribunal is satisfied of the facts constituting the offence.

Re KingA was convicted @1st instance of conspiracy to defraud. On appeal, decision reversed (defective indictment) Proceedings to strike off roll, Denman CJ saidWe must not merely because the indictment is bad in point of law, shut our eyes to the fact that the jury have convicted him of conduct rendering him unfit to be an attorney.

Re HillUnnecessary that the offence be of a pecuniary nature nor that A should have been convicted as a practicing A. All that’s necessary is the offence brings dishonour to the profession generallyS 36(1) LPA –A Discplinary Committee formed for dealing w complaints vs As

S 39(1) LPA- Disc Com on hearing of applns if a case made out which justifies more severe punishment ie suspension or removal the Com can forward a copy of proceedings to CJ & AG w its findings/ recommendations.

S 40(2) LPA On Appeal COA may affirm or substitute the decision/penalty of the Disc Com for any decision/penalty that Disc Com cld have made or resubmit the matter to Disc Com fro rehearing.

S 41(1) LPA H/C is empowered to hear matters referred to it from Disc Com in acc w rules of ct for the purpose under s 78(1) (L) SCJA wrt to A’s prof conduct & can make the foll orders:a) removal of A’s name from Rollb) suspend A for such time it sees fitc) make any order as to costs regarding proceedings b4 it & Disc Com as sees fitd) any other order as case may req

S 41(2) LPA – 3 J’s sit at this hearing S 41(3) LPA- A has a rgt of appeal from H/C proceedings to COA

b) Attorney in ad w robes in b/suit, sipping beer, handing out calling card, “Call me for sound legal advice, I’ll call you for great beer.”

Breach of Duty to Profession & Fellow Attorneys General

Touting & AdvertisingPART B r 5 No touting/advertising/attracting unfairly businessPART B r 6 No use of advertising in any form calculated to attract clients to A/A’s firm & he shall not permit, authorize or encourage or reward anyone for doing so on his behalf.

5. No advertising except for specific instances, a. political ads relevant in pub campaign, public notices where announcement of his prof status is

req’by law or is reasonably necessary OTHER THAN to attract clients, in reports & announcements of bona fide, commercial, civil or political professional orgs of which he serves as a director/officer, textbks , articles, publications & dignified & restrained ads thereof, in announcements of public address or publication by him of legal topics prov they do not emphasize his own prof competence & are not likely to be regarded as being concerned w the giving if individual advice by him.

b. A may speak in public/write for publication on legal topics once they do not emphasize his own prof competence & are not likely to be regarded as being concerned w the giving if individual advice by him.

c. Cards, office signs, letter heads & directory listings may be used in a dignified formConduct (dress, speech, beer sipping in robes w b/suit on)PART B R 19 No discourteous/undignified conduct that degrades Ct or professionPART A R 40

R 35 Any Breach-guilty of prof misconduct. liable 2 any penalty Disc Com/Ct can impose.

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S 36(1) LPA –A Discplinary Committee formed for dealing w complaints vs AsS 39(1) LPA- Disc Com on hearing of applns were empowered to:a. dismiss applnb. impose on A (to whom appln relates) such fine it thinks fitsc. reprimand such Ad. make an order as to costs as it sees fit, & except where appln is dismissed: order A to pay applnt or person aggrieved such sum by way of compensation & re imbursement & such further sum iro expenses incidental to the hearing of the appln & the consideration of the report as it thinks fit..

MAY 2004 Q 2

Definition: Contempt is of a criminal nature where it consists of conduct or words spoken which obstruct or are calculated to obstruct, prejudice or interfere with the due administration of justice, whether re crim/civ proceedings: Izoura v The Queen

Punishment for Contempt inc:- Ct’s summary power of committal: Shipworth v the Def’s case Imposition of a fine Taking of the security for good behaviour Granting an injunction against a threatened contempt or the repetition of the act of contempt as case may be

A. Improper Conduct in the Face of the CtViolent insolent conduct before Ct or w/in the precincts of Ct : Ex p Pater.Instances of Criminal ContemptNot confined to-

contemptuous or offensive words or conduct in the face of the ct; or to disturbances of the ct hearings; but extends to any clear and unequivocal interference in the administration of justice so that it affects or is

intended to affect the course or outcome of judicial proceedings.

Steps preparatory to creating a disturbance in ct and which may have amounted to a serious contempt, if completed, does not constitute a contempt of ct: Balogh vSt Albans Crown Court.

Re Johnson

A solicitor was imprisoned for contempt of ct for assaulting the solicitor on the other side with grossly abusive expressions and threatening gestures on his way from the J’s room to the entrance gate of the ct.

Trading Insults with opponent [distinct from trading insults with ct].

This will not amt to contempt unless counsel persists in his conduct in the face of a ruling by the J or uses language so offensive or outrageous and provocative as to lead to a brawl in the ct: Re Pershadsingh.

Per Lord Denning Balogh vSt Albans Crown Court.“The jurisdiction was only to be exercised however where

the contempt had been proved beyond reasonable doubt, and where it was urgent and imperative for the judge to act immediately to prevent justice being obstructed or

undermined”

This 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 judge 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—to enable witnesses to be free from fear—and jurors from being improperly influenced—and the like. It is, of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt:

Insults are best treated with disdain—save when they are gross and scandalous. Refusal to answer with admonishment—save where it is vital to know the answer. But disruption of the court or threats to witnesses or to jurors should be visited with immediate arrest. Then a remand in custody and, if it can be arranged, representation by counsel. If it comes to a sentence, let it be such as the offence deserves—with the comforting reflection that, if it is in error, there is an appeal to this court

Per lord Denning again(i) In the sight of the court—There are many cases where a man has been committed to prison at once for

throwing a missile at the judge, be it a brickbat, an egg or a tomato. Recently, too, when a group of students broke up the trial of a libel action, 287Lawton J very properly sent them at once to prison: see Morris v Crown Office.

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There is an older case, too, of great authority, where a witness refused to answer a proper question. The judge of assize at York Castle at once sentenced him to prison for six months and a fine of £500: see Ex parte Fernandez.

(ii) Within the court room but not seen by the judge—At the Old Bailey a man distributed leaflets in the public gallery inciting people to picket the place. A member of the public reported it to a police officer, who reported it to the judge. The offender denied it. Melford Stevenson J immediately heard the evidence on both sides. He convicted the offender and sentenced him to seven days’ imprisonment. The man appealed to this court. His appeal was dismissed (Lecointe v Courts’ Administrator of the Central Criminal Court).

(iii) At some distance from the court—At Bristol 22 men were being tried for an affray. The first witness for the prosecution was a schoolgirl. After she had given her evidence she went to a cafe for a meal. A man clenched his fist at her and threatened her. She told the police, who told the judge. Park J had the man arrested. He asked counsel to represent him. He broke off the trial. He heard evidence of the threat. He committed the man. He sentenced him to three months’ imprisonment. The man appealed to this court. His appeal was dismissed (Moore v

Clerk of Assize, Bristol). Another casef was where a man was summoned to serve on a jury. His employer threatened to dismiss him if he obeyed the summons. Melford Stevenson J said it was a contempt of court which made him liable to immediate imprisonment.

To use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was not intended: Parashuram Deterem Shamdasani v King Emperor

Can J commit exercise his summary power to commit for contempt on his own motion?

Where the contempt is committed in the face of the Ct, J may commit the offender on his own motion instanter, & sans notice or formal institution of committal proceedings.

But this juris shld only be exercised in exceptional cases, per L Denning (Balogh):

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—to enable witnesses to be free from fear—

It is a pwr that J as of necessity must possess so as to maintain the dignity & authority of the Ct and ensure a fair trial. To be exercised so as to prevent disorder, to enable W to BE FREE from FEAR, & a Judge from being improperly influenced. Balogh vSt Albans Crown Court.

Balogh vSt Albans Crown Court.

This pwr must never be invoked unless nothing else will do to protect the ends of justice & ensure that a trial in progress or about to start can be brought to a proper & dignified end.

This pwr was properly invoked since the A’s conduct was such that nothing else wld have done to protect the ends of justice & ensure that the witness being X ed in C was free from fear, and also that the disorder created by A be controlled by J to maintain J’s authority of the CT.

Opportunity to explain by A in contempt.

In the CT’s exercise of its summary power to punish, for contempt in the face of the Ct, an attorney shld 1st be given an opportunity to show cause or explain his conduct b4 punishment is allowed.

Stating particulars of the Contempt

Contempt must be stated clearly & distinctly & the alleged offender shld be allowed to consult a Sol/counsel b4 he is dealt w. Re Pershadsingh

Maraj v AG is instructive in that it was held that the J had failed to explain to the appellant that the contempt w which he intended to charge him “was a vicious attack on the integrity of the Ct.”; and that his failure to do so vitiated the Appellant’s committal for contempt since he had not been afforded the opportunity to explain what he had meant by “unjudicial conduct”.

Since the J did not state the particulars which amted to the contempt and failed to give A an opportunity to explain his conduct, the committal for contempt was vitiated.

MAY 2004 Q 1

A pl in an action for neg.

A’s lawyer failed to particularize her claim properly-it disclosed no COA-

Struck out 6 mths ago but att never told A. Limitation for fresh action passed 2 mths ago.Prof Neg- Involves:

a legal duty to C to exercise care & skill breach of that duty to C to attain the standard of care & skill pres by law actual loss to C as direct result of the breach

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Myers v ElmanAlternative to neg action the Ct can always make order as to costs vs A personally to save expense of trial.If neg involves inexcusable/deplorable delay/negelect-A may be guilty of prof misconductScope of Duty (General)Padmey v RadhiaA holds himself out to C as poss’ing adequate skill, knowledge, & learning 4 purpose of conducting all business that he undertakes, whether non contentious or contentious………………………………………………………………………………………A must execute C’s instructions according to retainer by all proper means & diligence.

Godfroy v DaltonA should:

Consult w C on doubtful issues falling outside his implied/express discretion Update client as reasonably expected Comply w C’s reasonable req’ts iro his affairs Respond to C’s p. calls Keep appmts w C unless cancellation unavoidable

Scope of Duty of care (CODE OF ETHICS)PART A r 27 (1)

A shld deal with C’s business with all due speed & whenever reasonably req’d by C to provide C with full info as to progress of C’s matter

PART A r 27 (2) Improper to accept case unless A can handle it w/o undue delay

PART A r 21 (1) A should always act in C’s best int, rep C honestly, competently, & zealously & endeavour by all fair &

honourable means to get him benefit of any lawful remedy & defence, steadfastly mindful that A’s duties & responsibilities are to be executed w/in not w/o the bounds of the law

Scope of Duty of care (Contentious)A liable for :

Consequences of ignorance/non observance of rules of practice: Godfroy v Dalton Want of care in case preparation & attendance of W’s General mismanagement of conduct of a case

Fletcher & Son v Jubb, Booth & HelliwellA’s obliged to bring to the execution of their duties, reasonable care & skill & knowledge of the practice of the Ct whose process they invoke on behalf of their client…………………………………………………………………………………………..Fine dividing line in defining duty of care of reasonable skill & care in conduct of a caseHart v FrameA ought not to be liable for errors in judgment whether in law or discretion.

Duty of care (Contentious) particular instances

1) Procedural Matters

Failure to observe limitation periods Fletcher & Son v Jubb, Booth & Helliwell: S failed to inform client that time for commencing action

was running out Martins Tours v Senta Gilmore – A failed to file notice of appeal in time Kitchen v Royal Airforces Ass & Ors - S failed to commence action under Fatal Acc Act

Failure to give proper notices Murphy v Abrahams- S failed to give requisite notice iro appeal vs mag’s conviction

Failure to check relevant legis so as to determine whether C’s action was maintainable in law.

2) Evidential MattersA under duty to adduce w all due diligence all evidence relevant to C’s COA as far as is reasonable or practicable

Roe & Anor v Robert Mc Gregor & sons; Crook v Derbyshire Must make proper inquiries to make him master of C’s case, must determine what evidence is needed

to inform C, A must obtain all necessary documents & info in C’s possn & procure all evidence necessary to support case

Stokes v Trumper A liable for Examining in Chief, witnesses, when he intended XXn by interrogatories of other W, as a

result losing the case Sanders v Prothers

A neg to summon W or see their attendance a trial3) When acting as Advocate

Burgoine v Taylor Failure to attend Ct. C @ trial, unrep. Because A did not know in pursuance of Lord Chan’s Order, the

action (w others) was transferred from 1 J to another J and therefore he only looked at the Former J’s list- gross neg

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4) Want of Prosecution Allen v Sir Alfred Mc Alpine & Sons

A liable if he abandons case w/o reasonable notice to C, liable for nor prosecuting jmt of the Ct w due diligence

3 actions in 2 cases,6 yrs, & in other 7 yrs after issue of writs, all 3cases dismissed for want of pros-due to legal advisers’ fault. Delay by S was prolonged & inexcusable & likely to cause severe prejudice to the def.

Scope of Duty of care (Contentious)A liable for :

Consequences of ignorance/non observance of rules of practice: Godfroy v Dalton Want of care in case preparation & attendance of W’s General mismanagement of conduct of a case

Fletcher & Son v Jubb, Booth & HelliwellA’s obliged to bring to the execution of their duties, reasonable care & skill & knowledge of the practice of the Ct whose process they invoke on behalf of their client

Failure to observe limitation periods Fletcher & Son v Jubb, Booth & Helliwell: S failed to information client that time for commencing

action was running outEsso Petroleum V MardonPl co liable on tort & contract for prof neg estab that by doing do the mere existence of contractual duty did not exclude a similar independent duty which arose in tort by reason of the relationship proximate bet the partiesMidland Bank Trust v Hett Stubbs & KempAction commenced vs D (firm of Ss) where C claimed damages 4 neg or alternatively BOC, in failing to register an option to purchase & further failing to advise as to the necessity for so doing.DOC arose by reason of special relationship bet A & C, thus S could be liable both in tort & contract to C

Mason v Mc CleanThe att/C cases adopted Midland Bank pos)A liable in tort & contract for prf neg 4 failing to file a suit w/m stat limited time.

LPA 21/1986 s 22(1-4)S 22(1) Sub to ss2 A enjoys no special immunity from action for any loss or damage caused by his neg or lack of skill in the performance of his function

S 22(2) A is immune from suit in neg iro his conduct of litigation onlyRondel v Worsley Necessary on pubic policy grounds

S 22(3) Immunity in ss2 not confined to Ct proceedings but extends to pre-trial as is so intimately linked w conduct of the cause in ct that it cld be fairly said to be a pre lim decision affecting the way the cause is conducted(also) Saif Ali v Sydney Mitchell & Co

S 22(4) Function means a function undertaken by A irt conduct or mgment of litigation or prospective litigation whether performed in/out of ct or b4 during of after any Ct proceedings.

Pre trial workRondel v WorsleyObiter Extended to civil & criminal litigation, incl dfting & settling of pleadings

Saif Ali v Sydney Mitchell & CoSomasundaram v M Julius MelchiorActon v Graham Pearce & Co

Immunity DOES NOT EXTEND to: Instructing A or S, not acting in capacity of counsel/advocate Failing to act on counsel’s advice Failure to put the relevant issues to counsel The settling or drawing of pleadings

SAIF ALIIt would not be wise to attempt a catalogue of before-trial work which would fall within this limited extension of the immunity of an advocate from liability for the way in which he conducts a case in court.

The work which the barrister in the instant case is charged with having done negligently, viz in advising as to who was to be a party to an action and settling pleadings in accordance with that advice, was all done out of court. In my view, it manifestly falls outside the limited extension of the immunity which I have just referred to.

It follows that in my view the third party proceedings ought not to have been struck out on the grounds stated in the judgments in the Court of Appeal. Whatever other grounds there might have been for doing so have not been relied

9

on by the barrister. So, the consequence must be that the order of the Court of Appeal should be reversed, and the appeal allowed.

Guilty of Misconduct PART B r 18

A must not perform duty with undue/inexcusable delay, negligenceSankar v The StateDef A failed in his duty to

explain to C his position wrt giving or failing to give evidence place options b4 his client even if A shld then feel obliged to w/draw

MAY 2001 Q 2

Prof Neg- Involves: a legal duty to C to exercise care & skill breach of that duty to C to attain the standard of care & skill pres by law actual loss to C as direct result of the breach

Scope of Duty of care (CODE OF ETHICS)PART A r 21 (1)

A should always act in C’s best int, rep C honestly, competently, & zealously & endeavour by all fair & honourable means to get him benefit of any lawful remedy & defence, steadfastly mindful that A’s duties & responsibilities are to be executed w/in not w/o the bounds of the law

Scope of Duty of care (Non-Contentious)Liable for

Loss occ by ignorance of ordinary pts of law Failing to advise C of steps to be taken

Duty of care (Non-Contentious) particular instances1) Wills Hall v Meryck

Failure to advise that Will may be revoked by subsequent marriage of T Ross v Caunters

Failure to warn T that gift to attesting W/spouse of W is void Sykes v Midland Bank E & T Co Ltd:

Failure to ensure that the usual clauses were inserted in deed of SettlementLiability in Tort & ContractLiable for any loss accruing from breach of prof duty.

Midland Bank Trust v Hett Stubbs & KempAction commenced vs D (firm of Ss) where C claimed damages 4 neg or alternatively BOC, in failing to register an option to purchase & further failing to advise as to the necessity for so doing.DOC arose by reason of special relationship bet A & C, thus S could be liable both in tort & contract to C

Hedley Byne v HellerA prof man liable in tort if he gives guidance to anor who he knows/shd know is relying on it, who actually relies on it to his detriment.(destroying reasoning in Groom which based liability for prof neg on contractual relationship alone)

Esso Petroleum V MardonPl co liable on tort & contract for prof neg estab that by doing do the mere existence of contractual duty did not exclude a similar independent duty which arose in tort by reason of the relationship proximate bet the parties

Bell v Peter Browne & CoPl –C brought action in contract & tort fro prof neg & BOC v D-Ss for failing to take steps to protect Ps’ int either by arranging for a declaration of trust to be prepared or by reg a caution in the Land Reg. Tho the ct dismissed the case because of the date of issue of the writ, the action in contract as well as tort was time barred but J noted“It is now well estab that an action may be brought for breach of the duty either founded in contract or tort”

Liability to 3rd parties for prof negGeneral rule: A liable to C alone.Note: A is subj to professional rules & standards & owes Doc to Ct as an officer thereof

White v JonesA owes to C a duty to exercise that standard of skill & care appropriate to his status as A.………………………………………………………………………………………………A may be liable to 3rd party where DOC can be estab (in exe prof duties) esp in Will matters where 1) would be B loses gift due to 2) A’s bad/lack of preparation of will & 3) this is discovered After T’s deathThe special relationship exists bet A & 3rd party to-be B because of special nature of wills:

Usual main reason for will is to confer benefit on 3rd party Will speaks & takes effect only on T’s death

Since neg does not automatically Amt to prof Misconduct, no punitive sanction vs A’s default.

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So in :White v Jones:(A) would go scot-free. He could commit a breach of prof duty, w impunity. That cannot be right. That cannot accord w the obj the law seeks to attain when imposing upon Ss & other prof advisers a duty to exercise due prof skill & care.

Natural Impulse to do JusticeRoss v CauntersD liable to 3rd party for failing to ensure will Witnessed acc to statute, but liability restricted to 3-fold criteria to constitute neg:

i. B was person A owed DOC as B was w/in A’s direct contemplation as being likely to suffer loss by A’s failure to follow T’s instructions

ii. Breach of DOCiii. Direct loss as result

Evolution inWhite v Jones: (part of Ratio was:)“that is just fair & reasonable that the S be held liable to compensate the intended Bs in circumstances where there was no remedy in contract & the C’s estate had no effective remedy.J considered this a critical factor, further notingInst to prepare will different from other inst to S. Failure to exe them properly results in C’s purpose being thwarted but leaves C’s estate w no effective remedy

Being liable in tort, Ss appealed stating:Since would-be B suffered pure Fin loss their claim actionable only in contract, not tortNo claim lay in tort for damages iro mere loss of expectation which lay soley in contractual liability HOL- ack’d the lacuna in the law & conceptual difficulties of applying the doctrine of torious neg to such cases therefore fashioned a specific judicial remedy, “Impulse to do Natural Justice”Why ? “to deny an effective remedy…would seem to imply a refusal to ack S’ Prof role in society”

Duty to mitigateWalker v Medicott & SonsDisappointed B under duty to mitigate by:Bringing proceeding to rectify T’s will (exhausting this remedy b4 suing S)

Guilty of Misconduct PART B r 18

A must not perform duty with undue/inexcusable delay, negligenceRe A solicitor (The Eng position)Prof Neg may amt to Prof misconduct if it is inexcusable & regarded as deplorable by peers

Diggs-White v DawkinsNegligence or neglect did not constitute prof misconduct of a punitive natureCited Re Cooker: A’s must have been dishonourable to him & his profession

Witter v Forbes: A & C’s creditors, Citibank, negotiated a proposed settlement in letter dd Jan 1979 which A never communicated to C until Oct 1980A brought before General Legal Council who argued his neg was not misconduct despite it being a breach in the Canon of Ethics, since it did not involve any element of deceit, moral turpitude.

J Carey: The Canon under which that rule iro negeligence falls, prescribes the standard of professional etiquette &

professional conduct for As vis a vis their clients

The Canon of Ethics made pursuant to s 12(7) LPA provides inter alia, that the Council may prescribe standards of professional etiquette/professional conduct and s 12(7) provides that the Council may by rules for this purpose, direct that any specified breach of the rules shall constitute misconduct in a professional respect.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Simaan Gen Con v Pilkington GlassJust as equity remedied the inadequacies of CL so has the law of tort filled gaps left by other causes of action where the int of justice so req’d.

Carr-Glynn v FrearsonT exe will drafted by Ss- T left P T’s share of property. Ss advised T that doubts surrounded if T was Tin C or Jt T of property. Ss never cleared up which was the case. T died, then discovered it was Jt tenancy, passing to other Jt Ten on survivorship. P got nada. P sued S for failing to ensure the Jt tenancy was severed thereby failing to give effect to T’s wishes.

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COA (overruling decision),held that S owed DOC to P and despite T’s estate having a remedy vs S for BOD, the would-be B also could enforce her remedy vs S.“If the only person for whose benefit a valid claim could be pursued is a person who suffered no loss, & the only person who suffered loss was has no claim..it would be consistent w the approach in White v Jones to fashion a remedy in cases of this nature also if that can be done w/o imposing a double liability on a S in order to avoid which wld otherwise be an injustice.”

Scope of DOC to 3rd partyActing in subsequent transactionS acting for T in dfting will owes potential B no DOC where S acts for T in subsequent transaction which adversely affects B’s potential testamentary int.Subs Trans- no proximity of rel bet S & B since B’s int is not obj of Sub trans

Clarke v Brucelane & CoT’s will-inc devise to P of int in petrol serv station. T later retained D-Ss(drfters of will) to act granting 3rd party option to purchase serv station on T’s or T’s wife’s death, whichever was later for $X. On T’s death value of ser station way bigger. P brought owed him DOC as person under will who Ss knew would suffer by incl of option to purchase.Held: No DOC, No degree of proximity, No way was Ss contemplation of P in relation to the grant of the option, actual, nominate & direct.

Will making processS’s neg extends not only to lack/bad prep of will but to general failure to give effect to T’s wishes.Carr-Glynn v FrearsonThis is not a case where Ss were instructed to advise iro an inter vivos trans which was independent of the will making process. The service of notice of severance was part of that will making process.

Liability to 3rd party may in exceptional cases extend beyond willsHemmens v Wilson BrowneLiability can be imposed where S carries out inter vivos trans, No liability where C still alive, fault found and cld be fixed by T.…………………………………………………………………………………………….Liability to 3rd party can be imposed where S carries out inter vivos trans eg where C dead, or any other circumstance where fault is irremediable by C eg C insolvent/insane/bankrupt

White v JonesIf fautly attestation is disc in T’s lifetime, 3rd party will suffer no loss. “The cost of preparing a new will wld be recoverable by C from S.”Note: Same liability (Liability to 3rd party ) shld logically be imposed where inter vivos transaction is ineffective & defect not discoverable until donor no longer able to repair it.

Hostile Litigation If A steps outside his role as att for his C and personally accepts responsibility towards his client’s opponents, then the general rule (that A does not owe his clients’ opponents a DOC in hostile litigation) is displaced.

Al Kandari v J.R. BrowneCase involved Child custody.D-Ss implied undertaking-to P wife’ S, to retain husband/client’s passport & not release itSs deposited H’s passport deposited w Kuwait Embassy in order remove children’s names from it. Kuwait Embassy said they’d retain passport but until fils’ b/cert were presented they could not remove fils’ names.Ss, persuaded by embassy’s assurance that they’d retain the passport, w/o telling P’s Ss, gave H the fils b/cert who went unaccompanied to Embassy. H persuaded Embassy to release his passport. H then arranged for P(wife)’s kidnapping & he took 3 fils back to Kuwait w his passport.

P sued Ss for breach of undertaking. Held: When Ss gave that undertaking, they were not acting as Ss or agents of H but as Independent custodians of the passport subj to direction of the Ct & jt direction of the parties. Ss owed P DOC to take reasonable care to keep passport in safe custody (except if P otherwise agreed) & to informationm P if for any reason it ceased to be in their possession

Non Contentious BusinessConveyancingV’s A does not owe P DOC in answering inquiries B4 contract (cause P has remedy vs V for misrep given on his behalf)Where agent w/in scope acts 4 principal, it is principal Gran gelato ltd v Richcliff ltdIf A steps outside his role as att for his C and accepts direct responsibility towards 3rd party w whom his C was dealing, then the general rule (that A does not owe his clients’ opponents a DOC in hostile litigation) is displaced. A is deemed to owe 3rd P, DOC.

MAY 200 Q

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Duty to exercise Care & SkillA fails in gen duty to act expeditiously w necessary skill competence & knowledge (prof neg) PART A r 21May be guilty of prof misconduct also, depends on circumstances

Misconduct of a punitive nature

PART B Code of EthicsR 14 A shall not retain $ for more than absolutely nec on behalf of CR 18 A must not perform duty with undue/inexcusable delay, negligenceR 31 In pecuniary matters A- most punctual & diligent, NO mingling of his & C’s $R 32 A shall keep clear, accurate accounts of $ position bet A and C

R 35 Any Breach-guilty of prof misconduct. liable 2 any penalty Disc Com/Ct can impose.

In the matter of Gail Robinson & Beverly Scobie, Ss & in the matter of the Inherent Juridiction of the Ct:Unprofessional conduct is not limited to cases where the misconduct charged amts to an indictable offence or is professional in xter but extends to all cases where the S’s conduct is improper ie such as to render him unfit to be an officer of the Ct

Gail Robinson & Beverly Scobie & In the matter of the Inherent Juris of the CTPre fusion NIB (client of Ss law firm)made summary jment appln for pyment of balance of $3million w int, which NIB had entrusted to Ss firm.At end of Order 14 proceedings, J Deyalsingh, ruled f/o NIB & found a prima facie case of wrongful conversion was made out vs Ss.

Course to be adopted(Scobie supra) J Deyalsingh said that as a HC J he had a rgt & duty to exercise the Ct’ juris to discipline the Ss,The Ct’s inherent juris iro Ss cannot be disputed…It is incumbent on the Ct to see that the conduct of its officers is beyond reproach & punish those whose conduct is unbecoming og the officer.The 2 Ss were summoned to appear in H/C to show cause why their names should not be struck off the Roll.

S 42 LPANws anything in the Act, the pwr, juris & auth vested in the Ct (b4 this act) by C/L wrt discipline or written law to deal w contempt by A shall continue to be exercisable.

Nevertheless except in most urgent & exceptional cases the proper course to adopt is that: Preferable course : S 37(2) LPAJ to make /cause Reg to make a report to Disciplinary Com where evidence of misconduct or criminal offence by A surfaces at the hearing of a matter or other Ct proceedings

R & T Thew v Reeves No2 Ss, Par Contre, are admitted by the Ct & so Ct exercised juris over Ss, their names are entered on the Rolls of the Ct & are subj to disciplinary juris of the Ct.(Law Society has been delegated all punitive powers over Ss) since “ it would be inappropriate for any J to exer his punitive juris of his own motion. J wld appear to be both prosecutor & J…which does not become him well. It shld be avoided in all but the most exceptional case

Alternative to s 37(2) LPA is to refer the matter to DPP if evidence discloses criminal offence may have been committed by As. (as done by J Deyalsingh in Scobie)

If the alleged misconduct involves criminal elements, the Ct can exercise both alternatives ie exercise its juris to discipline the As & strike them off the Roll/make a report to Disc Com vs A and also refer to DPP.

Re A solicitor (The Eng position)In so far as upholding & maintaining professional standards of conduct, this was primarily a matter for the profession to determine.Ct should accept high standards expressed through the Disciplinary Committee

Re A solicitor (The Eng position)Prof Neg may amt to Prof misconduct if it is inexcusable & regarded as deplorable by peers

Diggs-White v DawkinsNegligence or neglect did not constitute prof misconduct of a punitive natureCited Re Cooker: A’s must have been dishonourable to him & his profession

Witter v Forbes: A & C’s creditors, Citibank, negotiated a proposed settlement in letter dd Jan 1979 which A never communicated to C until Oct 1980A brought before General Legal Council who argued his neg was not misconduct despite it being a breach in the Canon of Ethics, since it did not involve any element of deceit, moral turpitude.

J Carey:

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The Canon under which that rule iro negeligence falls, prescribes the standard of professional etiquette & professional conduct for As vis a vis their clients

The Canon of Ethics made pursuant to s 12(7) LPA provides inter alia, that the Council may prescribe standards of professional etiquette/professional conduct and s 12(7) provides that the Council may by rules for this purpose, direct that any specified breach of the rules shall constitute misconduct in a professional respect.

Professional Misconduct Fraud/Misapropriation of C’s FundsForde v Law Society : Re A solicitor In the matter of Gail Robinson & Beverly Scobie Any form of fraud/dishonesty by A vs C’s interests –prof misconduct inclMisapropriation of C’s fundsFailure to apply funds for the intended purpose: Re A solicitorOvercharging Re EastmondFailing to keep proper accounts Re A solicitor

S 33 LPA No21/86

Council may make rules wrt keeping/operating of C’s accts by A’s & w/o prejudice to the generality of the foregoing such rules may (a) Prescribe type of C’s accts to be kept, manner of operating them, the particulars & manner to

recorded (b) empower council generally to take such action as may be necessary to enable them to ascertain

whether the rules are being complied with.

MAY 2000 Q 6

B consults ML from L&L to bring action for BOC vs FB then retains P&S to inst proceedingsF approaches RM @ L&L to defend her in same proceedings

a) Bs Objections for F being represented by L&L-

P&S objects on B’s behalf that RM, a partner in L&L cannot act for F because he would be acting vs a former client in the firm in the same matter & thus they wld be in breach of their continuing duty to preserve the confidentiality of info imparted during the subsistence of the Att-Client relationship

Acc to COA in Rakusen v Ellis Munday & Clarke, there is no general rule that an Att who has acted 4 some person either before or after litigation began can in no case act 4 the opposite side in the same or connected matterThe Ct in such instances must XXn the facts of each case & must be satisfied that mischief & real prejudice wld result from the Att so acting.

Followed in Johnson & Williams held that an Att who had acted for one party in an action shd not be restrained from acting for the opposite pty but must undertake not to communicate secrets.

Allen v Allen held that there was no objection to Ss who had acted for D in the preparation of doc for advertisement of a mtgage, acting in opposition proceedings relating to the passing of a 2nd mtgage as it was not suggested that any confidence reposed in the Ss iro the mtagge trans had been or was likely to be violated. In Ct’s opinion, no conflict of int or duty arose in the Ss so acting.

However, it is submitted that these cases are not representative of the current position on the issue esp in light of the HL’s decision in Prince Jefri Bolkiah v KPMGAlso submitted that that the ratio in Rakusen is an overstatement of the law and a more accurate & current representation on this issue is that a firm of As is disabled from acting vs a former C in the same or connected litigation unless the firm can satisfy the Ct that :

i) the A currently acting vs the former client is not the same att in the firm who formally acted for AND was retained by the C in the same or connected litigation

ii) there is no real risk of leakage of info

Moreover, the facts of Rakusen do not support the expansive ratio of the case – there were only 2 partners in the firm & it was estab that both prtys were accustomed to conducting their business separately & Sans Knowledge of each other’s Cs, & also, when P was consulted with M, with a view to bringing the action (for wrongful dismissal vs his former employer) the other partner C (who eventually acted for the former employer) knew nothing of this prior consultation & in fact was away at the time when it occurred. The Ct was satisfied that in the special circumstances of that case it was not necessary for it to intervene by granting an injunction preventing D firm from acting vs P in the proceedings.

Evidential BurdenThe burden of proof is on the pty seeking to restrain his former A from acting for anor C in the same connected matter.

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That pty must show that A is in possession of confidential information, the disclosure of which he has not given consent & such disclosure is adverse to his interest

Once this burden is satisfied, the onus shifts to the A acting for the opposing client in the same/connected matter to show that :

There is no risk that the information will come into possession of those in the firm now acting vs the former C. [Re A Firm of Solicitors 1992]

Acc to Prince Jefri once there is a risk of disclosure of confidential info, though not a substantial one, the Ct will intervene & grant an injunction since to require that there be a real risk or reasonable probability of real mischief as required in Rakusen because it

A) imposes an unfair burden on the former CB) exposes the Former C to a potential & avoidable risk to which he has not consentedC) fails to give former C a sufficient assurance that his confidence will be well respected

Thus P&S will seek an injunction from the Ct restraining L&L from acting vs their former C in the same or connected litigation.

b) Basis of objectionsIn cases like these, where an Att or firm who has at one time acted for a C & subs purports to act vs that C, the Ct balances 2 competing ints –

1. Entitlement of C to full confidence of S & that there shld be no risk or perception of risk that confidential info will be disclosed to any one else

2. The freedom of A to obtain inst from any member of the pub and of all members of the pub to instruct such A: [Re A Firm of Solicitors 1995]

Prince Jefri, Lord Hope of Craighead observed,Altho the case concerned a firm of accts, the Ct is req’d to exercise the same juris to intervene on behalf of a former C of the firm as it exercises in the case of a S.

Wrt a former C, Millet LJ opined that unlike the position where an existing C is concerned & where the Cts’ intervention is based on an inescapable conflict of int, -The Cts jurisdiction is not based on any conflict of int, real or perceived, because there is none.The fiduciary relationship which subsists bet S & C comes to an end with the termination of the retainerThe only duty which survives is the continuing duty to preserve the confidentiality of the former Cs’ info imparted during its subsistence, the disclosure of which C has not given consent.

c) L&L will need to take steps to ensure that there is no risk of disclosure of confidential info, not even a substantial risk, else Ct will intervene & grant an injunction restraining L&L from acting vs their former C in the same/connected matter.

Steps L&L can take to prevent leakage of confidential info by creating a co called Chinese Wall which were considered in Re A Firm of Solicitors 1992 where:A proposal was made by the firm of Ss who had acted in connected litigation vs the former C for the erection such a wall or Information Barrier . These inc:

i) providing a diff team to act vs the former Cii) locating the team in diff department & in a different blg

But the COA held, while ack that the former C’s Ss proposed measures to erect what reads like a formidable Chinese Wall to prevent leakage of info w/in the firm it was insuff to guard vs inadvertent leakage of info.

HOL in Prince Jefri was prepared to accept that a Chinese Wall which was an established part of the organizational structure of a firm and not created ad hoc cld be an effective barrier vs the leakage of confidential info.

However in order to be acceptable & effective, per Lord Millet, the foll measures ought to be implemented:i) physical separation of the depts to insulate them from each otherii) an education programme emphasizing the importance of not improperly or inadvertently

disclosing/divulging confidential infoiii) monitoring by compliance officersiv) disciplinary sanctions in cases of breach &v) strict & carefully defined procedures

In Re A Solicitor 1992, there was no such info barrier or Chinese Wall in existence or integrated into the institutional framework of the firm, The firm of Ss in that case proposed the erection of an info barrier after an injunction was granted restraining them from acting vs the former C.

MAY 2001 Q 5

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ML leaving Ct said “no chance of justice from this judge. His mind is made up..Not a fit person to try anything..unendowed with much brains & was a briefless barrister b4 going on to the bench.” Overheard by public.

J heard of it, & issued a bench warrant for M’s arrest.

M brought b4 Ct, J stated “By your words you have scandalized the Ct & I find you guilty of contempt.”

Then sentenced her to 14 days imprisonment.

M Wishes to appeal, raise arguments for her.

1. Do the conduct & words amt to contempt?

B. Improper Conduct in the Face of the Ct

(i) Accusing J / ct of a lack of impartiality or integrity

Vidyasagara v The Queen

Attorney was found guilty of contempt by Superior Ct of Ceylon for making an allegation of ‘the improbability of impartiality on the ct’s part’.

(ii) Willfully insulting trial J; using improper or offensive language or remarks to a J: R v Gray

(iii) Violent insolent conduct before Ct or w/in the precincts of Ct : Ex p Pater

Though M’s words were not said in the face of the Ct per say, the sentiments expressed wold amt to :

(iv) Scandalising the Ct

This constitutes any act done / writing published which is calculated to bring ct or J into contempt or lower his authority or interfere with the admin of justice.Rv Gray, supra.

Note: Criticism of Ct / its decision [oral/written], even if inaccurate, is not a contempt provided that the criticism is not actuated by improper motives or a malicious attempt to impair the admin of justice.

(ii) Within the court room but not seen by the judge—At the Old Bailey a man distributed leaflets in the public gallery inciting people to picket the place. A member of the public reported it to a police officer, who reported it to the judge. The offender denied it. Melford Stevenson J immediately heard the evidence on both sides. He convicted the offender and sentenced him to seven days’ imprisonment. The man appealed to this court. His appeal was dismissed (Lecointe v Courts’ Administrator of the Central Criminal Court).

(iii) At some distance from the court—At Bristol 22 men were being tried for an affray. The first witness for the prosecution was a schoolgirl. After she had given her evidence she went to a cafe for a meal. A man clenched his fist at her and threatened her. She told the police, who told the judge. Park J had the man arrested. He asked counsel to represent him. He broke off the trial. He heard evidence of the threat. He committed the man. He sentenced him to three months’ imprisonment. The man appealed to this court. His appeal was dismissed (Moore v

Clerk of Assize, Bristol). Another casef was where a man was summoned to serve on a jury. His employer threatened to dismiss him if he obeyed the summons. Melford Stevenson J said it was a contempt of court which made him liable to immediate imprisonment.

E.g.s of Scandalising the Ct:-

a. Attacks on the personal character of J.

The comments by M did in fact amt to insulting personal xter of J, Her stmts also questioned the partiality of the J in proceedings

in a manner that was actuated by malice & by improper motives, since she driven primarily by rage. per Atkin L.J. in Ambard v AG of T&T,

The path of criticism is a public way: the wrong headed are permitted to err therein: 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 immune.

Therefore her words having the effect of lowering the CT & J’s authority, amted to a contempt by scandalizing the Ct.

2. Did J have juris to issue bench warrant?J heard of it, & issued a bench warrant for M’s arrest.Punishment for Contempt inc:-

Ct’s summary power of committal: Shipworth v the Def’s case

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Imposition of a fine Taking of the security for good behaviour Granting an injunction against a threatened contempt or the repetition of the act of contempt as case may be

M brought b4 Ct, J stated “By your words you have scandalized the Ct & I find you

Where the contempt is committed in the face of the Ct, J may commit the offender on his own motion instanter, & sans notice or formal institution of committal proceedings.

But this juris shld only be exercised in exceptional cases, per L Denning (Balogh):

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—to enable witnesses to be free from fear—

It is a pwr that J as of necessity must possess so as to maintain the dignity & authority of the Ct and ensure a fair trial. To be exercised so as to prevent disorder, to enable W to BE FREE from FEAR, & a Judge from being improperly influenced. Balogh vSt Albans Crown Court.

Balogh vSt Albans Crown Court.This pwr must never be invoked unless nothing else will do to protect the ends of justice & ensure that a trial in progress or about to start can be brought to a proper & dignified end.

Though in Balogh per Stevenson LJ, an order for committal cld be used in instances of contempt being committed other than contempt in the face of the CT, but he strongly observed that this pwr shld only be exercised when nothing else wld have done to protect the ends of justice & ensure that the witness being X ed in C was free from fear, and also that the disorder created by A be controlled by J to maintain J’s authority of the CT.

In M’s Case J could have caused the Reg to make a complaint vs M to the Disc Com for her misconduct.

In M’s case, there was no necessity for J to exercise his pwr of committal since there were other measures that he cld have taken to ensure that the ends of justice were protected or no trial was actually in progress when M made the comments that necessitated the J exercising his pwr of committal to see the case through to a proper & dignified end.

3. Stating particulars of the Contempt

Contempt must be stated clearly & distinctly & the alleged offender shld be allowed to consult a Sol/counsel b4 he is dealt w. Re Pershadsingh

Maraj v AG is instructive in that it was held that the J had failed to explain to the appellant that the contempt w which he intended to charge him “was a vicious attack on the integrity of the Ct.”; and that his failure to do so vitiated the Appellant’s committal for contempt since he had not been afforded the opportunity to explain what he had meant by “unjudicial conduct”.

Though J said that M’s words amted to scandalizing the Ct he failed to give the particulars (state the actual wrds) which amted to the contempt which effectively scandalized the Ct. Therefore the J still failed to properly state the particulars of the contempt.

the committal for contempt was vitiated.

3. Did J give M an Opportunity to explain by A in contempt?

Even if J did properly particularize the words of the contempt he did not allow M an opportunity to explain her conduct,

In the CT’s exercise of its summary power to punish, for contempt in the face of the Ct, an attorney shld 1st be given an opportunity to show cause or explain his conduct b4 punishment is allowed.

Maraj v AG is instructive in that it was held that the J had failed to explain to the appellant that the contempt w which he intended to charge him “was a vicious attack on the integrity of the Ct.”; and that his failure to do so vitiated the Appellant’s committal for contempt since he had not been afforded the opportunity to explain what he had meant by “unjudicial conduct”.

The J’s Failure to state the particulars of the contempt & to allow M an Opportunity to explain her what she meant by the words she used,

has the effect of vitiating the contempt and they amt to good grnds 4 appeal

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