The Gazette 1971

instituting proceedings on behalf of a client against the Racing Board for recovery of money won on the tote. COMMISSIONS TO SOLICITORS FOR INTRODUCING OF BUSINESS In the view of the Council it is improper and contrary to the Prevention of Corruption Act, 1905, for a solicitor or other agent to accept or seek a commission from a third party in consideration of showing preference to that third party when dealing with a client's business. This applies to commission paid by a building society to a solicitor for introducing clients' money as an invest- ment. Disclosure to the client of the fact that a com- mission or advantage is received removes the case from the prohibition. LAND COMMISSION RECEIVABLE ORDERS Following representations from the Society the Depart- ment of Lands have agreed to revert to their former practice of showing the Land Registry folio number on receivable orders for payment of land annuities. COSTS OF THE SALE OF GOOD WILL Members asked whether they were entitled to charge the full fee under the Solicitors Remuneration General Orders on the value of property sold where the value of good will was included in the price. Opinion C 32 of the Council set out at page 211 of the 1968 edition of the Members' Handbook provides as follows : In the opinion of the Council good will may be either (a) adherent good will such as the good will of a licensed premises which attaches to the prop- erty or (b) personal good will such as the good will of a solicitor's practice which follows the owner. In the former case it has been the practice of the profession to charge the scale fee on the whole consideration including the value of the good will. The Council were of the opinion that this practice is in accordance with the law notwithstanding English decisions to the contrary cited in costs textbooks. These decisions are based on the English Solicitors Remuneration General Orders, the terms of which are different to those of the Solicitors Remuneration General Order, 1884. On the recent inquiry the Council stated that if the value of the good will is shown in the contract and is included in the deed of conveyance Opinion C 32 applies. REGISTERED LAND ONE SALE WITH SEVERAL TITLES Members wrote to the Society stating that he acted for a client in the sale of property comprised in three separate folios to the Irish Land Commission. The examiner in the Land Commission had directed that the facts be submitted to the Society for a ruling as to the correct basis of charging costs. The greater portion of the lands are comprised in a folio which is subject to equities. The equity note can be cancelled only after investigating the pre-registration title. The smaller part is comprised in two folios in one of which there is no equity note and in the other of which the equity note can be cancelled under the thirty year registration rule i.e. Rule 33. L.R.R. 1966. The Council considered Opinion C 38 and C 40 in the Society's Handbook and also the opinion published in the November 1969 Gazette, page 54. The Council decided to revoke the decision published in the November 1969 Gazette. They are of opinion that where the title to registered land is comprised in several folios the solicitor for the purchaser is entitled to treat each folio separately and should 3

as follows. A solicitor is acting unprofessionally if he knowingly institutes proceedings for a client on a non- existent (as distinct from a valid although unenforce- able) contract or cause of action. It is therefore unpro- fessional to threaten or institute proceedings on behalf of a client for a gaming debt which falls within the prohibition of the statute even although no attempt is made to disguise the nature of the action. A summary of this opinion was printed in Opinion DR 12 of the Council in the Members' Handbook. Opinion DR 70 dealing with instructions to sue on wagering contracts also stated that the Council advised a member who had been instructed to recover an amount arising out of a wagering transaction that he could on the client's instructions write a letter requesting payment of the amount alleged to be due but without any request for costs. The letter should contain no threat of proceedings failing payment and member was advised that he should take no further steps in the matter. The Gaming Act, 1845, 8 and 9 Vic. Cap. 189, Section 18, enacted that all contracts or agreements whether by parole or in writing by way of gaming or wagering should be null and void and that no suit should be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won on any wager. This Act was repealed by the Gaming and Lotteries Act, 1956. Section 36 (1) enacted that every contract by way of gaming or wager- ing is void. Sub-section (2) enacts that no action shall lie for the recovery of any money or thing alleged to be won or to have been paid upon a wager or which has been deposited to abide the event on which the wager is made. Sub-section (3) enacts that a promise expressed or implied to pay any person any money paid by him under or in respect of a contract to which the section applies or to pay any money by way of commission, fee, reward or otherwise in respect of the contract or of any services connected with the contract is void and no action shall lie for the recovery of any such money. The view of the Bar Council is that since the court cannot entertain an action based on a gaming trans- action it would be an abuse of counsel's privilege to assist in bringing any such matter before the court to sign his name to any documents connected with such a proceeding. In order to remove doubts the following ruling was made on 7/11/1957. Whether it is proper for counsel to settle an affidavit in support of a claim on foot of a wagering transaction. It is undesirable that counsel should settle such affi- davits. Further it is undesirable for counsel to settle originating documents in claims on foot of wagering transactions or to hold a brief for the plaintiff in such claims. The Tote The position, however, is different with regard to claims against the Racing Board for bets on the total- isator. Counsel has advised that the ruling of the court on gaming debts does not apply having regard to the decision in Tote Investors Limited v Smoker (1968, 1 Q.B. 509) in which the English Court of Appeal held that a contract by a backer who puts money on the tote is not a contract by way of gaming or wagering and is therefore not governed by the provisions of the Gaming Act, 1845, Section 18. The basis of the decision is that the tote can neither win nor lose, merely receiving a commission on the turnover of bets and that the essence of a gaming or wagering transaction is that each party must be a winner or a loser. The Council having considered this decision stated that there is no profes- sional objection which would prevent a solicitor from