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ENGLISH PROFESSIONAL CASES
Bates v. Lord Hailsham
Chancery Division; Megarry J ; 19th, 20th July, 1972.
Ex-parte motion for injunction to prevent the Lord
Chancellor from making professional rules rejected.
The plaintiff was a solicitor and a member of the
National Executive Committee of the British Legal
Association ("the Association"). To that Association
about 2,900 of the 26,000 solicitors with practising
certificates belonged. On 1st May 1972 the Lord Chan-
cellor announced at a press conference that it was pro-
posed to abolish the scale fees prescribed under Sch 1
to the Solicitors' Remuneration Order 1883, as am-
ended, and to apply the quantum meruit system under
Sch 2 to all conveyancing transactions. Anticipating
the draft order that the Lord Chancellor was required
by s 56(3) of the Solicitors Act 1957 to send to the
Council of the Law Society ("the Council") before any
such order regulating the remuneration of solicitors in
respect of non-contentious business was made by the
Statutory Committee under s 56(2), the Association sent
out a circular to all solicitors about the proposals. On
or about 6th June the Law Society received a draft of
the proposed order, for consideration by the Council
and for the submission of observations within a month
for consideration by the Committee, as provided by s 56.
The date of the meeting of the Committee for the making
of the order was fixed for 19th July at 4.30 p.m. On
21st June the draft order was published in full in the
Law Society's Gazette. On 11th July the Association
sent printed submissions to the committee. These con-
cluded with a request that the order should not be
approved at that juncture and that the Lord Chancellor
should seek further consultations with the profession
and professional organisations. On 14th July the Associa-
tion despatched letters to each member of the com-
mittee seeking further time and suggesting a deferment
of the final decision "for perhaps two months". On
17th July the Association sent out a circular making a
series of accusations against the Lord Chancellor and
the Law Society. On 18th July the Lord Chancellor
wrote to the Association saying that he saw no reason
for postponing the meeting of the Committee or for
refraining from making an order in such terms as the
Committee approved. On the same day the plaintiff
issued a writ against the members of the Committee. He
contended that the draft sent to the Law Society had
been prepared by the Lord Chancellor's department
and had not been considered by the Committee, and
claimed (i) a declaration that any order made by the
Committee under s 56 would be ultra vires and void
unless the draft had been considered by the Committee
and an opportunity had been given for representations
on the proposed order to be made by the Association
and other representative bodies, and (ii) an injunction
restraining the committee from making an order until
those steps had been taken. At 2.00 p.m. on 19th July
the plaintiff moved exparte for an injunction to stop
the committee making an order at its meeting at 4.30
p.m.
Held
—The motion would be dismissed for the
following reasons—
(i) The Committee's function under s 56 was of a
legislative and not an administrative, executive or
quasi-judicial nature, and so it was not bound by rules
of natural justice or by any general duty of fairness to
consult all bodies that would be affected by the order
it made under the powers delegated to it by s 56. It
was only required, under s 56, to consider before mak-
ing the order the written submissions of the Council, so
that even when a momentous change, such as that
proposed in May by the Lord Chancellor, was to be
made it was not required to extend the time limit or
to provide an opportunity for representations by bodies
other than the Council.
(ii) In any event the delay in applying for the
injunction had not been sufficiently explained. Ex parte
injunctions were for cases of real urgency, where there
had been a true impossibility of giving notice of
motion.
Duchess of Argyll v. Beuselinck
Before Mr. Justice Megarry, 3 May 1972.
Defendant solicitor not guilty of negligence for not
advising client about tax liability.
The plaintiff was desirous of getting her life story
published and entered into a contract with L.I.P. Ltd.
to act as her literary agents for the publication of a
series of articles. She gave a retainer to the defendant,
who was a solicitor and an author, in general terms in
relation to the proposed memoirs. He was brought into
the matter primarily to "vet" the proposed publications
for libel, although he soon introduced the question of
copyright. He found that what was in contemplation
was to be "a minor industry" for the exploitation of
the plaintiff's memoirs. Thoughts of income tax passed
through his mind, but in the face of her resolute refusal
to sell the diaries and other material on which the story
was to be based he did not raise the matter further
with her. On the eve of his departure abroad, L.I.P.
Ltd. sent him a draft agreement with a newspaper
group for the publication of a number of articles, but
he was not allowed to take it away. He went abroad
and received an urgent call from L.I.P. Ltd. to get the
agreement approved at once. This approval was given
by his articled clerk for whose action he admitted full
responsibility. The form of the agreement involved the
plaintiff in a considerable tax liability. She now claimed
damages from the defendant on the grounds that he
was negligent in that (i) if he had given her the advice
which he ought to have given her, her tax liability
would have been substantially reduced; and (ii) he
had failed to advise her that the terms of the agreement
should be considered by an experienced tax Counsel
or an experienced accountant, or both.
Held—-by Megarry, J., that whether or not the duty
of care owed by the defendant was that of the average
prudent solicitor, or that of the defendant himself,
who had a reputation in the world of authorship, in
the circumstances, especially his justifiable expectation
that what appeared to be in contemplation was a "minor
industry" for the multiple exploitation of the plaintiff's
memoirs and the fact that someone else's draft agree-
ment was put before him for approval, the defendant
was not guilty of negligence.
Judgment for defendant.
Per Megarry, J. : No doubt the inexperienced
solicitor is liable if he fails to attain the standard
of a reasonably competent solicitor. If the client
engages an expert, and doubtless expects some-
commensurate fees, is he not entitled to expect some-
thing more than the standard of the reasonably com-
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