The Gazette 1990

GAZETTE

nua

february

1990

LAWBR I EF

Edited by Éamonn

G. Hall, Solicitor.

S O L I C I T O R ' S I MMU N I TY

W H E N A C T I NG A S A N

A D V O C A TE

A recent decision of the UK Court

of Appeal, Civil Division,

Somas-

undaram -v- M. Julius Melchior &

Co. (a firm)

[1989] I All ER 129

should be of interest to solicitors in

this jurisdiction. The plaintiff had

brought an action for damages for

negligence against his solicitors,

alleging,

inter alia,

that he had been

over-persuaded by them to change

his story in a criminal trial by sug-

gestions that a guilty plea would

improve his position in matrimonial

proceedings between him and his

wife. The Court of Appeal held,

per

curiam,

that immunity from suit in

respect of advice given to a client

as to his plea in criminal pro-

ceedings is so intimately connected

with the conduct of the cause in

court that it is covered by the

immunity applying to the conduct

of litigation and such immunity

extends not only to barristers but

also to solicitors when acting as

advocates. But it does not apply to

solicitors when a barrister has also

been engaged to advise, although

in practice a solicitor's advice on

plea which results in a decision of

the court or which is subsequently

confirmed by counsel could not

give rise to liability on the part of

the solicitor.

The Court referred,

inter alia,

the speech of Lord Reid in

Rondel

-v- Worsley

[1967] 3 All ER 933 at

1001, [1969] 1 AC 191 at 232 when

he said:

"But the case for immunity of

counsel appears to me to be so

strong that I would find it diffi-

cult . . . . to justify a different

rule for solicitors. I have already

shown that solicitors have the

same absolute privilege as

counsel when conducting a

case. So my present view is that

the public interest does require

that a solicitor should not be

liable to be sued for negligence

in carrying out work in litigation

which would have been carried

out by counsel if counsel had

been engaged in the case".

F I N A N C E C OM P A NY

B O U ND BY I T S

UND E R V A L U A T I ON OF

D E B T D UE

In Lombard North Central pic -v-

Stobart, The Times,

March 2, 1990

the Court of Appeal held that a

finance company which under-

stated to the purchaser of a motor

car under a conditional sale agree-

ment the amount of the settlement

figure, and accepted a payment of

that amount, could not thereafter

recover the full amount due.

The unequivocal representation

by the finance company, believed

and acted on by the purchaser,

estopped it from enforcing its legal

rights under the contract.

The Court of Appeal dismissed

an appeal by the company,

Lombard North Central pic, from

the judgment of Judge Galpin in

June 1989 in Southampton County

Court in favour of the purchaser,

Vincent Stobart.

The facts of the case were that

in 1985 the purchaser entered into

a conditional sale agreement with

the company for a Volkswagen

Kamper. The cash price was

£7,600 and the total price including

interest was £10,946 payable over

five years by 60 monthly instal-

ments of £157.00.

The Court stated that the pur-

chaser paid 23 instalments and

then wanted money to go on

holiday and decided to sell the car.

In May 1987 the plaintiff enquired

of the company how much he

owed. He was told on the tele-

phone that the amount outstanding

was £1,044 and had that confirmed

in writing. On June 4, 1987 the

purchaser sold the car for £5,100

and paid the settlement fee then

£1,003 to the company. On June 8,

the company realised its mistake:

the true amount outstanding was

£5,814.

The judge in the lower court had

made two important findings: first,

that the purchaser had genuinely

believed that only £1,044 was out-

standing and second, that he would

not have sold the car had he known

the true settlement figure. Thus, by

selling the car when he would not

otherwise have done, the purchaser

had acted to his detriment.

The Court of Appeal stated it

was of the essence of equitable

estoppel that a plaintiff was pre-

vented from insisting upon his strict

legal rights. In every case it was a

question whether it would be in-

equitable to allow a plaintiff to

enforce his legal rights inconsist-

ently with his representation.

The Court of Appeal considered

that the question might have been

answered either way - but there

was no reason to disagree with the

way it was answered by the trial

judge.

P U P I L I N J U R E D D U R I NG

R U G B Y MA T C H: WAS T H E

S C H O O L L I A B L E ?

The issues raised in

Van Oppen -v-

Clerk to the Bedford

Charity

Trustees

11989] 1 All ER 273 are of

interest to parents, school author-

ities and their legal advisers.

The plaintiff was seriously in-

jured in 1980 when he tackled

another pupil in a game of rugby at

school. In the previous year, the

school had received a report from

the school medical officers' associ-