In evidence before the Committee, the sales
manager said that the offer to pay stamp duty if the
purchaser instructed the company's solicitors had
not been put to the solicitors, but was made in an
attempt to encourage the purchaser to instruct these
solicitors so that matters would be expedited.
In November, 1955, the sales manager wrote to the
solicitors stating that the purchaser desired them to
act for and " in these circumstances we shall pay
the stamp duty ". When the completion statement
was submitted it showed the costs as
-£2.1
i8s., and
no sum was included for stamp duty.
In March, 1956, another proposed purchaser was
informed by employees of the company that, if he
instructed the solicitors, he would effect a saving in
his legal costs and the company would pay his
stamp duty.
After some correspondence, this purchaser wrote
to the solicitors saying, "I understand .
.
. that if I
instructed you to act for me there would be a saving
of £25 in stamp duty and £10 for conveyance fees ",
and asking exactly how much he would have to
pay for these items.
The solicitors' reply stated : " on the question of
expenses our clients inform us that they are willing
to pay the stamp duty if the transaction is carried
through by us. In these circumstances, also, your
fees payable to us will be approximately £30 ".
The Committee in their Findings stated that " it
can hardly be doubted that an offer on the part of
the vendor that he will pay the stamp duty for the
purchaser if he instructs a particular solicitor in the
transaction is calculated to attract business unfairly
to that solicitor ", and they ordered that a fine be
imposed upon the partners of the firm concerned.
Solicitors' clerk disqualified under act of
1956
for
1953
offence.
The Divisional Court (The Lord Chief Justice,
Mr. Justice Barry and Mr. Justice Havers) dismissed
an appeal by an unadmitted solicitor's clerk againt
an order of the Disciplinary Committee of the Law
Society made on zoth September, 1957, directing
that no solicitor should in connexion with his
practice take or retain the appellant into or in his
employment or remunerate him without the written
permission of the Law Society. The order was made
under section 16 (i) of the Solicitors Act, 1941, as
amended by section n (i) of the Solicitors
(Amendment) Act, 1956, in respect of an offence
in 1953.
The Lord Chief Justice, giving the reserved
judgment of the Court, said that, by the Act of 1941,
where a solicitor's clerk had been convicted of any
criminal offence in respect of property of the solicitor
by whom he was employed or any client of that
solicitor an application for an order such as was
made in this case might be made. The amending
Act of 1956 allowed the Society to apply for an
order where a clerk had been convicted of any offence
in respect of any property, irrespective of whether
it belonged to his employer or one of his clients.
This applicant was convicted of larceny in 1953 of
property which belonged neither to his employer
nor to a client of his, and he accordingly contended
that to apply the provisions of the Act of 1956 to a
person convicted before that Act came into operation
would be to make its operation retrospective.
It was stated in Maxwell on the Interpretation
of Statutes that it was a fundamental rule of English
law that no statute should be constructed to have a
retrospective operation unless such a construction
appeared very clearly in the terms of the Act or arose
by a necessary or distinct implication; and
that
passage had been approved by the Court of Appeal.
But, in their Lordships' opinion, this Act was not
in truth retrospective. It enabled an order to be made
disqualifying a person from acting as a solicitor's
clerk in the future, and what happened in the past
was the cause or reason for the making of the order
but the order had no retrospective effect. It would
be retrospective if the Act provided that anything
done before the Act came into force or before the
order was made should be void or voidable, or if
a penalty were inflicted for having acted in this or
any other capacity before the Act came into force
or before the order was made. This Act simply
enabled a disqualification to be imposed for the
future which in no way affected anything done by
the appellant in the past. Accordingly, in their
Lordships' opinion, the Law Society had jurisdiction
to make the order complained of.
The appeal was
dismissed.
(In re a Solicitor's Clerk (1957) i W.L.R. 1219 ;
01 (X 957) 3 A11 E- R- 6l 7-)
Circumstances when an unsuccessful plaintiff in an action
to revoke probate is entitled to costs out of his estate.
O'Daly, J., held that an unsuccessful plaintiff, the
testator's brother in a jury action to revoke probate,
on the ground that the testator was mentally un
stable, is nevertheless entitled to his costs out of
the estate when the necessity for bringing the action
is occasioned by the testator's mental condition;
this is so, even where the plaintiff had previously
accepted a share of the estate under a partial intestacy
(i.e., moneys on deposit receipt) under the will, the
grant of probate of which is sought to be revoked.
Per O'Daly, J.—The plaintiff's revocation suit,
tried before a jury, concluded with a verdict in
favour of the defendant-executor. The defendant,
through his counsel, thereupon applied to have the
71