The Gazette 1952-1955

privilege in respect o f what he has said to his

solicitor and told him to communicate to his oppon

ent. (Conlon v . Conlons L td . (19 52), 2

All

E .R .,

462.)

In an action claiming a share o f partnership assets the

the plaintiff instructed A to act as her solicitor and moved

fo r an appointment o f a receiver. In

1947

b j consent a

sum o f

£3,900

was lodged in Court in the join t names o f

A and B, who were respectively solicitors fo r the plaintiff

and defendant. In

1949

the p la in tiff instructed C to act

as her solicitor. In

1951

the plaintiff mortgaged to a

bank her interest in the fund lodged with A and B, and in

1952

the plaintiff and the defendant entered into a compro

mise agreement by which the whole fund apart,from small

sums pa id to the plaintiff and the defendant, was to be

applied in discharge o f a claim fo r Income Tax and sums

to a number o f other persons. C applied fo r a charging

order in respect o f his costs against the fu n d o f

£3,900

in the join t names o f A and B. Was the fund recovered

or preserved through C’s instrumentality within Section

o f the Solicitors' Act,

1932

(See Section

Legal

Practitioners'

(

Ireland

)

Act,

1876)

notwithstanding that

the fund had been lodged with A and B before C was

retained

Yes. Harman J. held that the sum o f £3,900 was

property recovered or preserved through the

instrumentality o f C although he was first retained

after the date when the fund was created. The

Court had a discretion to declare C entitled to a charge

for his costs over the entire fund or part o f it. In

the exercise o f that discretion C was declared entitled

in the present case to-a charge for his costs on the

plaintiff’s interest in the fund in priority to the

mortgage to the Bank, who must have known

when taking the charge o f C’s statutory right to

apply for a charging order, but postponed to the

partnership debts. C’s right to a charge was not

affected by the compromise agreement between

the plaintiff and the defendants in the action.

(Wimbourne v. Fine—(1952) 2. A ll E. R. 681).

A solicitor instituted proceedings in the name o f a

Company which was controlled in equal shares by two

directors. The defendant was one o f the directors. The

instructions fo r the proceedings were given by the managing

director who was given under his agreement wide powers

o f management exercisable in his discretion. The defendant

alleged that the institution o f proceedings in the name o f

the Company was unauthorised and that the proceedings

were a nullity. The Company went into liquidation

and the liquadator adopted the proceedings on behalf o f

the Company. Could the proceedings be validly continued

Yes. It is well known that a solicitor who starts

proceedings in the name o f a Company without

verifying his instructions does so at his peril and

that if the proceedings are unauthorised they

become a nullity and the solicitor must pay all the

costs, provided that the aggrieved defendant does

not unduly delay his application to have the pro

ceedings struck out. The proceedings however

are not a nullity in the sense that they cannot be

ratified, and if the plaintiff subsequently ratifies the

act o f the solicitor the defect in the original pro

ceedings is cured, and the defendant will not there

after be entitled to have them struck out on the

ground that they were originally unauthorised.

(Danish Mercantile Co. Ltd. v. Beaumont—C.A.

—(1951), 1 All E. R., 925).

UNDERTAKINGS BETWEEN

SOLICITORS.

view o f the frequency with which undertakings

are given and accepted on the completion o f sales

and other professional transactions the Council

think it advisable to state their views on the obliga

tions o f solicitors who give them. Such under

takings are often unavoidable in order to get business

completed, and unless reliance can be placed upon

them solicitors will decline to accept them, with

consequent delay and inconvenience to the public

and the profession. The following in the opinion

o f the Council, are the general principles by which

solicitors should be guided in either giving such

undertakings to other solicitors or accepting under

takings from them :—•

(1) An undertaking should not be lightly given,

and should be avoided if possible. Many cases

will, however, occur in which the giving o f an

undertaking is necessary in the client’s interests.

(2) I f it is necessary to give an undertaking it

will be deemed to be the personal undertaking o f

the solicitor giving it unless the contrary be proved,

and the onus o f proving the contrary lies on the

solicitor asserting it.

(3) In the opinion o f the Council, a solicitor

Who gives an undertaking on behalf o f a client on

which he does not intend to accept personal

responsibility should express this intention clearly

in the undertaking by appropriate words. The

use o f such words as “ on behalf o f my client,” or

“ on behalf o f the vendor,” alone does not make

this intention sufficiently clear, and further or

different words are necessary if it is intended to

exclude personal liability on the part of the solicitor.

(4) The foregoing does not purport to be a

statement o f the law upon the subject o f solicitors’

undertakings, or to regulate the relations between

solicitors and persons other than solicitors. It is

merely a statement o f the practice which, in the

opinion o f the Council, should be adopted as a