306 / 338
Provision of Solicitors Act by which Solicitor's Clerk if
guilty of Offence in the past, has to Notify the English Law
Society
indefinitely of Every Change of Employment,
Criticised by Court.
The Divisional Court, before (The Lord Chief
Justice, Mr. Justice Ashworth and Mr. Justice Elwes)
dismissing this appeal by a solicitor's clerk against
the order of the Disciplinary Committee of the Law
Society imposing restrictions on his employment
pursuant to section 38 of the Solicitors Act, 1957,
expressed misgivings about the effects of that section
and a wish that they might be mitigated.
The Lord Chief Justice said that the order of the
Committee dated July 28, 1960 directed that no
solicitor should in connection with his practice as a
solicitor take into or retain in his employment, or
remunerate, the clerk, except in accordance with
permission in writing granted by the Law Society,
for such period and subject to such conditions as the
Society might think fit. Section 38 provided that the
Committee might make such an order where a person
had been convicted,
inter alia,
of larceny and an
application under the section was made by the
Society.
The facts were that the clerk had returned from
Kenya and got into grave financial difficulties in
1954. He was supporting four children and a sick
wife. Living in lodgings, he had over a period sold
the furniture belonging to his landlord piece by piece,
in order, presumably, to get money to live. There
were a number of offences taken into consideration
and the justices took a serious view when the case
came before them and sentenced the clerk to six
months' imprisonment. The matter did not come to
the attention of the Law Society until six years after
the event, but having regard to the provisions of the
section they had felt it their duty to take steps.
The point now taken, very ably, by Counsel was
that the Committee ought not to have exercised
their discretion to make the order, having regard to
all the circumstances.
Counsel said that, having
regard to the circumstances of the offences and to
the lapse of time, the penalty was out of proportion.
Undoubtedly it was a serious matter to make this
order ;
but it was only a controlling one and not
designed to prevent the clerk from earning his living.
The main object was to provide protection for the
public.
It was quite impossible to say that the
Committee had been wrong in exercising their
discretion and his Lordship could see no ground to
interfere. This was a serious offence and the Com-
mitee might be criticised if they did not in these
circumstances fulfil their duty.
Quite apart from this case, however, his Lordship
was rather concerned about the full implications of
the section. There was no provision limiting the
order in time. There was no means of providing that
it should remain in force for, say, five or ten years.
Moreover it was an order where any permission by
the Society had to be given to the solicitor and not
to the clerk, so that the Society could not say that
the clerk had full permission to be employed by
anyone. His Lordship could see very grave hardship
to a man of middle age, who in his youth had been
guilty of an offence, made the subject of such an
order, and led a blameless life since, since he could
get no employment without his employer knowing
full well what had happened and the clerk would be
completely at the mercy of the Society. The order
might be out of all proportion to the offence. His
Lordship would very much like the Society to
consider, without prejudice to
the question of
amending legislation, the question of publishing a
general permission, so that the man could in future
be employed without the need for any further
permission.
Mr. Justice Ashworth—I agree. I share my Lord's
misgivings as to the effect of this order on a man who
has committed a relatively trivial offence which he
has lived down. There are difficulties even in the
giving of a general permission, which would involve
the publication of the man's name, revealing his
murky past.
Mr. Justice Elwes agreed.
Mr. Webster said that the matter of disciplinary
proceedings against clerks was under review.
Mr. Justice Ashworth—A power to limit the
period of the order would be the simplest way to
avoid the difficulties.
Mr. Justice Elwes—Or a power to entertain an
application to rescind the order after a time.
Mr. Justice Ashworth—I agree.
The appeal was dismissed with costs.
In re a Solicitor's Clerk, izth November 1960.
Practice—pleading—osteo-arthritis.
In McKay
v.
McClure (Practice Note) (1960) N.I.
34, counsel for the plaintiff in an action for damages
for personal injuries mentioned when opening his
case to the jury that the plaintiff had developed
osteo-arthritis as a result of the accident. Counsel
for the defendants objected that this had not been
pleaded.
Sheil J., expressing the view that osteo-
arthritis should always be alleged in the pleadings if
it was to form part of the plaintiff's case at the trial,
gave
the plaintiff leave
to amend, whereupon
counsel
for
the defendants objected
that
the
defendants were taken by surprise and were not in a
position to deal with the allegation. Sheil J. then
adjourned the trial, discharged the jury and awarded
the costs of the day to the defendants.
94