266 / 364
[Law Institute Journal,
Victoria and Queens
land Law Society, July 1966, p. 272.]
Enforcement of Solicitor's Undertaking
The National Union Bank, Ltd., sought an order
that a solicitor
(Mr. L.) stand committed
to
Brixton Prison for failing to comply with personal
undertakings in writing given by him or on his
behalf in his capacity as a solicitor of the Supreme
Court on or about January 18, 26 and 27, 1965,
to hold to the sole order of the bank the leases of
the five several properties referred to in the written
undertakings and to account to the bak or its order
for £19,500 out of the proceeds of sale of the
properties; and in the alternative that the bank
might be at liberty to issue a writ or writs of
attachment against the solicitor on the grounds
aforesaid. During the hearing the bank abandoned
its claim under the first heading and obtained
leave to amend the notice of motion by asking for
the following orders against the solicitor :
that he
be ordered, first, forthwith to deliver to the bank
the leases of the properties known as and situate
at 287 Gray's Inn Road, and 7 Plender Street,
both in the County of Greater London, referred
to in the undertakings, and second, forthwith to
account for and pay to the bank the sum of
£2,950 being the aggregate of the sums paid by
the purchasers of the several properties referred to
in the undertakings by way of deposit and part
payment.
Held (Pennycuick, J.) :
(1) (a) the court would
not make an order on L. to do something which it
was not possible for him to carry out, and accor
dingly the court would not order L. to hand over,
in effect, the lease of No. 7 Plender Street; (b) as
L. could obtain the lease of No. 287 Gray's Inn
Road by paying off the mortgage, the court would
order him to hand that lease over to the bank.
(2) On
the true construction of the under
takings they did not cover the deposits in the
event, which had happened, of the contracts not
being completed, and accordingly the court would
make no order relating to the deposits.
Per Curiam :
In exercising jurisdiction over
solicitors as officers of the court what the court
has in practice always done is first to make a
mandatory order on the solicitor to perform his
undertaking, and, if that is disobeyed, application
for a committal order may follow and then the
order would be made.
[Re/A Solicitor (1966), 3 All E.R., p. 25.]
Consequences of Solicitors' Undertaking
In Vol. 59, No. 10, of the
Gazette
(i.e. April
issue, 1965, at page 105) the case of the National
Union Bank of Cavendish Square, London, against
Mr. Ellis Lincoln was reported. The matter subse
quently came before
the High Court Queen's
Bench Division on Thursday, 28 July 1966. The
Divisional Court (the Lord Chief Justice, Mr.
Justice Ashworth and Mr. Justice James) dis
missed with costs the appeal of Mr. Ellis Lincoln,
solicitor, against
the order of
the Disciplinary
Committee of the Law Society, on 16 June 1966
that his name be struck off the Roll of Solicitors
of the Supreme Court.
The Lord Chief Justice in his judgment said
that the allegations were that Mr. Lincoln had
failed
to comply with
the Solicitors' Accounts
Rules, 1945 to 1959, in certain respects—there was
an allegation in regard to a practising certificate,
but that had disappeared from the case—that he
had been guilty of misconduct unbefitting a soli
citor in a number of respects some of which
followed from his failure to comply with the ac
counts rules, namely, utilising money, received and
held by him on behalf of clients for his own pur
poses and purposes of other clients, and failing
adequately to supervise conveyancing clerk, Ber
tram Hall, aged 60.
In October 1965 after Mr. Lincoln had been
interviewed by an assistant to the Law Society's
investigation accountant and an investigation of
the books had been made, it was found that the
clients' ledger contained no entries in respect of
clients' banking account transactions later than 5
April 1965—and that delay certainly influenced
the Disciplinary Committee, since they treated the
books as being thereby "disastrously in arrears".
The total amount due
to clients was some
£20,900 whereas the cash available on that ac
count was some £7,237. Although there was that
shortage Mr. Lincoln had left a "cushion" of
some £6,000 which he would have been entitled
to have transferred into office account on account
of bills of costs. On analysis, £3,000 was the total
of some 61 withdrawals not posted to any clients
ledger account and which could not be, and even
today had not been, justified; £10,270 was P:::C:-J
withdrawals creating debit balances contrary to
Rule 7 was really concealing the true position.
In July 1965 Bertram Hall left; he just did not
turn up, and thereafter—and one had great sym
pathy with Mr. Lincoln in this respect—he dis
covered that Mr. Hall had been occupying his
position in the office to make money for his own
benefit and had landed Mr. Lincoln in potential
liabilities
(it was
too early
to ascertain
them)
running into tens of thousands of pounds, largely
due to undertakings Hall handed out in the name
of the firm. There was no doubt that a sub-