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for the wife's costs. At the hearing the Court was
told that there had been a reconciliation and the suits
were dismissed by consent. Counsel for the wife
then informed the Court that the wife did not intend
to apply for costs against the husband. At an
adjourned hearing to determine whether, the absence
of the wife's application, her solicitor or, in the
absence of her solicitor's application, the Law Society,
could apply for her legal aid costs:
Held, that whereas at common law the solicitor's
right to costs depended on whether or not the wife
had forfeited her agency of necessity by committing
adultery, and that issue could not be determined on
adjudication on costs, the Divorce Court had a
discretion and could award costs in relief of a wife
who had been guilty of adultery; that before the advent
of legal aid, it was a practice of the Divorce Court to
protect the wife's solicitor in respect of costs
reasonably incurred in matrimonial proceedings,
usually by ordering the husband to provide security,
and if the wife failed, or her suit did not proceed,
the court would usually but not invariably limit the
order for the wife's costs to the amount paid into
court as security; and that the Legal Aid and Advice
Act, 1949, had left the practice and discretion of the
court untouched. Accordingly, since the wife had
not applied for her costs, her solicitor could make the
application and an order would be made against the
husband for the wife's costs not exceeding the sum
paid into court as security.
(Carter
v.
Carter and
Cowan [1964] 2 All ER. 968)
Accountability of Solicitor Trustee
THE extent of which knowledge acquired by a
solicitor trustee, in the course of dealing with and
for a trust estate, could be used to result in private
profit should be given careful consideration. The
facts of the case were, a testator left a minority, and
quite substantial, holding in a private company.
When an approach was made to the executors to
sell, the trust solicitor together with a member of
the testator's family made investigations and were
given proxies to attend a meeting of the company.
Saying that he represented the trust share-holding
the solicitor obtained a great deal of information
about the company's assets, which would otherwise
have been denied to him. Resulting from this, he
and the member of the family with whom he had
acted, bought a considerable number of the shares
in the company and, by selling off some of the
company's assets, managed
to make
a
capital
distribution to the shareholders in access of the
price paid. Whereupon another member of the family
and a beneficiary under the Will brought an action
for a declaration that the shares were held in trust
and for an account of the profits. The action came
before Wilberforce J., in the Chancery Division,
who held that the only thing which had made the
purchase of shares possible was that the information
in regard to the Company's affairs had clearly been
obtained because the Defendents were acting for the
trust.
The two main issues for decision in the case
were (i) were the defendants in a position of agency
towards the trust or the trustees, so as to be account–
able to the trust for any profit which they made?
(ii)
did they obtain a valid consent to the retention of
this profit? The first query was one partly of fact
and partly of law. The learned Judge pointed out
that, in his view, the true interpretation of the initial
stage was that the agency of the defendants was
continued, its nature being to use and exploit the
trust holding and its voting power to obtain inform–
ation and to strengthen the management of the
company, if possible, by securing representation on
the board of the trust holding, as well as the intention
that the defendants should acquire additional shares
with a view to obtaining control. This was no
departure from the agency. That still continued to
exist though the defendants were now acting in a
mixed capacity partly as agents for the trustees and
partly on their own account. The defendants were,
throughout, in the position of agents for the trustees
for the purpose of using the trust shareholding to
extract knowledge of the affairs of the company and
ultimately to improve the company's profit earning
capacity. His lordship made an order for declaration
of constructive trusteeship as regards portion of the
transaction, for an account of the profits as claimed,
assuming the deduction of expenditure and on
inquiry as to what was properly allowed for the
work and skill of the defendants.
(Phipps
v.
Board-
man [ 1964] 2 All ER. 187).
Libel.—Qualified Privileges
THE rule that where two or more persons are
sued in respect of a joint libel, proof that one of the
defendants was actuated by malice will defeat any
plea of privilege on the part of the others was set at
nought by Denning, M. R., Harman and Davies
L. J. J. The plaintiff brought an action against
members of a committee of an unincorporated club
and its assistant secretary, alleging libel in a letter
written on a privileged occasion. The defendants
denied that the letter was defamatory and pleaded
privilege. The plaintiff by her reply alleged express
malice. The action was first tried in 1963 but the
jury disagreed. On the re-trial in 1964 the jury
found that the letter was defamatory and awarded
the plaintiff £750 damages, but found specifically
that three of the committee members and the assistant
Secretary were not actuated by malice. The trial
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