The Gazette 1952-1955

DECISIONS OF PROFESSIONAL INTEREST

explicit is similar in effect. The plaintiff whose action had slept for twelve years gave notice to proceed. The defendant went to new solicitors who gave notice o f change and took out a summons to dismiss simultaneously, whereas they ought to have served a copy o f the notice o f change on the plaintiff’s solicitors before they issued the summons to dismiss under Order V II, rules 2 (1) and (6). No damage was done to anyone by the irregularity and the point was not raised in the Court below. In the Court o f Appeal it was held that Order 70, rule (1) identical in terms with Order 69, rule (1) R.S.C. 1905 shows that non-compliance with the rules does not render the proceedings void and that the proceedings may be dealt with as the Court thinks right. The right thing to do in the present case was to ignore the irregularity. ( b ) It was held that by analogy with the Statute o f Limitations if a plaintiff allows an action to sleep for six years the Court in its discretion will usually dismiss the case for want o f prosecution in the absence o f good reason and the reasons before the Court were insufficient. (Krakauer v. Katz 1954, 1. W.L.R. 278). f ■ Proceedings fo r damages fo r professional negligence were contemplated against a firm o f surveyors and the claimants’ solicitors had an interview with the defendant firm to discuss a settlement. The discussion was without prejudice and it was arranged that the defendant firm should explore the possibility o f obtaining an insurance policy to protect the claimant against risks arising from defects in property which he hadpurchased after obtaining the surveyors’ advice. No settlement was reached and after the institution o f proceedings the defendants in their affidavit o f discovery claimed privilege against disclosure o f correspondence with insurance companies and other persons and the report prepared as the result o f the conference with the plaintiff’s solicitors. Were the documentsprotected against disclosure ? Yes. In Whiffen v. Hartwright the Judge refused to order the production of letters passed without prejudice observing that he did not see how the plaintiff could get over the express agreement though he by no means agreed that the right o f discovery was limited to the use which could be made o f it in evidence. In Stotesbury v. Turner (1943 K .B . 370) the Court held that nothing which is written or said without prejudice should be looked at without the consent o f both parties for otherwise the whole object o f the stipulation would be destroyed. This applied to efforts to compromise pending litigation. In the present case the. Court held that the reports and correspondence referred to were clearly made as a result o f a “ without prejudice ” interview and made solely for the purpose o f “ without prejudice ’*

Does a clause in a w ill declaring that a solicitor- executor shall he entitled to charge all usual professional or other charges constitute a bequest tvhich in law w ill attract legacj duty ? In New South Wales Commissioners o f Stamp Duties v. Pearse and others (1954 1. All E. R. 19) the Privy Council considered this point on the construction o f the New South Wales Stamp Duties Acts 1920-40. It was dealt with as an estate duty question although the reasoning is applicable also to legacy duty. Schedule V II to the Act specifies rates o f death duty payable on the final balance of estates o f deceased persons, different rates being chargeable on dispositions to various classes o f beneficiaries. The testator had appointed the respondent, a solicitor, as executor and trustee o f his will and had declared that the respondent was to be entitled to charge and retain and be paid all usual professional or other charges incurred by him in relation to the will against the estate. It was agreed that the value o f the benefit received by the respon­ dent under this clause was £2 50, and he was assessed to duty under the fourth column thereon. The Privy Council, following re Thorley, in which it was held that such a benefit to a solicitor-trustee was a legacy which must abate rateably with other legacies in the event o f a deficiency, held that the charging clause in the present case created a benefit which was liable to duty. In the 4th edition of Cordery on Solicitors, page 272, it is stated that a direction in a will enabling a solicitor-executor or trustee to charge for his services constitutes a bequest to him o f a legacy (being the amount o f his profit costs conditional on his doing the work) but that the duty is not claimed except possibly where a fixed annual sum is payable. (a) Has the Court discretion to disregard a technicality in failure to comply with Order VII, rule 2, R.S.C. 1905 whereby on a change o f solicitor no step in the action can be taken until notice o f change is served and filed ? (1 b ) Where an action has been dormant fo r over six years w ill the Court refuse to allow it to be continued unless special reasons are shown why it should proceed ? The Court answered both questions in the affirmative.' {a) Order V II, rule 2(1) R.S.C. (England) dealing with change o f solicitor provides that until notice o f change has been filed and served the former solicitor shall be considered the solicitor o f the party until the final conclusion o f the cause or matter. Order V II, rule 2 R.S.C. 1905 although not so