The Gazette 1952-1955

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). I n 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 UNDERTAKINGS BETWEEN SOLICITORS.

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 69 o f the Solicitors' Act, 1932 (See Section 3, 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