summary re G Mayor Cooke (1889) 5 T.L.R. 407

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Solicitor appealed against his suspension for 1 year ordered by the Divisional Court constituted by Mr Baron Huddleston and Mr Justice Manisty.

The Incorporated Law Society had alleged that the solicitor had unnecessarily incurred costs of over £400 by commencing a suit for partition and sale of a property on behalf of a Mrs Allen without ascertaining whether the other parties would consent, and then proceeding to an ex-parte hearing despite being informed of their consent. The solicitor was found by the Master to have done so only for the purpose of incurring costs. The property realised 365, and then the solicitor delivered three bills of costs which amounted together to over 400. Those bills were greatly reduced upon taxation, with the Master reporting he had rushed into the suit without ascertaining whether the parties would consent to a sale, that the application was made only to increase the costs, that the hearing was unnecessary and that the bills were enormous considering the value of the estate. The Court had subsequently set aside the proceedings, with the solicitor ordered to pay the costs because he had acted discreditably, had pursued the suit to claim costs and had misled the Judge into making the Order.

The Divisional Court had held the solicitor had not been sufficiently punished by the taxation, and ordered he be suspended for one year and pay all costs of the motion. The solicitor appealed and appeared in person in the appeal. The Court allowed the appeal and set aside the decision of the Divisional Court.

Lord Esher MR held that in order for a Court to exercise its penal jurisdiction over a solicitor, it must be shown that the solicitor had done something dishonourable, and that mere negligence is not sufficient. A solicitor is bound to act with utmost fairness to his client, and neither a solicitor nor a barrister can set themselves as judge of their client’s own case. A solicitor also owes duties to the Court, including not keep back any information which ought to be before the Court. There were quarrels between his client Mrs Allen and the other parties, and Mrs Allen’s instructions were that she would not seek the agreement of the other parties and that he instead immediately pursue the suit for partition. Although the solicitor had admitted he had not sought the agreement of the other parties, he had not done so because he believes that such agreement was very unlikely, and in the circumstances he had not acted unreasonably. Whilst the application for a receiver was a fatally wrong step which ought not to have been made, it was not sufficient to invoke the penal jurisdiction of the Court. Furthermore, it could not be said that the solicitor had mislead the Court in the ex-parte application because all the statements had been made by Counsel, and all the facts were in an affidavit which was before the Judge who granted the orders. It was impossible in these circumstances to say that the solicitor had made the application only for the purpose of multiplying costs. Although the form of order sought for partition was absurdly broad, it was the course advised by Counsel and it could not be shown the solicitor knew it was wrong. The appeal should be allowed, but without costs.

Lord Justice Fry concurred, holding that it is the duty of solicitors and counsel is making ex-parte applications to show the upmost fairness and good faith, and to see that all relevant matters, whether for or against the application, were brought to the attention of the Court.

Lord Justice Lopes also concurred, saying that he was unable to draw the inferences that the Divisional Court had done.

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