General Legal Council ex parte Whitter v Frankson
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann |
| Judgment Date | 27 July 2006 |
| Neutral Citation | [2006] UKPC 42 |
| Docket Number | Appeal No 8 of 2005 |
| Court | Privy Council |
| Date | 27 July 2006 |
[2006] UKPC 42
Privy Council
Present at the hearing:-
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Mance
[Delivered by Lord Hoffmann]
Mrs Monica Whitter was aggrieved by what she alleged to be professional misconduct by her former attorney Mr Barrington Frankson. As she lived in England, she instructed her son Mr Basil Whitter to make a complaint on her behalf to the Disciplinary Committee of the General Legal Council, pursuant to section 12 of the Legal Profession Act (No 15 of 1971). Mr Whitter made the necessary affidavit, saying that he did so on behalf of his mother. The Committee heard the complaint and ordered Mr Frankson to be struck off the roll and to make restitution of moneys due to Mrs Whitter. The Court of Appeal, by a majority, (Downer and Langrin JJA, Panton JA dissenting) held that section 12 did not give the Committee jurisdiction to hear an application by Mr Whitter on behalf of his mother. She had to swear the affidavit herself. Their Lordships consider that this is too narrow a view of the statute and that the application was properly made.
The question turns upon the construction of section 12 of the Act:
"(1) Any person alleging himself aggrieved by an act of professional misconduct (including any default) committed by an attorney may apply to the Committee to require the attorney to answer allegations contained in an affidavit made by such person, and the Registrar or any member of the Council may make a like application to the Committee in respect of allegations concerning any of the following acts committed by an attorney, that is to say - (a) any misconduct in a professional respect…"
The question is whether an aggrieved person must apply in person or whether he can authorise someone to apply on his behalf and (although this may be another way of saying the same thing) whether he must make the necessary affidavit in person or whether he can authorise someone to make the affidavit on his behalf.
The general principle is that when a statute gives someone the right to invoke some legal procedure by giving a notice or taking some other formal step, he may either do so in person or authorise someone else to do it on his behalf. Qui facit per alium facit per se. Thus in The Queen v The Justices of Kent (1873) LR 8 QB 305 a landowner was entitled to appeal against a rating assessment by a notice "signed by the person giving the same or by his attorney". It was signed by his attorney's clerk. Blackburn J said, at p 307, that as the clerk had authority from the appellant to sign on his behalf, that was sufficient. The clerk's signature was treated as the signature of the appellant. He referred to R v Middlesex 1 LM & P 621 in which the statute required the churchwardens who wished to appeal against an order for the removal of a pauper to give reasonable notice. Patteson J said that the notice could be given by the agent or attorney of the churchwardens.
There are statutes which, exceptionally, require a personal signature and exclude performance by an agent. In Hyde v Johnson (1836) 2 Bing NC 776, 779-780 the Court of Common Pleas considered Lord Tenterden's Act (9 Geo. IV, c. 14, s.1) which required that an acknowledgement of a statute-barred debt should be signed "by the party chargeable thereby". The Court was struck by the contrast with the Statute of Frauds, which was enacted for a very similar purpose but said that the necessary memorandum should be signed by the party to be charged "or some other person thereunto by him lawfully authorised". The absence of a similar express provision for agency made the court conclude that a personal signature was required. In that case, a requirement of personal signature increased the protection which the statute gave to the person to be charged. In the present case, it would simply make it more difficult for him to invoke the statutory procedure.
The exceptional nature of a case like Hyde v Johnson 2 Bing NC 776 was emphasised by the Court of Appeal in In re Whitley Partners Ltd (1886) 32 Ch D 337, in which a contributory in an insolvent company applied to have his name taken off the list on the ground that he had not signed the memorandum of association himself. Section 11 of the Companies Act 1862 provided that the memorandum should be "signed by each subscriber in the presence of, and attested by, one witness at the least". But the Court of Appeal said that it was sufficient that someone had signed with his authority. Cotton LJ said, with reference to Hyde v Johnson, at p 339:
"That case I think was decided on the special ground that the enactment which...
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