Law Society v Elder
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DENNING,LORD JUSTICE BIRKETT |
| Judgment Date | 21 March 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0321-3 |
| Date | 21 March 1956 |
| Court | Court of Appeal |
[1956] EWCA Civ J0321-3
In The Supreme Court of Judicature.
Court of Appeal
The Master of the Rolls, (Lord Evershed)
Lord Justice Denning and
Lord Justice Birkett
THE APPELLANT (Defendant) appeared in person.
Mr C. RODGER WINN and Mr KENNETH G. JUPP (Instructed by Messrs James & Charles Dodd) appeared on behalf of the Respondent (Plaintiff).
Mr Elder, in this appeal, has, if he will allow me to say so, presented his case with skill and courtesy to the Court, but I am bound to say that I am against him.
He was sued for a sum of £35 or thereabouts representing the contribution which he was required to make under a civil aid certificate granted on the 21st January 1954. The form of the certificate la as follows: "This is to certify that" Mr Elder, and his address Is given, "is entitled, In accordance with the Legal Aid and Advice Act 1949, and the Regulations and Scheme made There under, to legal aid as plaintiff in connection with thefollowing proceedings: As plaintiff In the High Court of Justice, Chancery Division, to take proceedings for a declaration granting full United Kingdom citizenship under the provisions of section 12 (4) of the British Nationality Act 1948. Limited to obtaining Opinion of Leading Counsel versed in Constitutional Law", Then there is a further certificate allocating a firm of solicitors, and determining the maximum contribution that I have stated, which was to be payable as to £2.5s. on acceptance (and 1 think that sum was in fact paid to the Society) and thereafter by further monthly payments of £3.5s. each.
The short facts which need to be stated are these. As will appear from the certificate that I have read, Mr Elder was claiming that he was, by virtue of the British Nationality Act 1948, a United Kingdom citizen though he had been born in India, where also his father had been born. He claimed (and I think that no one would be otherwise than sympathetic to the claim) that he was a United Kingdom citizen. Following the grant of that certificate the opinion was taken of a highly experienced leader of the Bar, Mr D.N. Pritt, who expressed great sympathy with Mr Elder's contention; but he concluded that it was not sustainable in the Courts, and advised him, therefore, that his best course was to apply for registration.
Mr Elder, not unnaturally, was disappointed with that opinion, and for that or other reasons, he did not pay the monthly instalments of £3.5s. which then fell due; and he has not paid any since. Pursuant to regulation 11 paragraph 2 (b) the certificate was liable thereupon to be discharged. Paragraph (b) states: "Where an assisted person has been required to make a contribution, and any payment in respect thereof Is more than twenty-one days in arrear". The Law Society thereupon took out a summons in the county court, claiming the balance unpaid of £35, though the total expenditure which they had incurred in obtaining counsel's opinion and so forth was over £80. Mr Elder resisted the claim, but the learned Judge was of opinion that there was no defence to the action. It is from that conclusion that Mr Elder now appeals.
Mr Rodger Winn for the Law Society takes the point that there is a short and conclusive answer to Mr Elder's objection based on the fact that pursuant to ordinary practice (and indeed to the regulations) Mr Elder executed a form (form B.2) of acceptance of an offer of a civil aid certificate which created a contract, whatever objections there are or may have been to the validity of the grant of the certificate. I confess that to my mind that seems a very formidable point of Mr Winn's. But it may be desirable that I should express a view upon the somewhat wider contention raised by Mr Elder, which is of some public significance, and I therefore do not rest my conclusion on what I will call the contract point.
The wider point on which Mr Elder told us he really rests his case follows upon the effect of section 1 of the Act, and in particular subsection (5) of that section. It reads as follows: "Legal aid shall consist of representation, on the terms provided for by this Part of this Act, by a solicitor and so far as necessary by counsel (including all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings)". Briefly, the point taken by Mr Elder is this. He says that the certificate which I have read was in truth an evasion of the purposes of the Act, a subterfuge; it merely granted, or purported to grant, legal aid for the purpose of taking advice of counsel, and not for or in connection with proceedings at all; and that the certificate being, therefore, invalid, it is impossible for the Law Society to sue for the sum assessed as his contribution there under. I pointed out to Mr Elder (and I only repeat it in case it should be perhaps of some comfort to him) that if he were right about this point, it would appear that he would be liable not merely for the £35, but for the full costs incurred on his behalf by the solicitors concerned. But I have come to the conclusion that, not without attraction though at first sight that argument might appear, it is in truth unsound.
The form of the certificate, it will be remembered, was for the purpose of aiding Mr Elder as plaintiff in proceedings in the Chancery Division. No proceedings were in fact ever taken, and it is that fact, of course, that lends colour to the argument of Mr Elder that this certificate was somewhat of a subterfuge. It is also to be noted that, under other sections of the Act, provision is made for the granting of advice (in each case by a solicitor only); sections 5 and 7. Neither of those sections has as yet come into operation; but, as Lord Justice Denning observed during the argument, it is not irrelevant to have them in mind in construing section 1 subsection (5), and I have them in mind. But I am far from persuaded that subsection (5) of...
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Re Criminal Investigations (Frankfurt)
...S. Hall-Jones, Senior Crown Counsel, for the Crown. Cases cited: (1) H., In re, 1996 CILR 237, followed. (2) Law Socy. v. Elder, [1956] 2 Q.B. 93; [1956] 2 All E.R. 65, distinguished. Legislation construed: Confidential Relationships (Preservation) Law (1995 Revision) (Law 16 of 1976, revis......
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Dugon v Williamson
...the jurisdiction of the Committee to grant legal aid for the purpose of getting counsel's opinion on the prospects of success: see Law Society v. Elder, 1956, 2 queen's Bench, p. 93. 14 Such being the case, we feel we must hold here that the defendant was an assisted person from 25th April......
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