Myers v Elman

JurisdictionUK Non-devolved
CourtHouse of Lords

Solicitor - Alleged professional misconduct - Delivering defence suspected to be false - Filing inadequate affidavit of documents - Proceedings conducted by clerk - Liability of solicitor to pay costs personally - Jurisdiction of judge.

The jurisdiction of the Court to order a solicitor to pay the costs of proceedings is not limited to cases where he personally has been guilty of misconduct, but extends to a case where his managing clerk, to whom he has entrusted the necessary work, is guilty of misconduct, as, for example, in the preparation and filing of incorrect and inadequate affidavits of documents. The jurisdiction is not limited to deal with cases of misconduct or default, but extends to the case where costs have been improperly incurred or without reasonable cause or have proved fruitless by reason of undue delay in proceeding under a judgment or order.

An order for discovery requires the client to give information in writing and on oath of all documents which are or have been in his possession or power, whether he is bound to produce them or not, but as a client cannot be expected to realize the whole scope of that obligation without the aid and advice of his solicitor, the latter has a peculiar duty as an officer of the Court carefully to investigate the position, and, as far as possible, see that the order is complied with. The solicitor cannot simply allow the client to make whatever affidavit of documents he thinks fit, nor can he escape the responsibility of careful investigation or supervision. If the client will not give him the information which he is entitled to require, or if the client insists on swearing an affidavit which the solicitor knows to be imperfect, the solicitor's duty is to withdraw from the case. A solicitor who has innocently put upon the file an affidavit by his client which he subsequently discovers to be false, owes a duty to the Court to put the matter right at the earliest moment if he continues to act as solicitor on the record.

Decision of the Court of Appeal (reported sub nom Myers v. Rothfield [1939] 1 K. B. 109) reversed, Lord Russell of Killowen dissenting on the ground that the evidence submitted to the House failed in his opinion to establish any of the charges against the managing clerk, and, therefore, the order against the respondent could not stand.

APPEAL from a decision of the Court of Appeal reported sub nom Myers v. Rothfield.F1

At the conclusion of the trial of an action in which a verdict and judgment were given in favour of the plaintiff, an application was made on behalf of the plaintiff to the trial judge for an order that the solicitors for the respective defendants should pay to her the costs of the action and of the application on the ground, as was alleged, of their professional misconduct in the proceedings. The particular misconduct alleged against one of the solicitors was that he had delivered defences which he must have known or suspected to be false and that he had prepared and permitted his clients to make affidavits of documents which were inadequate and false. It appeared that the solicitor in question had left the conduct of the proceedings in the action largely to his managing clerk, who though not an admitted solicitor was a solicitor's clerk of ability and long experience, and that, on the solicitor himself intervening, he at length obtained from the clients a further and adequate affidavit of documents.

Singleton J. who tried the action held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such misconduct in allowing the inadequate affidavits of documents to be made, and the judge accordingly ordered that the solicitor should pay one-third of the plaintiff's costs of the action and two-thirds of the costs of the application.

On appeal by the solicitor to the Court of Appeal it was held by Greer and Slesser L.JJ., MacKinnon L.J. dissenting, that, assuming that the acts in question, if done by a solicitor personally, would constitute professional misconduct on his part, the solicitor was not liable in this case, inasmuch as he had appointed a fully qualified clerk to do such business, and the acts had been done, not by the solicitor himself, but by the clerk; and further, that, even if the solicitor himself had prepared and delivered the defences, he would not by so doing have been liable, since it was not professional misconduct in a solicitor to prepare and deliver on behalf of his client a defence which he might himself suspect contained misstatements or raised false issues and put the plaintiff to the proof of his case.

The plaintiff appealed to this House.

R. A. Willes and G. B. Croasdell (for L. H. Gluckstein on active service) for the appellant. The substantial question is this: does a solicitor who, without exercising any supervision, delegates his duty to a managing clerk who is not a solicitor, secure thereby immunity from the disciplinary action of the Court even where the clerk has been guilty of misconduct in the discharge of his duty. The Court regards misconduct committed in the course of proceedings before the Court as misconduct by the solicitor whose name is on the record, and though it will carefully investigate the circumstances in which the misconduct complained of arose, and will give the solicitor the fullest opportunity to make an answer or explanation, it will not allow him, as the officer responsible, seeing that his name is on the record, to avoid responsibility by alleging and proving that in fact the act complained of was done by his unqualified managing clerk. In Norton v. Cooper. In re Manby and HawksfordF2 a member of a firm of solicitors who was not personally cognizant of his partner's act in bringing an action in the name of a person without that person's authority, was held liable in respect of costs. In Dunkley v. FarrisF3, where an attorney's clerk fraudulently simulated the Court seal upon a writ of summons, the Court not only set aside the writ and all proceedings thereon, but ordered the attorney, though personally blameless, to pay the costs. In Simmons v. RoseF4 a country solicitor was made liable for a loss though the representations giving rise to the claim were made by his London agents. See also Schmitten v. FaulksF5 as to a solicitor's liability. The principle laid down by the Court of Appeal that a solicitor is not liable for the misconduct of his clerk is erroneous.

[LORD PORTER referred to Wheatley v. Bastow.F6]

T. F. Davis and T. J. F. Hobley for the respondent. Where a charge of professional misconduct is made against a solicitor it must be shown that he personally has been guilty, and that has not been established in this case. The charge made is in effect quasi-criminal, and to establish it it must be proved in the strictest way, the onus of proof being on the person making the charge. Here we submit that there was no evidence against the respondent. No doubt the Court can order a solicitor to pay costs even where the neglect or default is not personal to himself, but where a charge of professional misconduct is made he cannot be held guilty unless he personally is implicated. There is no ground for suggesting that the respondent was aware of what the clerk had done. With regard to the cases cited for the appellant, none of them establishes any principle of liability applicable in the present case. In Norton v. Cooper. In re Manby and HawksfordF7, the complaint was made by the solicitor's own client — a matter which would now be dealt with under Order 65. In no way was that case analogous to the present one. In Dunkley v. FarrisF8, the clerk had fraudulently simulated the Court seal — a circumstance quite different from this case. The like criticism is applicable to the other decisions referred to. In no case has it been laid down that, apart from personal misconduct, a solicitor has been held liable to the disciplinary jurisdiction of the Court. They also referred to In re Dangar's TrustsF9, and Marsh v. Joseph.F10

R. A. Willes replied.

The House took time for consideration.

1939. Dec. 5. VISCOUNT MAUGHAM. My Lords, this is an appeal by the applicant (who was the plaintiff in the action) against a judgment of the Court of Appeal of England dated July 11, 1938, allowing the appeal of the respondent (who was the solicitor on the record for two of the defendants in the action — namely, Henry Isaac Rothfield and Nathaniel Rothfield) against an order of Singleton J., dated May 13, 1938, whereby the learned judge ordered the respondent to pay to the applicant one-third of the taxed costs of the action and also two-thirds of the costs of the application against the respondent and other solicitors, such costs to be taxed.

The questions raised by the appeal are whether in the circumstances the respondent was guilty of professional misconduct; whether the learned judge misdirected himself in holding that the respondent was guilty of professional misconduct, and whether there was any jurisdiction to order the respondent to pay costs to parties for whom he was not acting as solicitor in so far as the conduct complained of was not committed by him but by his managing clerk, Mr. Osborn, who was not a solicitor.

The writ in the action was issued on November 3, 1936. The respondent accepted on behalf of the defendants, Henry Isaac Rothfield and Nathaniel Rothfield, service of the writ and of the statement of claim which was delivered therewith. The plaintiff's claim as set out in the statement of claim alleged that the defendants were conducting a systematic swindle by means of a bogus and fraudulent business carried on as Horwood & Co., and alleged that various fraudulent misrepresentations were made...

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