Silver (Geoffrey) & Drake v Baines
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WIDGERY |
| Judgment Date | 10 November 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J1110-3 |
| Date | 10 November 1970 |
| Court | Court of Appeal (Civil Division) |
In the Matter of Thomas Anthony Baines a Solicitor and In the Matter of an Application on behalf of GEOFFREY SILVER & Drake against Thomas Anthony Baines to issue a writ of attachment or for an Order for committal
[1970] EWCA Civ J1110-3
The Master of The Rolls (Lord Denning),
Lord Justice Widgery and
Lord Justice Kegaw.
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendant from Order of Mr Justice Chapman on 26th February, 1970.
Mr A. LINCOLN. Q.C., and Hr. ALEC GRANT (instructed by Messrs. Lawrence, Messer & Co.) appeared on behalf of the Appellant Defendant.
Mr. G. OWEN, and Mr. L.tf. SIEVE (instructed by Messrs.
Geoffrey Silver & Drake) appeared on behalf of the Respondent Plaintiff.
This is a dispute between two of solicitors. Geoffrey Silver & Drake two partners - one of whom is Mr. Silver. Wetherfield Baines 4 Baines have only one partner. Mr. Thomas Anthony Baines. He employs an admitted solicitor - a Mr. H.C. Batts, to whom he leaves a lot of the work.
In March 1969, Mr. Batts asked Mr. Silver. to advance £4,000 for a client of Mr. Baines' firm. Mr. Silver did so. Mr Batts gave a written undertaking to repay it, In two months. The undertaking is dated the 21st March, 1969. It is signed on behalf of Wetherfield Baines & Baines by Batts, but Mr. Baines, the principal, did not know anything about It. It is addressed to Mr. Silvers:
"Dear Sirs,
In consideration of your handing to me the sum of £4,000, we hereby undertake to repay the said sum to you together with interest at a month on the 21st day of May 1969, and at the same time we hereby undertake to pay to you the sum of £4,500 for, Mr. Izzet on you handing to me the deeds of 21 Westminster Road, N.9 on or before the said date.
The 21st May 1969 came. The sum was not paid. Mr. Silver demanded payment. Mr. Baines wrote on the 4th June saying he did not know anything about it and asked for a copy. Mr. Silver sent it. On the 9th June, Hr. Baines repudiated any liability whatever under the document. At once Mr. Silver applied to the Divisional Court to commit Mr. Baines for non-fulfillment of his undertaking. In an affidavit of the 11th June, 1969, Mr. Silver said:
"I submit that Thomas Edward Baines has been guilty of contempt of Court and ask leave for a writ of attachment against him or that he be committed to prison for his contempt."
That application was premature, to say the least. Before any application could be made to commit, Mr, Silver ought to have obtained an order for payment: see In ( He a Solicitor 1966 1 W.L.R. 1604). So the Divisional Court sent Mr. Silver away. Six months later, in January 1970, Mr. Silver took out a summons against Mr. Baines. He sought an order that Mr. Baines pay the sum of £4,000 forthwith with interest at 2% per month, and also thefurther sum of £4,500 mentioned in the undertaking, on the deeds being handed over. The summons came before Mr. Justice Chapman on the 26th February of this year. He dealt with it summarily on the affidavits without oral evidence. He held that Mr. Baines had not in fact given authority to Mr. Batts, but, nevertheless, the undertaking was within Mr. Batts. implied authority, and also that he had ostensible authority to give it. The Judge held it was binding on Hr. Baines personally, and he ordered Mr. Baines to pay. Now there is an appeal to this Court.
Since that time a similar application has come before Mr. Justice Ungoed Thomas. He did not follow Mr. Justice Chapman. He thought that the summary procedure was not appropriate. He did not make any order.
I must say that I agree with Mr. Justice Ungoed Thomas. This Court has from time immemorial exercised a summary jurisdiction over solicitors. They are officers of the Court and are answerable to the Court for anything that goes wrong In the execution of their office. Even if the solicitor has been guilty of no fault personally, but it is the fault of his clerk, he is accountable for it, see ( Myers v. EIman 1940 A.C. 282). This Jurisdiction extends so far that, if a solicitor gives an undertaking In his capacity as a solicitor, the Court may order him straightaway to perform his undertaking. It need not be an undertaking to the Court. Nor need it be given in connection with legal proceedings. It may be a simple undertaking to pay money, provided always that it Is given 'in his capacity as a solicitor", see ( United Mining and Finance Corporation Ltd. v. Becher 1910 2 K.B. 296) by Mr. Justice Hamilton. If such an undertaking is given, the Court may summarily make an order on the solicitor to fulfill his undertaking, see In Re a ( Solicitor 1966 1 W.L.R. 1604) and, If he then falls to do so, the Court may commit him to prison. Alternatively, If it is an order to pay money, execution may be levied against his property. This
summary jurisdiction means, however, that the solicitor isdeprived of the advantages which ordinarily avail a defendant on a trial. There are no pleadings; no discovery? and no oral evidence save by leave. The Jurisdiction should, therefore, only be exercised in a clear case.
The first question in the present case is whether the solicitor gave the undertaking "in his capacity as a solicitor". This is difficult to define. But I think it will usually be found, in regard to money, that it is an undertaking to pay money which he has In his hands on trust, or on an undertaking that he will apply it in a particular way. Thus, if a solicitor is acting for a client on the sale of land, and gives an undertaking to a bank that he will pay over so much of the money, when received, to the bank, the undertaking is given "in his capacity as solicitor", see in Re a ( Solicitor 1966 1 W.L.R. 1604). So also, if a solicitor gives an undertaking that he will hold a sum of money in his hands pending the conclusion of negotiations, that too is given In his capacity as a solicitor, as in ( United Mining and Finance Corporation. Ltd. v. Becher 1910 2 K.B, 290). But this case is very different from either of those cases. The solicitor here was not holding money in his hands at all. All that happened was that Mr. Batts received money and paid it over to a client, Mr. Izzet, and promised, to repay it to Hr, Silver. It was an undertaking to repay money lent. That is all. It was at good interest too, 2% a month. The money may have been for the benefit of a client. But that does not matter. It was, in E truth, nothing more nor less than an undertaking to repay money lent. That is not an...
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