Thew (R & T.) Ltd v Reeves (No. 2) (Note)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE O'CONNOR |
| Judgment Date | 24 September 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0924-4 |
| Docket Number | 82/0390 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 September 1982 |
[1982] EWCA Civ J0924-4
The Master of the Rolls (Lord Denning)
Lord Justice Dunn (Not Present)
Lord Justice O'Connor
82/0390
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
OLDHAM DISTRICT REGISTRY
HIS HONOUR JUDGE CURTIS SITTING AS AN OFFICIAL REFEREE
Royal Courts of Justice
MR. J. M. WRIGHT, Q.C. and MISS ANNA SHAW (instructed by The Secretary-General) appeared on behalf of the Law Society.
MR. A. L. MILDON, Q.C. and MR. R. M. JACKSON (instructed by Messrs. Kirk Jackson & Co., Eccles, Manchester) appeared on behalf of R. &. T. Thew Ltd.
MR. SIMON BROWN (instructed by The Treasury Solicitor) appeared as amicus curiae.
THE "UNACCEPTABLE FACE" OF BRITISH JUSTICE
In R. & T. Thew Limited v. Reeves (1981) 3 W.L.R. 190, I delivered a dissenting judgment. Towards the end of it, at page 205E, I summarised the position:
"So here we have presented to us at its most ugly the 'unacceptable face' of British justice. The Thews came to the courts of law to obtain sums from a debtor which were undoubtedly due to them. They were baulked by the grant of legal aid to the defendant. Their own costs came to £7,000. When they sought to recover those costs from the legal aid fund, they were met by the plea: 'You cannot recover them because a mistake was made in the legal aid certificate and it cannot be corrected.' That plea has succeeded. I hang my head in shame that it should be so."
A REMEDY IS SUGGESTED
After the hearing, this court itself suggested a remedy. It appeared to be possible that the disaster to the Thews was caused—not by anything done by their own solicitor—but by a mistake made by the solicitors for Mr. Reeves on the other side. It was the mistake of their articled clerk which led to all the trouble. He had applied only for legal aid to "defend": whereas he should have applied for legal aid to "defend and counterclaim". So why should they not compensate the Thews? especially as they would be insured against liability for negligence.
Despite this suggestion by the court, Mr. Bloom, counsel for the Thews, declined to make any application against those other solicitors. He refused for good reason. The Thews had expended all their money already. They could not get legal aid. If they took proceedings against the solicitors for the other side, they might lose and have to pay all the costs. So they decided to cut their losses and do nothing.
THE COURT ACTS ON ITS OWN
This court then decided to act of its own motion. It ordered the solicitors for Mr. Reeves to attend
"for the purposes of considering whether or not they should be ordered to pay personally costs from August 16, 1977 to March 7, 1980, in the High Court action on grounds that such costs were incurred and occasioned as a result of a mistake of their clerk or articled clerk such costs not being recoverable from the Law Society under the provisions of the Legal Aid Act 1974. The Attorney-General was asked to consider the appointment of amicus curiae to assist the court."
The motion was heard last term. We had the benefit of submissions by Mr. Arthur Mildon, Q.C., for the solicitors for Mr. Reeves; by Mr. Michael Wright, Q.C., for The Law Society; and by Mr. Simon Brown as amicus curiae. We are most grateful for the assistance of all of them. I will state the law as I understand it.
THE JURISDICTION OVER SOLICITORS
The jurisdiction of the court over solicitors was much considered by the House of Lords in Myers v. Elman (1940) A.C. 282. It originated in early days because a solicitor was an officer of the court. His name was entered on the Rolls of the court. He was subject to the discipline of the court. This disciplinary jurisdiction was exercisable in two ways: either by punishing him; or by making him pay compensation.
Insofar as it was punitive, the court could strike a solicitor off the Roll of the court or it could suspend him. Insofar as it was compensatory, it could order him to pay costs: sometimes the costs of his own client, sometimes those of the opposite party, sometimes it may be of both, see by Lord Wright at page 318.
Both these disciplinary powers are preserved by section 50 of the Solicitors Act 1974.
THE PUNITIVE JURISDICTION
The punitive jurisdiction of the court itself is now rarely if ever exercised. It is left to the Solicitors Disciplinary Tribunal. If a judge thinks that a solicitor may have been guilty of conduct deserving punishment, he reports the matter to the Law Society. It will then be considered by the Professional Purposes Committee. They will decide whether to charge him before the Solicitors Disciplinary Tribunal or not. The Tribunal can strike him off the Roll, suspend him or fine him, see section 47 of the Solicitors Act 1974.
Nowadays it would usually be inappropriate for any judge to exercise this punitive jurisdiction of his own motion. He would have to give notice to the solicitor so as to give him an opportunity of answering the charge, see Regina v. Smith (Martin) (1975) Q.B. 531. And then, when the charge was heard, the judge would appear to be both prosecutor and judge. That is a role which does not become him well, see Balogh v. St. Albans Crown Court (1975) 1 Q.B. 73 at page 85. It should be avoided in all but the most exceptional cases.
THE COMPENSATORY JURISDICTION
The compensatory jurisdiction is also preserved, but with this difference: It is retained by the courts themselves. The Solicitors Disciplinary Tribunal has no power to award compensation to anyone. Our old books all show that if a solicitor for one side has done something wrong—which has caused useless costs to the other party—he could be ordered personally to compensate the other party. That other party made his application at the conclusion of the case or soon after it. He would apply to the court for an order that the solicitor on the other side do pay the costs. He would do it by motion in the Chancery Court or by a motion or application for a rule in the Courts of Common Law. It was a summary jurisdiction without pleadings. All that was necessary was a notice telling the solicitor what was alleged against him and giving him an opportunity of answering it. This is all described by Lord Wright in Myers v. Elman (1940) A.C.282 at page 318. This jurisdiction still exists in full force. As a rule the party—who has incurred useless costs—will himself make the application. But this is not invariable. Sometimes the court may act of its own motion. As we did in this very case.
WHAT CONDUCT IS SUFFICIENT?
This compensatory jurisdiction still retains, however, a disciplinary slant. Just as officers in the services are subject to military discipline—see sections 64 and 69 of the Army Act 1955—so are solicitors, as officers of the court, subject to judicial discipline. If they are guilty of
"any act, conduct or neglect to the prejudice of good order and (judicial) discipline"
or which is
"unbecoming the character of an officer and a gentleman"—causing loss or damage to another—they can be ordered personally to compensate him. The cases show that it is not available in cases of mistake, error of judgment or mere negligence. It is only available where the conduct of the solicitor is inexcusable and such as to merit reproof. In Myers v. Elman (1940) A.C. 282 Lord Maugham at page 292 put it as "a serious dereliction of duty". Lord Atkin at page 304 spoke of "gross negligence". Lord Wright at page 319 says that "gross neglect or inaccuracy" may suffice. His definition included
"a failure on the part of a solicitor…to realise his duty to aid in promoting in his own sphere the cause of justice".
Lord Porter at page 338 said that the solicitor there had been "grossly negligent". Useful illustrations are to be found in Edwards v. Edwards (1958) P. 235 at page 258 (holding the solicitor liable to pay the costs of the other side because of his "oppressive procedure") and Mauroux v. Soc. Com. Abel Pereira da Fonseca S.A.R.L. (1972) 1 W.L.R. 962 (holding the solicitor not liable for an "oversight").
APPLIED TO THIS CASE
Applying this test, it seems to me that the conduct of the articled clerk was not sufficiently serious to warrant the court in exercising its compensatory jurisdiction. It was at most a mere slip. As I said in my judgment in (1981) 3 W.L.R. at page 199C, the articled clerk
"botched up the application so that it did not correctly state the description of the legal aid desired."
It omitted the words "and counterclaim". But everyone treated it as containing those words: and it was corrected as soon as it was discovered.
In any case, it may not have been the cause of the disaster. It may have been due to the mistake of the clerk in the legal aid office. As I said in my judgment in (1981) 3 W.L.R. at page 202F:
"A mistake was made by the clerk who drew up the offer of legal aid. He...
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