Udall v Capri Lighting Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE BALCOMBE,LORD JUSTICE NEILL,LORD JUSTICE KERR
Judgment Date12 March 1987
Judgment citation (vLex)[1987] EWCA Civ J0312-5
Docket Number87/0403 1983 U No.698
CourtCourt of Appeal (Civil Division)
Date12 March 1987
Between:
Robert Alan Udall (trading as Udall Sheet Metal & Co.)
Plaintiff (Respondent)
and
Capri Lighting Limited
Defendants

In the Matter of Richard Oxley Whiting, a Solicitor

[1987] EWCA Civ J0312-5

Before:

Lord Justice Kerr

Lord Justice Neill

and

Lord Justice Balcombe

87/0403

1983 U No.611

1983 U No.698

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(SIR NEIL LAWSON Q.C., SITTING AS A JUDGE OF THE HIGH COURT

Royal Courts of Justice

MR. JAMES MUNBY (instr. by Messrs. Hancock & Willis, Solicitors, London WC2A 1NG) appeared on behalf of Richard Oxley Whiting (Appellant).

MR. JOHN ROSS (instr. by Messrs. Halls, Solicitors, London EC1A 7BS, Agents for Messrs. Readman & Co., Solicitors, Lancing, West Sussex BN15 8AG) appeared on behalf of the Plaintiff (Respondent).

LORD JUSTICE BALCOMBE
1

This appeal and cross-appeal from an order dated 11th December 1985 made by Sir Neil Lawson (sitting as a judge of the High Court) raise the question of the exercise by the court of its discretionary jurisdiction to control solicitors as its officers.

2

In May 1983 the plaintiff, Mr. Robert Alan Udall (trading as Udall Sheet Metal and Co.), issued specially endorsed writs against the defendant, Capri Lighting Ltd., of which company a Mr. Roe and a Mr. Gowing were directors. Both writs were in respect of goods sold and delivered by the plaintiff to the defendant; the first writ claimed £20,215, the second £5,509, in each case together with interest. Messrs. Rutter & Rutter, solicitors of Shaftesbury, Dorset, acknowledged service of these writs on behalf of the defendant. The plaintiff then took out summonses under 0.14 in both actions, the return date being 7th July 1983 in each case.

3

On 6th July 1983 a number of telephone conversations took place between Mr. Timothy Grant Readman, the principal of Messrs. Readman & Co., solicitors for the plaintiff, and Mr. Richard Oxley Whiting, a partner in Messrs. Rutter & Rutter. In the course of one of these conversations Mr. Readman said that the plaintiff was only prepared to agree to an adjournment of the 0. 14 summonses on the following day if Messrs. Roe and Gowing were prepared to give second charges on their private residences or on life assurance policies having a surrender value. In the course of a subsequent telephone conversation on the same day Mr. Whiting told Mr. Readman that both Mr. Roe and Mr. Gowing were prepared to give second charges on their properties, which were then identified. The judge found that in the course of this conversation Mr. Whiting gave his personal undertaking as a solicitor to procure these charges; the precise form of the undertaking as found being to

"procure second charges on the security of the residence of one Gowing, namely 54 Church Street, Tisbury in the county of Wiltshire and (on the residence of) one Rowe (sic) namely The Cottage, Dennis Lane, Ludwell, Shaftesbury in the County of Dorset…"

4

There has been no appeal against this finding by the judge.

5

The hearing of the 0.14 summonses was adjourned, but on 26th July Messrs. Rutter & Rutter wrote to Messrs. Readman & Co. to say that the defendant would submit to judgment. This envinced a reply from Readman & Co. on the following day expressing astonishment and asserting that in the telephone conversation of 6th July Mr. Whiting had given Mr. Readman a specific personal undertaking that Messrs. Roe and Gowing would give second charges on the security of their respective private residences. On 28th July 1983 Messrs. Rutter & Rutter wrote saying that no undertaking had been given by Mr. Whiting. Thus the scene was set for these proceedings.

6

In due course judgments were entered in default of defence in both actions but these judgments remain unsatisfied. The defendant company has since gone into liquidation. So the plaintiff decided to enforce Mr. Whiting's personal undertaking. It is common ground that the plaintiff has a right of action in contract against Mr. Whiting on his undertaking, but it is also common ground that Mr. Whiting could and would plead by way of defence that there is no note or memorandum of the undertaking so as to satisfy section of the Statute of Frauds or section 40 of the Law of Property Act 1925. Whether or not such a defence would succeed is immaterial; the plaintiff realistically took the view that the probability of this defence being raised was a good reason why he should not pursue an action at law and he decided instead to invoke the court's inherent jurisdiction over solicitors.

7

So the plaintiff issued summonses in the two actions asking for orders that Mr. Whiting should procure the second charges pursuant to his undertaking. Since both summonses raised precisely the same issues, I shall treat them as one application, as they have been treated throughout. After various procedural vicissitudes the matter came before Judge Dobry Q.C. sitting as a High Court Judge in chambers. Mr. Whiting was then taking the point that this was not a proper case for the invocation of the summary procedure, since it was not a clear case— Silver and Drake v. Baines (1971) 1 Q.B. 396, C.A. However, Judge Dobry rejected that contention, although he gave directions for pleadings and discovery and for the deponents to the affidavits to attend for cross-examination. Against that order there was no appeal. So it was that the plaintiff's application came on before Sir Neil Lawson for hearing on 4th and 5th December 1985.

8

Before the judge the principal issue was whether Mr. Whiting gave his personal undertaking and the greater part of the two-day hearing and of the judgment was directed to this issue. Mr. Ross, who appeared for the plaintiff below as he did before us, opened the case on the basis that if the undertaking had been given then it should be enforced by the court, and, relying on United Mining and Finance Corporation Ltd. v. Becher (1910) 2 King's Bench 296, he did not need, nor did he seek, then to allege dishonourable or discreditable conduct on the part of Mr. Whiting. Although the practicability of enforcing the undertaking was canvassed in argument before the judge, there was then no evidence that the enforcement of the undertaking, i.e. the procurement of the two second charges, was impossible.

9

Having decided that the undertaking had been given, the judge went on to consider whether it was enforceable by the court in the exercise of its summary jurisdiction over solicitors. On this aspect of the case he considered three points:

  • (1) Was it a clear case? He answered this question in the affirmative.

  • (2) Could the court enforce a solicitor's undertaking to secure a third party to do an act, or execute a document? This question also he answered in the affirmative, in reliance on the case of Ex Parte Hughes (1822) 5 B. and Ald. 482 and the Canadian case of Re Solicitors (1916) 32 Dominion Law Reports 387; 11 W.W.R. 529.

  • (3) Was the undertaking one which it was impossible to perform? On this the judge said (transcript P. 11):

"I find it difficult to conceive of a solicitor giving an undertaking which it is impossible to carry out. But there is a point to that effect in the case of Peart v. Bushell (1827) 2 Sin. 38."

10

After pointing out that Lord Sumner (as Mr. Justice Hamilton) had questioned the authority of the report and refused to follow Peart v. Bushell in United Mining and Finance Corporation Ltd. v. Becher (supra), the judge continued:

"But let it be assumed that that authority is still good support for the proposition that if an undertaking is impossible of performance the court will not enforce it (and, of course, that is a common sense point of view), I have absolutely no evidence at all that this undertaking, when it was given, was not possible to be performed. Nor have I any evidence before me at this stage that it is not possible to perform. It may be unlikely or difficult, but that is not the same thing as impossible. Here the case is to be distinguished from Re a Solicitor (1966) 1 Weekly Law Reports 1604, because there Pennycuick, J. (as he then was) refused to enforce an undertaking given by a solicitor to hand over a lease which not only had been lost but had also been forfeited. He questioned the evidence of the solicitor that the lease could not be found, so he obviously had evidence which satisfied him that it was, at the time when he was asked to make the order, impossible of performance. But there is no evidence to that effect here.

Finally I come to consider what order to make in the exercise of the jurisdiction. I am quite satisfied that at this stage I have no jurisdiction to make any order other than an order that the undertaking be performed. If it is not performed, then the question will arise as to what should be done about it. The case of Re Solicitors, the Canadian case to which I have referred, seems to me good authority for the proposition that that is all the court can do in the enforcement of a summary jurisdiction. If one looks at the notes on page 1026 of Volume 2 to the White Book there is no case in which it has been suggested that the court can, in the exercise of this jurisdiction, do anything other than to order the solicitor to do that which he undertook. Therefore that is the order I make."

11

The judgment was a reserved judgment, delivered some six days after the end of the hearing, and after it had been delivered Mr. Munby, for Mr. Whiting, applied for an adjournment to enable him to adduce evidence that it was impossible to perform the undertaking. This the judge refused. Accordingly an order was drawn up requiring Mr. Whiting within 28 days to procure second...

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