The Gazette 1955-58

In evidence before the Committee, the sales manager said that the offer to pay stamp duty if the purchaser instructed the company's solicitors had not been put to the solicitors, but was made in an attempt to encourage the purchaser to instruct these solicitors so that matters would be expedited. In November, 1955, the sales manager wrote to the solicitors stating that the purchaser desired them to act for and " in these circumstances we shall pay the stamp duty ". When the completion statement was submitted it showed the costs as -£2.1 i8s., and no sum was included for stamp duty. In March, 1956, another proposed purchaser was informed by employees of the company that, if he instructed the solicitors, he would effect a saving in his legal costs and the company would pay his stamp duty. After some correspondence, this purchaser wrote to the solicitors saying, "I understand . . . that if I instructed you to act for me there would be a saving of £25 in stamp duty and £10 for conveyance fees ", and asking exactly how much he would have to pay for these items. The solicitors' reply stated : " on the question of expenses our clients inform us that they are willing to pay the stamp duty if the transaction is carried through by us. In these circumstances, also, your fees payable to us will be approximately £30 ". The Committee in their Findings stated that " it can hardly be doubted that an offer on the part of the vendor that he will pay the stamp duty for the purchaser if he instructs a particular solicitor in the transaction is calculated to attract business unfairly to that solicitor ", and they ordered that a fine be imposed upon the partners of the firm concerned. Solicitors' clerk disqualified under act of 1956 for 1953 offence. The Divisional Court (The Lord Chief Justice, Mr. Justice Barry and Mr. Justice Havers) dismissed an appeal by an unadmitted solicitor's clerk againt an order of the Disciplinary Committee of the Law Society made on zoth September, 1957, directing that no solicitor should in connexion with his practice take or retain the appellant into or in his employment or remunerate him without the written permission of the Law Society. The order was made under section 16 (i) of the Solicitors Act, 1941, as amended by section n (i) of the Solicitors (Amendment) Act, 1956, in respect of an offence in 1953. The Lord Chief Justice, giving the reserved judgment of the Court, said that, by the Act of 1941, where a solicitor's clerk had been convicted of any criminal offence in respect of property of the solicitor by whom he was employed or any client of that

solicitor an application for an order such as was made in this case might be made. The amending Act of 1956 allowed the Society to apply for an order where a clerk had been convicted of any offence in respect of any property, irrespective of whether it belonged to his employer or one of his clients. This applicant was convicted of larceny in 1953 of property which belonged neither to his employer nor to a client of his, and he accordingly contended that to apply the provisions of the Act of 1956 to a person convicted before that Act came into operation would be to make its operation retrospective. It was stated in Maxwell on the Interpretation of Statutes that it was a fundamental rule of English law that no statute should be constructed to have a retrospective operation unless such a construction appeared very clearly in the terms of the Act or arose by a necessary or distinct implication; and that passage had been approved by the Court of Appeal. But, in their Lordships' opinion, this Act was not in truth retrospective. It enabled an order to be made disqualifying a person from acting as a solicitor's clerk in the future, and what happened in the past was the cause or reason for the making of the order but the order had no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enabled a disqualification to be imposed for the future which in no way affected anything done by the appellant in the past. Accordingly, in their Lordships' opinion, the Law Society had jurisdiction to make the order complained of. The appeal was dismissed. (In re a Solicitor's Clerk (1957) i W.L.R. 1219 ; 01 (X 957) 3 A11 E- R- 6l 7-) Circumstances when an unsuccessful plaintiff in an action to revoke probate is entitled to costs out of his estate. O'Daly, J., held that an unsuccessful plaintiff, the testator's brother in a jury action to revoke probate, on the ground that the testator was mentally un stable, is nevertheless entitled to his costs out of the estate when the necessity for bringing the action is occasioned by the testator's mental condition; this is so, even where the plaintiff had previously accepted a share of the estate under a partial intestacy (i.e., moneys on deposit receipt) under the will, the grant of probate of which is sought to be revoked. Per O'Daly, J.—The plaintiff's revocation suit, tried before a jury, concluded with a verdict in favour of the defendant-executor. The defendant, through his counsel, thereupon applied to have the 71