The Gazette 1958-61

the section. There was no provision limiting the order in time. There was no means of providing that it should remain in force for, say, five or ten years. Moreover it was an order where any permission by the Society had to be given to the solicitor and not to the clerk, so that the Society could not say that the clerk had full permission to be employed by anyone. His Lordship could see very grave hardship to a man of middle age, who in his youth had been guilty of an offence, made the subject of such an order, and led a blameless life since, since he could get no employment without his employer knowing full well what had happened and the clerk would be completely at the mercy of the Society. The order might be out of all proportion to the offence. His Lordship would very much like the Society to consider, without prejudice to the question of amending legislation, the question of publishing a general permission, so that the man could in future be employed without the need for any further permission. Mr. Justice Ashworth—I agree. I share my Lord's misgivings as to the effect of this order on a man who has committed a relatively trivial offence which he has lived down. There are difficulties even in the giving of a general permission, which would involve the publication of the man's name, revealing his murky past. Mr. Justice Elwes agreed. Mr. Webster said that the matter of disciplinary proceedings against clerks was under review. Mr. Justice Ashworth—A power to limit the period of the order would be the simplest way to avoid the difficulties. Mr. Justice Elwes—Or a power to entertain an application to rescind the order after a time. Mr. Justice Ashworth—I agree. The appeal was dismissed with costs. In re a Solicitor's Clerk, izth November 1960. Practice—pleading—osteo-arthritis. In McKay v. McClure (Practice Note) (1960) N.I. 34, counsel for the plaintiff in an action for damages for personal injuries mentioned when opening his case to the jury that the plaintiff had developed osteo-arthritis as a result of the accident. Counsel for the defendants objected that this had not been pleaded. Sheil J., expressing the view that osteo- arthritis should always be alleged in the pleadings if it was to form part of the plaintiff's case at the trial, gave the plaintiff leave to amend, whereupon counsel for the defendants objected that the defendants were taken by surprise and were not in a position to deal with the allegation. Sheil J. then adjourned the trial, discharged the jury and awarded the costs of the day to the defendants. 94

Provision of Solicitors Act by which Solicitor's Clerk if guilty of Offence in the past, has to Notify the English Law Society indefinitely of Every Change of Employment, Criticised by Court. The Divisional Court, before (The Lord Chief Justice, Mr. Justice Ashworth and Mr. Justice Elwes) dismissing this appeal by a solicitor's clerk against the order of the Disciplinary Committee of the Law Society imposing restrictions on his employment pursuant to section 38 of the Solicitors Act, 1957, expressed misgivings about the effects of that section and a wish that they might be mitigated. The Lord Chief Justice said that the order of the Committee dated July 28, 1960 directed that no solicitor should in connection with his practice as a solicitor take into or retain in his employment, or remunerate, the clerk, except in accordance with permission in writing granted by the Law Society, for such period and subject to such conditions as the Society might think fit. Section 38 provided that the Committee might make such an order where a person had been convicted, inter alia, of larceny and an application under the section was made by the Society. The facts were that the clerk had returned from Kenya and got into grave financial difficulties in 1954. He was supporting four children and a sick wife. Living in lodgings, he had over a period sold the furniture belonging to his landlord piece by piece, in order, presumably, to get money to live. There were a number of offences taken into consideration and the justices took a serious view when the case came before them and sentenced the clerk to six months' imprisonment. The matter did not come to the attention of the Law Society until six years after the event, but having regard to the provisions of the section they had felt it their duty to take steps. The point now taken, very ably, by Counsel was that the Committee ought not to have exercised their discretion to make the order, having regard to all the circumstances. Counsel said that, having regard to the circumstances of the offences and to the lapse of time, the penalty was out of proportion. Undoubtedly it was a serious matter to make this order ; but it was only a controlling one and not designed to prevent the clerk from earning his living. The main object was to provide protection for the public. It was quite impossible to say that the Committee had been wrong in exercising their discretion and his Lordship could see no ground to interfere. This was a serious offence and the Com- mitee might be criticised if they did not in these circumstances fulfil their duty. Quite apart from this case, however, his Lordship was rather concerned about the full implications of