Angel Solicitors (a Firm) v Jenkins O’Dowd & Barth (a Firm) and Others by Ryan Clement barrister

Wigs and Wherefores is just such a story of one practitioner, Michael Sherrard QC, and his encounters with humanity in its various forms. It is very well written but what makes it distinctive is it is about some of the most high profile and historically interesting cases over the last fifty years that are still of interest to today’s students of the law. Sherrard, or his clerk, certainly knew how to pick ‘em.

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His cases meant that he met the famous and the notorious: Robert Maxwell (Captain Bob) owner of the Daily Mirror who defrauded the company’s pension scheme; John Stonehouse ‘one of our MPs is missing’ was a minister in the 1964-1970 Labour Government; Peter Hain during his ‘campaigning period’ of disrupting sporting events and the ner’do’well activities of the South African secret service; George Brown (Deputy Prime Minster in the Wilson Government in the 1970s) and his conviction for drink driving and the stuck trouser zip incident; Dr Savundra who was convicted of fraud following the collapse in 1966 of his Fire, Auto and Marine Insurance Company, a case galvanised by the David Frost programme on BBC television in 1967. He helped to reveal the illegal activities of Detective Sergeant Challenor of West End Central Police Station who planted half bricks on Greek protestors, but the defence had the two halves of the same brick that were allegedly to be thrown at the Greek Royal family during a visit in 1963 of Queen Frederika by two different defendants in two different incidents.

Wigs and Wherefores: A Biography of Michael Sherrard Linda Goldman and Michael Sherrard

He acted to extradite the Liverpool football supporters following the Heysel football disaster in 1985; he defended Gerald Ronson, one of the Guinness four, in 1990 (he was also offered the prosecution brief in this case); he advised on the sanction busting by the oil companies during the international embargo on Rhodesia following Ian Smith’s unilateral declaration of independence in 1965.

Wildy Simmonds and Hill Publishing: London (2008)

The law does not enforce itself. People do. They do so with a variety of influences upon them and in a range of contexts. The Good Law School will try to convey this reality by teaching law as more than just a set of rules, liabilities and duties.

He defended the beautiful actress Constance Smith who in 1962 stabbed her lover the film documentary maker Paul Rotha. Other celebs he encountered through the law included, Sid James, Trevor Howard, Judy Garland, Kim Novak, Bernard Levin and Bruce Forsyth. Those protagonists of the view that ‘law is a series of miscarriages of justice’ will not find a happy ending in this book. Michael Sherrard was the defence barrister for James Hanratty who was executed for murder in 1962 following the trial at Bedford Assizes. However despite years of campaigning – the Bootleg Theatre Company ran a play suggesting that Peter Alphon was the murderer – recent scientific advances of DNA analysis and the exhumation of Hanrraty’s body in 2001, was able to establish, as conclusively as is possible, that Hanratty did rape and shoot Valerie Storie and murdered Michael Gregsten in a lay-by on the A6.

But how to do this? It was once assumed that the best way was to teach the socio-legal context but this soon fell into the hands of those who love the grand sweeps of history or conspiracy theories and who would explain the reality of law as being down to class, status, caste, privilege, birth sign or whatever trip the exponent was on. These accounts were not necessarily wrong.

This is the version of stories about the law that Shakespeare and Dickens would have preferred: had they gone to Law School.

The other story, the other more complicated one, with the meandering ways of personality, contingencies, ambiguities and fortuitous circumstance required the student of law to have a sound knowledge of the rules and its procedures but to appreciate that it was essentially conducted by human beings with a story to tell.

Professor Malcolm Davies Head of Ealing Law School

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Angel Solicitors (a firm) v Jenkins O’Dowd & Barth (a firm) and Others The judgment in Angel Solicitors (a firm) v Jenkins O’Dowd & Barth (a firm) and (1) Barclays Bank Plc and (2) Close Brothers Limited and (3) Ellenwell Properties Ltd [2009] EWHC 46 (Ch); [2009] WLR (D); [2009] All ER (D) 133 (Jan) earlier this year sent a serious message warning solicitors of the high risks involved in giving undertakings without first obtaining the necessary information on which such undertakings would be based.

Having failed to secure the performance of the Defendant’s undertakings to redeem the existing charges without resort to litigation, the Claimant invoked the summary jurisdiction of the court to enforce the said undertakings pursuant to its inherent supervisory jurisdiction over solicitors. The Defendant did not shy away from the likelihood that, ultimately, it would have to perform the said undertakings (or make payments in lieu). However, it submitted that, had it sought to redeem the relevant charges at, or within a reasonable time after, the said undertakings were given, both Barclays and Close would have accepted a lesser sum than they are now seeking to recover.

The case concerns the enforcement of solicitors’ undertakings given in the course of acting on separate sales of three residential properties. “It demonstrates”, said the presiding judge, HHJ Hodge QC, “both the folly of giving the usual solicitors’ undertaking to redeem or discharge existing mortgages and charges over the property which is being sold without having first obtained a redemption statement and the mortgagee’s agreement to release the properties from all relevant charges upon payment of an ascertained sum, and also the dangers of any delay in paying over the moneys required to redeem such charges following the completion of the sale”.

However, the judge held in the circumstance that, due to the Defendant’s breach of its undertakings, the sum ‘now’ required for those undertakings to be performed may be greater than if the undertakings had been honoured in due time was unfortunate for the Defendant but it cannot detrimentally affect either the position of the Claimant or the legal and equitable entitlements of the mortgagees of its clients’ properties.

The Claimant and the Defendant (Jenkins O’Dowd) were firms of solicitors who acted for the purchaser and the seller respectively in the course of three residential property transactions. Two properties were mortgaged to Barclays Bank (“Barclays”) and one to Close Brothers (“Close”). In the case of each of the properties, it was charged to the relevant financial institution by way of an “allmoneys” charge as part security for a loan facility considerably in excess of the value of the individual property.

Pursuant to Udall before making its application for summary judgment the Claimant had made an application to the Law Society, which led to a delay in making its High Court application. Consequently, relying on observations of Mummery LJ in Taylor v Ribby Hall Leisure Ltd [1998] 1 WLR 400 at 409H-410B, the Defendant submitted that judgment ought not to be granted. However, the judge held that the court should be slow to encourage premature resort to litigation before alternative methods of compelling performance of a solicitor’s undertaking have been exhausted. Summary judgment was therefore granted.

For each transaction the Claimant sought and obtained from the Defendant standard undertakings to redeem or discharge the mortgages and charges on completion and to send to the Claimant standard discharge forms, the receipted charge(s) or confirmation that notice of release or discharge had been given to the Land Registry as soon as the Defendant received them. It appeared that the Defendant gave the said undertakings without first obtaining the redemption figures. Furthermore, there was no evidence before the court that any part of the sale proceeds from any of the three properties was ever paid over to Barclays or to Close.

This case has implications beyond those dealing solely with undertakings given by solicitors during the property transaction process. It is clear that if a solicitor is contemplating giving an undertaking it must first be sure of the extent of the risk by making suitable enquiries before committing itself accordingly. Otherwise, it runs the high risk of a sum or otherwise ‘now’ required for those undertakings to be performed/fulfilled being greater than had the undertakings been honoured in due time based on information sought and known prior to those undertaking having given.

In Udall v Capri Lighting Ltd [1988] QB 907 at 917 Balcombe LJ said there are three ways in which a party seeking to enforce a solicitor’s undertaking can proceed (a) by an action at law; (b) by an application to the High Court to exercise its inherent supervisory jurisdiction over solicitors; and (c) by an application to the Law Society. In the exercise of the supervisory jurisdiction over solicitors, ‘what in practice has always been done is that the court, if the circumstances warranted, makes an order on the solicitor to do an act which he has undertaken to do’: Re a Solicitor [1966] 3 All ER 52 at 56. It is for the court to determine (1) Whether the Defendant gave the undertakings; (2) If Defendant gave those undertakings, have they been performed? (3) If they have not been performed, are the undertakings ones that are impossible to perform?

Ryan Clement is a practicing barrister at Conference Chambers and represented the Claimant in the above named case

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property

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