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Wigs and Wherefores:
A Biography of Michael Sherrard
Linda Goldman and Michael Sherrard
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.
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.
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.
Book Review
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 todays students of the law.
Sherrard, or his clerk, certainly knew how to pick em.
His cases meant that he met the famous and the notorious: Robert
Maxwell (Captain Bob) owner of the Daily Mirror who defrauded the
companys 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 nerdowell 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.
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 Smiths
unilateral declaration of independence in 1965.
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 Hanrratys 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.
This is the version of stories about the law that Shakespeare and
Dickens would have preferred: had they gone to Law School.
Professor Malcolm Davies
Head of Ealing Law School
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29
The judgment in Angel Solicitors (a firm) v Jenkins
ODowd & 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.
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
mortgagees 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.
The Claimant and the Defendant (Jenkins ODowd) 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 all-
moneys charge as part security for a loan facility considerably in
excess of the value of the individual property.
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.
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 solicitors
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?
Having failed to secure the performance of the
Defendants 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.
However, the judge held in the circumstance
that, due to the Defendants 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.
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 solicitors
undertaking have been exhausted. Summary
judgment was therefore granted.
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.
Ryan Clement is a practicing barrister at Conference
Chambers and represented the Claimant in the above
named case
Angel Solicitors (a firm)
v Jenkins ODowd & Barth
(a firm) and Others