Application for an order of mandamus on behalf of The Homes Organisation to challenge its conviction for breach of the Solicitors Act–Preparation of an instrument of transfer by an unqualified person–Question whether the offence can be committed by a corporate body–Court not satisfied that point was taken before magistrate–Application dismissed
In these
proceedings John James Watson applied in his capacity as a director of The
Homes Organisation, a corporate body, for an order of mandamus directed to Mrs
Audrey Frisby, one of the metropolitan stipendiary magistrates, requiring her
to state a case for the consideration of the court concerning her conviction of
the applicant corporate body on December 12 1975 for preparing an instrument of
transfer when not qualified, contrary to section 20 of the Solicitors Act 1957,
and the imposition of a fine.
The applicant
appeared in person; A Hill (instructed by Richards, Butler & Co)
represented the respondents, the Law Society.
Giving the
first judgment at the invitation of Lord Widgery, WATKINS J said that the
agreed facts were that the applicant corporate body in November 1974 while
engaged in the purchase of a house, sent a letter to the vendor’s solicitors
with a draft contract. By an information preferred in June 1975 the respondents
claimed that The Homes Organisation had prepared an instrument of transfer when
unqualified.
Mr Watson’s
claims in the mandamus proceedings were that the learned stipendiary magistrate
had no jurisdiction in that the information had been laid out of time and that
it was impossible for a corporate body to prepare a transfer and he relied upon
the case of Green v Hoyle [1976] 2 All ER 633.
As to the
first point the learned stipendiary magistrate, in convicting, had decided the
jurisdiction point on the evidence called on behalf of the respondents, since
no evidence was called on behalf of the applicant. That was a question of fact
for the learned stipendiary and the court could not interfere with that
decision.
There had been
considerable argument in the present proceedings whether or not Mr Watson had
argued the second point before the stipendiary magistrate. According to Mr
Watson he did raise before the magistrate the question of who drew up the
contract, that was to say, whether it was drawn up by an individual or by the
corporate body. If it had been raised and adjudicated upon one expected there
would at least have been some reference to it or at least some recollection of
its having been argued. The recollection of two people present before the
magistrate was that it was not raised. In the case of Green v Hoyle,
which concerned an offence under section 20 of the Solicitors Act 1957, Lord
Widgery CJ, at p 639, had referred to the fact that the situation might arise
where a limited company was charged with having drawn up and prepared an
instrument. Before the present applicant could argue that point it had to be
raised directly in the court below.
He (his
Lordship) was not satisfied that the applicant had brought that matter to the
attention of the magistrate. Therefore the application should be dismissed.
PARK J agreed.
Also agreeing,
LORD WIDGERY said that Green v Hoyle represented a substantial
step forward for those sharing the applicant’s interests. However, the court
had to decide the application on the arguments presented.
The
application was refused with costs.
