BAILII Citation Number: [1999] EWCA Civ 3037
CHANI 1998/1391/3, FC3 1999/6478/3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY  DIVISION
(MR JUSTICE LIGHTMAN
SIMON BROWN LJ & MANTELL LJ)
Royal Courts of Justice
The Strand
London

Wednesday  30  June  1999

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Bingham of Cornhill)

LORD  JUSTICE  OTTON

and

LORD  JUSTICE  ROBERT  WALKER
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B E T W E E N:

ALI  MOHAMMED
Claimant

and

ALAGI & CO (A Firm)
Defendant

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(Computer Aided Transcription by
Smith Bernal, 180 Fleet Street, London EC4A 2HD
Telephone 0171 421 4040
Official Shorthand Writers to the Court)
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MR RICHARD McCOMBE QC and MR G SAMUEL (instructed by Messrs Jansons,
London W1H OBA) appeared on behalf of THE CLAIMANT
SIR GODFRAY LE QUESNE and MR H STEVENS (instructed by Messrs Alaga &
Co, London SW17 OSF) appeared on behalf of THE DEFENDANT
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J U D G M E N T
Wednesday  30  June  1999

THE LORD CHIEF JUSTICE:  On 25 March 1998 Lightman J struck out the plaintiff's statement of claim and dismissed this action on the ground that the plaintiff's claim in contract was illegal and unenforceable, and that his alternative claim in restitution was not maintainable.  The basis of those findings was that the claims were based on or arose out of an agreement with the defendant solicitors to share fees which was an agreement the solicitors were prohibited from making.  The plaintiff appeals against that order.  
         The central issues in the appeal are whether the agreement on which the plaintiff relies is illegal and unenforceable and, if so, whether the alternative claim in restitution is maintainable.  These are questions to be answered on the basis of factual assumptions made at this stage in the plaintiff's favour.  
         The writ in the proceedings was issued on 23 September 1996.  It is pleaded that the plaintiff is a leading member of the Somali community living in the United Kingdom and a fluent speaker of the Somali language, and that the defendants are a firm of solicitors.  In paragraph 3 an oral agreement made at the end of 1993 is pleaded (although it appears that that should be 1994).  In paragraph 4 of the statement of claim the following express terms of the agreement are pleaded:  
  
		"a) that the plaintiff would from time to time introduce Somali refugees to the Defendant, who would in turn apply for Legal Aid and thereafter represent them on their applications for asylum; 
  
		b) that following the said introduction the Plaintiff would assist the Defendant by interpreting on behalf of the refugee clients, by filling out the necessary Green Form applications, by writing letters to the Home Office, Department of Social Security and others and thereafter attend with the clients at meetings with Home Office representatives; 
  
		c) in consideration thereof the Defendant agreed to pay commission of one half of any fees received by it from the Legal Aid Board in respect of any Somali Nationals who became clients of the said firm and who sought and obtained Legal Aid; 
  
		d) that if and when the Plaintiff required assistance from third parties to carry out his agreed responsibilities, payment to them would be made out of his commission; 
  
		e) that the Defendant would regularly disclose copies of all payments received by it from the Legal Aid Fund together with documents in support in respect of the Somali Nationals who became clients of the firm;" 

         In paragraph 5 it is pleaded as a term of the contract that the plaintiff would be paid within four weeks of the initial introduction being made, or within four weeks of a Somali client becoming a client of the defendant and applying for legal aid.  
         In paragraph 6 an implied term of the agreement is pleaded relating to the payment of third parties.  
         In paragraph 7 it is alleged that, pursuant to the agreement, the plaintiff began work on 4 January 1995 by introducing two named clients to the defendant.  
         In paragraph 8 we find the following pleading:  
  
		"Between 4th January 1995 and 6th February 1996 the Plaintiff introduced a further 241 Somali Nationals hereinafter referred to as 'the clients' to the Defendant who then applied for Legal Aid on behalf of the clients, naming the Defendant firm as their solicitors.  Thereafter the Plaintiff carried out translations and interpretations, wrote letters on behalf of the clients and attended with them at Home Office meetings."  

In particulars under that paragraph the plaintiff gives the name of a number of clients with some introduction dates and references, but with no particulars of any work that he did by translating, interpreting or attending for or on such clients.  
         It is pleaded in paragraph 9 that the plaintiff retained third parties to carry out work on behalf of the clients.  
         In paragraph 10 it is pleaded that, for his services, he was paid £18,887 pursuant to the alleged agreement.  
         In paragraph 11 it is pleaded that in breach of the agreement the plaintiff was not paid 50% of all the fees received within four weeks of the introduction of clients and the application for legal aid, and that the defendant has not paid third parties.  
         In paragraph 12, in further breach of the agreement it is pleaded that the defendant has failed to disclose copies of all payments received from the Legal Aid Fund.  
         In paragraph 13 the plaintiff pleads his allegations of loss which are put under two heads: first, the loss of 50% of all the fees received by the defendant from the Legal Aid Fund; and second, the sums which the plaintiff alleges he has had to pay to third parties for services rendered.  
         In paragraph 14 the plaintiff seeks an account of all sums received by the defendant from the Legal Aid Fund.  
         In paragraph 15 he makes a claim in the alternative for a reasonable price for the work carried out at the defendant's request, undertaking to give particulars following discovery.  
         In paragraph 16 he claims interest.  The first two heads of claim at the end of the pleading relate to the claim for 50% of sums received by the defendant from the Legal Aid Board.  The third claim is for damages.  The fourth is a quantum meruit claim for services rendered, and the pleading ends with a claim for interest.  
         In the defence the defendant denies the representative capacity of the individual with whom the plaintiff claims to have made his agreement, and the agreement itself is denied.  The defendant does, however, admit in paragraph 5 that the defendant from time to time engaged the plaintiff's services as interpreter and translator, although making no further admission beyond an admission that the plaintiff was paid fees for interpretation and translation.  
         From further and better particulars delivered by the plaintiff it appears that he is a professional translator in the Somali and Arabic languages.  
         In due course the statement of claim was amended and the defence also was amended.  Crucial to the amendment of the defence was a new paragraph 3a, which read:  
  
		"If (which is denied) the agreement alleged at paragraph 3 of the amended Statement of Claim was made between the plaintiff and Mr K Alagarajah purporting to act on behalf of the defendant, the defendant avers that (a) the making and/or (b) the performance of any such agreement as is alleged was/is contrary to regulation 7 of the Solicitors Practice Rules 1991 and the Solicitors Act 1974 section 31(c) the agreement was made without the knowledge, consent and authority of the defendant and is illegal and/or unenforceable by the plaintiff and/or ought not to be enforced against the defendant."  

         Deputy Master Price ordered the determination of a preliminary issue: whether the plaintiff's claims cannot in law succeed by reason of the unlawfulness of the contract pleaded under Rule 7 of the Solicitors Practice Rules 1990.  That issue was determined by Master Bragge on 4 November 1997, who ruled in favour of the plaintiff.  
         There was then, however, an appeal to Lightman J who heard argument on 16 March 1998 and delivered a reserved judgment in writing on 25 March.  He said at the outset of his judgment:  
  
		"The issue is short, but of some public importance, namely whether a party to an agreement with a solicitor for the payment of a share of the fees earned by that solicitor in consideration of the introduction of clients and the provision of other associated services is legal enforceable, and if it is not legally enforceable, whether that party has a claim against the solicitor in restitution for the value of the introductions and the services which he has rendered."  

The judge recorded that, for purposes of the legal argument, he was making two factual assumptions in favour of the plaintiff: first, that the agreement alleged had been made; and second, that the plaintiff was unaware of any prohibition on fee‑sharing agreements.  The judge made reference to the Solicitors Act, to the Practice Rules, and to the Solicitors Introduction and Referral Code, to which I shall return.  On page 3 of his judgment he outlined the considerations which he understood to underpin the Practice Rules.  He said:  
  		"How necessary these regulations are to protect the interests of clients and the interest of the public is easy to see.  It is most undesirable that there should be a trade in referrals to a solicitor, where the sole consideration in the mind of the person making the referral should be the best interests of the persons referred and not personal gain.  The existence of an agreement to give a reward or to share fees creates the unacceptable risk of exploitation of those in need of legal advice and assistance and of referrals and introductions which are not in the clients' interest being made for pecuniary gain.  The existence of the agreement and the relationship of the solicitor and the other party to the agreement may be incompatible with the duty of undivided loyalty owed by the solicitor to the client, and creates the risk of the solicitor being influenced by his fee‑sharer into giving advice which is not in the particular client's best interests in order not to offend the fee‑sharer (see Cordery on Solicitors Vol 1, E para 233).  Further the client may be expected to bear in one form or another the cost of the consideration which the solicitor has agreed to furnish.  As an example, in this case where (if the alleged agreement was indeed made) the share of the fees agreed to be paid is one half of that earned by the solicitor, there must be substantial grounds for anxiety that either the clients will only receive one half of the services to which they are entitled or the Defendant will be charging (in this case the Legal Aid Fund) double what it should.  It is however unnecessary to explore further the purpose behind the Rules and Section: it is sufficient that the legislature through its chosen delegate, the Council of the Law Society, has perceived the mischief and banned it.  So far as solicitors are concerned, the general rule is that clients are not merchantable commodities to be bought and sold."  

The judge then turned to consider the claim in contract and expressed his judgment in these terms:  
  
		"As I have already said, the Rules do constitute subordinate legislation.  The question to be determined is accordingly whether Rule 7 prohibits the making by a solicitor of a contract for the sharing of fees.  The answer is plainly in the affirmative.  The Rule expressly prohibits a solicitor both from entering into such contracts and from making any payment in performance of such a contract.  If the Plaintiff were to succeed in this claim, the Court would be sanctioning the entry into agreements for payment which are forbidden and would be requiring the solicitor to do what statute forbids him from doing (i.e. paying).  I should add that the entry into the contract and its performance are likewise prohibited by Rule 3 for non‑compliance with the Section: for they constitute the agreement to reward and the rewarding of the Plaintiff for the introduction of clients.  
  
		It is no answer for the Plaintiff to say that this practice of sharing fees or the giving of such a reward is countenanced in other professions not equally regulated in this regard by statute or would be countenanced but for the Rules and the Code.  Nor is it an answer that the Plaintiff was ignorant of the Rules and the Code when he entered into the contract (see Devlin J in St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267, 283).  It is highly blameworthy of a solicitor to enter into such a contract, and the more so if he fails to warn a party with whom he deals of the provisions of the Rules: any competent solicitor fit to practise law should know the Rules and, if he knows of the Rules, honesty and his professional duty require him before entering into any such contract to inform any person who makes to him proposals of arrangements which involve a breach of the Rules that they indeed do so.  I do not have to consider whether the failure to make disclosure can give rise to a cause of action on the part of the other party to a transaction.  There may be a duty on the part of the solicitor to disclose the ban on such agreements and a claim against the solicitor in damages may be available for breach of this duty.  But it is clear that such failure cannot validate what is otherwise an illegal contract."  

         The judge then turned to the claim in restitution, which he held to be barred for three reasons.  First, he held that no such claim was available where the statute forbade the making of the contract and the grant of a quasi-contractual remedy was a means of nullifying the statutory prohibition.  He made reference to the often cited observations of Lord Radcliffe in Boissevain v Weil [1950] AC 327, 341.  Secondly, he held that a claim in restitution must be limited to a payment out of the fees received from the referred clients, and any such payment must accordingly involve a sharing of those fees.  Thirdly, he held that, even if the payment were not necessarily to be paid out of the fees received, nonetheless it would in substance be a payment in consideration of the introduction of clients and would accordingly fall foul of Rule 3.  He accordingly allowed the appeal and resolved the issue of law in favour of the defendant.  
         Section 31 of the Solicitors Act 1974 provides:  
  
		"(1) Without prejudice to any other provision of this Part the Council may, if they think fit, make rules, with the concurrence of the Master of the Rolls, for regulating in respect of any matter the professional practice, conduct and discipline of solicitors."  

         The first of the relevant Practice Rules is Rule 3 which provides:  
  
		"Solicitors may accept introductions and referrals of business from other persons and may make introductions and refer business to other persons, provided there is no breach of these rules and provided there is compliance with a Solicitors' Introduction and Referral Code promulgated from time to time by the Council of the Law Society with the concurrence of the Master of the Rolls."  

         The Referral Code provides in Section 2, Rule 3:  
  
		"Solicitors must not reward introducers by the payment of commission or otherwise.  However, this does not prevent normal hospitality.  A solicitor may refer clients to an introducer provided the solicitor complies with Section 4 below."  

Most relevantly our attention is drawn to Rule 7, which provides:  

		"(1) A solicitor shall not share or agree to share his or her professional fees with any person except:..."  

A series of exceptions are listed, none of which, it is accepted, applies in the present case.  
         The role of the Law Society in making rules and regulations of this kind was considered by the House of Lords in Swain v The Law Society [1983] AC 598.  Of particular relevance is a passage in the opinion of Lord Diplock at page 608, where he said:  
  
		"It is quite otherwise when the Society is acting in its public capacity.  The Act of 1974 imposes upon the Society a number of statutory duties in relation to solicitors whether they are members of the Society or not.  It also confers upon the Council of the Law Society, acting either alone or with the concurrence of the Lord Chief Justice and the Master of the Rolls or of the latter only, power to make rules and regulations having the effect of subordinate legislation under the Act.  Such rules and regulations may themselves confer upon the Society further statutory powers or impose upon it further statutory duties.  The purpose for which these statutory functions are vested in the Society and the Council is the protection of the public or, more specifically, that section of the public that may be in need of legal advice, assistance or representation.  In exercising its statutory functions the duty of the Council is to act in what it believes to be the best interests of that section of the public, even in the event (unlikely though this may be on any long‑term view) that those public interests should conflict with the special interests of members of the Society or of members of the solicitors' profession as a whole.  The Council in exercising its powers under the Act to make rules and regulations and the Society in discharging functions vested in it by the Act or by such rules or regulations are acting in a public capacity and what they do in that capacity is governed by public law; and although the legal consequences of doing it may result in creating rights enforceable in private law, those rights are not necessarily the same as those that would flow in private law from doing a similar act otherwise than in the exercise of statutory powers."  

I would add that the requirement that the Master of the Rolls should concur in the making of rules under section 31 is in my judgment enacted to ensure that the wider interest of the public is recognised in any rules that are made.  
         The first issue on this appeal concerns the plaintiff's right under the contract which is assumed to have been made to recover 50% of the legal aid fees received by the solicitors.  Mr McCombe QC, in a well‑constructed argument, advanced a series of propositions which I hope may be fairly summarised as involving five main planks:  
  
	(1) In the absence of any statutory or other legal restriction everyone is free to make any contract they like and such contracts are enforceable.  
  
	(2) While the Solicitors Act confers power on the Law Society to make rules to regulate the conduct of solicitors, the Law Society has no power to regulate the conduct of the public at large who are not solicitors.  
  
	(3) Thus, while the Law Society may lawfully forbid solicitors to make fee‑sharing agreements, it has no power to forbid anyone else, nor to ordain that such agreements shall be unenforceable save by solicitors.  
  
	(4) In the absence of an effective legal prohibition a non‑solicitor party who makes a fee‑sharing agreement with a solicitor is entitled to enforce it.  
  
	(5) It would be repugnant if the party prohibited from making such an agreement (the solicitor) were free to take the benefits accruing to him under the agreement, but were then entitled to plead the illegality of the agreement when called upon to pay the consideration due to the other contracting party, particularly when (as assumed here) that party is ignorant of the prohibition binding on the solicitor.  
  
         While recognising that that argument is by no means without force, I would not for my part accept it.  I reject it for these reasons:  
  
	(1) Section 31 confers power on the Law Society to make, with the concurrence of the Master of the Rolls, subordinate legislation governing the professional practice and conduct of solicitors.  
  
	(2) When making such subordinate legislation the Law Society is acting in the public interest and not (should there be any conflict) in the narrower interests of the solicitors' profession (see Swain v The Law Society).  The concurrence of the Master of the Rolls is required as a guarantee that the interests of the public are fully safe‑ guarded.  
  
	(3) By rule 3 of the Practice Rules, and by the Referral Code, solicitors are permitted to accept referrals and introductions only provided that introducers are not rewarded by commission or otherwise.  
  
	(4) By rule 7 solicitors are prohibited from sharing fees or agreeing to do so.  
  
	(5) Thus there is a prohibition on the making by solicitors of agreements of the kind assumed to have been made in this case.  
  
	(6) Although it is true that the prohibition is only imposed in terms on solicitors, and they alone are liable to imposition of a professional penalty for breach, a contract requires the concurrence of at least two parties and the effect of the prohibition, if observed, is to outlaw the making of such agreements.  
  
	(7) There are substantial reasons why, in the public interest, such agreements should be outlawed, some of those reasons being described by Lightman J.  
  
	(8) It follows that it would defeat the public interest, which rule 7 in particular exists to promote, if a non‑ solicitor party to a fee‑sharing agreement could enlist the aid of the court to enforce against a solicitor an agreement which the solicitor is prohibited from making.  
  
	(9) If the court were to allow its process to be used to enforce agreements of this kind, the risk would inevitably arise that such agreements would abound, outwith the knowledge of the Law Society, to the detriment of the public.  
  
         Mr McCombe relied on the well‑known judgment of Devlin J in St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267, 283, where Devlin J said:  
  
		"The second principle is that the court will not enforce a contract which is expressly or impliedly prohibited by statute.  If the contract is of this class it does not matter what the intent of the parties is; if the statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not.  A significant distinction between the two classes is this.  In the former class you have only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is deliberately made to do a prohibited act, that contract will be unenforceable.  In the latter class, you have to consider not what acts the statute prohibits, but what contracts it prohibits; but you are not concerned at all with the intent of the parties; if the parties enter into a prohibited contract, that contract is unenforceable."  

It seems to me that that passage is unhelpful to the plaintiff.  This is in my judgment plainly a case in which the relevant legislation (rule 7) prohibits not only the act but the contract to perform it also.  Despite Mr McCombe's argument, I have little hesitation in agreeing with Lightman J on this first point.  I should, however, note that Mr McCombe reserves the right to argue that rules made by the Law Society under section 31 are not to be regarded as subordinate legislation.  
         If, contrary to his first submission, the contract between the parties was illegal and unenforceable, Mr McCombe contended that the plaintiff was entitled to pursue a claim in quasi-contract or restitution.  In the pleading, and before the judge (and initially before this court), that claim was pursued as a ground for claiming 50% of the legal aid fees earned by the defendant, namely the same reward as would have been recovered under the alleged agreement if it had not been illegal or unenforceable.  In response to questions by the court, however, Mr McCombe accepted that if recovery under the contract was precluded on grounds of public policy, the plaintiff could scarcely hope to recover exactly the same relief by re‑labelling his ground of claim.  He would, as was acknowledged, have no ground for claiming 50%, save by reference to the contract which the court has held to be illegal and unenforceable.  
         Fortunately for him, however, Mr McCombe had another string to his bow.  Reference has already been made to the pleaded allegation in paragraph 8 of the statement of claim that the plaintiff carried out translations and interpretations, wrote letters and attended meetings.  In paragraph 15 a claim in quasi-contract was made for remuneration for those services, which also featured as the fourth head of claim at the end of the pleading as a quantum meruit claim for services rendered.  It is further a matter of agreement between the parties that the plaintiff has been paid what the defendant says were fees for interpretation and translation.  Mr McCombe accordingly claims that, even if the alleged agreement is discarded as illegal and unenforceable, and without making any reference to that agreement at all, the plaintiff is entitled to be paid a reasonable sum for professional services rendered by him to the defendant on behalf of the defendant's clients, the surrounding circumstances being such as to show that such services were not rendered gratuitously.  
         Sir Godfray Le Quesne QC, representing the defendant, resisted that argument.  It was, he submitted, only because of the unlawful fee‑sharing agreement that the introductions were made by the plaintiff to the defendant at all.  Accordingly, he suggested that the plaintiff was in effect seeking to recover part of the consideration payable under an illegal and unenforceable agreement.  
         That is, I think, a possible view of the case.  But the preferable view in my judgment is that the plaintiff is not seeking to recover any part of the consideration payable under the unlawful contract, but simply a reasonable reward for professional services rendered.  I accept that as an accurate description of what on this limited basis the plaintiff is, in truth, seeking.  It is furthermore in my judgment relevant that the parties are not in a situation in which their blameworthiness is equal.  The defendant is a solicitors' firm and bound by the rules.  It should reasonably be assumed to know what the rules are and to comply with them.  If, in truth, it made the agreement as alleged, then it would seem very probable that it acted in knowing disregard of professional rules binding upon it.  By contrast the plaintiff, on the assumption made (which I have no difficulty in accepting), was ignorant that there was any reason why the defendant should not make the agreement which he says was made.  In other commercial fields, after all, such agreements are common.  
         It appears to me that the present case is readily distinguishable from Taylor v Bhail [1996] CLC 377.  In that case there was a criminal conspiracy to defraud an insurance company.  The plaintiff was obliged to rely on the illegal contract to maintain his claim and both parties were equally culpable.  These conditions are not satisfied in this case.  
         The judge and the defendant relied on the dictum of Lord Radcliffe already referred to in Boissevain v Weil.  There may be some doubt whether that dictum is fully reconcilable with observations of the House of Lords in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, 688E, 710E, 718E, 736E and 738B.           In any event, however, there is a crucial distinction between a case in which a plaintiff is in effect suing on a contract of loan and a case in which the plaintiff is not suing on any contact but simply for the value of work done.  On that limited basis I would for my part allow the appeal and reinstate the action to the extent of permitting the plaintiff to pursue a quantum meruit claim for reasonable remuneration for professional services rendered.  
         There is a third matter which was not before the judge.  Lightman J refused leave to appeal to the Court of Appeal and the single Lord Justice refused the plaintiff leave to appeal on paper.  The judge had, however, in a passage of his judgment which I have already read, aired the possibility of a potential claim by the plaintiff against the defendant in tort.  Accordingly, when the plaintiff renewed his application for leave to appeal to the full court, application was at the same time sought to amend the statement of claim to include such a claim.  The court granted leave to appeal and also granted leave to amend.  This was perhaps a somewhat surprising order since the Court of Appeal had seen no draft amendment.  The pleading to be amended was at that time struck out and the action dismissed.  No notice of the application had been given to the defendant, who was not present, but if present would undoubtedly have resisted it.  
         In this court Sir Godfray for the defendant has resisted it both on procedural and substantive grounds.  I see considerable force in the procedural objections.  I have grave doubt about the arguability of the claim in law.  I also have grave doubt whether it adds anything, since I cannot conceive that the plaintiff could recover anything under this head as damages which he would be debarred from recovering under the contract.  If the procedural objections raised to the amendment are sound, then Mr McCombe asks this court for leave to make the amendment.  Despite Sir Godfray's objections, but without in any way dismissing those objections, I would myself grant leave to make an amendment along the lines already formulated.  Lightman J and two members of the Court of Appeal have considered such a claim to be potentially arguable, and in deference to their opinions I would be reluctant to rule that the claim is unarguable.  It may turn out that the facts are of some relevance.  At any trial the defendant is fully entitled to develop its legal objections to this ground of claim.  I would, however, in allowing the appeal, grant leave to the plaintiff to plead a tortious claim in negligence to the effect of that pleaded.  It is plain that the pleadings will have to be revised to give effect to this judgment, and the opportunity can then be taken to look again at the pleading of the tortious claim.  To that extent I would allow this appeal.  
  
LORD JUSTICE OTTON:  I agree 

LORD JUSTICE ROBERT WALKER:  I also agree that this appeal should be allowed to the extent and for the reasons stated by my Lord.  I add a few comments of my own on what Lord Radcliffe said in Boissevain v Weil [1950] AC 327, 341, in a passage cited and relied on by Lightman J.  In that passage Lord Radcliffe gave two reasons why the claimant could not have obtained a restitutionary remedy, even if the point had been properly pleaded.  The first was that the very act of borrowing was prohibited by the Defence (Finance) Regulations 1939 and was a criminal offence.  Therefore, as Lord Radcliffe put it, "The matter passes beyond the field in which the requirements of the individual conscience are the determining consideration."  
         The other reason given by Lord Radcliffe was wider.  Until recently it was generally thought that in every case where some statute or common law rule made a contract or supposed contract unenforceable or ineffective, the court would not grant a restitutionary remedy if to do so would have the substantial effect of enforcing the void or unenforceable contract.  That principle (the rejection of what my Lord referred to as "re‑labelling") depended on public policy but was by no means limited to cases of illegality.  Lord Sumner's observations in Sinclair v Brougham [1914] AC 398, 452, cited by Lord Radcliffe in Boissevain v Weil, were directed to ultra vires borrowing by a building society.           
	    In Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, the House of Lords has departed from Sinclair v Brougham on this point, as well as on the resulting trust point (see especially the speech of Lord Browne‑Wilkinson at page 710E‑G, and compare the observations of Lord Goff at page 688E‑H; Lord Goff would have preferred to see Sinclair v Brougham simply wither away).  Lord Radcliffe may have far‑sightedly anticipated this development because he added, after the citation from Lord Sumner's speech:  
  
		"His principle is surely right whether the action for money had and received does or does not depend on an imputed promise to pay."  

         In my view nothing in Westdeutsche casts any doubt on the correctness of the result in Boissevain v Weil which was concerned with a credit transaction expressly prohibited, and indeed made a criminal offence, by regulations with statutory force.  It was not a case in which either party to the transaction contended that he or she had a lower level of culpability than the other.  The same is true of the decision in this court in Taylor v Bhail [1996] CLC 377, the case of the headmaster and the builder who conspired together to concoct a fraudulent insurance claim.  
         In the present case, by contrast, it was common ground that the judge should approach the summons under Order 14A on the footing that the claimant was innocent in the sense of being unaware of the prohibition on fee‑sharing contained in Rule 7 of the Solicitors Practice Rules.  Rule 7 was not of course made for the purpose of protecting persons in the position of the claimant.  It was made for the benefit and the protection of the general public, as the judge clearly explained in a passage already read by my Lord.  Nevertheless, the claimant may be able to establish at trial that he was not culpable, or was significantly less culpable than the defendant solicitors, and that they should not be unjustly enriched as the result of unremunerated services such as interpreting and translating actually performed by the claimant for the solicitors' clients.  Remuneration which the claimant received on that basis would be a proper disbursement and would not, it seems to me, involve either a payment for introductions or the sharing of part of the solicitors' own profit costs.  

ORDER:  (Not part of judgment) 

		Appeal allowed in part; the claim based on the contract and the entitlement to 50% to be struck out; the claim on quantum meruit to be pursued; leave to plead a tortious claim granted; the defendant to have 50% of the costs before Lightman J; the plaintiff to have 50% of the costs in this court; no order as to costs of or relating to the amendment to include the tort claim; determination of the sum to be paid by the plaintiff (if any) to be postponed under section 17 of the Legal Aid Act; the Law Society to be given opportunity under section 18 of the Legal Aid Act to oppose order in relation to the proceedings before Lightman J; set‑off of the costs or damages payable respectively to and by each party to be postponed until further order; legal aid taxation; agreed minute of order to be lodged with the Court of Appeal; leave to appeal refused.