Hall v Meyrick
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0621-1 |
| Court | Court of Appeal |
| Date | 21 June 1957 |
[1957] EWCA Civ J0621-1
Lord Justice & Hodson
Lord Justice Parker. And
Lord Justice Omerod,
In The Supreme Court of Judicature
Court of Appeal
MR F.W. BENEY. Q.C. and MR GORDOM FRIEND (instructed by Messrs J.F. Counsel & Co.) appeared as Counsel for the Appellant (Defendant below).
MR H.J. PHILLIMORE. Q.C. and MR JAMES W. BORDERS (Instructed by Messrs Linsley-Thomas & Co.) appeared as Counsel for the Respondent (Plaintiff below).
LORD JUSTICE HODSON: This is an appeal from a judgment of Mr Justice Ashworth given on the 21st December, 1953. The notion was brought by Mrs Hell, the widow of a man called Robert Constable Bali, against a solicitor, Mr Mayrick, for damages for loss incurred through the defendant's negligence in his capacity as solicitor
The learned judge, first of all, found that the case as advanced by the plaintiff was not established, but, at the conclusion of the addresses of counsel, he stated that the question of amendment might at that late stage be considered. It was considered on the 23rd November, 1966, end he did in general terms give leave to the plaintiff to amend; but, as his judgment shows, he did not exclude the defendant from raising objections to the amendment when it had been formulated. On the 23rd December, 1956, the amendment had been formulated - I shall have to deal with what it was in a moment. At that stage leading counsel, Mr Beney, who has appeared in this Court, was Instructed for the defendant, and he took a point which had not been taken before, but which wae in the learned judge's mind, as he stated, namely, If this amendment were allowed It would have the effect of taking away from the defendant the benefit of the Statute of Limitations. The learned judge felt obliged, as he thought in fairness to the parties, not to resile from the position he had previously taken up, end, therefore, he did not reverse his original decision that there should be, or could be, an amendment.
The first point taken by the appellant in this court is that the learned judge was wrong in allowing the amendment. He was in no sense barred by the fact that, the objection not being taken at the earliest possible moment, he had come provisionally to the view that the amendment could be allowed, end if the learned judge has expressed himself by word of mouth, until the Order has been perfected he can, If he is so minded, make a different Order, This Court is naked to deal with this case on the basis that it is unjust to the defendant, in accordance with well-established authority, to deprive him of the benefit of the Statute of Limitations by a circuitous route Secondly, it le said that the learned judge, having decided the case correctly in favour of the defendant on the case as put, was wrong on the amended case because in the circumstances here there was no duty upon the defendant of which he was in breach. Finally, it is said that the damages of £1300 assessed by the learned judge did not In any event flow from the breach, if any.
Having regard to the decision which I have reached, I do not propose to eay anything about the difficult question - and, indeed, from the academic point of view, the interesting question - as to whether it can be said on the facts of this case, there being a breech, that any damages would flow from that breach, or whether the damages assessed by the learned judge were very largely excessive, having regard to the number of contingencies involved in this case before any damage could be suffered by the plaintiff. I propose to rest my decision on the first point in this case, namely, the question whether the amendment ought to be allowed.
I must now state what the facts are. The plaintiff is a lady with three grown-up sons and one married daughter. At the time when the events with which we ere concerned happened she must have been (though there is no direct evidence to this effect) round about 50 years of age. She was acquainted with Mr Hall, who had been divorced by his first wife in 2931. The defendant is a solicitor who was a member of the firm of Greene & Underhill, and from 1931 until 1954 he was the sole member of the firm, because Mr Underhill died in 1931.
The plaintiff was a widow - Mrs James - and she had employed the defendant as her solicitor in succession to Mr Underbill. Mr Hall, whom the plaintiff subsequently married, had been an accountant. I do not know what the position had been before, but in 1933 Mrs James was then keeping a boarding-house and Mr Hall was living there as a paying guest. They lived together in the house as guest and boarding - house Keeper for some years. In 1947 Mr Hall won £25,000 in the Irish Sweep, and he was introduced by Mrs James to Mr Meyrick, who acted for them both from time to time. Mr Hall got Mr Meyrick to make a will for him in 1947 in which he left everything to Mrs James. There is some evidence that be was asked to make a will also for Mrs James at that time. In September, 1949, on the instructions of Mr Hall. £6000 worth of securities were settled upon Mrs James for life, with remainder to her children. This work was done by Mr Meyrick. An appointment wee made on November 24th, 1949, with Mr Meyrick by Leonard, Mrs James son, Leonard stating that he had come from his mother, who wanted a new will made for had. There was some question about the terms of the will, Mr Hall also desired to make a fresh will. Eventually, on the 29th November, 1949, an interview took place at Mr Meyrick's office at which were present not only Mr Meyrick, Mr Hall, and Mrs James, but also, as the judge finds, Leonard Mr Meyrick made notes of the instructions which he received for the wills which he was to mates. These wills were not exactly mutual wills; Mr Hall left his money to Mrs James, and provision was made for her children, end Mrs James left a house and £3000 (which was more than she possessed) to Mr Hall; so. In substance, they were making wills in one another's favour, a provision being put in that if Mrs James survived Mr Hall for 14 days his property was to go to her; otherwise, the money was to go to her children.
Mr Meyrick's knowledge of the situation at that time was that these people had been living together for 15 years and were minded to benefit one another in the way I here described. But there was a dispute as to what was said at this interview the point being that If these people were going to get Berried It would be quite idle to make wills for then, because those wills would only take effect until marriage unless exppressd' made in contemplation of marriage. The defendant said that there was no question of marriage mentioned. He had known these relatively elderly people for e considerable time nemely, 15 years and he never thought of any question of marriage. He denied firmly that anything was said about marriage. Mr James and the son Laonerd said to the contrary, and the evidence of Leonard was accepted, the effect of the evidence was that in the course of a discussion, sitting round Mr Meyrick's table, he said why don't you two get married?", to which his mother replied we will one day. When we move to the country we will have to get carried, as everyone knows everyone else's business". The judge found that although, according to the son's evidence, this sally was greeted with some laughter, it was a drawing of Mr Meyrick's attention to the question of marriage which put him in a position in which he was under a duty to draw their attention (which he did not do) to the fact that If they were going to get married the will would be revoked, unless the will was made in a particular form.
One of the questions which is raised on this appeal, and is naturally one of great importance and interest to solicitors, is whether the judge was right in holding, as he did, that there was any duty at all, in the circumstances, on a solicitor to draw the attention of the client or clients to the provisions of Section 18 of the Wills Act,
I have said that I do not propose to give any concluded finding on this point, but I think it is right to say this. I would not for one moment suppose that it was the duty of a seliciter in all cases to draw the attention of persons who case into his office to make wills to the effect of marriage an a will. In sum a case I must use the words which are so well knows, that each case depends upon its own particular facts. This is a very special and unusual case.
As I have already said, the parties came into the solicitor's office, a man and a woman each known to the solicitor to be single, each desiring to benefit the other substantially to the extant of their whole possessions before death by their sills. They were known to have been living together for 16 years as housekeeper and boarder The attention of the solicitor having been drawn by a member of the family, the son, who was present, and who was the man who did the mother's business or helped has to do nor business, to the prospect of marriage, that evidance having been given and accepted, and another solicitor, Mr Daynes, having given evidence, which was also accepted, to the effect that as a matter of good practice it would be right, in those circumtances, for a solicitor to ask questions and to draw the attention of the client to Section 18 of the wills Act, and Mr Meyrick, the defendant, having admitted that if such a state of affaire as I have described existed there would be a duty upon his to draw the attention of his client to that possibility or to that event, - that they were going to take up marriage - this case is one in which the learned Judge's decision at any rate is supported by evidence. I leave that matter, having, I hope, made it quite clear that I as not going to impose an extravagant standard of duty on solicitors who are making wills for their cilants.
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