Hemmens v Wilson Browne (A Firm)

JurisdictionEngland & Wales
CourtChancery Division
Judgment Date25 June 1993

Chancery Division

Before Judge Moseley, QC

Hemmens
and
Wilson Browne (a Firm)

Negligence - solicitor - liability to beneficiary - inter vivos transaction - misdrafted document

Solicitor not liable for misdraft

While a solicitor might owe a duty of care to an intended beneficiary under an irrevocable inter vivos transaction, a solicitor who had negligently misdrafted a document so as to give no enforceable rights was not liable to the intended beneficiary when it remained within the power of the settlor to remedy the situation and the only reason he did not do so was that he had changed his mind.

Judge Moseley, QC, sitting as a judge of the Chancery Division, so held on a claim by Mary Carmel Hemmens against Wilson Browne, Northampton, a firm of solicitors, for £110,000 plus interest.

Mr Gilead Cooper for the plaintiff; Mr Peter Roth for the solicitors.

HIS LORDSHIP said that on June 4, 1990, Mr Keith Panter instructed Mr John Saynor of the defendant firm of solicitors to draft a document giving his mistress, the plaintiff, the present right to call at an unspecified time in the future, for a sum of £110,000 to enable her to purchase a house for herself and her daughter.

The document was drafted and executed by Mr Panter in the presence of the plaintiff on the same day but it was common ground that the document gave the plaintiff no enforceable rights.

It was not a promissory note, not a contract, because there was no consideration, it was not under seal and it did not create a trust because there was no identifiable fund which could form the subject matter of such a trust.

When, some weeks later, Mr Panter was called on by the plaintiff to perform his promise, he refused to do so, and he had maintained that refusal thereafter.

The plaintiff claimed the £110,000 from the firm of solicitors on the ground that Mr Saynor owed her a duty of care to carry out Mr Panter's instructions with reasonable care and skill and that by reason of a breach of that duty she had lost £110,000 which she would have received had Mr Saynor not been negligent.

The question was whether the principle of Ross v CauntersELR ((1981) Ch 297), in which a beneficiary failed to obtain a legacy under a will through the testator's solicitor's negligence, should be extended to cover the present inter vivos transaction.

The Court of Appeal had recently considered Ross v Caunters in White v Jones (The Times March 9), another wills case, where the intended beneficiary...

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3 cases
  • Dean v Allin & Watts
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 23 May 2001
    ...has drafted may go to the fairness, justice or reasonableness of imposing a duty of care on the solicitor to that other party: see Hemmens v. Wilson Browne [1995] Ch 223. The mere fact that Mr Dean did consult Mr Greenwood is also relevant. But on the findings of fact by the judge this does......
  • Richards (t/a Colin Richards & Co) v Hughes
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 9 March 2004
    ...case, again as Judge Norris observed, has there been an actual decision applying those remarks. However, it is right to note that in Hemmens v Wilson Browne [1995] Ch. 223, decided after this court's decision in White v Jones but before the decision of the House of Lords, His Honour Judge M......
  • Humblestone v Martin Tolhurst Partnership (A Firm)
    • United Kingdom
    • High Court
    • Invalid date
1 books & journal articles
  • The emergence of solicitors’ tortious liability and the award of damages
    • United Kingdom
    • Journal of Financial Crime Nbr. 10-4, October 2003
    • 1 October 2003
    ...that a bene®ciary (a close relative) couldbring an action for negligence.(63) [1983] NZLR 22.(64) See Hemmens v Wilson Browne (a ®rm) [1994] 2 WLR 323.(65) Steyn LJ, White v Jones [1993] WLR 730 at 751 CA.(66) Ibid. at 752.(67) Solicitors are unable to charge fees to re¯ect possible litiga-......

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