Ross v Caunters

JurisdictionEngland & Wales
Judgment Date1979
Date1979
Year1979
CourtChancery Division
[CHANCERY DIVISION] ROSS v. CAUNTERS [1977 R. No. 3876] 1979 March 12, 13, 14, 15, 16; June 15 Sir Robert Megarry V.-C.

Solicitor - Negligence - Beneficiary under will - Solicitors' negligence in preparation of will - Resulting financial loss to beneficiary - Whether solicitors owing duty of care to beneficiary

Solicitors who prepared a will for a testator and sent it to him for execution failed to warn him that the will should not be witnessed by the spouse of a beneficiary. When the testator signed the will, one of the witnesses was the husband of a residuary beneficiary under it. After the testator's death the solicitors wrote to the beneficiary referring to a possible defect in connection with the witnessing of the will and enclosing a copy of section 15 of the Wills Act 1837 which provided that where a beneficiary or a spouse of a beneficiary attested a will, the gift to that beneficiary was void.

The beneficiary claimed damages against the solicitors for negligence in respect of the loss of the benefits given to her by the will. The solicitors admitted that they had been negligent but contended that the only duty of care which they owed was to the testator alone and that they had owed no such duty to the beneficiary: —

Held, (1) that, on the authorities, there was no longer any rule that a solicitor negligent in his professional work was liable only to his client in contract, for he could also be liable for the tort of negligence not only to his client but to others where a prima facie duty of care towards them could be shown (post, pp. 610H–611A, 626F).

Robertson v. Fleming (1861) 4 Macq. 167, H.L.(Sc.) and Groom v. Crocker [1939] 1 K.B. 194, C.A. not followed.

Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.); Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465, H.L.(E.) and Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, H.L.(E.) applied.

(2) That, on the facts, the three-fold elements of the tort of negligence existed, in that the beneficiary was someone to whom the solicitors owed a duty of care as being a person within the solicitors' direct contemplation as being likely to be injured by their failure to carry out the testator's instructions; secondly, there was a breach of that duty of care; and thirdly, the beneficiary had in the result suffered loss; that accordingly, the solicitors were in breach of a duty of care towards her (post, pp. 611A–C, 626G–H).

(3) That there were no considerations to negative or to reduce or limit the scope of the solicitors' duty and it was immaterial that the beneficiary had not relied on their skill, for it was not a case where such reliance was essential to liability; that further, the fact that the beneficiary's claim was for financial loss only was no bar to liability, particularly since the negligence affected her individually and not as a member of an unascertained class; that accordingly, the beneficiary ought to recover by way of damages the benefits under the will to which she would otherwise have been entitled, and the court would so hold (post, pp. 615D–E, 618A, G–H, 623A–B, 624G–625A, 626H).

Ministry of Housing and Local Government v. Sharp [1970] 2 Q.B. 223, C.A.; Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373, C.A. and dictum of Lord Wilberforce in Anns v. Merton London Borough Council [1978] A.C. 728, 751–752, H.L.(E.) applied.

Whittingham v. Crease & Co. [1978] 5 W.W.R. 45 and Caltex Oil (Australia) Pty. Ltd. v. The Dredge “Willemstad” (1976) 136 C.L.R. 529 considered.

The following cases are referred to in the judgment:

Anns v. Merton London Borough Council [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492, H.L.(E.).

Batty v. Metropolitan Property Realisations Ltd. [1978] Q B. 554; [1978] 2 W.L.R. 500; [1978] 2 All E.R. 445, C.A.

Biakanja v. Irving (1958) 320 P. 2d 16.

Caltex Oil (Australia) Pty. Ltd. v. The Dredge “Willemstad” (1976) 136 C.L.R. 529.

Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164; [1951] 1 All E.R. 426, C.A.

Cattle v. Stockton Waterworks Co. (1875) L.R. 10 Q.B. 453.

Clark v. Kirby-Smith [1964] Ch. 506; [1964] 3 W.L.R. 239; [1964] 2 All E.R. 835.

Cockburn v. Edwards (1881) 18 Ch.D. 449, C.A.

Cook v. Swinfen [1967] 1 W.L.R. 457; [1967] 1 All E.R. 299, C.A.

Davis Contractors Ltd. v. Fareham U.D.C. [1956] A.C. 696; [1956] 3 W.L.R 37; [1956] 2 All ER. 145, H.L.(E.).

Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.).

Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004; [1970] 2 W.L.R. 1140; [1970] 2 All E.R. 294, H.L.(E.).

Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373; [1972] 2 W.L.R. 299; [1972] 1 All E.R. 462, C.A.

Esso Petroleum Co. Ltd. v. Mardon [1976] Q.B. 801; [1976] 2 W.L.R. 583; [1976] 2 All E.R. 5, C.A.

Fish v. Kelly (1864) 17 C.B.N.S. 194.

Glanzer v. Shepard (1922) 135 N.E. 275.

Groom v. Crocker [1939] 1 K.B. 194; [1938] 2 All E.R. 394, C.A.

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] A.C. 465; [1963] 3 W.L.R. 101; [1963] 2 All E.R. 575, H.L.(E.).

Heywood v. Wellers [1976] Q.B. 446; [1976] 2 W.L.R. 101; [1976] 1 All E.R. 300, C.A.

Lucas v. Hamm (1961) 11 Cal.Rptr. 727: 364 P. 2d 685.

Midland Bank Trust Co. Ltd. v. Hett, Stubbs & Kemp [1979] Ch. 384; [1978] 3 W.L.R. 167; [1978] 3 All E.R. 571.

Ministry of Housing and Local Government v. Sharp [1970] 2 Q.B. 223; [1969] 3 W.L.R. 1020; [1969] 3 All E.R. 225; [1970] 2 Q.B. 223; [1970] 2 W.L.R. 802; [1970] 1 All E.R. 1009, C.A.

Mutual Life and Citizens' Assurance Co. Ltd. v. Evatt [1971] A.C. 793; [1971] 2 W.L.R. 23; [1971] 1 All E.R. 150, P.C.

Pecheries Ostendaises (Soc. Anon.) v. Merchants' Marine Insurance Co. [1928] 1 K.B. 750, C.A.

Remorquage a Helice (Societe Anonyme de) v. Bennetts [1911] 1 K.B. 243.

Rivtow Marine Ltd. v. Washington Iron Works (1972) 26 D.L.R. (3d) 559; (1973) 40 D.L.R. (3d) 530.

Robertson v. Fleming (1861) 4 Macq. 167, H.L.(Sc.).

S.C.M. (United Kingdom) Ltd. v. W. J. Whittall & Son Ltd. [1971] 1 Q.B. 337; [1970] 3 W.L.R. 694; [1970] 3 All E.R. 245, C.A.

Spartan Steel & Alloys Ltd. v. Martin & Co. (Contractors) Ltd. [1973] Q.B. 27; [1972] 3 W.L.R. 502; [1972] 3 All E.R. 557, C.A.

Ultramares Corporation v. Touche (1931) 174 N.E. 441.

Weller & Co. v. Foot and Mouth Disease Research Institute [1966] 1 Q.B. 569; [1965] 3 W.L.R. 1082; [1965] 3 All E.R. 560.

Whittingham v. Crease & Co. [1978] 5 W.W.R. 45.

The following additional cases were cited in argument:

Arenson v. Arenson [1977] A.C. 405; [1975] 3 W.L.R. 815; [1975] 3 All E.R. 901, H.L.(E.).

Rondel v. Worsley [1969] 1 A.C. 191; [1967] 3 W.L.R. 1666; [1967] 3 All E.R. 993, H.L.(E.).

Saif Ali v. Sydney Mitchell & Co. [1978] 3 W.L.R. 849; [1978] 3 All E.R. 1033, H.L.(E.).

Winterbottom v. Wright (1842) 10 M. & W. 109.

ACTION

By writ and statement of claim dated November 16, 1977, the plaintiff, Eileen Maud Ross, a sister-in-law of the testator, claimed against the defendants, Caunters, a firm of solicitors practising in Cornwall, that, in preparing a will for the testator, they owed her a duty to take reasonable care to inform and warn the testator of the provisions of the Wills Act 1837, particularly section 15, and to check that the dispositions in her favour were not invalidated by any defect in the execution or attestation of his will, and to draw the testator's attention to any such defect; further, that, negligently, and in breach of that duty, the defendants (a) failed to check whether the will was in conformity with the requirements of the Wills Act 1837, (b) failed to observe that an attesting witness was the plaintiff's husband, (c) failed to appreciate that the dispositions in the plaintiff's favour would be rendered void under section 15 of the Act by reason of the will's attestation by her husband, (d) failed to draw the testator's attention to the fact that the dispositions so made in the plaintiff's favour would be made void; and the plaintiff claimed she had suffered loss and damage resulting from the defendants' negligence and breach of duty.

The defence was an admission that there was a duty of care of the kind alleged but a denial that the duty was owed to the plaintiff. The obligation to take reasonable care in and about the making of the will was owed to their client, the testator, and to him alone. It was further denied that the defendants' negligence and breach of duty gave rise to any cause of action for damages at the suit of the plaintiff and no admission was made as to any damage or loss suffered by the plaintiff.

The facts are stated in the judgment.

John Cherryman for the plaintiff.

P. St. J. H. Langan for the defendant solicitors.

Cur. adv. vult.

June 15. SIR ROBERT MEGARRY V.-C. read the following judgment. In this case, the facts are simple and undisputed, and the point of law that it raises is short; yet it has taken five days to argue, and over 30 authorities, from both sides of the Atlantic, have very properly been cited, some at considerable length. In broad terms, the question is whether solicitors who prepare a will are liable to a beneficiary under it if, through their negligence, the gift to the beneficiary is void. The solicitors are liable, of course, to the testator or his estate for a breach of the duty that they owed to him, though as he has suffered no financial loss it seems that his estate could recover no more than nominal damages. Yet it is said that however careless the solicitors were, they owed no duty to the beneficiary, and so they cannot be liable to her.

If this is right, the result is striking. The only person who has a valid claim has suffered no loss, and the only person who has suffered a loss has no valid claim. However grave the negligence, and however great the loss, the solicitors would be under no liability to pay substantial damages to anyone. No doubt they would be liable to the testator if the mistake was discovered in his lifetime, though in that case the damages would, I think, be merely for the cost of making a new and valid will, or...

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