Solicitors and Professional Liabilities: A Step Forwards
| Date | 01 March 1979 |
| DOI | http://doi.org/10.1111/j.1468-2230.1979.tb01527.x |
| Published date | 01 March 1979 |
| Author | K. M. Stanton |
Mar.
19791
NOTES
01'
CASES
207
necessity. Nevertheless, we must assume that Lord Scarman,
in
confining
Bannister
v.
Bannister
to its particular facts, has doubts
about the majority view in
Binions
v.
Evans.lS
Indeed he cites this
case as an example of equity's supportive and supplementary role
when dealing with contractual licences.
"
Supportive and supple-
mentary" seems rather an understatement for the process of
sextending contracts to third parties, but the only possible conclusion
is that this
is
what Lord Scarman means and that he thereby
approves of at least part of Lord Denning M.R.3 reasoning in that
case. But for Lord Scarman, unlike Lord Denning
M.R.,
there is
no
need to talk of equitable interests or constructive trusts; just as
in
Tulk
v.
Moxhay,l*
the injunction
will
extend the contrqct to
catch
a
suitably undeserving third party without more.
If
this is
so
for a licence for life, why should it not be
so
for a licence for any
lesser period? Lord Scarman's distinction between
"
proprietary
interest "and
"
contractual right to live
"
in the house in the context
of
Tanner
v.
Tanner
then becomes rather puzzling. Could it be just
that Mrs Tanner had no transmissible interest? Suppose that she
had gone for a year to visit a sister in Australia, could she have
let the house while she was away? She has,
ex hypothesi,
provided
consideration and it seems
no
fairer to deprive her of its benefit,
,even temporarily, than it would be to deprive Mr. Dodsworth of the
benefit of his estoppel licence, based
on
his spending
$700,
in
similar circumstances. Moreover, as we are talking contract in
Tanner
v.
Tanner
and
Chandler
v.
Kerley
should it not be possible
to construct an agreement the benefit 'of which
was
clearly intended
to
be transmissible?
It is apparent that the mysteries remain. For Lord Denning M.R.
there may be an omnibus category embracing estoppel interests,
#contractual and sub-contractual licences.
On
Professor Atiyah's
theory and in the practical context of
Dodsworth
v.
Dodsworth
there
is
something to say for this. Lord Scarman, however, is determined
to
keep contracts and equitable interests firmly apart while, para-
doxically, affording to contracts exactly the quality that may have
led Lord Denning M.R. to call them equities-the power to bind
third parties.
STUART
ANDERSON
SOLICITORS
AND
PROFESSIONAL
LIABILlTIES
:
A
STEP
FORWARDS
IF
a solicitor is negligent in the exercise of his professional duties,
is
it open to his client to seek redress by framing his action in tort?
A negative answer to this question has been recognised for many
years, the client being forced to use contractual remedies.' This
13
[I9721
Ch.
359.
14
(1848)
2
Ph.
774.
This
was
why
Tulk
v.
Moxhay
made new law,
for
it contra-
dicted Lord Eldon's long-expressed opinion that injunctions could
not
be
used
to
create new rights.
1
The classic examples ace
Groom
v.
Crocker
[1939]
1
K.B.
194
and
Cfurk
v.
Uirby-Smirh
[
19641
Ch.
506.
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