The emergence of solicitors’ tortious liability and the award of damages

Pages316-330
DOIhttps://doi.org/10.1108/13590790310808862
Publication Date01 Oct 2003
AuthorMohammed B. Hemraj
SubjectAccounting & finance
Journal of Financial Crime Ð Vol. 10 No. 4
The Emergence of Solicitors' Tortious Liability and
the Award of Damages
Mohammed B. Hemraj
INTRODUCTION
It used to be proverbial that a gratuitous opinion
expressed by counsel in response to inquiries from
his instructing solicitor while they were walking
back from Westminster Hall to Lincoln's Inn was
worth no more than the fee paid for it. Otherwise,
it was felt, it would be extremely hazardous for an
attorney to venture to give an opinion upon any
point of law in the course of a journey by railway.
1
Groom v Crocker
2
had established a legal rule that an
action by a client against a solicitor alleging negli-
gence in the conduct of the client's aair was
always for breach of contract. However, this case,
instead of forming a precedent, was rejected by Esso
Petroleum Co Ltd v Mardon
3
and Oliver J in Midland
Bank Trust Co Ltd v Hett, Stubbs & Kemp (a ®rm)
4
and thus came the conclusion that the doctrine asso-
ciated with Groom v Crocker was no longer the pre-
vailing law. The aim of this paper is to analyse the
emergence of tortious liability on professional solici-
tors and to make a critical analysis of damages
awarded against solicitors for their negligence in pre-
paring wills (testamentary disposition) thus causing to
bene®ciaries losses recognisable in law.
TORTIOUS CLAIM
Negligence has been established as an independent
tort. According to Megarry VC in Ross v Caunters
5
it had become dicult to see the logic in the proposi-
tion that if A employs B to do an act for the bene®t of
C, the existence of B's contractual duty to A to do an
act with proper care negates any possible duty of B
towards C, since B has no contract with C. Why
should the existence of a contractual duty to A
preclude the non-contractual duty to others?
A solicitor's liability to his client for negligence is
not con®ned to liability in contract, to the exclusion
of liability in tort Ð the client, although in a contrac-
tual relationship with the solicitor, can base his claim
on tort. To hold a solicitor liable to a third party for
the tort of negligence would not be inconsistent
with a solicitor's immunity, as there was no such
immunity.
The justi®cation for a claim in tort is based on
several factors: ®rst, the contemplation of the plainti
was actual, nominate and direct. The plainti was
named and identi®ed in the will that the defendant
drafted for the testator. Second, the proximity of
the plainti to the defendant was in no way casual
or accidental or unforeseen. The defendant had
accepted a duty towards the testator to take reason-
able care that he would, inter alia, carry a share of
residue from the testator's estate to the plainti.
The solicitor was bound by a duty of care towards
the testator that he had accepted; and that included
a duty to confer a bene®t on a third party.
Third, the fear of the defendant being exposed `to a
liability in an indeterminate amount for an indeter-
minate time to an indeterminate class'
6
expressed in
other professions like auditors was unfounded. `The
liability would be to one person alone, the plainti.
The amount would be limited to the value of the
share of residue intended for the plainti. There
would be no question of widespread or repeated
liability . . . '
7
ABSENCE OF PRIVITY IS NO BAR TO
A CLAIM
In the American case Biakanja v Irving
8
a Supreme
Court of California, despite the absence of privity,
held a notary public who had prepared a will negli-
gently for his client liable to a legatee for damages.
The will here was invalidated as the witnesses were
neither present when the client-testator signed the
will nor had they signed in each other's presence as
was required by law. Gibson CJ opined that the
imposition of the liability was a matter of policy.
The policy in turn involved the balancing of several
factors like the extent to which the transaction was
intended to aect the plainti; the foreseeability of
harm to him; the degree of certainty of the plainti
suering injury; the closeness of the connection
between the defendant's conduct; and the policy of
preventing future harm. The end and aim of the
transaction was felt to be to provide for the testator's
estate to pass to the plainti
9
and the defendant must
Page 316
Journal of Financial Crime
Vol.10,No. 4, 2003,pp.316 ±330
#HenryStewart Publications
ISSN 1359-0790

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