Walker v Medlicott & Son (A Firm)
| Jurisdiction | England & Wales |
| Judge | SIR CHRISTOPHER SLADE,LORD JUSTICE MUMMERY,LORD JUSTICE SIMON BROWN |
| Judgment Date | 19 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1119-24 |
| Docket Number | CCRTF 97/1557 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 1998 |
[1998] EWCA Civ J1119-24
Lord Justice Simon Brown
Lord Justice Mummery
Sir Christopher Slade
CCRTF 97/1557
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE PERRETT QC)
Royal Courts of Justice
Strand
London WC2
MISS J WICKS (Instructed by Messrs Edge & Ellison of Rutland House, 148 Edmund Street, Birmingham B3 2JR) appeared on behalf of the Appellant
MRS T ROSEN PEACOCKE (Instructed by Pinsent Curtis of 3 Colmore Circus, Birmingham B4 6BH) appeared on behalf of the Respondent
Thursday 19th November 1998
Mr Robert James Walker ("Mr Walker") appeals from an order made by His Honour Judge Perrett QC in the Birmingham County Court on 24th October 1997, whereby he gave judgment for the defendant firm of solicitors Geo H Medlicott & Son ("the defendants").
Mr Walker is a nephew of Mrs Marion Ruth Collins who died on 27th May 1995. Some ten years earlier, in April 1986, Mrs Collins ("the testatrix") had instructed Mr Peter James Medlicott of the defendants, who had been in practice as a solicitor since 1968, to draft a will for her. He did so and she executed the will on 9th April 1986. In the action Mr Walker claimed that, contrary to the testatrix's instructions, the defendants, in drafting the will, had negligently failed to include in it a specific devise in favour of Mr Walker of the testatrix's house at 11 Norton Street, Knighton, Powys ("the house").
The action was brought in reliance on the principles established by the majority decision of the House of Lords in White v Jones [1995] 2 AC 207. In that case the negligent delay of a firm of solicitors in carrying out the instructions of a testator for a new will led to the death of the testator before the will had been prepared and executed. The plaintiffs, who would have benefited under the new will, brought a claim against the solicitors in negligence. Their Lordships had to consider for the first time the correctness or otherwise of the decision in Ross v Caunters [1980] Ch 297, in which case Sir Robert Megarry V-C. had upheld a claim in negligence brought against solicitors by a disappointed beneficiary under a will which, owing to the solicitors' negligence had not been properly attested. The principal issue falling for decision by the House of Lords in White v Jones, as described by Lord Goff of Chieveley (at p 254F-G), was "whether in the circumstances of cases such as Ross v Caunters and the present case the testator's solicitors are liable to the disappointed beneficiary". The majority approved the decision in Ross v Caunters and held that they were liable. Lord Goff, who was one of the majority, recognised [at p 256–257) the substantial conceptual difficulties involved in reaching such a conclusion, most particularly because of the general, well-established rule that a solicitor acting on behalf of a client owes a duty of care only to his client. However, a primary consideration which influenced him in holding that a duty of care should be owed by the testator's solicitor to a disappointed beneficiary was the following (see at p 259G-260A):
"In the forefront stands the extraordinary fact that, if such a duty is not recognised, the only persons who might have a valid claim (i.e. the testator and his estate) have suffered no loss, and the only person who has suffered a loss (i.e. the disappointed beneficiary) has no claim: see Ross v Caunters [1980] Ch 297, 303A, per Sir Robert Megarry V-C. It can therefore be said that, if the solicitor owes no duty to the intended beneficiaries, there is a lacuna in the law which needs to be filled. This I regard as being a point of cardinal importance in the present case."
The same point was made by Lord Browne-Wilkinson [at p 276B-C]:
"To my mind it would be unacceptable if, because of some technical rules of law, the wishes and expectations of testators and beneficiaries generally could be defeated by the negligent actions of solicitors without there being any redress. It is only just that the intended beneficiary should be able to recover the benefits which he would otherwise have received."
Lord Nolan, the third member of the majority made the same point. He concluded (at p 293C-D) that "simple justice" required that the plaintiffs should succeed, saying:
"…the respondents have suffered damage because of the appellants' breach of their professional duty, and they are therefore entitled to the remedy—the only remedy—which the law can offer …."
Much more recently, this Court in Carr-Glynn v Frearsons [1998] 4 AER 225 (a decision not cited to us) had to consider a claim in negligence brought against a solicitor-draughtsman of a will, who had failed to advise the testator to serve a notice of severance of a joint tenancy of a property, with the result that the property did not fall into the testator's estate and a gift to the plaintiff of the testator's interest in the property contained in the will could not take effect. The question for the Court, as formulated at p 231 f-g by Chadwick LJ, who gave the leading judgment, was this:
"The question, therefore, is whether the remedy which the House of Lords was prepared to extend to a disappointed beneficiary in White v Jones is confined to those cases, of which White v Jones was an example, in which the estate itself has no remedy—so that, absent a remedy at the suit of the beneficiary, there is no remedy at all; or is to be further extended to cases in which the estate does have a remedy but where the estate's remedy will be of no advantage to the disappointed beneficiary."
[I pause to comment that the estate's remedy would have been of no advantage to the beneficiary in that case, because any damages recovered in the action would have fallen into residue, rather than passing under the specific gift to the plaintiff contained in the will.]
The Court answered this question by holding that the disappointed beneficiary in such circumstances did have a remedy against the negligent solicitor-draughtsman. That case, as Thorpe LJ recognised in his judgment (at p 237b), involved "a permissible incremental extension of the holding in White v Jones" and there is at least one passage in the judgment of Chadwick LJ (see at p 235 b-c) which suggests that in general a solicitor-draughtsman of a will owes a duty of care to a specific legatee to ensure that effect is given to the testator's testamentary intentions.
The facts of the present case, however, differ from those of Ross v Caunters, White v Jones and Carr-Glynn v Frearsons. The alleged negligence (if any) of the defendants consists not of the failure to see that a will is properly attested, or of the failure to draw it up at all, or of the failure to advise the testator to take some action to ensure that the relevant asset will fall into his estate, but of the failure to draft the will in accordance with the testatrix's instructions. Counsel have told us that neither of them is aware of any decided case in which the Court has had to consider a claim in negligence brought against solicitors arising out of the allegedly bad drafting of a will which has actually been executed.
A claim against solicitors brought by a disappointed beneficiary who claims that the will was negligently drafted could be said to give rise to questions of principle that did not arise in Ross v Caunters, White v Jones or Carr-Glynn v Frearsons. In none of those cases would the disappointed beneficiary have had any remedy at all if he had none in negligence. On the other hand, in circumstances such as those of the present case, the claim in negligence is by no means the disappointed beneficiary's only remedy, because of the existence of the remedy of rectification—a remedy not available or considered in any of the three earlier cases.
In the 19th century, in the absence of fraud, the rule was that where a will had been read over to a testator or its contents had been brought to his attention in any other way, and he had executed it, this should be treated as conclusive evidence that he approved, as well as knew, its contents. As the decision of Latey J in re Morris [1971] P.62 shows, these facts are no longer regarded by the Court as conclusive or as giving rise to a presumption of law. Nevertheless, for obvious reasons of public policy, the Court will still attach considerable importance to them in weighing the evidence as to knowledge and approval. Furthermore, up to 1983, the law was clear that even
"where there is absence of knowledge and approval,…the Court has no power to rectify by adding [emphasis added] words to the instrument. This has been so clearly stated judicially and for so long that it is not open to question in this Court and can only be changed by legislation or possibly by a higher tribunal: "(see ibid at p 75B-C per Latey J).
The law as thus stated would have precluded any question of rectification in the present case by the insertion in the will of a devise of the house in favour of Mr Walker. However, it was changed by subsequent legislation. Section 20(1) of the Administration of Justice Act 1982, which came into operation on 1st January 1983, provided as follows:
"(1) If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence—
(a) of a clerical error; or
(b) of a failure to understand his instructions,
it may order that the will shall be rectified so as to carry out his intentions."
For reasons which will be stated later in this judgment, I think that, if the claims of negligence made by Mr Walker in the present action are well-founded, he would also have had a good claim for rectification of the will....
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