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Cite as: [2000] EWCA Civ 295

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Case No: A3/1999/0757 CHANF

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
OF JUSTICE CHANCERY DIVISION
(Mr Justice Jacob)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 21^st November 2000

B e f o r e :
LORD JUSTICE KENNEDY
LORD JUSTICE POTTER
and
LORD JUSTICE JONATHAN PARKER
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	TWENTY TWO A PROPERTY INVESTMENTS LIMITED	Claimant
	- and -
	(1) MESSRS SIMPSON CURTIS (A Firm) (2) KEITH YOUNG (3) ROBERT RODICK ACKRILL BREARE	Defendants

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Alan Steinfeld QC and Stephen Moverley Smith Esquire (instructed by Herbert Smith, London, for the claimant)
Anthony Temple QC and Francis Tregear Esquire (instructed by Browne Jacobson Solicitors, Nottingham, for the first defendant)
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Judgment
As Approved by the Court
Crown Copyright ©
Potter LJ:
INTRODUCTION
1. This is an appeal against the judgment and order of Park J dated 21^st June 1999, whereby he gave judgment in favour of the claimant Twenty Two A Property Investments Limited ("22A") for £2,125,600.62 and costs on 22A's claim for damages for negligence against the first defendant Simpson Curtis ("SC") as its former solicitors. Park J dismissed SC's counterclaim for unpaid fees in respect of the transaction in which such negligence occurred. By this appeal SC seeks an order setting aside the judgment and dismissing 22A's' claim and awarding SC judgment on their counter-claim.
2. The claim arises from the collapse of a property transaction in which 22A was involved.
THE FACTUAL BACKGROUND
3. 22A had an option to purchase a bus depot in Hatfield from Mr Keith Young and Mr Robert Breare ("Young and Breare") for £1.1 million. In 1989 Young and Breare had an opportunity to sell the bus depot to Laing Investments (Bracknell) Limited ("Laing") for £3.1 million. In order for Young and Breare to be able to sell the bus depot free of encumbrances, it had to procure 22A to give up its option and to obtain the surrender of a lease of the bus depot, with vacant possession, by the tenant ("the Bus Company").
4. By negotiations which were concluded in August 1989, Young and Breare agreed in writing to sell the bus depot to Laing for £3.1 million ("the Sale Agreement"), 22A agreeing to surrender its option for £1.65 million ("the Option Surrender Agreement"). Both agreements were dated 16^th August 1989. The Bus Company also agreed to surrender its lease.
5. The Sale Agreement (to which 22A was not a party) was, by clause 20, conditional on Young and Breare satisfying a number of pre-conditions. These related to an area of the bus depot which was let to Abbey Life Assurance Company Limited ("Abbey Life") who owned an adjoining building ("Harrier House"). Abbey Life in turn had sub-let to three tenants, all with rights to use the existing car park for staff. Young and Breare proposed that Abbey Life should give up its lease on the existing car park in exchange for a car parking lease in a different area of the site, an arrangement in which Abbey Life and its three sub-tenants would participate by four different deeds of variation, which would be put into operation pursuant to prior court orders under the Landlord and Tenant Act 1954 approving such deeds. The pre-conditions had to be satisfied by Young and Breare as soon as reasonably practicable, but in any event by 26 February 1990, failing which the Sale Agreement automatically terminated and the deposit paid by Laing was repayable.
6. Under the Option Surrender Agreement, 22A agreed with Young and Breare to surrender its option and the Bus Company agreed to surrender its lease. It was a term of that agreement that, if the Sale Agreement was not completed by 28 February 1990, the Option Surrender Agreement could be determined on notice by either party. However, Clause 11 provided that Young and Breare would use their reasonable endeavours to procure that the Sale Agreement became unconditional as soon as reasonably practicable and 22A's benefit from surrendering its option was dependent on the completion of the Sale Agreement on or before the final deadline of 26 February 1990 referred to in paragraph 5 above. Completion of the Sale Agreement was in the hands of Young and Breare and Laing, and, in particular, the responsibility rested upon Clifford Chance ("CC"), the solicitors acting for Young and Breare. The employee of CC responsible for the transaction was Mr Dun, a Scottish qualified solicitor who was obtaining an English qualification.
7. Against the background of 22A's lack of control over the process and deadline by which the Sale Agreement would become unconditional, 22A retained Mr Wilford of SC to monitor the transaction and protect 22A's interest. In a letter dated 18 September 1989, 22A stated:
"I write to confirm that KeithYoung is more than happy for you to work closely with [Chris] Dun to make sure my position is well protected. I would be obliged therefore if you would keep actively pursuing to see that matters are progressing as we would expect."
At trial, Mr Wilford accepted that the passage quoted constituted SC's instructions from 22A so far as SC's monitoring role was concerned. He had already been in contact with Mr Dun in connection with the negotiation and exchange of the agreements which had taken place and, his responsibility from that time on was to secure that the pre-conditions for the sale to Laing were fulfilled so that completion could take place before the deadline of 26 February 1990.
8. In that respect, everything appeared to proceed smoothly at first instance, neither Abbey Life nor any of the sub-tenants having any objection in principle to the exchange of car parking areas. Mr Wilford and Mr Dun were in regular contact and Mr Wilford regularly reported back to Mr Stephenson of 22A. On 31 October 1989 he reported that CC were `hopeful of having agreed documentation fairly shortly'. However, despite the willingness of the lay participants to agree the revised car parking arrangements, the negotiation of the terms of the formal deeds of variation became bogged down in the hands of the solicitors involved.
9. On 7 December 1989 Mr Dun wrote to Mr Wilford expressing optimism that they would still be in a position to complete on 2 January 1990 as had for some time been envisaged. However, matters dragged on in relation to certain matters of detail. Completion did not occur on 2 January 1990; nor upon 29 January 1990 the next target date which it was anticipated would be achieved. Park J, having reviewed the position as it stood in February stated as follows:
"The only matter of any substance which was outstanding was arranging for the three sub-tenants to execute the agreed deeds of variation and for the executed deeds to be in the hands of the solicitors who would be involved in the formal completion. By the week beginning 19 February, the achievement of completion was little if anything more than a matter of organisation and co-ordination."
10. Unfortunately, as between the solicitors directly concerned, there appears to have been insufficient sense of urgency. The reason for this principally reposes in the positive finding of the judge that Mr Dun of CC either never realised that 26^th February 1990 was a `drop-dead' date for completion or that, if he had at one time realised that, he had certainly forgotten it by the middle of February. He was proceeding on the basis that it did not matter if the contractual completion date was missed. The judge could not be sure whether the solicitors to Abbey Life knew; however, it appeared that the sub-tenants' solicitors were not aware of the urgency. This was clear from the statement in evidence of the solicitor to one sub-tenant, whose deed of variation was not executed and in place by February, that, if she had known that 26 February was the deadline for completion, she would have done her utmost to ensure that the deed was available in time. Against that background, on Tuesday 20 February Mr Dun recorded in an internal memorandum to a colleague:
"I would anticipate that should no further unforeseen problems arise we should be in a position to complete the sale within, say, the next two weeks"
That memorandum (not of course known to Mr Wilford) makes crystal clear the failure of Mr Dun to appreciate the urgency of the position.
11. That was the week prior to the deadline date of Monday 26^th February. As to Mr Wilford's actions in that week, the judge found that, so far as the evidence showed he did nothing relevant to the transaction on Monday 19th, Tuesday 20th or Wednesday 21st. On Thursday 22nd, however, Mr Dun telephoned him, sending a fax in confirmation shortly before 5 p.m. which, so far as relevant, read as follows:
"Further to our telephone conversation this afternoon, I confirm that Carter Lemon [Laing's solicitors] have advised that we should work towards completion on 26 February. I enclose for your approval a draft completion statement brought down to the above date."
I shall call that message "the Thursday fax".
12. As the judge noted, Friday 23^rd February was the last day available to get everything ready if there was to be a smooth completion without last-minute `panics' on Monday 26^th February. However, so far as the documents and evidence revealed, very little happened. In particular, Mr Dun made no administrative arrangements for a completion meeting to take place on Monday, or for the necessary solicitors to be available for completion to take place by telephone. So far as Mr Wilford's actions were concerned, it appears from SC's telephone records that he made an outgoing telephone call in connection with the matter, lasting twenty-five minutes ("the Friday telephone call"). However, he had no personal recollection of it. He stated that he thought it was probably to Mr Dun, but if that was so, he was unable to say what was said. He made no attendance note of the call and, although some attendance notes of Mr Dun were in evidence, none related to such a call.
13. On Monday 26^th February, as the judge found, Mr Dun was `moderately active' in connection with the transaction, but he did not seek to complete that day because an administrative snag existed in that one of the three deeds of variation required to fulfil the pre-conditions was still at the offices in Hatfield of the sub-tenant concerned and had not been transmitted to its solicitors in central London for them to pass on to the solicitors who would perform the completion. At 9.55 a.m., Mr Dun telephoned Mr Douglas at Carter Lemon (for Laing) to tell him the deed had not yet been returned. Mr Douglas said that he was expecting to receive the completion money shortly from Laing, only for Mr Dun to tell him that Laing should hold on to the money `as he did not think he would be completing today and they should not therefore transmit further money until tomorrow'. Mr Dun then proceeded on that basis, arranging for a motor cycle courier to collect the outstanding deed the following morning, for completion to take place in London. He also dealt with a hiccup concerning the presence of gypsies in the new car parking area. However, he sorted it out during the course of the day and the judge held that it would not have prevented completion if the other arrangements had been in place. So far as the latter were concerned, the judge also held that, if Mr Dun had had in mind the urgency of the situation and the necessity to complete on Monday, he could have achieved it. Having observed that Mr Dun had all the resources of Clifford Chance behind him, the judge stated:
"On the 26^th itself, Mr Dun did not realise that it was urgent to get the deed couriered to London on that day, so he arranged to have it couriered the next morning. If he had realised that it was urgent he would have arranged for it to be done the same day. Indeed, I believe that until quite some time in to the afternoon of the 26^th he would probably have still have been in time to get this done so that completion could take place. There might have been an element of `panic stations', but it could have been done. And if he had understood the correct position, or had had the correct position drawn to his attention on Thursday or Friday of the previous week, there would have been no panic stations; the deed would have been collected from Softwright in plenty of time and completion would have taken place smoothly and without difficulty, probably on the morning of the 26^th."
14. So far as Mr Wilford's activity on the 26^th was concerned, he was in his office in Leeds and spent most of the day working on other matters, while expecting to be telephoned by Mr Dun so that the two of them could complete by telephone the aspects of the entire transaction which required completion between their respective clients. As time went by without such a call being received, he started to feel concerned. He said that he made telephone calls to Clifford Chance and asked for Mr Dun. He was unable to speak to him and left messages for him to call back. However, Mr Dun did not do so. Mr Wilford did not take the matter further, but, at the end of the working day, he went home having left a telephone message with Mr Stephenson's secretary that completion had not taken place that day. In the evening he spoke personally to Mr Stephenson telling him that completion would take place on the 27^th.
15. Unfortunately, that was not so because, on 27^th February, Carter Lemon on behalf of Laing wrote saying that the sale contract was terminated and, in addition, gave notice of recission. Notice quickly followed from Young and Breare determining the Option-Surrender Agreement. Because of a substantial fall in the property market over the preceding months, the deal between Young and Breare and Laing had to be negotiated at a lower price. 22A only received £668,000 in respect of its option, instead of the £1.65 million it would otherwise have received, thus sustaining a loss of some £982,000, which made up the principal element of the judge's award of damages against SC.
THE JUDGMENT BELOW
16. So far as the scope of CC`s retainer was concerned, the judge stated the obligation of Mr Wilford in this way:
".. in my judgment the retainer required Simpson Curtis to do more than sit back and leave the matter to Clifford Chance. Mr Young had agreed that Mr Wilford could work with Mr Dun, but I consider that Mr Wilford had to keep himself informed at all times of what Mr Dun was doing and proposing to do, in case it appeared that something might be at risk of going wrong. If it did appear that something might be going wrong, Mr Wilford had to be prepared to influence Mr Dun and exert pressure on him to put it right. He would not have been justified in refraining from making his views known because of an apprehension that (to quote the Skeleton Argument of Mr Temple QC and Mr Tregear for Simpson Curtis) Clifford Chance would have regarded a reminder from him as `mildly offensive'. In any case Mr Dun had been told by his clients that Mr Wilford would be taking an interest in the matter as it progressed, Mr Wilford and Mr Dun were on good terms with each other, and I am sure that Mr Wilford (who appeared in the witness box to be a most courteous person) was well capable of avoiding the giving of offence whilst still liaising in a positive way with Mr Dun."
17. Having defined Mr Wilford's obligations in that way, the judge found that he had fallen short of what was required. In analysing the nature and extent of Mr Wilford's activities to this end, the key findings of Park J, to which Mr Temple has addressed his principal criticisms on this appeal, were as follows:
"E6. In my judgment, if Mr Wilford had properly discharged Simpson Curtis's duty to Twenty Two A, he would have found out that Mr Dun did not realise that the 26^th was a drop-dead date, and would have corrected Mr Dun's error. Even if he did not specifically discover that Mr Dun was proceeding under a misapprehension, he ought at least to have enquired of him what arrangements he had made with a view to getting completion through in time. If he had done that, it seems to me virtually inevitable that Mr Dun would have woken up to the correct position. I cannot imagine that a conversation on the arrangements for completion could have gone on between them without the critical importance of the 26^th coming up at some stage. Once it did, I think that it is obvious that Mr Dun would have revised his plans so as to ensure that the drop-dead date was not missed .... .
E8. In the week beginning 19 February, the evidence indicates that Mr Wilford did nothing in the matter until Thursday 22^nd. The deadline for completion was getting critically close, and in my judgment his duty to `make sure that [22A's] position is well protected' and to `keep actively pursuing to see that matters are progressing as we would expect' meant that he should have been in contact with Mr Dun to check that Mr Dun had matters in hand to get the transaction through by the 26^th. For the reasons which I have given I believe that, if he had done that, Mr Dun would have realised the correct position and would have ensured that the completion did take place.
E9. Even on Thursday 22 February, Mr Wilford did nothing on his own initiative. He received a telephone call and a fax from Mr Dun telling him that Mr Dun was `working towards' completion on the 26^th. Mr Temple says that this message, taken with the accompanying completion statement made up to the 26^th, was enough to satisfy Mr Wilford that there would be no problem and the completion would take place in time. I do not agree. On the contrary, I agree with Mr Steinfeld that the expression `working towards' should have set alarm bells ringing, and should have been enough to prompt a tactful observation from Mr Wilford to the effect that, if they `worked towards' completion on the 26th but did not achieve it, the whole transaction would collapse. In my opinion an observation of that sort, even by itself would have been enough to avert the disaster which in fact occurred. It is clear, however, that Mr Wilford made no such observation. He took note of what Mr Dun said and does not appear to have given any particular response to it.
E10. I move to Friday 23 February. ... I consider that Mr Wilford should, in the interests of his client, 22A, have been on the telephone to Mr Dun to check that he was indeed doing it. The only evidence that exists is that Mr Wilford made a twenty-five minutes outgoing telephone call that day, but he cannot remember who it was to, still less what was said in he course of it. If it was not to Mr Dun, it ought to have been. If it was, to Mr Dun, it seems obvious that in the course of a twenty-five minutes' conversation Mr Wilford failed to discover Mr Dun's potentially disastrous mistake, and also failed to say anything which caused Mr Dun to realise his mistake for himself. Either way, I can only conclude that what Mr Wilford did or omitted to do on the Friday amounted to a failure on that day to fulfil Simpson Curtis's duties to 22A."
18. So far as Monday 26^th February was concerned, the judge raised a question mark as to the accuracy (though not the sincerity) of Mr Wilford's evidence as to the unsuccessful series of calls which he said he made on Monday, in the light of two factors. First, there was no file note made by Mr Wilford to this effect; second, other documents in the case showed that Mr Dun was in his office that day and answered the telephone to other callers. The judge did not find it necessary to make a positive finding of fact in that respect. He simply put the matter in this way:
"E13. Assuming, however, that Mr Wilford's sincere recollection that he did try to speak to Mr Dun is correct, I have to say that what he did was inadequate. A major transaction was on the brink of collapsing, and if it did collapse there would be a considerable loss to Mr Wilford's client. It was fair enough for him simply to leave a message for Mr Dun to call him back the first time when he could not get through to Mr Dun himself perhaps the same might have applied the second time, although it would in my opinion have depended on the time of day. But there must have come a time when Mr Wilford ought to have pressed the matter further on the telephone. Presumably Mr Dun had a secretary. Mr Wilford could have asked to speak to her and impressed on her the imperative urgency of the matter. Mr Dun had colleagues and superiors who worked in the same department at Clifford Chance as he did. One of them had looked after the matter a month or so earlier in Mr Dun's absence on holiday, so Mr Wilford knew him. Mr Wilford could have asked to speak to him or to another of Mr Dun's colleagues. With a big firm like Clifford Chance I am sure that if Mr Wilford had been as determined as the circumstances warranted he could have had an effective conversation with someone at the firm, and that even at the eleventh hour the transaction might have been saved.
E14. Alternatively, when Mr Wilford could not get through to Mr Dun he could have telephoned the solicitor who was acting for Abbey Life and co-ordinating the collection of the Deeds of Variation from the sub-tenants. Mr Wilford had spoken to that solicitor on a number of occasions in the past. A call to him would have elicited that Mr Dun was planning to complete one day too late, and might just have given Mr Wilford the time and the incentive to bring about the rescue of the transaction before it was too late.

E15. Mr Wilford did not do any of the things that he might have done when he could not get a reply from Mr Dun ... . By itself that might not have been enough to win the case for 22A. If the action against Simpson Curtis depended solely on the last day, I might not have been willing to find that Mr Wilford's failures on that day were sufficiently causative of 22A's loss to justify imposing liability on his firm. They were, however, wholly in line with what I regret to say I consider to have been deficiencies on his part through the previous week. They reinforce me in my view that I must decide this case in favour of 22A and against Simpson Curtis."

THE GROUNDS OF APPEAL
19. The grounds of appeal, argued at length and in detail by Mr Temple before us, maybe summarised in this way. First, he has submitted that the judge erred in his determination of the scope of SC's retainer in holding that the retainer included obligations on the part of SC to keep itself informed as to what CC was doing in case something might be at risk of going wrong and, whether specifically or by implication, to ensure that CC had not forgotten that 26^th February was a final deadline. He has argued that, the judge erred in not taking into account the fact that SC's role was no more than a `monitoring' role and that SC was entitled to perform its obligations on the basis that CC were a highly skilled and reputable firm of solicitors.
20. In my view, this ground of appeal may swiftly be disposed of. The terms of the retainer were clear. It anticipated, even if it did not require in terms, that Mr Wilford should work closely with Mr Dun `to make sure [22A's] position is well protected'. It specifically required Mr Wilford actively to pursue CC `to see that matters are progressing as we would expect'. To say that the role of CC was no more than a monitoring role is simply to beg the question of what was required to be done by SC. Plainly SC's retainer required it to do more than sit back and leave the matter to CC. I agree with the judge that Mr Wilford had to keep himself informed at all times of what CC were doing and proposed to do in case it should appear that something might be at risk of going wrong. The judge was also right to say, as he did, that Mr Wilford should have been prepared to influence Mr Dun and exert pressure on him if matters did not appear to be progressing as they should; and that Mr Wilford would not be justified in refraining from making his views known simply through an apprehension that CC would have regarded a reminder as to the deadline as an uncalled for interference in CC's leading role. In particular, against a background of mounting delay and the fast approaching deadline, Mr Wilford was under a duty to ascertain the position in sufficient detail to ensure that all was on course to achieve the 26^th February deadline.
21. Second, Mr Temple has submitted that the judge erred in determining that SC was in breach of duty by its failure to discover that CC had forgotten that 26^th February 1990 was a `drop-dead' date. In this context, two separate but related matters have been urged upon us. Mr Temple has challenged the finding of the judge which was plainly critical to his decision, that the Thursday fax from Mr Dun to Mr Wilford couched in terms of `working towards' completion on 26^th February should have set alarm bells ringing (see E9 at paragraph 17 above). Mr Temple has submitted that, bearing in mind the status of CC and its involvement as lead solicitor in the transaction, coupled with the enclosure of a completion statement made up to 26^th February 1990, the Thursday fax was, in the context, sufficient to set at rest any doubts concerning the achievement of the deadline which Mr Wilford might otherwise have entertained. I do not accept that submission. The matter is largely one of impression, but seems to me clear nonetheless. The text of the letter indicated an intention to achieve completion on that date, but it did not confirm that the vital importance of completing on that day was appreciated; quite the reverse. The fact that a completion statement for that date was also enclosed for approval was insufficient for that purpose. While the enclosure was consistent with the text of the letter, it did nothing to remove the need for enquiry.
22. Mr Temple has also submitted that, having held that Mr Wilford was himself aware that 26^th February was a `drop-dead' date, and having noted the making of the Friday telephone call (which had lasted twenty-five minutes), the judge should have inferred that during such conversation Mr Dun said sufficient as to the state of play and the arrangements which he had put in place to reassure Mr Wilford that completion would be achieved on 26^th February. Otherwise, as Mr Temple submitted, it was inconceivable that Mr Wilford would not have informed Mr Dun that completion must take place on that date, if necessary by undertakings over the telephone.
23. That submission is part of a general criticism by Mr Temple that the judge was too ready to draw inferences of fact to the disadvantage of Mr Wilford in the face of his understandable difficulties of recollection as to events and conversations some ten years previously. In this respect Mr Temple placed considerable emphasis on the findings of the judge (a) that Mr Wilford was an `honest and conscientious witness', and (b) that he was a `careful and competent solicitor'. Mr Temple submitted that, as such, the judge should have inferred that Mr Wilford acted carefully at all times unless the contrary was positively shown.
24. This does not seem to me to be a valid criticism. It does not reflect the judge's view that something of a question mark existed over the accuracy (though not the honesty) of Mr Wilford as a witness. The judge, aware that the picture, as he found it, was one of an almost unaccountable failure on Mr Wilford's part to take positive steps to ensure the completion took place against a `drop-dead' date of 26^th February, entertained the explanation explored by Mr Steinfeld in cross-examination of Mr Wilford, namely that he too was unaware, or had forgotten, that the 26^th was in fact a `drop-dead' date. The judge said:
"I accept implicitly that Mr Wilford believes that he appreciated at all times that the 26^th was a drop-dead date, but I confess that I wonder whether Mr Steinfeld just might be right and whether Mr Wilford might be mistaken about this. It all happened over nine years ago, and after that length of time any witness, however honest and conscientious (and Mr Wilford was an absolutely honest and conscientious witness) must have a lot of difficulty in distinguishing between what he did understand then and what he has come over the years to be convinced that he must have understood then. If Mr Wilford was under the same mistaken belief as Mr Dun, it would, I fear, still have been negligence on his part, but it would explain what to me was an unaccountable lack of positive action on the part of someone whom I do not doubt to be a careful and competent solicitor. However that may be, Mr Wilford believes that he did at all times know what the correct contractual position was, and henceforth I proceed on the basis that that was indeed the case."
25. In that passage it is plain that the judge referred to the honesty of Mr Wilford in the context of questioning his accuracy, and he referred to Mr Wilford's care and competence in general, by way of contrast with his apparent lack of positive action in the instant case. Nonetheless, having done so, he concluded that he should consider the actions of Mr Wilford on the Thursday and Friday on the basis that Mr Wilford was indeed aware of the `drop-dead' date, and on that basis made the findings and inferences of fact set out at E6-E10 of his judgment (see paragraph 17 above).
26. Mr Temple has been quite unable to persuade me that the judge was in error either in the careful examination which he gave to the evidence or the findings which he made, whether as to the effect of the Thursday fax (namely to put Mr Wilford on enquiry) or the Friday telephone call (if it was made). As to the latter, whatever may have been said, it was self-evident that nothing was said as to the `drop-dead' nature of completion towards which Mr Dun had said he working on Monday 26^th February. Had it been, it is inexplicable that Mr Dun could have been content to make no administrative arrangements on Friday for effecting completion and, by 9.55 am on Monday, to inform Curtis Lemon that they would not be completing that day.
27. In any event, as it seems to me, if SC was to place reliance upon the Friday telephone call as amounting to fulfilment of its instructions, the burden of proving the materiality and contents of that call lay upon SC. This, Mr Wilford failed to do. In evidence, he speculated that Mr Dun was the most likely recipient of that call; however in the absence of an attendance note, he was unable to say positively that was so, let alone to recall what was discussed and in what terms. In such circumstances, I do not consider that the conclusion of the judge can be faulted.
CONCLUSION
28. No challenge has been raised on this appeal to the findings of the judge as to Mr Dun's activities on Monday 26^th February, or that, had Mr Wilford drawn to Mr Dun's attention on Thursday or on Friday morning, that 26th February was the `drop-dead' date, the transaction would have been completed. The appeal has been directed entirely to the judge's findings of negligence and/or breach of retainer on the part of SC, no issue as to causation separately arising. That being so, for the reasons I have set out above, I would uphold the judge's findings and dismiss the appeal.
Lord Justice Jonathan Parker: I agree.
Lord Justice Kennedy I also agree.
ORDER: Appeal dismissed with costs to be assessed if not agreed.